COMPLAINTS, INVESTIGATIONS, AND CONTESTED CASE HEARINGS
Management of Complaints
(1) Consumer Protection Committee. The Board chair may appoint a Consumer Protection Committee comprised of one public member and two professional members. The Consumer Protection Committee shall:
(a) Provide direction and consultation to the Board’s investigator and the Board’s Administrator; and
(b) Make recommendations to the Board when necessary.
(2) Any Board member or Board staff member who has a conflict of interest with respect to any complaint shall declare the conflict and shall not participate in the investigation, disposition, or any other activity concerning the complaint.
Stat. Auth.: ORS 675.020 & 675.110
Stats. Implemented: ORS 675.110(8)
Hist.: BPE 2-1999, f. & cert. ef. 7-16-99; BPE 2-2004, f. & cert. ef. 8-30-04; BPE 1-2008, f. & cert. ef. 3-26-08; BPE 1-2010, f. & cert. ef. 1-8-10; BPE 3-2013, f. & cert. ef. 9-30-13
Complaints on Which the Board Can Act
Any complaint submitted to the Board must be specific as to the conduct upon which the complaint is based and why this conduct is cause for a complaint. The Board will review and accept for consideration complaints that might affect the licensure of psychologists and psychologist associates who are already licensed or are candidates for licensure, or that concern the possible practice of psychology by non-psychologists or unlicensed psychologists. A complaint concerning a licensed psychologist associate or psychologist resident may be regarded as a complaint against the supervisor. A complaint will be rejected if it does not allege a violation for which the Board has the grounds to impose sanctions pursuant to ORS 675.070. If authorized by ORS 676.160 to 676.180, a complaint may be referred to appropriate individuals or groups with the consent of the complainant.
Stat. Auth.: ORS 675.070
Stats. Implemented: ORS 675.070(2)
Hist.: BPE 3-1999, f. & cert. ef. 7-6-99; BPE 1-2010, f. & cert. ef. 1-8-10; BPE 3-2012(Temp), f. & cert. ef. 10-15-12 thru 4-13-13; BPE 1-2013, f. & cert. ef. 2-5-13; BPE 3-2013, f. & cert. ef. 9-30-13
Form of Complaints
(1) If the complaint is first made in verbal form, is tentative, or undocumented, the Board shall require a statement in writing, accompanied by documentation and a signed complaint form. The Board will advise a complainant about the nature and form of documentation required. The Board shall provide all complainants with copy of ORS 676.160, Processing of Complaints Against Health Professionals.
(2) If the complainant is a client or former client of the respondent, the complainant must sign a waiver of confidentiality allowing the Board and its legal counsel access to records and other materials that are the ethical and legal responsibility of the respondent. Refusal by a complainant to comply with this requirement may result in dismissal of the complaint.
(3) If a Board member becomes a complainant or a respondent, the same procedures will apply as in any other case. The Board member will abstain from any participation in discussion and deliberations of the Board regarding the complaint.
Stats. Auth.: ORS 675.020 & 675.110
Stats. Implemented: ORS 675.110
Hist.: BPE 2-1999, f. & cert. ef. 7-6-99; BPE 1-2010, f. & cert. ef. 1-8-10; BPE 3-2013, f. & cert. ef. 9-30-13
Notice and Investigation Process
(1) Notice to Respondent. The Board's administrator shall notify the respondent by letter when a complaint is filed, or an investigation has been initiated, into respondent’s conduct or practice. The notice letter shall provide respondent with a citation to the laws and regulations that apply to the investigation. The notice letter shall also set out the general allegations to be investigated. The investigator may modify the scope of the investigation as needed. The Board Administrator may delegate this notification procedure to the Board’s investigator.
(2) Notice to Supervisors. When a complaint is filed against an individual acting under the supervision of a licensed psychologist, the supervising psychologist(s) shall be notified that any investigation into the conduct of the supervisee may affect the licensure of the supervisor(s). The Board may open a companion investigation naming the supervisor(s).
(3) Purpose of Investigation. The purpose of the investigation shall be to determine whether sufficient credible evidence exists of violation of rules or laws administered by the Board to justify issuance of a Notice of Intent to Impose sanctions against a person licensed by the Board or such other action as the circumstances may warrant.
(4) Scope of Investigation. The investigator shall seek guidance as appropriate and necessary from individual Board members, the full Board, agency legal counsel, and the Board's administrator. If the Board decides to operate with a Consumer Protection Committee structure, that committee shall serve as the primary source of guidance for the investigator.
(5) Cooperation. Failure by respondent to cooperate with a board investigation constitutes unprofessional conduct per ORS 675.070(2). Cooperation by respondent includes:
(a) Submitting client records to the Board’s investigator, with or without a signed release by the client, for a full investigation of the allegations presented in the notice letter;
(b) Sending a complete case file to the Board’s investigator;
(c) Being available for a personal interview with the Board’s investigator; and
(d) Responding to questions presented by the Board’s investigator.
(6) Duty of the Investigator. The investigator shall collect evidence, interview witnesses and make a written report to the Board.
(7) The Board may delay approving a licensure application or issuing a license to a candidate for licensure if the person has a complaint under investigation until the complaint has been resolved.
Stat. Auth.: ORS 675.020 & 675.110
Stats. Implemented: ORS 675.110
Hist.: BPE 3-1999, f. & cert. ef. 7-6-99; BPE 2-2004, f. & cert. ef. 8-30-04; BPE 1-2008, f. & cert. ef. 3-26-08; BPE 1-2010, f. & cert. ef. 1-8-10; BPE 2-2010, f. & cert. ef. 9-28-10; Suspended by BPE 4-2012(Temp), f. & cert. ef. 10-18-12 thru 4-16-13; BPE 3-2013, f. & cert. ef. 9-30-13
Investigator’s Report to the Board
(1) When the investigation is complete, the investigator will make an investigation report to the Board, in accordance with the timeline and procedures outlined in ORS 183.310 to 183.500 and 676.160 to 676.180, and shall clearly set forth the issues on which the Board should consider possible action.
(2) The Board shall consider the investigator's report and the standards for disciplinary actions under its statutes and OAR 858-010-0075. The Board may:
(a) Dismiss the complaint;
(b) Continue the investigation; or
(c) Issue a Thirty-Day Letter. The Board administrator shall notify the respondent of the specific allegations of conduct that the Board may consider to be violations of APA Ethical Principles or Oregon statutes and administrative rules. The letter shall require a response from the respondent within 30 days from the date of mailing and provide warning that failure to respond may result in Board disposition of the complaint without the response.
Stats. Auth.: ORS 675.110
Stats. Implemented: ORS 675.110
Hist.: BPE 2-1999, f. & cert. ef. 7-6-99; BPE 2-2004, f. & cert. ef. 8-30-04; BPE 1-2010, f. & cert. ef. 1-8-10; BPE 4-2012(Temp), f. & cert. ef. 10-18-12 thru 4-16-13; Administrative correction, 5-22-13; BPE 3-2013, f. & cert. ef. 9-30-13
Contested Case Hearings
(1) When the Board institutes disciplinary actions, notice of proposed actions must be served on the respondent(s) or the respondent's legal counsel by certified mail, return receipt.
(2) The notice shall comply with ORS 183.413 to 183.497, and shall state that the respondent has the right to request a contested case hearing by filing an answer to the notice of disciplinary action and written request for hearing within 30 days of the mailing of the notice.
(3) Failure to request a hearing within 30 days of the mailing of the notice of disciplinary action shall be deemed a default and a final order shall be issued by the Board.
(4) A contested case hearing will be conducted by an impartial administrative law judge who has not been involved in the initial investigation of the complaint, in accordance with ORS 183.310-183.550 and the Board's Notice of Rights and Procedures.
(5) Only the Board may order testimony be taken by deposition.
(6) All hearings shall be conducted in Salem, Oregon, unless a different location is stipulated to by all parties and approved by the Board.
Stat. Auth.: ORS 183.425(1), 183.425(2) & 675.110
Stats. Implemented: ORS 183.425(1), 183.425(2) & 675.110
Hist.: BPE 2-1999, f. & cert. ef. 7-6-99; BPE 1-2008, f. & cert. ef. 3-26-08
If the Board determines to take disciplinary action in accordance with ORS 675.070 to restrict, suspend, or revoke a license, notice to this effect will be published in a Board publication and published on the Board’s website. Final disciplinary actions will also be reported to the National Practitioner Databank and the Association of State and Provincial Psychology Boards’ Disciplinary Databank.
Stat. Auth.: ORS 675.110
Stats. Implemented: ORS 675.110
Hist.: BPE 2-1999, f. & cert. ef. 7-6-99; BPE 2-2004, f. & cert. ef. 8-30-04; BPE 1-2010, f. & cert. ef. 1-8-10; BPE 2-2011, f. & cert. ef. 5-31-11; BPE 3-2013, f. & cert. ef. 9-30-13
Board’s Responsibility to the Public
The Board shall take responsibility for informing the public and the profession as to the ethics and nature of psychological activities. The Board shall provide psychologists in the state, the general public, and interested other groups with information about the nature of the licensure law, what may constitute violations of the law, and how inquiry about possible violations or complaints may appropriately be made. When inquiry is made, the Board may informally comment on the probable legal status of an activity that falls or might fall under ORS Chapter 675, but it shall refrain from any statement or action which might be construed as an official opinion.
Stat. Auth.: ORS 675.110
Stats. Implemented: ORS 675.110
Hist.: BPE 2-1999, f. & cert. ef. 7-6-99; BPE 3-2013, f. & cert. ef. 9-30-13
Confidentiality and Inadmissibility of Mediation Communications
(1) The words and phrases used in this rule have the same meaning as given to them in ORS 36.110 and 36.234.
(2) Nothing in this rule affects any confidentiality created by other law. Nothing in this rule relieves a public body from complying with the Public Meetings Law, ORS 192.610 to 192.690. Whether or not they are confidential under this or other rules of the agency, mediation communications are exempt from disclosure under the Public Records Law to the extent provided in 192.410 to 192.505.
(3) This rule applies only to mediations in which the agency is a party or is mediating a dispute as to which the agency has regulatory authority. This rule does not apply when the agency is acting as the "mediator" in a matter in which the agency also is a party as defined in ORS 36.234.
(4) To the extent mediation communications would otherwise be compromise negotiations under ORS 40.190 (OEC Rule 408), those mediation communications are not admissible as provided in ORS 40.190 (OEC Rule 408), notwithstanding any provisions to the contrary in section (9) of this rule.
(5) Mediations Excluded. Sections (6)-(10) of this rule do not apply to:
(a) Mediation of workplace interpersonal disputes involving the interpersonal relationships between this agency's employees, officials or employees and officials, unless a formal grievance under a labor contract, a tort claim notice or a lawsuit has been filed; or
(b) Mediation in which the person acting as the mediator will also act as the hearings officer in a contested case involving some or all of the same matters;
(c) Mediation in which the only parties are public bodies;
(d) Mediation involving two or more public bodies and a private party if the laws, rule or policies governing mediation confidentiality for at least one of the public bodies provide that mediation communications in the mediation are not confidential;
(e) Mediation involving 15 or more parties if the agency has designated that another mediation confidentiality rule adopted by the agency may apply to that mediation; or
(6) Disclosures by Mediator. A mediator may not disclose or be compelled to disclose mediation communications in mediation and, if disclosed, such communications may not be introduced into evidence in any subsequent administrative, judicial or arbitration proceeding unless:
(a) All the parties to the mediation and the mediator agree in writing to the disclosure; or
(b) The mediation communication may be disclosed or introduced into evidence in a subsequent proceeding as provided in subsections (c)-(d), (j)-(l) or (o)-(p) of section (9) of this rule; or
(7) Confidentiality and Inadmissibility of Mediation Communications. Except as provided in sections (8)-(9) of this rule, mediation communications are confidential and may not be disclosed to any other person, are not admissible in any subsequent administrative, judicial or arbitration proceeding and may not be disclosed during testimony in, or during any discovery conducted as part of a subsequent proceeding, or introduced as evidence by the parties or the mediator in any subsequent proceeding.
(8) Written Agreement. Section (7) of this rule does not apply to a mediation unless the parties to the mediation agree in writing, as provided in this section, that the mediation communications in the mediation will be confidential and/or nondiscoverable and inadmissible. If the mediator is the employee of and acting on behalf of a state agency, the mediator or an authorized agency representative must also sign the agreement. The parties' agreement to participate in a confidential mediation must be in substantially the following form. This form may be used separately or incorporated into an "agreement to mediate." [Form not included. See ED. NOTE.]
(9) Exceptions to Confidentiality and Inadmissibility.
(a) Any statements, memoranda, work products, documents and other materials, otherwise subject to discovery that were not prepared specifically for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding.
(b) Any mediation communications that are public records, as defined in ORS 192.410(4), and were not specifically prepared for use in the mediation are not confidential and may be disclosed or introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential or privileged under state or federal law.
(c) A mediation communication is not confidential and may be disclosed by any person receiving the communication to the extent that person reasonably believes that disclosing the communication is necessary to prevent the commission of a crime that is likely to result in death or bodily injury to any person. A mediation communication is not confidential and may be disclosed in a subsequent proceeding to the extent its disclosure may further the investigation or prosecution of a felony crime involving physical violence to a person.
(d) Any mediation communication related to the conduct of a licensed professional that is made to or in the presence of a person who, as a condition of his or her professional license, is obligated to report such communication by law or court rule is not confidential and may be disclosed to the extent necessary to make such a report.
(e) The parties to the mediation may agree in writing that all or part of the mediation communications are not confidential or that all or part of the mediation communications may be disclosed and may be introduced into evidence in a subsequent proceeding unless the substance of the communication is confidential, privileged or otherwise prohibited from disclosure under state or federal law.
(f) A party to the mediation may disclose confidential mediation communications to a person if the party's communication with that person is privileged under ORS chapter 40 or other provision of law. A party to the mediation may disclose confidential mediation communications to a person for the purpose of obtaining advice concerning the subject matter of the mediation, if all the parties agree.
(g) An employee of the agency may disclose confidential mediation communications to another agency employee so long as the disclosure is necessary to conduct authorized activities of the agency. An employee receiving a confidential mediation communication under this subsection is bound by the same confidentiality requirements as apply to the parties to the mediation.
(h) A written mediation communication may be disclosed or introduced as evidence in a subsequent proceeding at the discretion of the party who prepared the communication so long as the communication is not otherwise confidential under state or federal law and does not contain confidential information from the mediator or another party who does not agree to the disclosure.
(i) In any proceeding to enforce, modify or set aside a mediation agreement, a party to the mediation may disclose mediation communications and such communications may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of mediation communications or agreements to persons other than the parties to the agreement.
(j) In an action for damages or other relief between a party to the mediation and a mediator or mediation program, mediation communications are not confidential and may be disclosed and may be introduced as evidence to the extent necessary to prosecute or defend the matter. At the request of a party, the court may seal any part of the record of the proceeding to prevent further disclosure of the mediation communications or agreements.
(k) When a mediation is conducted as part of the negotiation of a collective bargaining agreement, the following mediation communications are not confidential and such communications may be introduced into evidence in a subsequent administrative, judicial or arbitration proceeding:
(A) A request for mediation; or
(B) A communication from the Employment Relations Board Conciliation Service establishing the time and place of mediation; or
(C) A final offer submitted by the parties to the mediator pursuant to ORS 243.712; or
(D) A strike notice submitted to the Employment Relations Board.
(l) To the extent a mediation communication contains information the substance of which is required to be disclosed by Oregon statute, other than ORS 192.410 to 192.505, that portion of the communication may be disclosed as required by statute.
(m) Written mediation communications prepared by or for the agency or its attorney are not confidential and may be disclosed and may be introduced as evidence in any subsequent administrative, judicial or arbitration proceeding to the extent the communication does not contain confidential information from the mediator or another party, except for those written mediation communications that are:
(A) Attorney-client privileged communications so long as they have been disclosed to no one other than the mediator in the course of the mediation or to persons as to whom disclosure of the communication would not waive the privilege; or
(B) Attorney work product prepared in anticipation of litigation or for trial; or
(C) Prepared exclusively for the mediator or in a caucus session and not given to another party in the mediation other than a state agency; or
(D) Prepared in response to the written request of the mediator for specific documents or information and given to another party in the mediation; or
(E) Settlement concepts or proposals, shared with the mediator or other parties.
(n) A mediation communication made to the agency may be disclosed and may be admitted into evidence to the extent the Administrator determines that disclosure of the communication is necessary to prevent or mitigate a serious danger to the public's health or safety, and the communication is not otherwise confidential or privileged under state or federal law.
(o) The terms of any mediation agreement are not confidential and may be introduced as evidence in a subsequent proceeding, except to the extent the terms of the agreement are exempt from disclosure under ORS 192.410 to 192.505, a court has ordered the terms to be confidential under 30.402 or state or federal law requires the terms to be confidential.
(p) The mediator may report the disposition of a mediation to the agency at the conclusion of the mediation so long as the report does not disclose specific confidential mediation communications. The agency or the mediator may use or disclose confidential mediation communications for research, training or educational purposes, subject to the provisions of ORS 36.232(4).
(10) When a mediation is subject to section (7) of this rule, the agency will provide to all parties to the mediation and the mediator a copy of this rule or a citation to the rule and an explanation of where a copy of the rule may be obtained. Violation of this provision does not waive confidentiality or inadmissibility.
[ED. NOTE: Copies of the Form referenced in this rule are available from the agency.]
Stat. Auth.: ORS 36.224
Stats. Implemented: ORS 36.224, ORS 36.228, ORS 36.230 & ORS 36.232
Hist.: BPE 2-1999, f. & cert. ef. 7-6-99
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