The Oregon Administrative Rules contain OARs filed through November 15, 2015

 

QUESTIONS ABOUT THE CONTENT OR MEANING OF THIS AGENCY'S RULES?
CLICK HERE TO ACCESS RULES COORDINATOR CONTACT INFORMATION

 



DEPARTMENT OF HUMAN SERVICES,

AGING AND PEOPLE WITH DISABILITIES AND DEVELOPMENTAL DISABILITIES




 

DIVISION 20
ADULT PROTECTIVE SERVICES — GENERAL

411-020-0000
Purpose and Scope of Program
(1) RESPONSIBILITY. The Department of
Human Services (Department), Aging and People with Disabilities program area (APD)
has the responsibility to provide Adult Protective Services (APS) to older adults
and to adults with physical disabilities whose situation is within APD's jurisdiction
to investigate.
(2) INTENT. The intent of
the APS Program is to provide protection and intervention for older adults and adults
with physical disabilities who are unable to protect themselves from harm and neglect.
(3) SCOPE OF SERVICES. The
scope of services includes:
(a) Receiving reports of
abuse, neglect, or self-neglect;
(b) Providing and documenting
risk assessment of reported victims;
(c) Conducting and documenting
investigations of reported wrongdoing; and
(d) Providing appropriate
resources for victim safety.
(4) AVAILABILITY. Adult protective
services are available from the Department to any adult resident of a licensed care
facility, to nursing facility residents regardless of age, and to any adult residing
in the community who meets the eligibility criteria listed in OAR 411-020-0015.
(5) INTERVENTION MODEL.
(a) As a human services agency,
the Department embraces a social model of intervention with a primary focus on offering
safety and protection to the reported victim. The over-arching ethical value in
adult protective services is the obligation to balance the duty to protect older
adults and adults with physical disabilities with the duty to protect their rights
to self-determination.
(b) The Department relies
upon other key sources, such as law enforcement, legal, medical, and regulatory
professionals, to assist in responding to the overall problems associated with abuse
and neglect, and encourages active participation and sharing of appropriate information
by APS staff on multidisciplinary teams.
(c) The Department supports
efforts to promote education and outreach services that help identify and prevent
abuse and neglect of older adults and adults with physical disabilities.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765, & 443.767
Stats. Implemented: ORS 124.050–124.095,
410.020, 410.040, 410.070, 411.116, 441.630–441.695, 443.450, 443.500, &
443.767
Hist.: PWC 750(Temp), f.
8-18-75, ef. 8-21-75; PWC 769, f. 10-20-75, ef. 10-25-75; AFS 5-1980, f. & ef.
1-25-80; Renumbered from 461-011-0000 by Ch. 784, OL 1981 & AFS 69-1981, f.
9-30-81, ef. 10-1-81; SSD 5-1994, f. & cert. ef. 11-15-94; SPD 6-2005, f. 4-29-05,
cert. ef. 7-1-05; SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10; APD 37-2014, f. 11-24-14,
cert. ef. 1-1-15
411-020-0002
Definitions
Unless the context indicates otherwise,
the following definitions apply to the rules in OAR chapter 411, division 020:
(1) "Abuse" means any of
the following:
(a) PHYSICAL ABUSE.
(A) Physical abuse includes:
(i) The use of physical force
that may result in bodily injury, physical pain, or impairment; or
(ii) Any physical injury
to an adult caused by other than accidental means.
(B) For purposes of this
section, conduct that may be considered physical abuse includes, but is not limited
to:
(i) Acts of violence such
as striking (with or without an object), hitting, beating, punching, shoving, shaking,
kicking, pinching, choking, or burning; or
(ii) The use of force-feeding
or physical punishment.
(C) Physical abuse is presumed
to cause physical injury, including pain, to adults in a coma or adults otherwise
incapable of expressing injury or pain.
(b) NEGLECT. Neglect including:
(A) Failure to provide the
basic care, or services necessary to maintain the health and safety of an adult:
(i) Failure may be active
or passive.
(ii) Failure creating a risk
of serious harm or results in physical harm, significant emotional harm or unreasonable
discomfort, or serious loss of personal dignity.
(iii) The expectation for
care may exist as a result of an assumed responsibility or a legal or contractual
agreement, including but not limited to, where an individual has a fiduciary responsibility
to assure the continuation of necessary care or services.
(B) An adult who in good
faith is voluntarily under treatment solely by spiritual means in accordance with
the tenets and practices of a recognized church or religious denomination shall,
for this reason alone, not be considered subjected to abuse by reason of neglect
as defined in these rules.
(c) ABANDONMENT. Abandonment
including desertion or willful forsaking of an adult for any period of time by an
individual who has assumed responsibility for providing care, when that desertion
or forsaking results in harm or places the adult at risk of serious harm.
(d) VERBAL OR EMOTIONAL ABUSE.
(A) Verbal or emotional abuse
includes threatening significant physical harm or threatening or causing significant
emotional harm to an adult through the use of:
(i) Derogatory or inappropriate
names, insults, verbal assaults, profanity, or ridicule; or
(ii) Harassment, coercion,
threats, intimidation, humiliation, mental cruelty, or inappropriate sexual comments.
(B) For the purposes of this
section:
(i) Conduct that may be considered
verbal or emotional abuse includes, but is not limited to, the use of oral, written,
or gestured communication that is directed to an adult or within their hearing distance,
regardless of their ability to comprehend.
(ii) The emotional harm that
may result from verbal or emotional abuse includes, but is not limited to, anguish,
distress, fear, unreasonable emotional discomfort, loss of personal dignity, or
loss of autonomy.
(e) FINANCIAL EXPLOITATION.
Financial exploitation including:
(A) Wrongfully taking, by
means including, but not limited to, deceit, trickery, subterfuge, coercion, harassment,
duress, fraud, or undue influence, the assets, funds, property, or medications belonging
to or intended for the use of an adult;
(B) Alarming an adult by
conveying a threat to wrongfully take or appropriate money or property of the adult
if the adult reasonably believes that the threat conveyed maybe carried out;
(C) Misappropriating or misusing
any money from any account held jointly or singly by an adult; or
(D) Failing to use income
or assets of an adult for the benefit, support, and maintenance of the adult.
(f) SEXUAL ABUSE. Sexual
abuse including:
(A) Sexual contact with a
non-consenting adult or with an adult considered incapable of consenting to a sexual
act. Consent, for purposes of this definition, means a voluntary agreement or concurrence
of wills. Mere failure to object does not, in and of itself, constitute an expression
of consent;
(B) Verbal or physical harassment
of a sexual nature, including but not limited to severe, threatening, pervasive
or inappropriate exposure of an adult to sexually explicit material or language;
(C) Sexual exploitation of
an adult;
(D) Any sexual contact between
an employee of a facility and an adult residing in the facility;
(E) Any sexual contact that
is achieved through force, trickery, threat, or coercion; or
(F) An act that constitutes
a crime under ORS 163.375, 163.405, 163.411, 163.415, 163.425, 163.427, 163.465,
163.467, or 163.525 except for incest due to marriage alone.
(g) INVOLUNTARY SECLUSION.
Involuntary seclusion of an adult for the convenience of a caregiver or to discipline
the adult.
(A) Involuntary seclusion
may include:
(i) Confinement or restriction
of an adult to his or her room or a specific area; or
(ii) Placing restrictions
on an adult's ability to associate, interact, or communicate with other individuals.
(B) In a facility, emergency
or short-term, monitored separation from other residents may be permitted if used
for a limited period of time when:
(i) Used as part of the care
plan after other interventions have been attempted;
(ii) Used as a de-escalating
intervention until the facility evaluates the behavior and develops care plan interventions
to meet the resident’s needs; or
(iii) The resident needs
to be secluded from certain areas of the facility when their presence in that specified
area poses a risk to health or safety.
(h) WRONGFUL USE OF A PHYSICAL
OR CHEMICAL RESTRAINT OF AN ADULT.
(A) A wrongful use of a physical
or chemical restraint includes situations where:
(i) A licensed health professional
has not conducted a thorough assessment before implementing a licensed physician’s
prescription for restraint;
(ii) Less restrictive alternatives
have not been evaluated before the use of the restraint; or
(iii) The restraint is used
for convenience or discipline.
(B) Physical restraints may
be permitted if used when a resident’s actions present an imminent danger
to self or others and only until immediate action is taken by medical, emergency,
or police personnel.
(2) "Adult" means an individual
who is 18 years of age or older.
(3) “Aging and People
with Disabilities” means the program area of Aging and People with Disabilities,
within the Department of Human Services.
(4) “APD” means
“Aging and People with Disabilities”.
(5) "APS" means adult protective
services as described in these rules.
(6) "APS Risk Management"
means the process by which adult protective services continues to maintain ongoing
active contact with a reported victim who continues to be at serious risk of harm.
(7) "Area Agency on Aging
(AAA)" means the Department designated agency charged with the responsibility to
provide a comprehensive and coordinated system of service to individuals in a planning
and service area.
(8) "At-risk" means there
is reason to believe injury, hazard, damage, or loss may occur.
(9) “Basic Care”
means care essential to maintain the health and safety needs of an adult, but is
not limited to, assistance with medication administration, medical needs, nutrition
and supervision for safety as well as activities of daily living including assistance
with bathing, dressing, hygiene, eating, mobility and toileting.
(10) "Community-Based Care
Facility" means an assisted living facility, residential care facility, adult foster
home, or registered room and board facility.
(11) "Conclusion" means:
(a) For the purposes of a
facility investigation, a determination by the adult protective services worker
whether an incident occurred and, if it did, whether the incident was the result
of wrongdoing; and
(b) For the purposes of a
community investigation or self-neglect assessment, a determination by the adult
protective services worker as to whether an incident occurred and, if it did, whether
the incident was the result of wrongdoing or self-neglect.
(12) "Conservatorship" means
a court has issued an order appointing and investing an individual with the power
and duty of managing the property of another individual.
(13) "Consumer" means the
person applying for or eligible for Medicaid home or community-based services.
(14) "Department" means the
Department of Human Services (DHS).
(15) "Evidence" means material
gathered, examined, or produced during an adult protective services investigation.
Evidence includes, but is not limited to, witness statements, documentation, photographs,
and relevant physical evidence.
(16) "Financial Institution"
has the meaning given that term in ORS 192.583.
(17) “Financial Records”
has the meaning given that term in ORS 192.583.
(18) "Guardianship" means
a court has issued an order appointing and investing an individual with the power
and duty of managing the care, comfort, or maintenance of an incapacitated adult.
(19) "Health Care Provider"
has the meaning given that term in ORS 192.556.
(20) "Imminent Danger" means
there is reasonable cause to believe an adult's life, physical well-being, or resources
are in danger if no intervention is initiated immediately.
(21) "Inconclusive" means
that after a careful analysis of the evidence gathered in an investigation, a determination
of whether wrongdoing occurred cannot be reached by a preponderance of the evidence.
(22) "Informed Choice" means
the individual has the mental capacity, adequate information, and freedom from undue
influence to understand the current situation, understand the options available
and their likely consequences, be able to reasonably choose from among those options,
and communicate that choice.
(23) "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;
or
(e) The Oregon Department
of Justice.
(24) "Licensed Care Facility"
means a facility licensed by the Department, including nursing facilities, assisted
living facilities, residential care facilities, and adult foster homes.
(25) "Local Office" means
the local service staff of the Department or Area Agency on Aging.
(26) "Mandatory Reporter"
for the purpose of these rules, means any public or private official who is required
by statute to report suspected abuse or neglect.
(a) If an individual is a
mandatory reporter and comes in contact with and has reasonable cause to believe
that any individual living in a nursing facility or an older adult in any setting
has suffered abuse or neglect, the mandatory reporter must immediately file a report
with local law enforcement or an office of the Department.
(b) Definitions of abuse
or neglect for these purposes and procedures for investigation are defined in ORS
124.050 to 124.095 or 441.615 to 441.695 and OAR 411-085-0005, 411-085-0360, and
411-085-0370 (Nursing Facility Abuse).
(c) Mandatory reporting is
also required if the individual comes into contact with anyone who has abused an
older adult or any individual living in a nursing facility.
(d) The public or private
officials who are mandatory reporters are:
(A) Physician, psychiatrist,
naturopathic physician, osteopathic physician, chiropractor, podiatric physician,
physician assistant, or surgeon including any intern or resident;
(B) Licensed practical nurse,
registered nurse, nurse practitioner, nurse's aide, home health aide, or employee
of an in-home health service;
(C) Employee of the Department
of Human Services, community developmental disabilities program, or Area Agency
on Aging;
(D) Employee of the Oregon
Health Authority, county health department, or community mental health program;
(E) Employee of a nursing
facility or an individual who contracts to provide services to a nursing facility;
(F) Peace officer;
(G) Member of the Clergy;
(H) Regulated social worker,
licensed professional counselor, or licensed marriage and family therapist;
(I) Physical, speech, or
occupational therapist, audiologist, or speech language pathologist;
(J) Senior center employee;
(K) Information and referral
or outreach worker;
(L) Firefighter or emergency
medical services provider;
(M) Psychologist;
(N) Licensee of an adult
foster home or an employee of the licensee;
(O) Attorney;
(P) Dentist;
(Q) Optometrist;
(R) Member of the Legislative
Assembly, and
(S) For nursing facilities,
all of the above, plus legal counsel, guardian, or family member of the resident.
(27) "Multidisciplinary Team
(MDT)" means a county-based investigative and assessment team that coordinates and
collaborates for allegations of adult abuse and self-neglect. The team may consist
of personnel of law enforcement, the local district attorney office, local Department
or Area Agency on Aging offices, community mental health and developmental disability
programs, plus advocates for older adults and individuals with disabilities, and
individuals specially trained in abuse.
(28) "Multidisciplinary Team
(MDT) Member" means an individual or a representative of an agency that is allowed
by law and recognized to participate on the multidisciplinary team.
(29) "Older Adult" means
any individual 65 years of age or older.
(30) "Physical Disability"
means any physical condition or cognitive condition such as brain injury or dementia
that significantly interferes with an adult's ability to protect themself from harm
or neglect. (See OAR 411-020-0015, Eligibility).
(31) "Protected Health Information"
has the meaning given that term in ORS 192.556.
(32) "Relevant" means tending
to prove or disprove the allegation at hand.
(33) "Reported Perpetrator
(RP)" means the facility, an agent or employee of the facility, or any individual
reported to have committed wrongdoing.
(34) "Reported Victim (RV)"
means the individual whom wrongdoing or self-neglect is reported to have been committed
against.
(35) "Risk Assessment" means
the process by which an individual is evaluated for risk of harm and for the physical
and cognitive abilities to protect his or her interests and personal safety. The
living situation, support system, and other relevant factors are also evaluated
to determine the impact on the individual's ability to become or remain safe.
(36) “Risk of Serious
Harm” means that without intervention, the individual is likely to incur substantial
injury or loss.
(37) "Self-Determination"
means an adult's ability to decide his or her own fate or course of action without
undue influence.
(38) "Self-Neglect" means
the inability of an adult to understand the consequences of his or her actions or
inaction when that inability leads to or may lead to harm or endangerment to self
or others.
(39) "Services" as used in
the definition of abuse includes, but is not limited to, the provision of food,
clothing, medicine, housing, medical services, housekeeping, and transportation
as well as assistance with bathing or personal hygiene, or any other service essential
to the well-being of an adult.
(40) "Substantiated" means
that the preponderance (majority) of the evidence gathered and analyzed in an investigation
indicates that the allegation is true.
(41) "These Rules" mean the
rules in OAR chapter 411, division 020.
(42) "Undue Influence" means
the process by which an individual uses his or her role and power to exploit the
trust, dependency, and fear of another individual and to deceptively gain control
over the decision making of the second individual.
(43) "Unsubstantiated" means
that the preponderance (majority) of the evidence gathered and analyzed in an investigation
indicates that the allegation is not true.
(44) "Wrongdoing" means:
(a) For the purposes of a
facility investigation, an act that violates a licensing or other rule without regard
to the intent of the reported perpetrator or the outcome to the reported victim;
and
(b) For the purposes of a
community investigation, an action or inaction that meets the definition of abuse,
without regard to the intent of the reported perpetrator or the outcome to the reported
victim.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765, & 443.767
Stats. Implemented: ORS 124.050–124.095,
410.020, 410.040, 410.070, 411.116, 441.630 – 441.695, 443.450, 443.500, 443.767,
& 2012 OL Ch. 70
Hist.: SSD 5-1994, f. &
cert. ef. 11-15-94; SSD 5-1995, f. 5-31-95, cert. ef. 6-1-95; SPD 6-2005, f. 4-29-05,
cert. ef. 7-1-05; SPD 10-2006, f. 3-23-06, cert. ef. 4-1-06; SPD 33-2006, f. &
cert. ef. 12-21-06; SPD 21-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10;
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 7-2012(Temp), f. & cert. ef. 6-1-12
thru 11-28-12; SPD 15-2012, f. & cert. ef. 11-28-12; APD 37-2014, f. 11-24-14,
cert. ef. 1-1-15
411-020-0010
Authority and Responsibility
The Department is granted statutory
authority and responsibility to protect older adults and adults with physical disabilities
from harm or neglect. Specific authorizing statutes include:
(1) General Adult Protective
Services:
(a) ORS 410.020 authorizes
the Department to adopt rules, consistent with federal and state laws and regulations,
for providing social services, including protection, to individuals needing or requesting
services.
(b) These rules detail the
steps in the adult protective services process.
(2) ADULT FOSTER HOMES.
(a) ORS 443.767 requires
the Department to promptly investigate any complaint that a resident of an adult
foster home has been injured, abused, or neglected and is in imminent danger, or
has died or been hospitalized, and any complaint alleging the existence of any circumstances
that may result in injury, abuse, or neglect of a resident and may place the resident's
health or safety in imminent danger.
(b) OAR 411-050-0665 details
the steps for filing, investigating, and documenting complaints in Adult Foster
Homes.
(3) RESIDENTIAL CARE AND
ASSISTED LIVING FACILITIES.
(a) ORS 443.435 allows the
Department access to a facility to determine whether it is maintained and operated
in accordance with ORS 443.400 to 443.455 and 443.991(2) and the rules in OAR chapter
411, division 054.
(b) OAR 411-054-0105 details
methods for conducting inspections and investigations in residential care and assisted
living facilities.
(4) NURSING FACILITIES.
(a) ORS 441.635 requires
mandatory reports and investigations of reportedly abused residents while ORS 441.650
to 441.695 addresses the process of investigation.
(b) OAR 411-089-0010 to 411-089-0030
details the procedure for receiving, investigating, and documenting investigations
in nursing facilities and the corrective action procedure for substantiated complaints.
(5) ROOM AND BOARD FACILITIES.
(a) ORS 443.500 allows the
Department access to a registered residential facility (room and board) to investigate
complaints of abuse for purposes of ascertaining compliance with applicable rules,
statutes, ordinances, and regulations. If the Department has reasonable cause to
believe any facility is operating without registration in violation of ORS 443.480
to 443.500, the Department may apply to the circuit court for a search warrant.
(b) OAR 411-068-0060 to 411-068-0075
details procedures for filing and investigating complaints in room and board facilities.
(6) ELDER ABUSE.
(a) ORS 124.050 to 124.095
mandates reports and investigations of reportedly abused older adults.
(b) These rules detail the
procedures for reporting, investigating, and documenting complaints of reported
abuse to older adults.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765, & 443.767
Stats. Implemented: ORS 410.070
& 411.116
Hist.: AFS 5-1980, f. &
ef. 1-25-80; Renumbered from 461-011-0010 by Ch. 784, OL 1981 & AFS 69-1981,
f. 9-30-81, ef. 10-1-81; SSD 5-1994, f. & cert. ef. 11-15-94; SPD 6-2005, f.
4-29-05, cert. ef. 7-1-05; SPD 10-2006, f. 3-23-06, cert. ef. 4-1-06; SPD 8-2010,
f. 6-29-10, cert. ef. 7-1-10; APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
411-020-0015
Eligibility Criteria
(1) Adult protective services as described
in OAR 411-020-0040 are available for:
(a) Adults aged 65 and older;
(b) Adults aged 18 and older
who have a physical disability as defined in these rules; and
(c) Anyone living in a licensed
care facility when they are reported to be victims of "abuse" as defined in these
rules.
(2) Reported abuse to individuals
who are enrolled in or previously determined eligible for services from the Department
under ORS 430.735 to 430.765 and OAR 407-045-0250 to 407-045-0360 are referred for
screening to the county developmental disabilities program. Reported abuse to individuals
receiving services from the Oregon Health Authority under ORS 430.735 to 430.765
and OAR 943-045-0250 to 943-045-0360 are referred for screening to the community
mental health program.
(3) Eligibility for adult
protective services is not dependent upon income or source of income.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765, & 443.767
Stats. Implemented: ORS 410.070
& 411.116
Hist.: AFS 5-1980, f. &
ef. 1-25-80; Renumbered from 461-011-0015 by Ch. 784, OL 1981 & AFS 69-1981,
f. 9-30-81, ef. 10-1-81; SSD 5-1994, f. & cert. ef. 11-15-94; SPD 6-2005, f.
4-29-05, cert. ef. 7-1-05; SPD 10-2006, f. 3-23-06, cert. ef. 4-1-06; SPD 8-2010,
f. 6-29-10, cert. ef. 7-1-10; APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
411-020-0020
Reporting of Abuse and Neglect
(1) Mandatory reporters must report
instances of suspected elder abuse (as defined in ORS 124.050) or abuse of residents
in nursing facilities (as defined in ORS 441.630) to the Department, local office,
or a local law enforcement agency. A psychiatrist , psychologist, attorney, or member
of the clergy does not have to report privileged information covered under ORS 40.225
to 40.295. An attorney is not required to make a report of information communicated
to the attorney in the course of representing a client if disclosure of the information
would be detrimental to the client.
(2) Reporting of instances
involving abuse or neglect of older adults and adults with physical disabilities
is highly encouraged for non-mandatory reporters. Anyone participating in the making
of a report of elder abuse on reasonable grounds and good faith shall have immunity
from any civil liability. The same immunity applies to participating in any judicial
proceeding resulting from the report.
(3) The identity of the individual
reporting the suspected abuse shall be confidential and may be disclosed only with
the consent of that individual, by judicial process (including administrative hearing),
or as required to perform the investigation by the Department or a law enforcement
agency.
Stat. Auth.: ORS 410.070, 411.116, 441.635,
443.500 & 443.767
Stats. Implemented: ORS 124.055
– 124.075, 124.090, 410.070, 411.116, 441.635 – 441.655, 441.671 –
441.675, 443.765
Hist.: SSD 5-1994, f. &
cert. ef. 11-15-94; SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05; SPD 10-2006, f. 3-23-06,
cert. ef. 4-1-06; SPD 33-2006, f. & cert. ef. 12-21-06; SPD 21-2009(Temp), f.
12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10;
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
411-020-0025
Multidisciplinary Team (MDT)
(1) The local office must participate
in their county MDT to coordinate and collaborate on allegations of abuse and self-neglect
of older adults and adults with physical disabilities. Adult protective services,
when provided by the local office in conjunction with their participation on their
county MDT, shall be provided as described in OAR 411-020-0040.
(2) All confidential information
protected by federal and state law that is shared or obtained by the MDT members
in the exercise of their duties on the MDT is confidential and may not be further
disclosed except by law, authorization by the adult, or by court order.
(3) The local office must
annually provide the MDT with the number of substantiated allegations of abuse of
adults investigated by APS and the number of APS cases referred to law enforcement
in the county.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765, 443.767
Stats. Implemented: ORS 410.070
& 411.116, sec. 8, Ch. 837, OL 2009
Hist.: SPD 21-2009(Temp),
f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10;
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
411-020-0030
Confidentiality
(1) Oregon and federal statutes provide
for the confidentiality of the identity of certain individuals and information obtained
as a result of an APS intervention. Confidentiality of information is important
to protect the privacy of individuals, to encourage the reporting of abuse and neglect,
and to facilitate the obtaining of information.
(2) All information involving
non-facility based investigations is confidential, except for disclosure of the
conclusion under OAR 411-020-0100(6), and may be disclosed only by judicial process,
or as required by specific exceptions under state and federal law, or with the consent
of the victim, but no names may be released without the consent of the individual
named except as provided in section (5) of this rule.
(3) If the investigation
involves a licensed care facility, information regarding the complaint and subsequent
findings shall be made available to the general public upon request. For these types
of complaints, information regarding the identity of the complainant, the reported
victim, all witnesses, and the protected health information of any party shall remain
confidential, unless release is specifically authorized by the affected individual
or otherwise dictated by judicial process.
(4) The Department shall
make the protective services report and underlying investigatory materials available
to the protection and advocacy system designated by ORS 192.517 when the reported
victim is an individual with a disability or mental illness as identified by ORS
192.517.
(5) Where the Department
deems it appropriate, for the purpose of furthering a protective service, when it
is necessary to prevent or treat abuse, or when deemed to be in the best interest
of a reported victim, the names of the reported victim, witnesses (other than the
complainant except as expressly permitted below), any investigative report, and
any records compiled during an investigation, may be made available to:
(a) Any law enforcement agency,
to which the name of the complainant may also be made available;
(b) An agency that licenses
or certifies a facility where the reported abuse occurred, or licenses or certifies
the individual who practices there;
(c) A public agency that
licenses or certifies an individual that has abused or is alleged to have abused
an older adult;
(d) The Long Term Care Ombudsman;
(e) Any governmental or private
non-profit agency providing adult protective services to the reported victim when
that agency meets the confidentiality standards of ORS 124.090, including any federal
law enforcement agency that has jurisdiction to investigate or prosecute for abuse
defined in these rules, including, but not limited to, the Federal Bureau of Investigation
(FBI), the Federal Trade Commission, or the Federal Offices of Inspector General;
(f) An MDT as described in
OAR 411-020-0025;
(g) A court, pursuant to
court order, to which the name of the complainant may also be made available as
required by the court order; or
(h) An administrative law
judge in an administrative proceeding when necessary to provide protective services,
investigate, prevent, or treat abuse of an older adult or when in the best interest
of an older adult.
(6) Recipients of information
disclosed under section (4) of this rule must maintain the confidentiality of the
information as required by Oregon statute unless superseded by other state or federal
law.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765, & 443.767
Stats. Implemented: ORS 124.050
– 124.095, 410.070, 410.150, 411.116, 441.630 – 441.695, 443.769, &
2012 OL Ch. 70
Hist.: SSD 5-1994, f. &
cert. ef. 11-15-94; SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05; SPD 10-2006, f. 3-23-06,
cert. ef. 4-1-06; SPD 21-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10;
SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10; SPD 7-2012(Temp), f. & cert. ef. 6-1-12
thru 11-28-12; SPD 15-2012, f. & cert. ef. 11-28-12; APD 37-2014, f. 11-24-14,
cert. ef. 1-1-15
411-020-0040
Services Provided
(1) Local offices must follow procedural
guidelines consistent with Department policies guiding APS response activities.
Although the role of APS is civil rather than criminal investigation, cooperative
agreements with regulatory and enforcement agencies, such as local law enforcement,
district attorneys, and licensing agencies are desirable.
(2) The Department shall
establish and maintain agreements and understandings with other key agencies having
a role in protecting the interests and rights of individuals who are the subject
of these rules, including the Oregon State Police and the Department of Justice.
(3) The adult protective
services function consists of a standard series of activities, including screening,
triage or consultation, on-site assessment, investigation, intervention, documentation,
and APS risk management. Deviations from these activities may be appropriate in
order to protect the reported victim, but the reasons for these deviations must
be staffed and properly documented in the investigative record.
(4) Adults have the right
to make informed choices (as defined in 411-020-0002) that do not conform to societal
norms as long as those decisions are not harmful to others. This includes the right
to refuse participation in APS assessments, investigation, or intervention.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765, 443.767
Stats. Implemented: ORS 410.070
& 411.116
Hist.: AFS 5-1980, f. &
ef. 1-25-80; Renumbered from 461-011-0005 by Ch. 784, OL 1981 & AFS 69-1981,
f. 9-30-81, ef. 10-1-81; SSD 5-1994, f. & cert. ef. 11-15-94, Renumbered from
411-020-0005; SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05; SPD 8-2010, f. 6-29-10,
cert. ef. 7-1-10; APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
411-020-0050 [Renumbered to 411-020-0120]
411-020-0060
Screening
(1) All calls or contacts involving
the possibility of abuse or neglect must be directed to APS screening.
(2) Screening is the skilled
interviewing process used to gather and assess information in order to determine
eligibility for adult protective services. This activity includes a determination
of whether the complaint meets the definition of abuse as contained in administrative
rules.
(3) If the complaint meets
the definition of abuse, screening activities may include, but are not limited to:
(a) Gathering information
about the reported victim's current level of functioning;
(b) Gathering demographic
information and the history of the current problem;
(c) Reviewing any agency
records related to the complaint; or
(d) Gathering information
from collateral sources.
(4) If the complaint does
not meet the definition of abuse but requires intervention, response shall include
referral to other resources, including case management, licensing, or other services
as appropriate.
(5) If the complaint does
not meet the definition of abuse or require intervention, but may be addressed by
specialized information or assistance, a referral to APS consultation may be appropriate.
(6) If the complaint involves
a consumer who is currently receiving case management or eligibility services, the
worker assigned to the consumer must be notified. If the complaint involves a commercial
adult foster home, the local licenser must be notified.
(7) Each local office must
develop a protocol for tracking the outcome of every APS screening referral. A call
number or other identifier must be assigned and shared with the complainant at the
time of screening so that the complainant may re-contact the office and determine
the disposition of the report.
(8) Each local office must
establish an after hours reporting system.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765, 443.767
Stats. Implemented: ORS 410.070,
411.116, 443.767
Hist.: SPD 6-2005, f. 4-29-05,
cert. ef. 7-1-05; SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10; APD 37-2014, f. 11-24-14,
cert. ef. 1-1-15
411-020-0070
Consultation
(1) Consultation is the process by which APS provides specialized information or assistance, enhanced referral, or technical assistance via electronic means, including telephone, fax, or e-mail, to assist in harm reduction.
(2) Consultation as an alternative to assessment or investigation is only appropriate when the report does not meet eligibility criteria for abuse or neglect or for investigation of licensing violation.
(3) The local office must maintain a record of reports resolved by consultation.
Stat. Auth.: ORS 410.070, 411.116, 441.637, 443.450, 443.765, 443.767

Stats. Implemented: ORS 410.070, 411.116, 443.767

Hist.: SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05; SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10
411-020-0080
Triage
(1) Triage is the APS process of determining
the nature and severity of risk to individuals and the immediacy of response required.
(2) The local office shall
provide for a prompt and timely initial response to all APS referrals meeting the
eligibility criteria established in these rules. The specific times for response
are governed by the nature and severity of the complaint and the rules and laws
related to the category of complaint.
(3) General time frames for
response as determined by the Department are as follows:
(a) COMMUNITY CASES (Non-facility,
elder abuse, and APS).
(A) IMMEDIATELY: Contact
911 when an emergency situation exists. An emergency is a situation in which evidence
suggests that a human life is in jeopardy. The individual is in the process of being
harmed due to criminal activity, medical emergency, fire, or is a clear and present
danger to self or others;
(B) WITHIN TWO HOURS OF RECEIPT
OF COMPLAINT: Initiate investigation within two hours when the reported victim is
identified as being in imminent danger;
(C) BY THE END OF THE NEXT
WORKING DAY: Initiate investigation by the end of the next working day when the
individual is identified as being in a hazardous situation that is one that may
lead to increased harm or risk; or
(D) WITHIN FIVE WORKING DAYS:
When screening determines the situation is problematic, one that is chronic or ongoing,
or is a general complaint that an immediate response is unlikely to change the reported
victim's risk level, an investigation must be initiated within five working days.
(b) ASSISTED LIVING, RESIDENTIAL
CARE, ADULT FOSTER HOME AND NURSING FACILITY CASES.
(A) WITHIN TWO HOURS:
(i) If the resident's health
or safety is in imminent danger; or
(ii) The resident has recently
died, been hospitalized, or been treated in an emergency department as a result
of suspected abuse or neglect.
(B) BEFORE THE END OF THE
NEXT WORKING DAY: If circumstances exist that may result in abuse.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765, 443.767
Stats. Implemented: ORS 124.065
– 124.070, 410.070, 411.116, 441.645 – 441.650, 443.500, 443.767
Hist.: SPD 6-2005, f. 4-29-05,
cert. ef. 7-1-05; SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10; APD 37-2014, f. 11-24-14,
cert. ef. 1-1-15
411-020-0085
Law Enforcement Notification
(1) The Department or local office shall
immediately notify law enforcement if any of the following conditions exist and
proceed collaboratively in a way that does not further endanger the reported victim.
Any law enforcement officer accompanying the investigator must be identified as
such to any party interviewed. Conditions include:
(a) Reasonable cause to believe
a crime has been committed;
(b) Access to the reportedly
abused individual is denied and legal assistance is needed in gaining access;
(c) The situation presents
a credible danger to the Department worker or others and police escort is advisable;
(d) Forensic photographic
or other evidence is needed; or
(e) Those required under
OAR 411-020-0123 or 411-020-0126.
(2) Written notice, regardless
of any verbal notice given, shall be provided to law enforcement for all instances
when the Department finds there is reasonable cause to believe a crime has been
committed.
(3) When the local office
notifies a law enforcement agency of suspected crime committed against a reported
victim, the local office must track the progress as reported from the law enforcement
agency on the investigation and the district attorney's office on the prosecution
of the crime.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765 & 443.767
Stats. Implemented: ORS 124.065
– 124.070, 410.070, 411.116, 441.645 – 441.650, 443.500 & 443.767
Hist.: SPD 21-2009(Temp),
f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10;
SPD 7-2012(Temp), f. & cert. ef. 6-1-12 thru 11-28-12; SPD 15-2012, f. &
cert. ef. 11-28-12; APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
411-020-0090
Assessment
(1) Assessment is the process by which
the APS worker determines the reported victim's degree of risk, level of functioning,
adequacy of information, and ability to protect his or her own interests. Assessment
additionally determines the reported victim's ability to reduce the risk of harm
in his or her environment and to make informed choices and understand the consequences
of those choices. These factors are evaluated in relation to the allegation of abuse
or neglect.
(2) Assessment in APS cases
shall be conducted in person with the reported victim, usually in the reported victim's
home or the facility where the reported victim lives.
(3) The assessment may include:
(a) Consultation with family,
neighbors, law enforcement, mental health, hospice, in-home services, medical practitioners,
and domestic violence providers, and other relevant individuals, in keeping with
Department confidentiality guidelines.
(b) The use of accepted screening
tools as well as the worker's professional judgment to determine the reported victim's
safety and functional abilities.
(4) If there is evidence
the reported victim's cognitive abilities may be impaired, recognized assessment
tools may be administered to gauge those abilities. The initial assessment results
shall be used as a screening to determine the need for professional diagnostic or
clinical evaluation of the reported victim's capacity to make informed choices,
and to determine an appropriate course of action if clinical evaluation is not available.
(5) Upon completion of the
initial APS assessment, the complaint shall be continued for investigation where
there is a reported perpetrator, or shall proceed directly to intervention where
self-neglect is established. Where there is no perpetrator and self-neglect is not
established, the reported victim shall be offered resource information, and the
case shall be documented and closed.
(6) Results of the APS assessment
of the reported victim's cognitive and functional abilities shall be recorded in
the Department-approved system. A summary of the relevant portions shall be included
in the APS report.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765, 443.767
Stats. Implemented: ORS 410.070,
411.116, 443.767
Hist.: SPD 6-2005, f. 4-29-05,
cert. ef. 7-1-05; SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10; APD 37-2014, f. 11-24-14,
cert. ef. 1-1-15
411-020-0100
Community Investigation, Documentation and Notification
(1) Investigation is the process of
determining whether abuse or neglect occurred. The investigation results in a finding
as to whether the initial complaint is substantiated or unsubstantiated, or whether
the results of the investigation are inconclusive.
(2) An investigation shall
be completed and documented when a perpetrator is reported to have abused or neglected
a victim.
(3) Investigations are to
be objective, professional, and complete.
(4) In completing the investigation,
the APS worker must:
(a) Identify the reported
victim, the reported perpetrator, and any parties reported to have information relevant
to proving or disproving the allegation;
(b) Conduct unannounced interviews
with the parties described in section (a) above to gather all relevant available
evidence. All interviews must be private unless the individual being interviewed
requests the presence of someone else. Any individuals listening to the interview
must be advised of the confidential nature of the investigation;
(c) The reported victim and
reported perpetrator must be interviewed in person unless a deviation under OAR
411-020-0040(3) is required for the safety of any party to the investigation, an
in-person interview is unable to be obtained, or at the request of law enforcement.
Whenever reasonable, key witnesses shall be interviewed in person.
(d) Obtain and review any
available and relevant documentary or physical evidence;
(e) Create additional investigatory
aids, such as maps or drawings that may aid in proving or disproving the allegation;
(f) Maintain a record of
interviews and evidentiary review, in notes, tape recordings, copies, photographs,
or other appropriate means;
(g) Determine the facts of
the case based on a fair and objective review of the available relevant evidence;
and
(h) Conclude whether the
preponderance (majority) of the evidence indicates whether the incident occurred
and whether abuse or neglect is substantiated or unsubstantiated, or determine that
the evidence is inconclusive.
(5) The local office must
document and close the investigation on or before 120 days from receipt of the initial
complaint unless delayed by a concurrent criminal investigation. A reasonable delay
may be permitted in the event of a concurrent criminal investigation.
(a) Documentation of community
assessments and investigations must include, but is not limited to:
(A) A description of documents
and records reviewed;
(B) Identification and summary
of witness statements obtained;
(C) A summary of the findings;
(D) Conclusions; and
(E) Any plans of action that
are recommended or taken.
(b) Data in the report must
include:
(A) Dates and location of
the complaint;
(B) Date investigation commenced
and by whom;
(C) Characteristics of the
reported victim including identified language, race and ethnicity;
(D) Relationship of the reported
victim to the complainant, witnesses, and reported perpetrator;
(E) Type of reported mistreatment
or abuse;
(F) Conclusion; and
(G) Outcome.
(c) Reports must be written
and closed on a Department-approved system (e.g., Oregon ACCESS).
(6) When a community complaint
investigation has been completed, the complainant, the reported victim, and the
reported perpetrator may be informed (verbally, unless notification in writing is
requested) that:
(a) There was an allegation
of abuse or self-neglect and type of abuse or self-neglect being investigated;
(b) Appropriate action is
being taken;
(c) No abuse was found (unsubstantiated);
(d) Abuse was found (substantiated);
or
(e) The investigation was
'inconclusive'.
(7) The Department or the
law enforcement agency may photograph, or cause to have photographed, any reported
victim for the purposes of preserving evidence of the reported victim's condition
observed at the time of the investigation. The photographs shall be considered records
and subject to confidentiality rules.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765, 443.767
Stats. Implemented: ORS 124.065
- 124.070, 124.080, 410.070, 411.116, 441.645 – 441.650, 441.660, 443.500,
443.767
Hist.: SPD 6-2005, f. 4-29-05,
cert. ef. 7-1-05; SPD 33-2006, f. & cert. ef. 12-21-06; SPD 21-2009(Temp), f.
12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10;
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
411-020-0110
Community Intervention
(1) Intervention is the process by which
APS assists the victim to reduce or remove the threat of harm that has placed the
victim at risk.
(2) Intervention may include,
but is not limited to:
(a) Arranging for emergency
services such as law enforcement and emergency medical care as needed;
(b) Providing education and
counseling to the individual at risk and other parties as appropriate;
(c) Facilitating the delivery
of additional available support services, including legal, medical, and other services,
and helping to arrange for possible alternative living arrangements or alternate
decision makers as needed; or
(d) Providing advocacy to
assure the rights of the reported victim are protected.
(3) Intervention may happen
one or more times during the assessment or investigation process, or as an end result
of the assessment or investigation. The initial APS intervention is designed to
be short-term crisis response. Longer term intervention may be made available through
APS risk management or through non-APS case management.
(4) An individual who can
make an informed choice may refuse assistance or intervention. In this case, the
worker shall provide the individual with appropriate resource information and a
way to re-contact APS if a threat of harm recurs or reaches a level unacceptable
to the individual.
(5) If the individual at
risk is unable to make an informed choice due to a lack of capacity, appropriate
intervention, if available must include medical assessment to determine whether
capacity may be improved or restored.
(6) If the individual at
risk is unable to consent to assessment or treatment, consideration must be given
to involuntary intervention, including as appropriate, guardianship, conservatorship,
protective orders, or civil commitment. In all such cases, the intervention initiated
must be:
(a) The least restrictive
available;
(b) Respectful of the values
of the individual at risk; and
(c) Sought only when it has
been determined that there is no surrogate decision maker in place, or that such
individual is not acting responsibly in that role.
(7) If the individual lacks
appropriate information, the worker must provide or arrange for the provision of
all relevant information in a manner that is timely, accessible to the individual,
and balanced, in order to support the individual's right to make an informed choice.
(8) When the assessment or
investigation is complete, the case shall be either:
(a) Documented and referred
to APS risk management for further monitoring and intervention if the situation
meets the criteria in OAR 411-020-0130, or
(b) Closed and documented
because:
(A) The situation is resolved
or has been referred to appropriate services for resolution; or
(B) The individual at risk,
having the ability to do so, decides not to have further adult protective services.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765, 443.767
Stats. Implemented: ORS 410.070,
411.116, 443.767
Hist.: SPD 6-2005, f. 4-29-05,
cert. ef. 7-1-05; SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10; APD 37-2014, f. 11-24-14,
cert. ef. 1-1-15
411-020-0120
Facility Investigation, Documentation and Notification
(1) Investigations shall be objective,
professional, and complete.
(2) In completing the investigation,
the APS worker must:
(a) Identify the reported
victim, the reported perpetrator, and any parties reported to have information relevant
to proving or disproving the allegation;
(b) Conduct interviews with
the parties described in section (a) above to gather all relevant available evidence.
Interviews shall be unannounced whenever possible. All interviews must be private
unless the individual being interviewed requests the presence of someone else. Any
individuals listening to the interview must be advised of the confidential nature
of the investigation;
(c) Obtain and review any
available and relevant documentary or physical evidence;
(d) Create additional investigatory
aids, such as maps or drawings, that may aid in proving or disproving the allegation;
(e) Maintain a record of
interviews and evidentiary review, in notes, tape recordings, copies, photographs,
or other appropriate means;
(f) Determine the facts of
the case based on a fair and objective review of the available relevant evidence;
and
(g) Conclude whether the
preponderance (majority) of the evidence indicates the incident occurred and whether
wrongdoing was substantiated or unsubstantiated, or determine that the evidence
is inconclusive. The determination as to whether substantiated wrongdoing meets
the definitions of abuse shall be determined by the Office of Licensing and Regulatory
Oversight.
(3) In conducting facility
abuse investigations, the Department protocols governing activities of investigations
further include:
(a) Notifying the Department’s
Office of Licensing and Regulatory Oversight (OLRO) if:
(A) A situation exists in
a nursing facility that meets criteria for NFSU to complete the investigation. Where
NFSU shall conduct the investigation, the local office must provide coordination
to assure victim safety; or
(B) A situation exists in
a residential care facility or an assisted living facility that may cause NFSU to
conduct a survey. This includes reports of facility-wide issues.
(b) Providing an opportunity
for the complainant, a designee of the complainant, or both, to accompany the investigator
to the site of the reported violation for the sole purpose of identifying individuals
or objects relevant to the investigation;
(c) Conducting an unannounced
site visit to the facility; and
(d) Arranging for immediate
protection. The worker must direct the provider to correct any substantiated problem
immediately.
(4) The local office must
submit completed investigation reports written on the Department’s Facility
Report Writing System to the Office of Licensing and Regulatory Oversight within
60 days of the receipt of the complaint. A reasonable delay may be permitted in
the event of a concurrent criminal investigation.
(a) Facility investigations
must be written at the local office on the Department’s Facility Report Writing
System. Documentation of facility investigations for each allegation must include:
(A) A statement of the allegation;
(B) A summary of witness
statements;
(C) Investigator observations,
including documentary review;
(D) Findings of fact; and
(E) A conclusion.
(b) When wrongdoing is substantiated,
findings in the investigation may be used to support civil or criminal sanctions
against the perpetrator or care facility.
(c) The local office must
retain hard copies of facility investigation reports for a period of 10 years after
last activity.
(5) When a facility investigation
has been completed, notification to the complainant and other appropriate parties
must be done according to procedures as specified in the relevant facility licensing
rules and policy.
(6) If the reported abuse
is also the subject of a law enforcement report or criminal prosecution, copies
of investigation reports must be forwarded to the law enforcement agency having
jurisdiction.
(7) The Department may collect
standardized statewide data on all types of adult protective services including,
but not limited to, information on the number of cases, types of incidents, individual
characteristics, and outcomes.
(8) The Department or a law
enforcement agency may photograph, or cause to have photographed, any reported victim
for the purposes of preserving evidence of the reported victim's condition observed
at the time of the investigation. The photographs shall be considered records and
subject to confidentiality rules.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765, 443.767
Stats. Implemented: ORS 124.065
- 124.070, 124.080, 410.070, 411.116, 441.645 – 441.650, 441.660, 443.500,
443.767
Hist.: AFS 5-1980, f. &
ef. 1-25-80; Renumbered from 461-011-0005 by Ch. 784, OL 1981 & AFS 69-1981,
f. 9-30-81, ef. 10-1-81; SSD 5-1994, f. & cert. ef. 11-15-94; Renumbered from
411-020-0050, SPD 6-2005, f. 4-29-05, cert. ef. 7-1-05; SPD 33-2006, f. & cert.
ef. 12-21-06; SPD 21-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-30-10; SPD
8-2010, f. 6-29-10, cert. ef. 7-1-10; APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
411-020-0123
Accessing Protected Health Information,
including Records
Protected health information from a
health care provider may be obtained in the course of an APS investigation either
from a mandatory reporter performing that reporter’s duties required by Oregon
statute or as follows:
(1) DISCLOSURE BY HEALTH
CARE PROVIDER. A health care provider may disclose, in accordance with 45 CFR 164.512(j),
protected health information to APS to prevent or lessen a serious and imminent
threat to the health or safety of a person or the public if the health care provider,
in good faith, believes the disclosure is necessary to prevent or lessen the threat.
APS may request protected health information in the course of a self-neglect assessment
or abuse investigation under this provision to prevent or lessen a serious and imminent
threat.
(2) COMMUNITY ABUSE INVESTIGATION.
In the course of an APS investigation into abuse in a community-based setting where
the process under section (1) does not apply or is declined by the health care provider:
(a) CONSENT BY REPORTED VICTIM.
APS may obtain a reported victim’s protected health information for an APS
investigation with that reported victim’s consent.
(b) DECLINED CONSENT. If
a reported victim can make an informed choice and declines to consent to APS obtaining
protected health information, APS may not obtain the reported victim's protected
health information beyond the information a mandatory reporter is required to disclose.
(c) REPORTED VICTIM INCAPABLE
OF CONSENT. If a reported victim is an older adult and does not have the ability
to make an informed choice to consent to APS obtaining the reported victim’s
protected health information, and the reported victim does not have a fiduciary
or legal representative that consents to APS accessing the reported victim’s
protected health information, or when the fiduciary or legal representative is a
reported perpetrator and refuses to consent to APS accessing the reported victim’s
protected health information, then the following procedure must be followed in order
for APS to obtain the protected health information:
(A) APS must request that
the appropriate law enforcement agency submit a written request to the health care
provider to allow the law enforcement agency to inspect and copy, or otherwise obtain,
the protected health information.
(B) APS shall inform the
law enforcement agency that the written request must state that an investigation
into abuse is being conducted under ORS 124.070 (elder abuse) or ORS 441.650 (nursing
facility resident abuse).
(3) HEALTH CARE PROVIDER
NOTICE. In investigations where APS is seeking disclosure of protected health information
by a health care provider under sections (1) or (2) of this rule, APS shall inform
the health care provider, either directly or through the law enforcement agency
requesting the information, that the health care provider is required, in accordance
with 45 CFR 164.512(c)(2), to promptly inform the individual to whom the protected
health information pertains that information has been or shall be disclosed, unless:
(a) The health care provider,
in the exercise of their professional judgment, believes that informing the individual
may place the individual at risk of serious harm; or
(b) The health care provider
is planning to inform a personal representative of the individual and the health
care provider reasonably believes the personal representative is responsible for
the abuse, neglect, or other injury, and informing such person is not in the best
interests of the individual as determined by the health care provider in the exercise
of their professional judgment.
(4) LICENSED CARE FACILITY
INVESTIGATIONS. In the course of an APS investigation into abuse in a licensed care
facility:
(a) OBTAINING RESIDENT RECORDS
MAINTAINED BY A LICENSED CARE FACILITY. Licensed care facilities must provide APS
access to all resident and facility records, including protected health information,
maintained by the facility as required by their respective Oregon Administrative
Rules.
(b) DISCLOSURE BY HEALTH
CARE PROVIDER. A health care provider, such as a hospital, a medical office, or
a provider other than a licensed care facility, may disclose, in accordance with
45 CFR 164.512(d), a reported victim’s protected health information to APS
as a health oversight agency for purposes of oversight of that facility, including
oversight through investigation of complaints of abuse of residents in such facility.
APS shall inform the health care provider of its authority as a health oversight
agency and that such disclosures are permitted in accordance with 45 CFR 164.512(d).
(c) HEALTH CARE PROVIDER
REFUSAL TO DISCLOSE. If a health care provider refuses to disclose protected health
information to APS as a health oversight agency, APS may follow the procedure set
forth in section (2)(c) of this rule if the reported victim is an older adult.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765 & 443.767
Stats. Implemented: ORS 124.050
– 124.095, 410.020, 410.040, 410.070, 411.116, 441.630 – 441.695, 443.450,
443.500, 443.767 & 2012 OL Ch. 70
Hist.: SPD 7-2012(Temp),
f. & cert. ef. 6-1-12 thru 11-28-12; SPD 15-2012, f. & cert. ef. 11-28-12;
APD 37-2014, f. 11-24-14, cert. ef. 1-1-15
411-020-0126
Accessing
Financial Records
(1) Financial records
may be obtained from a financial institution in the course of an APS investigation
into alleged abuse.
(2) DEFAULT
STANDARD. APS may not request financial records from a financial institution unless
one of the following exceptions applies and the corresponding procedures are followed:
(a) CUSTOMER
AUTHORIZATION. APS may request and receive financial records from a financial institution
when the customer authorizes such disclosure in accordance with ORS 192.593. The
authorization must:
(A) Be in
writing, signed, and dated by the customer;
(B) Identify
with detail the records authorized to be disclosed;
(C) Name
the Department or Area Agency on Aging to whom disclosure is authorized;
(D) Contain
notice to the customer that the customer may revoke such authorization at any time
in writing; and
(E) Inform
the customer as to the reason for such request and disclosure.
(b) FINANCIAL
INSTITUTION INITIATES CONTACT. Where a financial institution initiates contact with
APS or a law enforcement agency regarding suspected financial exploitation, the
financial institution may share financial records with APS or the law enforcement
agency and is not otherwise precluded from communicating with and disclosing financial
records to APS or the law enforcement agency.
(c) CUSTOMER
INCAPABLE OF AUTHORIZING. If a financial institution has not initiated contact with
APS or a law enforcement agency and the reported victim does not have the ability
to make an informed choice to consent to APS obtaining the reported victim’s
financial records; or a fiduciary or legal representative who is a reported perpetrator
refuses to authorize disclosure; or the account is jointly held by a reported perpetrator
as well as the reported victim and the reported perpetrator refuses to authorize
disclosure of the reported victim’s financial records, these procedures must
be followed:
(A) APS shall
work with the appropriate law enforcement agency to obtain a subpoena issued by
a court or on behalf of a grand jury to request financial records of the reported
victim.
(B) APS shall:
(i) Confirm
to the law enforcement agency that an investigation under ORS 124.070 (elder abuse,
including older adult residents in a community based care facility) or under ORS
441.650 (abuse of a nursing facility resident) is open and that the individual about
whom financial records are sought is the alleged victim in the abuse investigation.
(ii) Provide
or work with the law enforcement agency to obtain the name and social security number
of the individual about whom financial records are sought.
(C) A financial
institution, before making disclosures pursuant to a subpoena described in this
section, may require reimbursement for the production of records, in accordance
with ORS 192.602.
Stat. Auth.: ORS
410.070, 411.116, 441.637, 443.450, 443.765 & 443.767

Stats. Implemented:
ORS 124.050 – 124.095, 192.586, 192.600, 192.602, 410.020, 410.040, 410.070,
411.116, 441.630 – 441.695, 443.450, 443.500, 443.767 & 2012 OL Ch. 70

Hist.: SPD
7-2012(Temp), f. & cert. ef. 6-1-12 thru 11-28-12; SPD 15-2012, f. & cert.
ef. 11-28-12
411-020-0130
APS Risk Management
(1) APS risk management is the process
by which APS continues to provide active reassessment and intervention to a reported
victim once the initial self-neglect assessment or abuse investigation has been
completed.
(2) Referral to APS risk
management is appropriate when:
(a) Assessment indicates
that the reported victim continues to be vulnerable and at risk of serious harm;
(b) Continued reassessment
and intervention may reduce the risk of harm; and
(c) There is no other source
of case management available to the reported victim.
(3) APS risk management includes:
(a) The development and implementation
of an individualized plan to reduce the risk of harm to the reported victim;
(b) Regular active contact
with the reported victim to reassess the risk of harm and the effectiveness of interventions;
and
(c) Documentation of assessments
and interventions.
(4) APS risk management continues
until assessment demonstrates that the level of harm has been reduced to an acceptable
level. Approval by a supervisor or designee must be required to continue an APS
risk management case beyond one year.
Stat. Auth.: ORS 410.070, 411.116, 441.637,
443.450, 443.765, 443.767
Stats. Implemented: ORS 410.070,
411.116, 443.767
Hist.: SPD 6-2005, f. 4-29-05,
cert. ef. 7-1-05; SPD 8-2010, f. 6-29-10, cert. ef. 7-1-10; APD 37-2014, f. 11-24-14,
cert. ef. 1-1-15

The official copy of an Oregon Administrative Rule is
contained in the Administrative Order filed at the Archives Division,
800 Summer St. NE, Salem, Oregon 97310. Any discrepancies with the
published version are satisfied in favor of the Administrative Order.
The Oregon Administrative Rules and the Oregon Bulletin are
copyrighted by the Oregon Secretary of State. Terms
and Conditions of Use