Subject: These rules remove references to “mental illness” in
community programs serving adults with mental illness. The mental health
portion of the program has moved under the Oregon Health Authority as part of
HB 2009 which created the Oregon Health Authority and transferred to the
Authority the Department of Human Services’ divisions responsible for health
and health care. Amendments were also made to align the rules with current
practice and to clarify language.
Rules Coordinator: Jennifer Bittel—(503) 947-5250
These rules, OAR 407-045-0250 to 407-045-0370,
prescribe standards and procedures for the investigation of, assessment for and
provision of protective services in community programs and community facilities
for adults with developmental disabilities, and the nature and content of the
abuse investigation and protective services report.
Hist.: MHD 5-1994, f. 8-22-94
& cert. ef. 9-1-94; Renumbered from 309-040-0200, OMAP 87-2004, f.
11-10-04, cert. ef. 12-1-04; Renumbered from 410-009-0050, DHSD 5-2007, f.
6-29-07, cert. ef. 7-1-07; DHSD 3-2009, f. & cert. ef. 5-1-09; DHSD 4-2010,
f. & cert. ef. 6-29-10; DHSD 9-2011, f. 12-1-11, cert. ef. 12-5-11
As used in OAR 407-045-0250 to 407-045-0370, the
following definitions apply:
(1) “Abuse of an adult with developmental disabilities”
(a) “Abandonment” including desertion or willful
forsaking of an adult or the withdrawal or neglect of duties and obligations
owed an adult by a caregiver or other person.
(b) Death of an adult caused by other than accidental
or natural means or occurring in unusual circumstances.
(c) “Financial exploitation” including:
(A) Wrongfully taking the assets, funds or property
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
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 adult.
(D) Failing to use the income or assets of an adult
effectively for the support and maintenance of the adult. “Effectively” means
use of income or assets for the benefit of the adult.
(d) “Involuntary seclusion” means the involuntary
seclusion of an adult for the convenience of a caregiver or to discipline the
adult. Involuntary seclusion may include placing restrictions on an adult’s
freedom of movement by restriction to his or her room or a specific area, or
restriction from access to ordinarily accessible areas of the facility,
residence or program, unless agreed to by the Individual Support Plan (ISP)
team included in an approved Behavior Support Plan (BSP) or included in a
brokerage plan’s specialized support. Restriction may be permitted on an
emergency or short term basis when an adult’s presence would pose a risk to
health or safety to the adult or others.
(e) “Neglect” including:
(A) Active or passive failure to provide the care,
supervision or services necessary to maintain the physical and mental health of
an adult that may result in physical harm or significant emotional harm to an
adult. Services include but are not limited to the provision of food, clothing,
medicine, housing, medical services, assistance with bathing or personal
hygiene or any other services essential to the well-being of the adult.
(B) Failure of a caregiver to make a reasonable effort
to protect an adult from abuse.
(C) Withholding of services necessary to maintain the
health and well-being of an adult which leads to physical harm of an adult.
(f) “Physical abuse” means:
(A) Any physical injury by other than accidental means
or that appears to be at variance with the explanation given for the injury.
(B) Willful infliction of physical pain or injury.
(C) Physical abuse is presumed to cause physical
injury, including pain, to adults otherwise incapable of expressing pain.
(g) “Sexual abuse” including:
(A) An act that constitutes a crime under ORS 163.375
(rape in the first degree), 163.405 (sodomy in the first degree), 163.411
(unlawful sexual penetration in the first degree), 163.415 (sexual abuse in the
third degree), 163.425 (sexual abuse in the second degree), 163.427 (sexual
abuse in the first degree), 163.456 (public indecency) or 163.467 (private
(B) Sexual contact with a nonconsenting adult or with
an adult considered incapable of consenting to a sexual act under ORS 163.315.
(C) Sexual harassment, sexual exploitation or
inappropriate exposure to sexually explicit material or language including
requests for sexual favors. Sexual harassment or exploitation includes but is
not limited to any sexual contact or failure to discourage sexual contact
between an employee of a community facility or community program, provider or
other caregiver and an adult. For situations other than those involving an
employee, provider or other caregiver and an adult, sexual harassment or
exploitation means unwelcome physical sexual contact and other physical conduct
directed toward an adult.
(D) Any sexual contact between an employee of a
facility or paid caregiver and an adult served by the facility or caregiver.
Sexual abuse does not mean consensual sexual contact between an adult and a
paid caregiver who is the spouse or partner of the adult.
(E) Any sexual contact that is achieved through force,
trickery, threat or coercion.
(F) Any sexual contact between an adult with a
developmental disability and a relative of the person with a developmental
disability other than a spouse or partner. “Relative” means a parent,
grandparent, children, brother, sister, uncle, aunt, niece, nephew, half-brother,
half-sister, stepparent or stepchild.
(G) As defined in ORS 163.305, “sexual contact” means
any touching of the sexual or other intimate parts of a person or causing such
person to touch the sexual or other intimate parts of the actor for the purpose
of arousing or gratifying the sexual desire of either party.
(h) “Wrongful restraint” means:
(A) A wrongful use of a physical or chemical restraint,
excluding an act of restraint prescribed by a licensed physician, by any adult
support team approved plan, or in connection with a court order.
(B) “Wrongful restraint” does not include physical emergency
restraint to prevent immediate injury to an adult who is in danger of
physically harming himself or herself or others, provided only that the degree
of force reasonably necessary for protection is used for the least amount of
(i) “Verbal abuse” includes threatening significant
physical or emotional harm to an adult through the use of:
(A) Derogatory or inappropriate names, insults, verbal
assaults, profanity or ridicule.
(B) Harassment, coercion, punishment, deprivation,
threats, implied threats, intimidation, humiliation, mental cruelty or
inappropriate sexual comments.
(C) A threat to withhold services or supports,
including an implied or direct threat of termination of services. “Services”
include but are not limited to the provision of food, clothing, medicine,
housing, medical services, assistance with bathing or personal hygiene or any
other services essential to the well-being of an adult.
(D) For purposes of this section, verbal conduct
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, or
sight if gestured, regardless of their ability to comprehend. In this
circumstance the assessment of the conduct is based on a reasonable person standard.
(E) The emotional harm that can result from verbal
abuse may include but is not limited to anguish, distress or fear.
(j) An adult who in good faith is voluntarily under
treatment solely by spiritual means through prayer in accordance with the
tenets and practices of a recognized church or religious denomination by a duly
accredited practitioner shall for this reason alone not be considered subjected
(2) “Abuse Investigation and Protective Services
Report” means a completed report.
(3) “Adult” means an individual who is 18 years of age
or older who:
(a) Has a developmental disability and 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
(b) Receives services from a community program or
facility or care provider which is licensed or certified by or contracts with
the Department; and
(c) Is the alleged abuse victim.
(4) “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 allegedly abused adult’s person,
property or funds.
(5) “Brokerage” or “Support service brokerage” means an
entity, or distinct operating unit within an existing entity, that performs the
functions listed in OAR 411-340-0120(1)(a) to (g) associated with planning for
and implementation of support services for an adult with developmental
(6) “Caregiver” means an individual or facility that
has assumed responsibility for all or a portion of the care of an adult as a
result of a contract or agreement.
(7) “Community facility” means a community residential
treatment home or facility, community residential facility or adult foster
(8) “Community program” means the community
developmental disabilities program as established in ORS 430.610 to 430.695.
(9) “Designee” means the community program.
(10) “Department” means the Department of Human
(11) “Inconclusive” means there is insufficient evidence
to conclude the alleged abuse occurred or did not occur by a preponderance of
the evidence. The inconclusive determination may be used only in the following
(a) After diligent efforts have been made, the
protective services investigator is unable to locate the person alleged to have
committed the abuse or cannot locate the alleged victim or another individual
who might have information critical to the investigation; or
(b) Relevant records or documents are unavailable or
there is conflicting or inconsistent information from witnesses, documents or
records with the result that after the investigation is complete, there is
insufficient evidence to support a substantiated or not substantiated
(12) “Law enforcement agency” means any city or
municipal police department, county sheriff’s office, the Oregon State Police
or any district attorney.
(13) “Mandatory reporter” means any public or private
official who, while acting in an official capacity, comes in contact with and
has reasonable cause to believe that an adult has suffered abuse or that any
individual with whom the official comes in contact while acting in an official
capacity has abused an adult. Pursuant to ORS 430.765(2), psychiatrists,
psychologists, clergy and attorneys are not mandatory reporters with regard to
information received through communications that are privileged under ORS
40.225 to 40.295.
(14) “Not substantiated” means the preponderance of
evidence establishes the alleged abuse did not occur.
(15) “OIT” means the Department’s Office of
Investigations and Training.
(16) “Provider agency” means an entity licensed or
certified to provide services or which is responsible for the management of
services to clients.
(17) “Public or private official” means:
(a) Physician, naturopathic physician, osteopathic
physician, psychologist, chiropractor or podiatrist, including any intern or
(b) Licensed practical nurse, registered nurse, nurse’s
aide, home health aide or employee of an in-home health services organization;
(c) Employee of the Department, Oregon Health
Authority, county health department, community mental health program or
community 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
(j) Licensed professional counselor or licensed
marriage and family therapist;
(k) Firefighter or emergency medical technician; or
(l) Any public official who comes in contact with
adults in the performance of the official’s duties.
(18) “Substantiated” means that the preponderance of
evidence establishes the abuse occurred.
(19) “Unbiased investigation” means an investigation
that is conducted by a community program that does not have an actual or
potential conflict of interest with the outcome of the investigation.
Hist.: MHD 5-1994, f. 8-22-94
& cert. ef. 9-1-94; Renumbered from 309-040-0210, OMAP 87-2004, f.
11-10-04, cert. ef. 12-1-04; Renumbered from 410-009-0060, DHSD 5-2007, f.
6-29-07, cert. ef. 7-1-07; DHSD 3-2009, f. & cert. ef. 5-1-09; DHSD
12-2009(Temp), f. 12-31-09, cert. ef. 1-1-10 thru 6-29-10; DHSD 4-2010, f.
& cert. ef. 6-29-10; DHSD 7-2010(Temp), f. & cert. ef. 8-5-10 thru
1-31-11; DHSD 11-2010, f. 12-30-10, cert. ef. 1-1-11; DHSD 9-2011, f. 12-1-11,
cert. ef. 12-5-11
Training for Adults Investigating
Reports of Alleged Abuse
(1) The Department shall provide sufficient and timely
training and consultation to community programs to ensure that the community
program is able to conduct a thorough and unbiased investigation and reach a
conclusion about the abuse. Training shall include initial and continuing
education of any individual designated to conduct protective services
(2) The training shall address the cultural and social
diversity of the State of Oregon.
Hist.: OMAP 87-2004, f. 11-10-04,
cert. ef. 12-1-04; Renumbered from 410-009-0080, DHSD 5-2007, f. 6-29-07, cert.
ef. 7-1-07; DHSD 3-2009, f. & cert. ef. 5-1-09; DHSD 4-2010, f. & cert.
ef. 6-29-10; DHSD 9-2011, f. 12-1-11, cert. ef. 12-5-11
General Duties of the Community
Program and Initial Action on Report of Alleged Abuse
(1) For the purpose of carrying out these rules,
community programs are Department designees.
(2) If mandatory reporters have reasonable cause to
believe abuse of an adult has occurred, the reporter must report the abuse to
the community program, the Department, or a local law enforcement agency within
the county where the individual making the report is at the time of contact.
(3) Each community program shall designate at least one
employee to conduct protective services investigations. Community programs
shall require their designated protective services investigators to participate
in training and to demonstrate an understanding of investigative core
(4) If the Department or community program has
reasonable cause to believe abuse occurred, it must immediately notify the
appropriate public licensing or certifying agency and provide a copy of the
abuse investigation and completed protective services report.
(5) If the Department or community program has
reasonable cause to believe that an individual licensed or certified by any
state agency to provide care has committed abuse, it must immediately notify
the appropriate state licensing or certifying agency and provide that agency
with a copy of the abuse investigation and completed protective services
(6) The Department or community program may share
information prior to the completion of the abuse investigation and protective
services report if the information is necessary for:
(a) The provision of protective services; or
(b) The function of licensing and certifying agencies
or law enforcement agencies.
(7) Each community program must establish an after
hours reporting system.
(8) Upon receipt of any report of alleged abuse or upon
receipt of a report of a death that may have been caused by other than
accidental or natural means, the community program must begin:
(a) Investigation into the nature and cause of the
alleged abuse within one working day of receipt of the report to determine if
abuse occurred or whether a death was caused by abuse;
(b) Assessment of the need for protective services; and
(c) Provision of protective services, if protective
services are needed.
(9) The community program receiving a report alleging
abuse must document the information required by ORS 430.743(1) and any
additional reported information. The community program must attempt to elicit
the following information from the individual making a report:
(a) The name, age and present location of the adult;
(b) The names and addresses of the adult’s programs or
facilities responsible for the adult’s care;
(c) The nature and extent of the alleged abuse,
including any evidence of previous abuse of the adult or evidence of previous
abuse by the person alleged to have committed the abuse;
(d) Any information that led the individual making the
report to suspect abuse had occurred;
(e) Any information that the individual believes might
be helpful in establishing the cause of the abuse and the identity of the
person alleged to have committed the abuse; and
(f) The date of the incident.
(10) The community program shall maintain all reports
of abuse in a confidential location.
(11) If there is reason to believe a crime has been
committed, the community program must contact the law enforcement agency with
jurisdiction in the county where the report is made.
(12) Upon receipt of a report of abuse, the community
program must notify the case manager providing primary case management services
to the adult. The community program must also notify the guardian of the adult
unless doing so would undermine the integrity of the abuse investigation or a
criminal investigation because the guardian or case manager is suspected of
(13) If there is reasonable cause to believe that abuse
has occurred, the community program must determine if the adult is in danger or
in need of immediate protective services and shall provide those services
immediately. Under these circumstances, the community program must also advise
the provider agency, brokerage or guardian about the allegation and must
include any information appropriate or necessary for the health, safety and
best interests of the adult in need of protection.
(14) The community program shall immediately, but no
later than one working day, notify the Department it has received a report of
abuse, in the format provided by the Department.
(15) In addition to the notification required by
section (12) of these rules, if the community program determines that a report
will be assigned for investigation, the community program must notify the
provider agency, brokerage, guardian and any other individual with
responsibility for providing services and protection, unless doing so would
compromise the safety, health or best interests of the adult in need of
protection, or would compromise the integrity of the abuse investigation or a
criminal investigation. The notice shall include information that the case
shall be assigned for investigation, identify the investigator and provide
information regarding how the assigned investigator may be contacted. The
notice must be provided within five working days from the date the report was
(16) If the community program determines from the
report that there is no reasonable cause to believe abuse occurred, the
community program shall notify the provider agency or brokerage within five
working days that a protective services investigation shall not commence and
explain the reasons for that decision. The community program shall document the
notice and maintain a record of all notices.
(17) The community program or law enforcement agency
shall notify the appropriate medical examiner in cases where the community
program or law enforcement agency finds reasonable cause to believe that an
adult has died as a result of abuse or where the death occurred under
suspicious or unknown circumstances.
Hist.: MHD 5-1994, f. 8-22-94
& cert. ef. 9-1-94; Renumbered from 309-040-0230, OMAP 87-2004, f.
11-10-04, cert. ef. 12-1-04; Renumbered from 410-009-0090, DHSD 5-2007, f.
6-29-07, cert. ef. 7-1-07; DHSD 3-2009, f. & cert. ef. 5-1-09; DHSD 12-2009(Temp),
f. 12-31-09, cert. ef. 1-1-10 thru 6-29-10; DHSD 4-2010, f. & cert. ef.
6-29-10; DHSD 9-2011, f. 12-1-11, cert. ef. 12-5-11
Abuse Investigation and Protective
(1) The Department shall provide abuse investigation
and protective services report formats.
(2) Upon completion of the investigation and within 45
calendar days of the date the community program assigns a report alleging abuse
for investigation, the community programs shall prepare an abuse investigation
and protective services report. The 45-day time period does not include an
additional five working day period allowing OIT to review and approve the
report. The protective services report shall include:
(a) A statement of the allegations being investigated,
including the date, location and time;
(b) A list of protective services provided to the
(c) An outline of steps taken in the investigation, a
list of all witnesses interviewed and a summary of the information provided by
(d) A summary of findings and conclusion concerning the
allegation of abuse;
(e) A specific finding of “substantiated,”
“inconclusive,” or “not substantiated”;
(f) A plan of action necessary to prevent further abuse
of the adult;
(g) Any additional corrective action required by the community
program and deadlines for completing these actions;
(h) A list of any notices made to licensing or
(i) The name and title of the individual completing the
(j) The date the report is written.
(3) In cases where, for good cause shown, the
protective services investigator cannot complete the report within 45 days, the
investigator shall submit a request for time extension to OIT.
(a) An extension may be granted for good cause shown
which includes but is not limited to:
(A) When law enforcement is conducting an
(B) A material party or witness is temporarily
(C) New evidence is discovered;
(D) The investigation is complex (e.g., large numbers
of witnesses need to be interviewed taking into account scheduling difficulties
and limitations, consultation with experts or a detailed review of records over
an extended period of time is required); or
(E) For some other mitigating reason.
(b) When granting an extension, OIT shall consult with
the program about the need for an extension and determine the length of the
extension as necessary.
(c) The community program shall notify the provider
agency, brokerage and guardian when an extension is granted and advise them of
the new report due date.
(4) A copy of the final abuse investigation and
protective services report shall be provided to the Department within five
working days of the report’s completion and approval by OIT.
(5) The community program must provide notice of the
outcome of the investigation or assure that notice is provided to the alleged
victim, guardian, provider agency and brokerage, accused person and to any law
enforcement agency which previously received notice of the initial report.
Notice of outcome shall be provided to a reporter upon the reporter’s request.
Notice of outcome must be made within five working days after the date the case
is completed and approved by OIT. The community program must document how the
notice was provided.
(6) A centralized record of all abuse investigation and
protective services reports shall be maintained by community programs for all
abuse investigations conducted in their county and by the Department for all
abuse investigations in the state.
Subject: HB 2009 (2009) created the Oregon Health Authority
(Authority) and transferred to the Authority the Department of Human Services’
(Department) divisions with respect to health and health care. Effective July
1, 2011, a temporary rule was filed to move these rules (OAR 407-045-0400 to
407-045-0520) to the Authority’s rule chapter, OAR 943-045-0400 to 943-0400, as
part of the operational transfer from functions previously performed by the
Department as a result of HB 2009 (2009). Effective December 1, 2011, the
chapter 943 rules become permanent. With the creation of this new agency, the
administration of state hospitals has moved to the Authority. These rules are
needed to reflect the separation of the Department and the Authority. With this
rulemaking, the current temporary rules will be amended and repealed.
Rules Coordinator: Jennifer Bittel—(503) 947-5250
These rules (OAR 407-045-0400 to 407-045-0520), which
establish a policy prohibiting abuse and define procedures for reporting,
investigating, and resolving alleged incidents of abuse of individuals in state
hospitals and residential training centers, have been moved to the Oregon Health
Authority rule chapter (OAR 943-045-0400 to 943-0520).
Hist.: MHD 23, f. 8-5-74, ef.
8-25-74; MHD 19-1982(Temp), f. & ef. 9-10-82; MHD 4-1983, f. & ef.
3-4-83, Renumbered from 309-021-0010(1) and (2); MHD 3-1991, f. 6-21-91, cert.
ef. 8-15-91; MHD 7-1995, f. 12-27-95, cert. ef. 1-1-96; Renumbered from
309-116-0000, OMAP 60-2005, f. 11-22-05, cert. ef. 1-1-06; Renumbered from
410-011-0000, DHSD 4-2007, f. 6-29-07, cert. ef. 7-1-07; DHSD 4-2011(Temp), f.
& cert. ef. 7-1-11 thru 12-27-11; DHSD 10-2011, f. & cert. ef. 12-1-11
Notes 1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.