2017 ORS 441.731¹
Civil penalties

(1) The Director of Human Services may impose a civil penalty under ORS 441.710 (Civil penalties) on a residential care facility or a long term care facility pursuant to this section.

(2)(a) When imposing a civil penalty on a residential care facility or a long term care facility pursuant to this section, the director shall consider:

(A) Any prior violations of laws or rules pertaining to the facility and, as a mitigating factor, whether violations were incurred under prior ownership or management of the facility.

(B) The financial benefits, if any, realized by the facility as a result of the violation.

(C) The facility’s past history of correcting violations and preventing the recurrence of violations.

(D) The severity and scope of the violation as described in paragraphs (b) and (c) of this subsection.

(b) The director shall assess the severity of a violation using the following criteria:

(A) Level 1 is a violation that results in no actual harm or in potential for only minor harm.

(B) Level 2 is a violation that results in minor harm or potential for moderate harm.

(C) Level 3 is a violation that results in moderate harm or potential for serious harm.

(D) Level 4 is a violation that results in serious harm or death.

(c) The director shall assess the scope of a violation using the following criteria:

(A) An isolated violation occurs when one or a very limited number of residents or employees are affected or a very limited area or number of locations within a facility are affected.

(B) A pattern violation occurs when more than a very limited number of residents or employees are affected, or the situation has occurred in more than a limited number of locations but the locations are not dispersed throughout the facility.

(C) A widespread violation occurs when the problems causing the deficiency are pervasive and affect many locations throughout the facility or represent a systemic failure that affected, or has the potential to affect, a large portion or all of the residents or employees.

(d) As used in this subsection:

(A)(i) “Financial loss” means loss of resident property or money as a result of financial exploitation as that term is defined in ORS 124.050 (Definitions for ORS 124.050 to 124.095).

(ii) “Financial loss” does not include loss of resident property or money that results from action or inaction of an individual not employed or contracted with the facility, or that arises from the action or inaction of an individual employed or contracted with the facility if the action or inaction occurs while the individual is not performing employment or contractual duties.

(B) “Harm” means a measurable negative impact to a resident’s physical, mental, financial or emotional well-being.

(C) “Minor harm” means harm resulting in no more than temporary physical, mental or emotional discomfort or pain without loss of function, or in financial loss of less than $1,000.

(D) “Moderate harm” means harm resulting in temporary loss of physical, mental or emotional function, or in financial loss of $1,000 or more, but less than $5,000.

(E) “Serious harm” means harm resulting in long-term or permanent loss of physical, mental or emotional function, or in financial loss of $5,000 or more.

(3)(a) The director may impose civil penalties as follows:

(A) For a level 1 violation, the director may not impose a civil penalty.

(B) For a level 2 violation, the director may impose a penalty in an amount no less than $250 per violation, not to exceed $500 per violation.

(C) For a level 3 violation, the director may impose a civil penalty in an amount no less than $500 per violation, not to exceed $1,500 per violation.

(D) For a level 4 violation, the director may impose a civil penalty in an amount no less than $1,500 per violation, not to exceed $2,500 per violation.

(E) For a failure to report abuse of a resident to the Department of Human Services as required by state law, the director may impose a civil penalty in an amount no more than $1,000 per violation.

(b) The penalties imposed under paragraph (a)(A) to (D) of this subsection may not exceed $20,000 in the aggregate for violations occurring in a single residential care facility or long term care facility within any 90-day period.

(c) In imposing civil penalties under this subsection, the director may take into account the scope of the violation.

(4)(a) If the department investigates and makes a finding of abuse in a residential care facility or long term care facility arising from deliberate or other than accidental action or inaction that is likely to cause a negative outcome by a person with a duty of care toward a resident of a residential care facility or long term care facility and if the abuse resulted in the death, serious injury, rape or sexual abuse of a resident, the director shall impose a civil penalty on the facility of not less than $2,500 and not more than $15,000 for each occurrence of substantiated abuse, not to exceed $40,000 for all violations occurring in a facility within any 90-day period.

(b) As used in this subsection:

(A) “Negative outcome” includes serious injury, rape, sexual abuse or death.

(B) “Rape” means rape in the first degree as defined in ORS 163.375 (Rape in the first degree), rape in the second degree as defined in ORS 163.365 (Rape in the second degree) and rape in the third degree as defined in ORS 163.355 (Rape in the third degree).

(C) “Serious injury” means physical injury that creates a substantial risk of death or that causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.

(D) “Sexual abuse” means any form of sexual contact between an employee of a residential care facility or a long term care facility or a person providing services in the facility and a resident of that facility, including but not limited to sodomy, sexual coercion, sexually explicit photographing and sexual harassment.

(5) When imposing penalties under this section for a violation that qualifies as abuse under state law and results in less than serious harm as defined in subsection (2) of this section, the director shall reduce the penalty by not less than 25 percent if the facility self-reported the abuse to the department.

(6) The department shall identify and track the number of abuse violations that are reported to the department by a facility and compile statistics on the rate of self-reporting by facilities as compared to abuse complaints from other sources.

(7)(a) When the director notifies a facility of a violation for which a penalty may be imposed under this section, the director shall describe in the notice the specific remediations that the facility must make to achieve substantial compliance regarding the violation. In the notice, the director shall prescribe a reasonable time for elimination of the violation:

(A) Not to exceed 30 days after first notice of a violation; or

(B) In cases where the violation requires more than 30 days to correct, such time as is specified in a plan of correction found acceptable by the director.

(b) The director shall hold in abeyance a penalty for a level 2 violation or level 3 violation for the period prescribed under paragraph (a) of this subsection. If the facility achieves substantial compliance as described in the notice required under paragraph (a) of this subsection within the prescribed time period, the director shall withdraw some or all of the penalty.

(c) As used in this subsection, “substantial compliance” means a level of compliance with state law and with rules of the department such that any identified deficiencies pose a risk of no more than negligible harm to the health or safety of residents of a facility. [2017 c.679 §4]

Note: See note under 441.705 (Definitions for ORS 441.705 to 441.745).

Chapter 441

Atty. Gen. Opinions

Licensing and phantom beds, (1970) Vol 40, p 171; a hospital’s employing a licensed physical therapist as unauthorized practice, (1975) Vol 37, p 963

1 Legislative Counsel Committee, CHAPTER 441—Health Care Facilities, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors441.­html (2017) (last ac­cessed Mar. 30, 2018).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 441, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano441.­html (2017) (last ac­cessed Mar. 30, 2018).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.