71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1541
A-Engrossed
House Bill 2396
Ordered by the House May 2
Including House Amendments dated May 2
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
{ - Creates - } { + Requires Mental Health and
Developmental Disability Services Division to contract with
protection and advocacy system to create + }Mental Health
Advocacy Program { - in office of Long Term Care Ombudsman - }
. Creates pilot programs in { - specified - } { + two + }
counties { + with specified populations + } to provide mental
health advocates for persons subject to commitment procedures.
Sunsets January 2, 2004.
Declares emergency, effective July 1, 2001.
A BILL FOR AN ACT
Relating to advocacy services for persons subject to commitment
procedures; appropriating money; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + As used in sections 1 to 9 of this 2001 Act:
(1) 'Advocacy services' means those actions taken by a designee
at the direction of a person subject to commitment procedures
under ORS chapter 426 to protect the person's rights, to secure
or upgrade the person's treatment or other services and to
empower the person to make choices about the person's health care
and well-being.
(2) 'Designee' means a volunteer appointed by the Mental Health
Advocate to serve as a representative to carry out the purposes
of sections 1 to 8 of this 2001 Act.
(3) 'Division' means the Mental Health and Developmental
Disability Services Division.
(4) 'Facility' means a facility or a nonhospital facility as
those terms are defined in ORS 426.005.
(5) 'Protection and advocacy system' means the system
designated to protect and advocate the rights of individuals with
developmental disabilities under part C of the Developmental
Disabilities Assistance and Bill of Rights Act (42 U.S.C. 6041 et
seq.) and the rights of individuals with mental illness under the
Protection and Advocacy for Mentally Ill Individuals Act (42
U.S.C. 10801 et seq.). + }
SECTION 2. { + (1) The Mental Health and Developmental
Disability Services Division shall contract with the protection
and advocacy system to establish a Mental Health Advocacy
Program. The Mental Health Advocacy Program shall provide a
person subject to commitment procedures under ORS chapter 426
with advocacy services upon the person's request.
(2) The protection and advocacy system shall designate a person
to serve as the Mental Health Advocate, who shall administer the
Mental Health Advocacy Program. Subject to funds available, the
duties of the Mental Health Advocate include, but are not limited
to, the following:
(a) Working with the division and community mental health and
developmental disabilities programs to establish pilot programs
in a county with a population of greater than 200,000 persons, in
a county with a population of fewer than 200,000 persons and in
other counties if funds are available.
(b) Establishing a program to recruit, train and provide
oversight of designees, including the appointment of local
screening committees.
(c) Appointing designees as requested under section 3 of this
2001 Act.
(d) Publicizing the Mental Health Advocacy Program and the
advocacy services provided.
(e) Creating a data information system.
(f) Preparing reports with assistance from the division.
(3) The Mental Health Advocate and the division shall report to
the Seventy-second Legislative Assembly on the results of the
pilot programs and make recommendations for future action.
(4) The Mental Health Advocacy Program does not duplicate or
replace legal representation. The Mental Health Advocate or
designee shall cooperate with the individual's legal counsel.
(5) The Mental Health Advocate or designee may not be called as
a witness in a commitment procedure.
(6) The division may adopt rules for implementing sections 1 to
8 of this 2001 Act. + }
SECTION 3. { + (1) The Mental Health Advocate shall consult
with a local screening committee regarding the selection of
designees. The local screening committee may consist of, but is
not limited to, persons representing:
(a) The community mental health and developmental disabilities
program;
(b) Recipients of mental health services;
(c) Family members of recipients of mental health services; and
(d) Local mental health facilities.
(2) The Mental Health Advocate shall appoint designees who:
(a) Have the ability to communicate effectively, to understand
laws, rules and regulations and to be assertive, objective and
constructive; and
(b) Do not have direct or indirect clinical or administrative
responsibility for individuals receiving mental health services.
(3) The Mental Health Advocate shall give preference to
designees who have experience as a recipient of mental health
services or as a family member of a recipient of mental health
services, or who had prior involvement in a commitment procedure.
(4) To be eligible for appointment as a designee, a person must
complete 40 hours of initial training or demonstrate equivalent
training, and attend ongoing training as approved by the Mental
Health Advocate. The initial training must include, but not be
limited to, the following subjects:
(a) The mental health services system, financial entitlements
and service rights of persons receiving mental health services;
(b) Patients' rights in institutional and community facilities;
(c) State and federal laws and rules affecting recipients of
mental health services;
(d) Skill development in working with an individual subject to
commitment procedures, the individual's legal counsel, facility
administrators and the judicial system;
(e) Self-advocacy and interviewing skills;
(f) Advocacy ethics and principles; and
(g) Confidentiality laws.
(5) The Mental Health Advocate shall establish standards for
successful completion of the initial training. + }
SECTION 4. { + Designees shall:
(1) Contact the person subject to commitment procedures by
telephone as soon as possible, preferably within 24 hours of
being contacted by the person or an individual calling on the
person's behalf and meet with the person as soon as possible,
preferably within 72 hours to discuss the commitment process,
answer the person's questions and otherwise assist the person as
requested. Upon arrival at and departure from a facility, the
designee shall inform the staff person specified by the facility.
(2) With the consent of the person, attend court hearings.
(3) Maintain contact with the person's legal counsel for the
commitment procedures.
(4) Provide advocacy services for the person during the
commitment procedures and the period of commitment.
(5) Work with the person to make appropriate referrals to other
services and agencies.
(6) Report regularly in writing to the Mental Health Advocate.
(7) Give the person information about a declaration for mental
health treatment under ORS 127.700 to 127.736 prior to discharge
or termination of commitment.
(8) Perform other related duties as necessary. + }
SECTION 5. { + (1) At the time a person is admitted to or
retained in a facility under ORS 426.232 or 426.233, a physician,
nurse or qualified mental health professional at the facility
shall inform the person in writing of the availability of
advocacy services provided by the Mental Health Advocacy Program
and a telephone number to call to request advocacy services. If
the person consents, the physician, nurse or qualified
professional shall contact the Mental Health Advocacy Program on
the person's behalf and request that a designee contact the
person.
(2) During an investigation initiated by a community mental
health and developmental disabilities program director under ORS
chapter 426, the investigator shall inform the person in writing
of the availability of advocacy services provided by the Mental
Health Advocacy Program and a telephone number to call to request
advocacy services. If the person consents, the investigator shall
contact the Mental Health Advocacy Program on the person's behalf
and request that a designee contact the person. + }
SECTION 6. { + (1) A person subject to commitment procedures
under ORS chapter 426 may voluntarily accept advocacy services.
If an Oregon court has found the person to be incapacitated and
has appointed a guardian for the person, the guardian may agree
to the receipt of advocacy services. An agreement for advocacy
services may be revoked, in writing or orally, at any time.
(2) If accepted, advocacy services continue through discharge
or the expiration of the period of commitment. + }
SECTION 7. { + (1) The Mental Health Advocate and each
designee may enter a facility at any time considered necessary
and reasonable by the advocate or the designee for the purpose
of:
(a) Privately offering the advocacy services of the Mental
Health Advocate or designee to any person being held pursuant to
ORS 426.070 (5)(b), 426.232 or 426.233;
(b) Privately interviewing persons, with their consent;
(c) Consulting with the facility administration; and
(d) Providing advocacy services authorized under sections 1 to
8 of this 2001 Act.
(2) Entry into a facility and other activities authorized by
this section must be done in a manner that does not significantly
disrupt the provision of care to persons in the facility.
(3) The Mental Health Advocate or designee must show
identification to the staff person specified by the facility. A
person in the facility has the right to refuse to communicate
with the advocate or designee offering advocacy services to the
individual under section 4 of this 2001 Act. The refusal must be
made directly to the advocate or designee and not through an
intermediary. + }
SECTION 8. { + (1) The Mental Health Advocate or a designee
acting in good faith in providing advocacy services is immune
from any liability, civil or criminal, that might otherwise be
incurred or imposed with respect to the advocacy services
provided.
(2) A person may not knowingly obstruct the advocate or
designee while the advocate or designee is providing advocacy
services. + }
SECTION 9. { + (1) The protection and advocacy system shall
establish a Mental Health Advocacy Program Advisory Committee.
The protection and advocacy system, in consultation with the
Mental Health and Developmental Disability Services Division,
shall appoint two consumers of mental health services and one
member each, including but not limited to the following:
(a) The Mental Health and Developmental Disability Services
Division;
(b) A community mental health and developmental disability
program;
(c) A mental health organization;
(d) A family member of a recipient of mental health services;
(e) A physician licensed to practice in this state with
knowledge and experiences in mental health services; and
(f) A local mental health facility.
(2) The advisory committee shall make recommendations to the
Mental Health Advocate and the Mental Health and Developmental
Disability Services Division regarding the operation of the
program. + }
SECTION 10. { + (1) In addition to and not in lieu of any
other appropriation, there is appropriated to the Emergency
Board, for the biennium beginning July 1, 2001, out of the
General Fund, the amount of $150,000 to be allocated by the
Emergency Board to the Mental Health and Developmental Disability
Services Division for the purpose of carrying out the provisions
of sections 1 to 9 of this 2001 Act when the division reports to
the Emergency Board that an amount up to $150,000 may be
released.
(2) The Mental Health and Developmental Disability Services
Division shall request that the Emergency Board release the funds
when the protection and advocacy system has secured matching
funds up to $150,000 for the Mental Health Advocacy Program. + }
SECTION 11. { + Sections 1 to 9 of this 2001 Act are repealed
on January 2, 2004. + }
SECTION 12. { + Sections 1 to 8 of this 2001 Act apply to
persons admitted to or retained in a facility under ORS 426.232
or 426.233 or investigations initiated under ORS 426.070 in the
counties in which pilot programs are established by the Mental
Health Advocate. + }
SECTION 13. { + This 2001 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2001 Act takes effect on
July 1, 2001. + }
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