Relating to the Legislative Ombudsman; creating new provisions; amending ORS 90.635, 124.090, 125.060, 410.550, 414.712, 417.825, 441.650, 441.671, 443.738, 443.767, 476.030, 656.270 and 656.709; repealing ORS 417.810, 417.815, 423.400, 423.405, 423.410, 423.415, 423.420, 423.425, 423.430, 423.435, 423.440, 423.445, 423.450, 441.100, 441.103, 441.107, 441.109, 441.113, 441.117, 441.121, 441.124, 441.127, 441.131, 441.133, 441.137, 441.142, 441.146, 441.147, 441.153 and 446.543; appropriating money; and declaring an emergency.

 
 
 
     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 4183
 
                         House Bill 3963
 
Sponsored by Representatives SCHRADER, WINTERS; Representatives
  ACKERMAN, BACKLUND, BARNHART, BATES, BECK, BROWN, BUTLER,
  CARLSON, CLOSE, DEVLIN, DOYLE, HANSEN, HILL, JENSON, JOHNSON,
  KAFOURY, KNOPP, KRIEGER, KROPF, KRUMMEL, KRUSE, LEE, MARCH,
  MINNIS, MONNES ANDERSON, MORGAN, NELSON, PATRIDGE, SHETTERLY,
  SIMMONS, G SMITH, P SMITH, T SMITH, STARR, VERGER, C WALKER,
  WESTLUND, WILLIAMS, WILSON, WIRTH, WITT, ZAUNER
 
 
                             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 as
introduced.
 
  Creates position of Legislative Ombudsman within legislative
department of state government. Creates process for selecting
Legislative Ombudsman. Defines duties and authority of
Legislative Ombudsman. Requires state agencies to cooperate with
Legislative Ombudsman.
  Appropriates moneys to Legislative Assembly for ombudsman
office.
  Abolishes Children's Ombudsman, Corrections Ombudsman,
Department of Human Services positions for providing ombudsman
services, Manufactured Dwelling Park Ombudsman and offices of
ombudsman for injured workers and ombudsman for small business in
Department of Consumer and Business Services. Transfers ombudsmen
rights and obligations to Legislative Ombudsman.
  Declares emergency, effective July 1, 2001.
 
                        A BILL FOR AN ACT
Relating to the Legislative Ombudsman; creating new provisions;
  amending ORS 90.635, 124.090, 125.060, 410.550, 414.712,
  417.825, 441.650, 441.671, 443.738, 443.767, 476.030, 656.270
  and 656.709; repealing ORS 417.810, 417.815, 423.400, 423.405,
  423.410, 423.415, 423.420, 423.425, 423.430, 423.435, 423.440,
  423.445, 423.450, 441.100, 441.103, 441.107, 441.109, 441.113,
  441.117, 441.121, 441.124, 441.127, 441.131, 441.133, 441.137,
  441.142, 441.146, 441.147, 441.153 and 446.543; 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 11 of this 2001 Act:
  (1) 'Agency' has the meaning given that term in ORS 183.310.
  (2) 'Appointing authority' means the President and Minority
Leader of the Senate and the Speaker and Minority Leader of the
House of Representatives. + }
  SECTION 2.  { + (1) There is created within the legislative
department of state government the position of Legislative
Ombudsman.
 
  (2) The appointing authority may select and terminate the
ombudsman by unanimous agreement. The ombudsman serves at the
pleasure of the appointing authority.
  (3) Subject to the approval of the appointing authority, the
ombudsman may employ and fix the compensation of the deputies the
ombudsman considers necessary for the effective conduct of the
work under the charge of the ombudsman. An employee of the
ombudsman serves at the pleasure of the ombudsman.
  (4) When employing deputies, the ombudsman shall consider first
the persons whose positions are abolished by section 11 of this
2001 Act.
  (5) The appointing authority shall fix the salary of the
ombudsman. + }
  SECTION 3.  { + (1) The Legislative Ombudsman shall be a person
of recognized judgment, objectivity and integrity who is
qualified by training and experience to analyze problems of
public law, administration and policy.
  (2) A person serving as ombudsman may not:
  (a) Be actively involved in political party activities;
  (b) Be a candidate for or hold other public office, whether
elective or appointive; or
  (c) Be engaged in any other full-time occupation, business or
profession. + }
  SECTION 4.  { + The Legislative Ombudsman may:
  (1) Develop procedures for receiving and processing complaints,
conducting investigations and reporting findings consistent with
sections 1 to 11 of this 2001 Act;
  (2) Examine by subpoena the records and documents of an agency
or any employee of the agency;
  (3) Enter and inspect without notice any premises of an agency;
  (4) Subpoena any person to appear, to give sworn testimony or
to produce documentary or other evidence that is reasonably
material to an inquiry;
  (5) Undertake, participate in or cooperate with persons and
agencies in such conferences, inquiries, meetings or studies as
might lead to improvements in the functioning of an agency; and
  (6) Bring suit in the Circuit Court for Marion County to
enforce sections 1 to 11 of this 2001 Act. + }
  SECTION 5.  { + (1) The Legislative Ombudsman may investigate,
on complaint or on the ombudsman's own motion, any agency action
that is or is alleged to be:
  (a) Contrary to or inconsistent with law or agency practice;
  (b) Based on mistaken facts or irrelevant considerations;
  (c) Inadequately explained when reasons should have been
revealed;
  (d) Inefficiently performed; or
  (e) Unreasonable, unfair or otherwise objectionable, even
though in accordance with law.
  (2) Notwithstanding subsection (1) of this section, the
ombudsman may decide not to investigate because:
  (a) The complainant could reasonably be expected to use a
different remedy or action;
  (b) The complaint is trivial, frivolous, vexatious or not made
in good faith; or
  (c) The complaint has been too long delayed to justify present
examination. + }
  SECTION 6.  { + The Legislative Ombudsman:
  (1) Shall give priority to investigating administrative actions
that are not otherwise reviewable by either administrative or
judicial action;
  (2) Shall treat confidentially all matters coming before the
ombudsman and the identities of the complainants or witnesses
coming before the ombudsman; and
  (3) May not levy any fees for the submission or investigation
of complaints. + }
 
  SECTION 7.  { + (1) After investigation of any action, the
Legislative Ombudsman shall inform the party that filed the
complaint and the agency of the ombudsman's recommendations and
reasons if, in the ombudsman's opinion, the agency or any
employee of the agency should:
  (a) Consider the matter further;
  (b) Modify or cancel any action;
  (c) Alter a rule, practice or ruling;
  (d) Explain more fully the administrative action in question;
  (e) Rectify an omission; or
  (f) Take any other action.
  (2) Before recommending action by an agency, the ombudsman must
inform the agency of the recommended action and afford the agency
an opportunity to comment.
  (3) At the request of the ombudsman, an agency shall, within
the time specified by the ombudsman, inform the ombudsman about
the action taken on the recommendations or the reasons for not
complying with the recommendations. After a reasonable period of
time, the ombudsman may issue a report to the public concerning
the investigation, recommendation and action taken by the
agency. + }
  SECTION 8.  { + (1) A person that files a complaint pursuant to
sections 1 to 11 of this 2001 Act is not subject to any
penalties, sanctions or restrictions because of the complaint.
  (2) The Legislative Ombudsman and the staff of the ombudsman
have the same immunities from civil and criminal liabilities as a
judge of this state.
  (3) The ombudsman and the staff of the ombudsman may not be
compelled to testify or produce evidence in any judicial or
administrative proceeding about any matter involving the exercise
of their official duties except as may be necessary to enforce
sections 1 to 11 of this 2001 Act. + }
  SECTION 9.  { + (1) Any person required to testify under
section 4 of this 2001 Act shall be accorded the same privileges
and immunities, receive the same fees and mileage and be subject
to the same penalties provided in ORS 183.440.
  (2) Fees and mileage for a witness shall be paid by warrant
upon the State Treasurer upon the certificate of the Legislative
Ombudsman. No tender of witness fees or mileage in advance shall
be necessary.
  (3) Notwithstanding subsection (1) of this section, a
representative of an agency may receive no more than actual
necessary traveling expenses. + }
  SECTION 10.  { + If a person intentionally obstructs or hinders
the proper and lawful exercise of the Legislative Ombudsman's
powers, or intentionally misleads or attempts to mislead the
ombudsman in inquiries under sections 1 to 11 of this 2001 Act, a
judge of the Circuit Court for Marion County, upon the
application of the ombudsman, shall compel obedience by
proceedings for contempt in the same manner as disobedience of
the requirements of a subpoena issued from the court or a refusal
to testify in the court. + }
  SECTION 11.  { + (1) The Children's Ombudsman, the Corrections
Ombudsman, the positions in the Department of Human Services for
providing ombudsman services required by ORS 414.712, the
Manufactured Dwelling Park Ombudsman and the offices of ombudsman
for injured workers and ombudsman for small business in the
Department of Consumer and Business Services are abolished.
  (2) On the effective date of this 2001 Act, the tenure of the
following positions and staff supporting the positions cease:
  (a) The Children's Ombudsman.
  (b) The Corrections Ombudsman.
  (c) The positions in the Department of Human Services for
providing ombudsman services required by ORS 414.712.
  (d) The Manufactured Dwelling Park Ombudsman.
 
  (e) The office of ombudsman for injured workers in the
Department of Consumer and Business Services.
  (f) The office of ombudsman for small business in the
Department of Consumer and Business Services.
  (3) An agency may not permit an employee of the agency to use
the title 'ombudsman.' + }
  SECTION 12.  { + There are imposed upon, transferred to and
vested in the Legislative Ombudsman the duties, functions and
powers of the Children's Ombudsman, the Corrections Ombudsman,
the Department of Human Services for providing ombudsman services
required by ORS 414.712, the Manufactured Dwelling Park
Ombudsman, the offices of ombudsman for injured workers and
ombudsman for small business in the Department of Consumer and
Business Services. + }
  SECTION 13.  { + (1) The rights and obligations of the
Children's Ombudsman, the Corrections Ombudsman, the Department
of Human Services for providing ombudsman services required by
ORS 414.712, the Manufactured Dwelling Park Ombudsman, the
offices of ombudsman for injured workers and ombudsman for small
business in the Department of Consumer and Business Services
legally incurred under contracts, leases and business
transactions executed, entered into or begun before the effective
date of this 2001 Act are transferred to the Legislative
Ombudsman.
  (2) For the purpose of succession of the rights and obligations
transferred under this section, the Legislative Ombudsman is
considered to be a continuation of the Children's Ombudsman, the
Corrections Ombudsman, the Department of Human Services for
providing ombudsman services required by ORS 414.712, the
Manufactured Dwelling Park Ombudsman, the offices of ombudsman
for injured workers and ombudsman for small business in the
Department of Consumer and Business Services, and not a new
authority. The Legislative Ombudsman shall exercise the rights
and obligations as if they had not been transferred.
  (3) All the supplies, materials, equipment, records, books,
papers and facilities of the Children's Ombudsman, the
Corrections Ombudsman, the Department of Human Services for
providing ombudsman services required by ORS 414.712, the
Manufactured Dwelling Park Ombudsman, the offices of ombudsman
for injured workers and ombudsman for small business in the
Department of Consumer and Business Services are transferred to
the Legislative Ombudsman. + }
  SECTION 14. ORS 90.635 is amended to read:
  90.635. (1) If a facility is closed or a portion of a facility
is closed, resulting in the termination of the rental agreement
between the landlord of the facility and a tenant renting space
for a manufactured dwelling, whether because of the exercise of
eminent domain, by order of the state or local agencies, or as
provided under ORS 90.630 (6), the landlord shall provide notice
to the tenant of the tax credit provided under ORS 316.153. The
notice shall state the eligibility requirements for the credit,
information on how to apply for the credit and any other
information required by the   { - Manufactured Dwelling Park - }
 { +  Legislative + } Ombudsman by rule.
  (2) The notice described under subsection (1) of this section
shall be sent to a tenant affected by a facility closure on or
before:
  (a) The date notice of rental termination must be given to the
tenant under ORS 90.630 (6), if applicable; or
  (b) In the event of facility closure by exercise of eminent
domain or by order of a state or local agency, within 15 days of
the date the landlord received notice of the closure.
  (3) The landlord shall forward to the   { - Manufactured
Dwelling Park - }   { + Legislative + } Ombudsman a list of the
names and addresses of tenants to whom notice under this section
has been sent.
  (4) The   { - Manufactured Dwelling Park - }
 { + Legislative + } Ombudsman may adopt rules to implement this
section, including rules specifying the form and content of the
notice described under this section.
  SECTION 15. ORS 124.090 is amended to read:
  124.090. Notwithstanding the provisions of ORS 192.410 to
192.505, the names of the public or private official who made the
complaint, witnesses and the elderly persons compiled under the
provisions of ORS 124.050 to 124.095 are confidential and are not
accessible for public inspection. However, the Senior and
Disabled Services Division shall make the information and any
investigative report available to any law enforcement agency, to
any public agency which licenses or certifies residential
facilities or licenses or certifies the persons practicing
therein, to any public agency providing protective services for
the elderly person, to the Mental Health and Developmental
Disability Services Division and to the   { - Long Term Care - }
 { + Legislative + } Ombudsman, if appropriate. The division
shall also make the information and any investigative report
available to any private nonprofit agency providing protective
services for the elderly person. When this information and any
investigative report is made available to the private agency, ORS
124.050 to 124.095 relating to confidentiality apply to the
private agency.
  SECTION 16. ORS 125.060 is amended to read:
  125.060. (1) The notices required by this section must be given
to all persons whose identities and addresses can be ascertained
in the exercise of reasonable diligence by the person required to
give the notice.
  (2) Notice of the filing of a petition for the appointment of a
fiduciary or entry of other protective order must be given by the
petitioner to the following persons:
  (a) The respondent, if the respondent has attained 14 years of
age.
  (b) The spouse, parents and adult children of the respondent.
  (c) If the respondent does not have a spouse, parent or adult
child, the person or persons most closely related to the
respondent.
  (d) Any person who is cohabiting with the respondent and who is
interested in the affairs or welfare of the respondent.
  (e) Any person who has been nominated as fiduciary or appointed
to act as fiduciary for the respondent by a court of any state,
any trustee for a trust established by or for the respondent, any
person appointed as a health care representative under the
provisions of ORS 127.505 to 127.660 and any person acting as
attorney-in-fact for the respondent under a power of attorney.
  (f) If the respondent is a minor, the person who has exercised
principal responsibility for the care and custody of the
respondent during the 60-day period before the filing of the
petition.
  (g) If the respondent is a minor and has no living parents, any
person nominated to act as fiduciary for the minor in a will or
other written instrument prepared by a parent of the minor.
  (h) If the respondent is receiving moneys paid or payable by
the United States through the Department of Veterans Affairs, a
representative of the United States Department of Veterans
Affairs regional office that has responsibility for the payments
to the protected person.
  (i) If the respondent is receiving moneys paid or payable by
the State of Oregon through the Adult and Family Services
Division of the Department of Human Services, a representative of
the Adult and Family Services Division.
  (j) If the respondent is committed to the legal and physical
custody of the Department of Corrections, the Attorney General
and the superintendent or other officer in charge of the facility
in which the respondent is confined.
  (k) Any other person that the court requires.
  (3) Notice of a motion for the termination of the protective
proceedings, for removal of a fiduciary, for modification of the
powers or authority of a fiduciary, for approval of a fiduciary's
actions or for protective orders in addition to those sought in
the petition must be given by the person making the motion to the
following persons:
  (a) The protected person, if the protected person has attained
14 years of age.
  (b) Any person who has filed a request for notice in the
proceedings.
  (c) Except for a fiduciary who is making a motion, to any
fiduciary who has been appointed for the protected person.
  (d) If the protected person is receiving moneys paid or payable
by the United States through the Department of Veterans Affairs,
a representative of the United States Department of Veterans
Affairs regional office that has responsibility for the payments
to the protected person.
  (e) If the respondent is committed to the legal and physical
custody of the Department of Corrections, the Attorney General
and the superintendent or other officer in charge of the facility
in which the respondent is confined.
  (f) Any other person that the court requires.
  (4) A request for notice under subsection (3)(b) of this
section must be in writing and include the name, address and
phone number of the person requesting notice. A copy of the
request must be mailed by the person making the request to the
petitioner or to the fiduciary if a fiduciary has been appointed.
The original request must be filed with the court. The person
filing the request must pay the fee specified by ORS 21.310 (5).
  (5) A person who files a request for notice in the proceedings
in the manner provided by subsection (4) of this section is
entitled to receive notice from the fiduciary of any motion
specified in subsection (3) of this section and of any other
matter to which a person listed in subsection (2) of this section
is entitled to receive notice under a specific provision of this
chapter.
  (6) If the State Office for Services to Children and Families
is nominated as guardian for the purpose of consenting to the
adoption of a minor, the notice provided for in this section must
also be given to the minor's brothers, sisters, aunts, uncles and
grandparents.
  (7) In addition to the requirements of subsection (2) of this
section, notice of the filing of a petition for the appointment
of a guardian for a person who is alleged to be incapacitated
must be given by the petitioner to the following persons:
  (a) Any attorney who is representing the respondent in any
capacity.
  (b) If the respondent is a resident of a nursing home or
residential facility, or if the person nominated to act as
fiduciary intends to place the respondent in a nursing home or
residential facility, the office of the   { - Long Term Care - }
 { +  Legislative + } Ombudsman.
  (c) If the respondent is a resident of a mental health
treatment facility or a residential facility for individuals with
developmental disabilities, or if the person nominated to act as
fiduciary intends to place the respondent in such a facility, the
system designated to protect and advocate the rights of
individuals with developmental disabilities as described in ORS
192.517 (1).
  (8) In addition to the requirements of subsection (3) of this
section, in a protective proceeding in which a guardian has been
appointed, notice of the motions specified in subsection (3) of
this section must be given by the person making the motion to the
following persons:
 
  (a) Any attorney who represented the protected person at any
time during the protective proceeding.
  (b) If the protected person is a resident of a nursing home or
residential facility, or if the motion seeks authority to place
the protected person in a nursing home or residential facility,
the office of the   { - Long Term Care - }   { + Legislative + }
Ombudsman.
  (c) If the protected person is a resident of a mental health
treatment facility or a residential facility for individuals with
developmental disabilities, or if the motion seeks authority to
place the protected person in such a facility, the system
designated to protect and advocate the rights of individuals with
developmental disabilities as described in ORS 192.517 (1).
  (9) A respondent or protected person may not waive the notice
required under this section.
  (10) The requirement that notice be served on an attorney for a
respondent or protected person under subsection (7)(a) or (8)(a)
of this section does not impose any responsibility on the
attorney receiving the notice to represent the respondent or
protected person in the protective proceeding.
  SECTION 17. ORS 410.550 is amended to read:
  410.550. (1) The Medicaid Long Term Care Quality and
Reimbursement Advisory Council is created, to consist of 12
members. Appointed members shall be residents of the State of
Oregon and representative of the geographic locations of all long
term care facilities and community-based care facilities in this
state. The members shall include:
  (a) The   { - Long Term Care - }   { + Legislative + }
Ombudsman, who shall serve as a standing member of the council;
  (b) A representative of the Governor's Commission on Senior
Services, to be appointed by the commission;
  (c) A representative of the Oregon Disabilities Commission, to
be appointed by the commission;
  (d) A representative of the Oregon Association of Area Agencies
on Aging, to be appointed by the Governor;
  (e) A representative of a senior or disabilities advocacy
organization or an individual who advocates on behalf of seniors
or persons with disabilities, to be appointed by the Governor;
  (f) A nursing home administrator licensed under ORS 678.710 to
678.840 who has practiced continuously in Oregon in long term
care for three years immediately preceding appointment, to be
appointed by the Speaker of the House of Representatives;
  (g) Two consumers of long term care facilities or
community-based care facilities or family members of such
residents, to be appointed by the Speaker of the House of
Representatives;
  (h) A director of nurses of an Oregon long term care facility
who has practiced in this state in long term care for three years
preceding appointment, to be appointed by the Speaker of the
House of Representatives;
  (i) A representative of an assisted living facility or a
residential care facility, to be appointed by the President of
the Senate;
  (j) A representative of an adult foster home, to be appointed
by the President of the Senate; and
  (k) An in-home care agency provider, to be appointed by the
President of the Senate.
  (2) The term of office for each member appointed under this
section shall be three years or until a successor has been
appointed and qualified.
  (3) Members of the council shall receive no compensation for
their services but unpaid volunteers not otherwise compensated
shall be allowed actual and necessary travel expenses incurred in
the performance of their duties.
  (4) The council shall:
 
  (a) Elect a chairperson from among its members and elect or
appoint a secretary, each of whom shall hold office for one year
or until successors are elected;
  (b) Hold an annual meeting and hold other meetings at such
times and places as the Senior and Disabled Services Division or
the chairperson of the council may direct;
  (c) Keep a record of its proceedings that is open to inspection
at all times; and
  (d) Act in an advisory capacity to the Senior and Disabled
Services Division on matters pertaining to quality of long term
care facilities and community-based care facilities and
reimbursement for long term care services and community-based
care services.
  SECTION 18. ORS 414.712 is amended to read:
  414.712. Within six months after obtaining the necessary
federal waivers or January 1, 1995, whichever is later, the
Department of Human Services shall provide medical assistance
under ORS 414.705 to 414.750 to eligible persons who are aged and
described in ORS chapter 413 or who are blind or disabled and
described in ORS chapter 412 and to children described in ORS
414.025 (2)(f), (i), (j), (k) and (m), 418.001 to 418.034,
418.187 to 418.970 and 657A.020 to 657A.530 and those mental
health and chemical dependency services recommended according to
standards of medical assistance set pursuant to chapter 836,
Oregon Laws 1989, and according to the schedule of implementation
established by the Legislative Assembly. In providing medical
assistance services described in ORS 414.018 to 414.024, 414.042,
414.107, 414.710, 414.720 and 653.747, the Department of Human
Services shall also provide the following:
  (1)   { - Ombudsman - }  Services  { + of the Legislative
Ombudsman + } for eligible persons who are aged and described in
ORS chapter 413 or who are blind or disabled and described in ORS
chapter 412.   { - An - }  { +  The Legislative + } Ombudsman
shall serve as a patient's advocate whenever the patient or a
physician or other medical personnel serving the patient is
reasonably concerned about access to, quality of or limitations
on the care being provided by a health care provider.
 { - Patients shall be informed of the availability of an - }
 { + The department shall inform patients of the availability
of + } ombudsman { +  services + }.
  (2) Case management services in each health care provider
organization for those eligible persons who are aged and
described in ORS chapter 413 or who are blind or disabled and
described in ORS chapter 412. Case managers shall be trained in
and shall exhibit skills in communication with and sensitivity to
the unique health care needs of people who are elderly and those
with disabilities. Case managers shall be reasonably available to
assist patients served by the organization with the coordination
of the patient's health care services at the reasonable request
of the patient or a physician or other medical personnel serving
the patient. Patients shall be informed of the availability of
case managers.
  (3) A mechanism, established by rule, for soliciting consumer
opinions and concerns regarding accessibility to and quality of
the services of each health care provider.
  (4) A choice of available medical plans and, within those
plans, choice of a primary care provider.
  (5) Due process procedures for any individual whose request for
medical assistance coverage for any treatment or service is
denied or is not acted upon with reasonable promptness. These
procedures shall include an expedited process for cases in which
a patient's medical needs require swift resolution of a dispute.
  SECTION 19. ORS 414.712, as amended by section 53, chapter
1084, Oregon Laws 1999, is amended to read:
  414.712. Within six months after obtaining the necessary
federal waivers or January 1, 1995, whichever is later, the
Department of Human Services shall provide medical assistance
under ORS 414.705 to 414.750 to eligible persons who are aged and
described in ORS chapter 413 or who are blind or disabled and
described in ORS chapter 412 and to children described in ORS
414.025 (2)(f), (i), (j), (k) and (m), 418.001 to 418.034,
418.189 to 418.970 and 657A.020 to 657A.530 and those mental
health and chemical dependency services recommended according to
standards of medical assistance set pursuant to chapter 836,
Oregon Laws 1989, and according to the schedule of implementation
established by the Legislative Assembly. In providing medical
assistance services described in ORS 414.018 to 414.024, 414.042,
414.107, 414.710, 414.720 and 653.747, the Department of Human
Services shall also provide the following:
  (1)   { - Ombudsman - }  Services  { + of the Legislative
Ombudsman + } for eligible persons who are aged and described in
ORS chapter 413 or who are blind or disabled and described in ORS
chapter 412.   { - An - }  { +  The Legislative + } Ombudsman
shall serve as a patient's advocate whenever the patient or a
physician or other medical personnel serving the patient is
reasonably concerned about access to, quality of or limitations
on the care being provided by a health care provider.
 { - Patients shall be informed of the availability of an - }
 { + The department shall inform patients of the availability
of + } ombudsman { +  services + }.
  (2) Case management services in each health care provider
organization for those eligible persons who are aged and
described in ORS chapter 413 or who are blind or disabled and
described in ORS chapter 412. Case managers shall be trained in
and shall exhibit skills in communication with and sensitivity to
the unique health care needs of people who are elderly and those
with disabilities. Case managers shall be reasonably available to
assist patients served by the organization with the coordination
of the patient's health care services at the reasonable request
of the patient or a physician or other medical personnel serving
the patient. Patients shall be informed of the availability of
case managers.
  (3) A mechanism, established by rule, for soliciting consumer
opinions and concerns regarding accessibility to and quality of
the services of each health care provider.
  (4) A choice of available medical plans and, within those
plans, choice of a primary care provider.
  (5) Due process procedures for any individual whose request for
medical assistance coverage for any treatment or service is
denied or is not acted upon with reasonable promptness. These
procedures shall include an expedited process for cases in which
a patient's medical needs require swift resolution of a dispute.
  SECTION 20. ORS 417.825 is amended to read:
  417.825. In addition to any other fees provided by law, a $1
fee on the original filing and duplication of birth certificates,
adoption filing and divorce filing shall be collected by the
agency responsible for collecting the issuance or filing fee and
the money dedicated to child sexual abuse prevention and
intervention programs and to  { + supporting investigations
by + } the
  { - Children's - }   { + Legislative + } Ombudsman
 { - pursuant to ORS 417.400 to 417.490 (1991 Edition) - }  { +
of alleged child sexual abuse + }. The money shall be credited to
the commission by the person collecting the fee.
  SECTION 21. ORS 441.650 is amended to read:
  441.650. (1) Upon receipt of the oral or written report
required under ORS 441.640, or of an abuse complaint, the area
agency on aging, the Senior and Disabled Services Division or the
law enforcement agency shall cause an investigation to be
commenced as follows:
  (a) Within two hours, if the complaint alleges that a
resident's health or safety is in imminent danger or that the
resident has recently died, been hospitalized or been treated in
an emergency room; or
  (b) Prior to the end of the next working day, if the complaint
alleges that circumstances exist that could result in abuse and
that the circumstances could place a resident's health or safety
in imminent danger.
  (2) If the law enforcement agency conducting the investigation
finds reasonable cause to believe that abuse has occurred, the
law enforcement agency shall notify in writing the local office
of the area agency or the division as appropriate. Except in
cases where the investigation is part of nursing facility
surveyor activity pursuant to federal law, the area agency or the
division shall complete an initial status report within two
working days of the start of the investigation that includes:
  (a) A summary of the complaint that identifies each alleged
incident or problem;
  (b) The status of the investigation;
  (c) Whether an abuse complaint was initially filed at the
direction of the administration of the facility;
  (d) A determination of whether protection of the resident is
needed and whether the facility must take action;
  (e) The name and telephone number of the investigator; and
  (f) The projected date that the investigation report will be
completed and a statement that the report will be available upon
request after the division issues a letter of determination.
  (3) The initial status report described in subsection (2) of
this section shall be provided either in person or by mail to the
following individuals as soon as practicable, but no later than
two working days after its completion:
  (a) The complainant, unless the complainant waives the
requirement;
  (b) If the complaint involves a specific resident, the resident
or a person designated to receive information concerning the
resident;
  (c) A representative of the   { - Long Term Care - }
 { + Legislative + } Ombudsman, upon request; and
  (d) The long term care facility.
  (4) The initial status report described in subsection (2) of
this section shall be available for public inspection.
  (5) When copies of the initial status report described in
subsection (2) of this section are made available to individuals
listed in subsection (3) of this section, the names of the
resident involved, the complainant and any individuals
interviewed by the investigator shall be deleted from the copies.
  (6) In investigating an abuse complaint, the investigator
shall:
  (a) Make an unannounced visit to the facility, except as
provided by ORS 441.690, to determine the nature and cause of the
abuse of the resident;
  (b) Interview all available witnesses identified by any source
as having personal knowledge relevant to the abuse complaint,
such interviews to be private unless the witness expressly
requests the interview not to be private;
  (c) Make personal inspection of all physical circumstances that
are relevant and material and that are susceptible to objective
observation; and
  (d) Write an investigation report that includes:
  (A) The investigator's personal observations;
  (B) A review of documents and records;
  (C) A summary of all witness statements; and
  (D) A statement of the factual basis for the findings for each
incident or problem alleged in the complaint.
  (7) Within five working days of completion of the investigation
and not later than 60 days from completion of the initial status
report described in subsection (2) of this section, the
investigator shall provide the division with the written report
required by subsection (6) of this section. The division shall
make the investigation report available upon request after the
letter of determination is complete. When copies of the report
are made available, the names of the resident involved, the
complainant and any individuals interviewed by the investigator
shall be deleted from the copies.
  SECTION 22. ORS 441.671 is amended to read:
  441.671. (1) Notwithstanding the provisions of ORS 192.410 to
192.505, the names of complainants and residents compiled under
the provisions of ORS 441.640 to 441.660 are confidential and are
not accessible for public inspection. However, the Senior and
Disabled Services Division shall make the information available
to any law enforcement agency, to any public agency
 { - which - }   { + that + } licenses or certifies long term
care facilities or licenses or certifies the persons practicing
the healing arts   { - therein - }   { + in long term care
facilities + } and to the   { - Long Term Care - }
 { + Legislative + } Ombudsman.
  (2) Except as provided in subsection (1) of this section, the
provisions of ORS 192.410 to 192.505 apply to all records and
reports compiled under ORS 441.640 to 441.665.
  SECTION 23. ORS 443.738 is amended to read:
  443.738. (1) Except as provided in subsection (3) of this
section, all providers, resident managers and substitute
caregivers for adult foster homes shall satisfactorily meet all
educational requirements established by the department. After
consultation with representatives of providers, educators,
residents' advocates and the   { - Long Term Care - }
 { + Legislative + } Ombudsman, the department shall adopt by
rule standards governing the educational requirements. The rules
shall require that no person may provide care to any resident
prior to acquiring education or supervised training designed to
impart the basic knowledge and skills necessary to maintain the
health, safety and welfare of the resident. Each provider shall
document compliance with the educational requirements for persons
subject   { - thereto - }  { +  to the requirements + }.
  (2) The rules required under subsection (1) of this section
shall include but need not be limited to the following:
  (a) A requirement that, before being licensed, a provider
successfully completes training that satisfies a defined
curriculum, including demonstrations and practice in physical
caregiving, screening for care and service needs, appropriate
behavior towards residents with physical, cognitive and mental
disabilities and issues related to architectural accessibility;
and
  (b) A requirement that a provider pass a test before being
licensed or becoming a resident manager. The test shall evaluate
the ability to understand and respond appropriately to emergency
situations, changes in medical conditions, physicians' orders and
professional instructions, nutritional needs, residents'
preferences and conflicts.
  (3) After consultation with representatives of providers,
educators, residents' advocates and the   { - Long Term Care - }
 { +  Legislative + } Ombudsman, the department may adopt by rule
exceptions to the training requirements of subsections (1) and
(2) of this section for persons who are appropriately licensed
medical care professionals in Oregon or who possess sufficient
education, training or experience to warrant an exception. The
department
  { - shall - }   { + may + } not make any exceptions to the
testing requirements.
  (4) The department may permit a person who has not completed
the training or passed the test required in subsection (2) of
this section to act as a resident manager until the training and
testing are completed or for 60 days, whichever is shorter, if
the department determines that an unexpected and urgent staffing
need exists. The licensed provider must notify the department of
the situation and demonstrate that the provider is unable to find
a qualified resident manager, that the person has met the
requirements for a substitute caregiver for the adult foster home
and that the provider will provide adequate supervision.
  (5) Providers shall serve three nutritionally balanced meals to
residents each day. A menu for the meals for the coming week
shall be prepared and posted weekly.
  (6) Providers shall make available at least six hours of
activities each week which are of interest to the residents, not
including television or movies. The department shall make
information about resources for activities available to providers
upon request. Providers or substitute caregivers shall be
directly involved with residents on a daily basis.
  (7) Providers shall give at least 30 days' written notice to
the residents, and to the legal representative, guardian or
conservator of any resident, before selling, leasing or
transferring the adult foster home business or the real property
on which the adult foster home is located. Providers shall inform
real estate agents, prospective buyers, lessees and transferees
in all written communications that the license to operate an
adult foster home is not transferable and shall refer them to the
department for information about licensing.
  (8) If a resident dies, or leaves an adult foster home for
medical reasons and indicates in writing the intent to not
return, the provider shall not charge the resident for more than
15 days or the time specified in the provider contract, whichever
is less, after the resident has left the adult foster home. The
provider has an affirmative duty to take reasonable actions to
mitigate the damages by accepting a new resident. However, if a
resident dies or leaves an adult foster home due to neglect or
abuse by the provider or due to conditions of imminent danger to
life, health or safety, the provider shall not charge the
resident beyond the resident's last day in the home. The provider
shall refund any advance payments within 30 days after the
resident dies or leaves the adult foster home.
  (9) Chemical and physical restraints may be used only after
considering all other alternatives and only when required to
treat a resident's medical symptoms or to maximize a resident's
physical functioning. Restraints may not be used for discipline
of a resident or for the convenience of the adult foster home.
Restraints may be used only as follows:
  (a) Psychoactive medications may be used only pursuant to a
prescription that specifies the circumstances, dosage and
duration of use.
  (b) Physical restraints may be used only pursuant to a
qualified practitioner's order that specifies the type,
circumstances and duration of use in accordance with rules
adopted by the department. The rules adopted by the department
relating to physical restraints shall include standards for use
and training.
  (10) If the physical characteristics of the adult foster home
do not encourage contact between caregivers and residents and
among residents, the provider shall demonstrate how regular
positive contact will occur. Providers shall not place residents
who are unable to walk without assistance in a basement,
split-level, second story or other area that does not have an
exit at ground level. Nonambulatory residents shall be given
first floor rooms.
  (11) The provider shall not transfer or discharge a resident
from an adult foster home unless the transfer or discharge is
necessary for medical reasons, for the welfare of the resident or
for the welfare of other residents, or due to nonpayment. In such
cases, the provider shall give the resident written notice as
soon as possible under the circumstances.
 
  (a) The provider shall give the resident and the resident's
legal representative, guardian or conservator written notice at
least 30 days prior to the proposed transfer or discharge, except
in a medical emergency including but not limited to a resident's
experiencing an increase in level of care needs or engaging in
behavior that poses an imminent danger to self or others. In such
cases, the provider shall give the resident written notice as
soon as possible under the circumstances.
  (b) The resident shall have the right to an administrative
hearing prior to an involuntary transfer or discharge. If the
resident is being transferred or discharged for a medical
emergency, or to protect the welfare of the resident or other
residents, as defined by rule, the hearing must be held within
seven days of the transfer or discharge. The provider shall hold
a space available for the resident pending receipt of an
administrative order. ORS 441.605 (4) and the rules thereunder
governing transfer notices and hearings for residents of long
term care facilities shall apply to adult foster homes.
  (12) The provider shall not include any illegal or
unenforceable provision in a contract with a resident and shall
not ask or require a resident to waive any of the resident's
rights.
  (13) Any lessor of a building in which an adult foster home is
located shall not interfere with the admission, discharge or
transfer of any resident in the adult foster home unless the
lessor is a provider or coprovider on the license.
  SECTION 24. ORS 443.767 is amended to read:
  443.767. (1) When the Senior and Disabled Services Division
receives a complaint that alleges that a resident has been
injured, abused or neglected, and that any resident's health or
safety is in imminent danger, or that the resident has died or
been hospitalized, the investigation shall begin immediately
after the complaint is received. If the investigator determines
that the complaint is substantiated, the division shall take
appropriate corrective action immediately.
  (2) When the Senior and Disabled Services Division receives a
complaint that alleges the existence of any circumstance that
could result in injury, abuse or neglect of a resident, and that
the circumstance could place the resident's health or safety in
imminent danger, the division shall investigate the complaint
promptly. If the investigator determines that the complaint is
substantiated, the division shall take appropriate corrective
action promptly.
  (3) After public hearing, the Senior and Disabled Services
Division shall by rule set standards for the procedure, content
and time limits for the initiation and completion of
investigations of complaints. The time limits shall be as short
as possible and shall vary in accordance with the severity of the
circumstances alleged in the complaint. In no event shall the
investigation exceed a duration of 60 days, unless there is an
ongoing concurrent criminal investigation, in which case the
department may take a reasonable amount of additional time in
which to complete the investigation.
  (4) The Senior and Disabled Services Division shall take no
longer than 60 days from the completion of the investigation
report to take appropriate corrective action in the case of any
complaint that the investigator determines to be substantiated.
  (5)(a) The Senior and Disabled Services Division shall cause a
copy of the investigation report to be mailed within seven days
of the completion of the report to:
  (A) The complainant, unless the complainant requests anonymity;
  (B) The resident, and any person designated by the resident to
receive information concerning the resident;
  (C) The facility; and
  (D) The   { - Long Term Care - }   { + Legislative + }
Ombudsman.
  (b) The copy of the report shall be accompanied by a notice
that informs the recipient of the right to submit additional
evidence.
  (6) The complaint and the investigation report shall be
available to the public at the local Senior and Disabled Services
Division office or the type B area agency on aging, if
appropriate.
  (7) A copy of the report shall be forwarded to the central
office of the division, whether or not the investigation report
concludes that the complaint is substantiated.
  SECTION 25. ORS 476.030 is amended to read:
  476.030. (1) The State Fire Marshal shall enforce all statutes,
and make rules relating to:
  (a) The prevention of fires.
  (b) The storage and use of combustibles and explosives.
  (c) The maintenance and regulation of structural fire safety
features in occupied structures and overseeing the safety of and
directing the means and adequacy of exit in case of fire from
factories, asylums, hospitals, churches, schools, halls,
theaters, amphitheaters, all buildings, except private
residences, which are occupied for sleeping purposes, and all
other places where large numbers of persons work, live or
congregate from time to time for any purpose except that
structural changes shall not be required in buildings built,
occupied and maintained in conformity with state building code
regulations applicable at the time of construction.
  (d) Standards for equipment used for fire protection purposes
within this state including standard thread for fire hose
couplings and hydrant fittings.
  (2) The State Fire Marshal and deputies shall have such powers
and perform such other duties as are prescribed by law.
  (3) If, in the opinion of the State Fire Marshal, a
governmental subdivision of the state has enacted adequate
regulations generally conforming to state and national standards
concerning fire prevention, fire safety measures and building
construction requirements for safety, and if the governmental
subdivision provides reasonable enforcement of its regulations,
the State Fire Marshal may exempt the area subject to such
regulation either partially or fully from the statutes, rules and
regulations administered by the State Fire Marshal. Prior to
adoption of any such exemption, the State Fire Marshal may
request from the Department of Public Safety Standards and
Training consideration of and recommendations regarding the
exemption. The exemption may extend for a two-year period, and
may be renewed from time to time, but may be canceled by the
State Fire Marshal following 30 days' written notice if the State
Fire Marshal finds that the governmental subdivision's
regulations or enforcement thereof are not reasonably sufficient.
The governmental subdivision shall furnish a copy of such
regulations to the State Fire Marshal and shall file with the
State Fire Marshal any amendment thereto within 30 days before
the effective date of such amendment. The State Fire Marshal
shall designate a person or division within such governmental
subdivision as an approved authority for exercising functions
relating to fire prevention, fire safety measures and building
construction. Upon request of a local official having enforcement
responsibility and a showing of unusual fire hazard or other
special circumstances, the State Fire Marshal shall make
investigation and appropriate recommendations.
  (4) The State Fire Marshal may investigate or cause an
investigation to be made to determine the probable cause, origin
and circumstances of any fire and shall classify such findings as
the State Fire Marshal may find appropriate to promote fire
protection and prevention.
  (5) The State Fire Marshal shall provide training in fire
safety inspection to the Senior and Disabled Services Division
and Mental Health and Developmental Disability Services Division
of the Department of Human Services, area agencies, community
mental health and developmental disabilities programs and to
designees of the   { - Long Term Care - }   { + Legislative + }
Ombudsman. If an adult foster home has been inspected by the
Senior and Disabled Services Division, Mental Health and
Developmental Disability Services Division, an area agency or
community mental health and developmental disabilities program
and the agency conducting the inspection reasonably believes that
the adult foster home is not in compliance with applicable fire
safety rules, the agency conducting the inspection may request
the State Fire Marshal to inspect or cause an inspection to be
made. If a designee of the
  { - Long Term Care - }  { +  Legislative + } Ombudsman, in the
course of visiting an adult foster home, believes that the adult
foster home is not in compliance with applicable fire safety
rules, the designee shall report the problem to the appropriate
agency to request a fire safety inspection by the office of the
State Fire Marshal or by a designated representative of the
office of the State Fire Marshal.
  (6) Upon the request of the Senior and Disabled Services
Division, Mental Health and Developmental Disability Services
Division, an area agency or community mental health and
developmental disabilities program, the State Fire Marshal shall
inspect or cause an inspection to be made to determine if the
adult foster home is in compliance with rules jointly adopted by
the Senior and Disabled Services Division and Mental Health and
Developmental Disability Services Division of the Department of
Human Services and the State Fire Marshal establishing fire
safety standards for adult foster homes.
  (7) As used in subsections (5) and (6) of this section:
  (a) 'Adult foster home' has the meaning given that term in ORS
443.705.
  (b) 'Area agency' has the meaning given that term in ORS
410.040.
  (c) 'Community mental health program' means a program
established under ORS 430.620.
  SECTION 26. ORS 656.270 is amended to read:
  656.270. Each closure made pursuant to ORS 656.268 shall
contain a notice in capital letters and boldfaced type that
informs the parties of the proper manner in which to proceed if
they are dissatisfied with the closure. The notice shall include
information on the rights and duties of the parties to obtain
reconsideration and hearing on the closure, the right of the
worker to consult with the  { + Legislative + } Ombudsman
 { - for injured workers - }  and of the right of the worker to
be represented by an attorney. The notice also may include such
other relevant information as the Director of the Department of
Consumer and Business Services prescribes.
  SECTION 27. ORS 656.709 is amended to read:
  656.709.   { - (1) The office of ombudsman for injured workers
is created in the Department of Consumer and Business Services.
The ombudsman shall report directly to the Director of the
Department of Consumer and Business Services. The ombudsman shall
act as an advocate for injured workers by accepting complaints
concerning matters related to workers' compensation,
investigating them and attempting to resolve them. The ombudsman
shall also provide information to injured workers to enable them
to protect their rights in the workers' compensation system. - }
    { - (2) The office of ombudsman for small business is created
in the department. The ombudsman shall report directly to the
director. The ombudsman shall provide information and assistance
to small businesses with regard to workers' compensation
insurance and claims processing matters. - }   { + The
Legislative Ombudsman shall provide:
 
  (1) Information to injured workers to enable them to protect
their rights in the workers' compensation system.
  (2) Information and assistance to small businesses that inquire
about workers' compensation insurance and the processing of
claims. + }
  SECTION 28.  { + ORS 417.810, 417.815, 423.400, 423.405,
423.410, 423.415, 423.420, 423.425, 423.430, 423.435, 423.440,
423.445, 423.450, 441.100, 441.103, 441.107, 441.109, 441.113,
441.117, 441.121, 441.124, 441.127, 441.131, 441.133, 441.137,
441.142, 441.146, 441.147, 441.153 and 446.543 are repealed. + }
  SECTION 29.  { + In addition to and not in lieu of any other
appropriation, there is appropriated to the Legislative Assembly,
for the biennium beginning July 1, 2001, out of the General Fund,
the sum of $___, to be expended only for the purposes of sections
1 to 11 of this 2001 Act. + }
  SECTION 30.  { + 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
July 1, 2001. + }
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