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 2811
 
                           A-Engrossed
 
                         House Bill 3245
                   Ordered by the House May 11
             Including House Amendments dated May 11
 
Sponsored by COMMITTEE ON JUDICIARY (at the request of Oregon
  Advocacy Center)
 
 
                             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.
 
  Directs Mental Health and Developmental Disability Services
Division to ensure that designee conducting investigation of
alleged abuse of mentally ill or developmentally disabled adult
has training and experience to conduct   { - impartial - }
 { + thorough and unbiased + } investigation.
  Prohibits delegation of responsibility of investigation to
person who operates facility in which abuse is alleged to have
occurred   { - or who has contractual relationship with that
facility - } .
 
                        A BILL FOR AN ACT
Relating to investigations of abuse of disabled persons; creating
  new provisions; and amending ORS 430.735, 430.737 and 430.755.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 430.737 is amended to read:
  430.737. The Legislative Assembly finds that for the purpose of
preventing abuse and safeguarding and enhancing the welfare of
adults who are mentally ill or developmentally disabled, it is
necessary and in the public interest to require mandatory reports
and  { + thorough and unbiased + } investigations of allegedly
abused mentally ill and developmentally disabled adults.
  SECTION 2.  { + Section 3 of this 2001 Act is added to and made
a part of ORS 430.735 to 430.765. + }
  SECTION 3.  { + (1) Any designee of the Mental Health and
Developmental Disability Services Division who makes a
determination or conducts an investigation under ORS 430.743 or
430.745 shall have adequate training and experience to make the
determination or conduct a thorough and unbiased investigation.
  (2) The division may not delegate responsibility for making a
determination or conducting an investigation under ORS 430.743 or
430.745 to a designee who operates the facility or community
program in which the reported abuse is alleged to have
occurred. + }
  SECTION 4. ORS 430.735 is amended to read:
  430.735. As used in ORS 430.735 to 430.765:
  (1) 'Abuse' means one or more of the following:
  (a) Any death caused by other than accidental or natural means.
  (b) Any physical injury caused by other than accidental means,
or that appears to be at variance with the explanation given of
the injury.
  (c) Willful infliction of physical pain or injury.
  (d) Sexual harassment or exploitation, including but not
limited to any sexual contact between an employee of a facility
or community program and an adult.
   { +  (e) Neglect that leads to physical harm through
withholding of services necessary to maintain health and
well-being. + }
  (2) 'Adult' means a person who is mentally ill or
developmentally disabled, who is 18 years of age or older and
receives services from a community program or facility.
  (3) '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 adult's person,
property and funds. Any actions taken to protect an adult shall
be undertaken in a manner that is least intrusive to the adult
and provides for the greatest degree of independence.
  (4) 'Care provider' 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.
  (5) 'Community program' means a community mental health and
developmental disabilities program as established in ORS 430.610
to 430.695.
  (6) 'Division' means the Mental Health and Developmental
Disability Services Division of the Department of Human Services.
  (7) 'Facility' means a residential treatment home or facility,
residential care facility, adult foster care home, residential
training home or facility or crisis respite facility.
  (8) 'Law enforcement agency' means:
  (a) Any city or municipal police department;
  (b) Any county sheriff's office;
  (c) The Oregon State Police; or
  (d) Any district attorney.
  (9) 'Public or private official' means:
  (a) Physician, naturopathic physician, osteopathic physician,
psychologist, chiropractor or podiatric physician and surgeon,
including any intern or resident;
  (b) Licensed practical nurse, registered nurse, nurse's aide,
home health aide or employee of an in-home health service;
  (c) Employee of the Department of Human Services, county health
department, community mental health and 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 worker;
  (i) Attorney;
  (j) Licensed professional counselor or licensed marriage and
family therapist; or
  (k) Any public official who comes in contact with adults in the
performance of the official's duties.
  SECTION 5. ORS 430.755 is amended to read:
  430.755. (1) A facility, community program or person shall not
retaliate against any person who reports in good faith suspected
abuse or against the allegedly abused adult with respect to any
report.
  (2) Any facility, community program or person that retaliates
against any person because of a report of suspected abuse
 { - or neglect - }  shall be liable in a private action to that
person for actual damages and, in addition, a penalty up to
$1,000, notwithstanding any other remedy provided by law.
 
  (3)(a) Any adverse action is evidence of retaliation if taken
within 90 days of a report.
  (b) For purposes of this subsection, 'adverse action' means any
action taken by a facility, community program or person involved
in a report against the person making the report or against the
adult with respect to whom the report was made because of the
report, and includes but is not limited to:
  (A) Discharge or transfer from the facility, except for
clinical reasons;
  (B) Discharge from or termination of employment;
  (C) Demotion or reduction in remuneration for services; or
  (D) Restriction or prohibition of access to the facility or its
residents.
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