Or. Admin. Code § 411-020-0002

Current through Register Vol. 63, No. 12, December 1, 2024

Section 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 these rules, 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.

(A) For the purposes of these rules, neglect means the active or passive failure to provide the basic care or services necessary to maintain the health and safety of an adult, when that failure:

(i) Results in physical harm, significant emotional harm, unreasonable discomfort, or serious loss of personal dignity to the adult; or

(ii) Creates the risk of serious harm to the adult.

(B) The expectation for care may exist because 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.

(C) 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 includes 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 using:

(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 these rules:

(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 the threat conveyed maybe carried out;

(C) Misappropriating or misusing any money from any account held jointly or singly by an adult;

(D) Failing to use income or assets of an adult for the benefit, support, and maintenance of the adult; or

(E) The taking, borrowing, or accepting of assets, funds, property, or medications from an adult residing in a facility by an employee of the facility, unless the adult and employee are related and the action described in this paragraph does not constitute a wrongful taking as described in (A).

(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 unless the two are spouses or domestic partners;

(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 their 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 the specified areas 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) "Administrative Closure" means an abuse or self-neglect investigation was initiated and closed with no determination as to whether abuse or self-neglect occurred or not.

(3) "Adult" means an individual who is 18 years of age or older.

(4) "Aging and People with Disabilities (APD)" means the Aging and People with Disabilities program within the Department of Human Services.

(5) Alleged Perpetrator (AP)" means the licensee, employees, volunteers, or contracted personnel of the facility, or any adult reported to have committed abuse.

(6) "Alleged Victim (AV)" means the individual against whom abuse or self-neglect is reported to have been committed.

(7) "Adult Protective Services (APS)" means APD program services to respond to abuse and self-neglect of older adults and adults with physical disabilities as described in these rules, including screening, triage or consultation, on-site assessment, investigation, intervention, documentation, and APS risk management.

(8) "APS Risk Management" means the process by which Adult Protective Services staff provide short-term, active assessment and intervention with an alleged victim who is at serious risk of harm, or continues to be at serious risk of harm, after an investigation is complete.

(9) "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.

(10) "Authority" means the Oregon Health Authority.

(11) "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, supervision for safety, as well as activities of daily living including assistance with bathing, dressing, hygiene, eating, mobility, and toileting.

(12) "Community-Based Care Facility" means an assisted living facility, residential care facility, or adult foster home.

(13) "Conclusion" means a determination of whether abuse or self-neglect occurred.

(14) "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.

(15) "Department" means the Department of Human Services (DHS).

(16) "Evidence" means material gathered, examined, or produced during an APS investigation. Evidence includes, but is not limited to, witness statements, documentation, photographs, audio or video recordings, and relevant physical evidence.

(17) "Financial Institution" has the meaning given in ORS 192.583.

(18) "Financial Records" has the meaning given in ORS 192.583.

(19) "Guardianship" means a court has issued an order appointing an individual with the power and duty of managing the care, comfort, or maintenance of an incapacitated adult.

(20) "Health Care Provider" has the meaning given that term in ORS 192.556.

(21) "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.

(22) "Inconclusive" means that after a careful analysis of the evidence gathered in an investigation, a determination of whether abuse or self-neglect occurred cannot be reached by a preponderance of the evidence.

(23) "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.

(24) "Investigation" means the process of determining whether abuse or self-neglect occurred. The investigation results in a conclusion as to whether the alleged abuse or self-neglect is substantiated, unsubstantiated, inconclusive, or administratively closed.

(25) "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.

(26) "Licensed Care Facility" means a facility licensed by, APD including assisted living facilities, residential care facilities, and adult foster homes. For these rules "licensed care facility" does not include nursing facilities.

(27) "Local Office" means the local service staff of the Department or Area Agency on Aging.

(28) "Mandatory Abuse Reporter" for the purpose of these rules, means any public or private official who is required by state abuse statutes to report alleged abuse. The public or private officials who are mandatory reporters are:

(a) Physicians, psychiatrists, naturopathic physicians, osteopathic physicians, chiropractors, podiatric physicians, physician assistants, or surgeons, including any interns or residents;

(b) Licensed practical nurses, registered nurses, nurse practitioners, nurse's aides, home health aides, or employees of an in-home health service;

(c) Employees of DHS, community developmental disabilities programs, or Area Agencies on Aging;

(d) Employees of the Oregon Health Authority, county health departments, or community mental health programs;

(e) Employees of a nursing facility or an individual who contracts to provide services to a nursing facility;

(f) Peace officers;

(g) Members of the Clergy;

(h) Regulated social workers, licensed professional counselors, or licensed marriage and family therapists;

(i) Physical, speech, or occupational therapists, audiologists, or speech language pathologists;

(j) Senior center employees;

(k) Information and referral or outreach workers;

(l) Firefighter or emergency medical services providers;

(m) Psychologists;

(n) Licensees of an adult foster home or an employee of the licensee;

(o) Attorneys;

(p) Dentists;

(q) Optometrists;

(r) Members of the Legislative Assembly;

(s) Personal support workers;

(t) Home care workers;

(u) Referral Agents as defined in OAR 411-058-0000(12); and

(v) For nursing facilities, all of the above, plus legal counsel, guardians, or family members of the resident.

(29) "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 AAA offices, community mental health and developmental disability programs, plus advocates for older adults and individuals with disabilities, and individuals specially trained in abuse.

(30) "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.

(31) "Older Adult" means any individual 65 years of age or older.

(32) "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 themselves from abuse or self-neglect.

(33) "Preponderance of the Evidence" means the majority of the evidence collected during an investigation supports a particular conclusion.

(34) "Protected Health Information" has the meaning given in ORS 192.556.

(35) "Protective Services" means a service provided by the Department, directly or through type B AAAs, in response to the need to protect elderly persons and persons with physical disabilities from harm or neglect.

(36) "Regulated Providers" means service providers regulated through licensing, certification, registration, contracts, provider enrollment agreements, and other means over which the Department and Authority have administrative authority and responsibility.

(37) "Reporter" means the individual or entity who reports alleged abuse or self-neglect to the Department or a law enforcement agency.

(38) "Required Reporter" means the individual or entity who is required by the Department's or the Authority's administrative rules, contracts, or policy to report alleged abuse or self-neglect to the Department. "Required reporter" is also used when other agencies or entities internally require their own abuse reporting to the Department.

(39) "Restraint" means:

(a) Physical restraints are any manual method or physical or mechanical device, material, or equipment attached to or adjacent to the individual's body that the individual cannot remove easily, which restricts freedom of movement or normal access of the individual to the individual's body. Any manual method includes physically restraining someone by manually holding someone in place.

(b) Chemical restraints are any substance or drug used for the purpose of discipline or convenience that has the effect of restricting the individual's freedom of movement or behavior and is not used to treat the individual's medical or psychiatric condition.

(40) "Risk Assessment" means the process by which an individual is evaluated for risk of harm and for the physical and cognitive abilities to protect their interests and personal safety. The individual's living situation, support system, and other relevant factors are evaluated to determine the impact on the individual's ability to become or remain safe.

(41) "Risk of Serious Harm" means that without intervention, the individual is likely to incur substantial injury or loss.

(42) "Self-Determination" means an adult's ability to decide their own fate or course of action without undue influence.

(43) "Self-Neglect" means the inability of an adult to understand the consequences of their actions or inaction when that inability leads to or may lead to harm or endangerment to self.

(44) "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.

(45) "Substantiated" means the preponderance of the evidence gathered and analyzed in an investigation indicates the allegation is true.

(46) "These Rules" mean the rules in OAR chapter 411, division 020.

(47) "Undue Influence" means the process by which an individual uses their 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.

(48) "Unsubstantiated" means the preponderance of the evidence gathered and analyzed in an investigation indicates the allegation is not true.

Or. Admin. Code § 411-020-0002

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. 1/1/2015; APD 24-2015(Temp), f. 12-16-15, cert. ef. 1-1-16 thru 6-28-16; APD 8-2016, f. & cert. ef. 5/6/2016; APD 16-2018, temporary amend filed 06/28/2018, effective 07/01/2018 through 12/27/2018; APD 44-2018, amend filed 12/27/2018, effective 12/27/2018

Statutory/Other Authority: ORS 124.05, 124.065, 124.070, 409.010, 410.020, 410.040, 410.070, 411.060, 411.116, 443.450, 443.765 & 443.767

Statutes/Other Implemented: ORS 124.050 - 124.095, 125.005, 192.583, 409.010, 410.020, 410.040, 410.070, 411.060, 411.116 & 443.435, 443.450, 443.500, 443.765, 443.767, Oregon Laws 2013 Chapter 352