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 526
Senate Bill 183
Sponsored by Senators COURTNEY, METSGER
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.
Establishes procedure enabling Department of Corrections to
obtain reimbursement from inmate for costs of care incurred by
department.
A BILL FOR AN ACT
Relating to recovery of cost of care by Department of
Corrections; creating new provisions; and amending ORS 115.125,
116.093, 179.610, 179.620, 179.640, 179.653, 179.655, 179.660,
179.701, 179.711, 179.731, 179.740, 179.745, 179.770 and
430.180.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 179.610 is amended to read:
179.610. As used in ORS 179.610 to 179.770, unless the context
requires otherwise:
{ + (1) 'Agency' means either the Mental Health and
Developmental Disability Services Division for a person in a
state institution described in ORS 179.321 (1) or the Department
of Corrections for a person in a state institution described in
ORS 179.321 (2). + }
{ - (1) - } { + (2) + } 'Authorized representative' means
an individual or entity appointed under authority of ORS chapter
125, as guardian or conservator of a person, who has the ability
to control the person's finances, and any other individual or
entity holding funds or receiving benefits or income on behalf of
any person.
{ - (2) - } { + (3) + } 'Care' means all services rendered
by the state institutions as described in ORS 179.321 or by the
Mental Health and Developmental Disability Services Division
{ + or the Department of Corrections + } on behalf of those
institutions. These services include, but are not limited to,
such items as medical care, room, board, administrative costs and
other costs not otherwise excluded by law.
{ - (3) - } { + (4) + } 'Decedent's estate' has the meaning
given ' estate' in ORS 111.005 (15).
{ - (4) 'Division' means the Mental Health and Developmental
Disability Services Division of the Department of Human
Services. - }
(5) 'Person,' 'person in a state institution' or 'person at a
state institution,' or any similar phrase, means an individual
who is or has been at a state institution described in ORS
179.321.
(6) 'Personal estate' means all income and benefits as well as
all assets, including all personal and real property of a living
person, and includes assets held by the person's authorized
representative and all other assets held by any other individual
or entity holding funds or receiving benefits or income on behalf
of any person.
SECTION 2. ORS 179.620 is amended to read:
179.620. (1) A person and the personal estate of the person, or
a decedent's estate, is liable for the full cost of care. Full
cost of care is established according to ORS 179.701.
(2) While the person is liable for the full cost of care, the
maximum amount a person is required to pay toward the full cost
of care shall be determined according to the person's ability to
pay. Ability to pay is determined as provided in ORS 179.640.
(3) Upon the death of a person, the decedent's estate shall be
liable for any unpaid cost of care. The liability of the
decedent's estate is limited to the cost of care incurred on or
after July 24, 1979. The decedent's estate shall not include
assets placed in trust for the person by other persons.
Collection of any amount from a decedent's estate shall be
pursuant to ORS 179.740.
(4) Regardless of subsection (1) of this section and ORS
179.610 (6), assets held in trust by a trustee for a person are
subject to laws generally applicable to trusts.
(5) Notwithstanding subsections (1) and (3) of this section,
{ + neither + } the Mental Health and Developmental Disability
Services Division { + nor the Department of Corrections + }may
{ - not - } collect the cost of care from:
(a) Any assets received by or owing to a person and the
personal estate of the person, or the decedent's estate, as
compensation from the state for injury or death of the person
that occurred when the person was in a state institution listed
in ORS 179.321 { - (1) - } and for which the state admits
liability or is found liable through adjudication; and
(b) Any real or personal property of the personal estate of the
person, or the decedent's estate, that the person or an
authorized representative of the person can demonstrate was
purchased solely with assets referred to in paragraph (a) of this
subsection or partially with such assets, to the extent such
assets were used in the purchase.
SECTION 3. ORS 179.640 is amended to read:
179.640. (1) { + Both + } the Mental Health and Developmental
Disability Services Division { + and the Department of
Corrections + } shall establish rules for determining ability to
pay { + for persons in their respective institutions + }. The
rules { + adopted by each agency + } shall require, in addition
to other relevant factors, consideration of the personal estate,
the person's need for funds for personal support after release,
and the availability of third-party benefits such as, but not
limited to, Medicare or private insurance. { - The division - }
{ + Each agency + } may also consider the probable length of
stay at the state institution.
(2) In determining a person's ability to pay, { - the
division - } { + neither agency + } may { - not - } consider
as part of the personal estate of the person or the decedent's
estate:
(a) Any assets received by or owing to the person and the
personal estate of the person, or the decedent's estate, as
compensation from the state for injury or death of the person
that occurred when the person was in a state institution listed
in ORS 179.321 { - (1) - } and for which the state admits
liability or is found liable through adjudication; and
(b) Any real or personal property that the person or an
authorized representative of the person can demonstrate was
purchased solely with assets referred to in paragraph (a) of this
subsection or partially with such assets, to the extent such
assets were used in the purchase.
(3) A person and the authorized representative of the person,
if any, shall provide all financial information requested by the
{ - division - } { + agency + } that is necessary to
determine the person's ability to pay. To determine ability to
pay, the { - division - } { + agency + } may use any
information available to the { - division - } { + agency + },
including information provided by the Department of Revenue from
personal income tax returns pursuant to ORS 314.840, and elderly
rental assistance claims. Upon request, the Department of Revenue
shall release copies of tax returns to the { - division - }
{ + agency + }.
{ - Where - } { + When + } the person or the person's
authorized representative fails to provide evidence to
demonstrate an inability to pay full cost of care, the
{ - division - } { + agency + } may determine the person has
the ability to pay the full cost of care.
(4) The { - division - } { + agency + } shall provide
actual notice to the person and any authorized representative, if
known to the
{ - division - } { + agency + }, of its determination by
issuing an ability-to-pay order. The order shall state the
person's full liability and the person's determined ability to
pay. Actual notice means receipt by the person and the authorized
representative of notice. The notice shall include a copy of the
ability-to-pay order, a description of the person's appeal rights
and the date upon which appeal rights terminate and state the
address where a request for hearing may be mailed or delivered.
At any time, the { - division - } { + agency + } may reissue
an ability-to-pay order to notify an authorized representative as
provided by ORS 179.653 (4).
(5) At any time during the person's stay at the state
institution or within 36 months from the date the person is
released, if the { - division - } { + agency + } receives new
financial information that shows a change in the person's
financial circumstances, the { - division - } { + agency + }
shall consider the changed circumstances and issue a new
ability-to-pay order.
(6) Orders issued after the person is released { - shall - }
{ + may + } not require the person to make payments toward the
cost of care for more than 36 consecutive months following
release. However, the { - division - } { + agency + } may
collect beyond the 36-month period any payments that became due
but were not paid within the 36 months following release. Any
remaining balance of full cost of care shall be collected as
provided in ORS 179.740.
(7) If a person or authorized representative disagrees with any
ability-to-pay order issued pursuant to this section, the person
or authorized representative may request a contested case
hearing. To the extent practical, the hearing will be held at a
location convenient to the person or the authorized
representative. The request must be postmarked within 60 days
from the date of the mailing of the ability-to-pay order. If the
person or the authorized representative makes a timely request
for a contested case hearing, the hearing and any appeal of the
final hearing order shall be governed by ORS 183.413 to 183.497.
If the person or the authorized representative fails to make a
timely request for a contested case hearing, the ability-to-pay
order shall be final and not subject to judicial review, except
as subsequently modified by the { - division - } { +
agency + } as provided in subsection (5) of this section.
(8) On appeal, regardless of other information presented,
payment of the full cost of care may be ordered if the person or
the authorized representative refuses to produce financial
information that the Hearings Officer determines is relevant and
must be produced.
SECTION 4. ORS 179.653 is amended to read:
179.653. (1) If any person or authorized representative refuses
to pay for the cost of care as ordered by the Mental Health and
Developmental Disability Services Division { + or the Department
of Corrections + }under ORS 179.640, the amount unpaid plus
interest shall be a lien in favor of the State of Oregon. The
lien shall arise as each payment is due under the order and shall
continue until the liability with interest is satisfied. The lien
shall be upon the title to and interest in the real and personal
property of the personal estate.
(2) Prior to the filing of a distraint warrant as provided in
ORS 179.655 (2), the lien shall only be valid against:
(a) Property of the person;
(b) Assets held by any authorized representative bound by the
ability-to-pay order; and
(c) Assets subject to lien held by any person or entity having
actual knowledge of the ability-to-pay order or the lien.
(3) Regardless of any other provision of law or statute that
provides a procedure for establishing obligations, including the
claim and payment provisions of ORS chapter 125, an authorized
representative who has received notice and had an opportunity to
request a contested case hearing shall comply with an
ability-to-pay order upon demand by the { - division - } { +
agency + }. The
{ - division - } { + agency + } may issue the demand any time
after the order becomes final.
(4) An authorized representative who has not had an opportunity
to request a contested case hearing, either because the
authorized representative was not appointed at the time the
ability-to-pay order became final, or was not given notice of the
ability-to-pay order as required by ORS 179.640 (4), shall not be
bound by the order of the { - division - } { + agency + }. To
bind the authorized representative, the ability-to-pay order must
be reissued and notice provided to the authorized representative
pursuant to ORS 179.640 (4). The authorized representative shall
have the same appeal rights as if the order had originally been
issued to the authorized representative. After the order becomes
final, the authorized representative shall be bound as provided
in subsection (3) of this section. The { - division shall - }
{ + agency may + } not issue an execution of a lien or
foreclose against property held by or in the control of the
authorized representative until the authorized representative is
bound by the order of the
{ - division - } { + agency + }.
(5) An authorized representative who is a trustee shall only be
bound to the extent that the final order specifically finds that
the trust assets of a trust fund are subject to claim by the
{ - division - } { + agency + }.
(6) If the authorized representative does not comply with the
demand, the { - division - } { + agency + } may file with the
probate court a motion to require the authorized representative
to comply. If the authorized representative is a conservator or
guardian appointed under ORS chapter 125, the motion shall be
filed in that proceeding. The motion shall be accompanied by an
affidavit stating that the order is final, that demand has been
made on the authorized representative and that the order has not
been complied with.
(7) The authorized representative may object to the motion only
on grounds that the order is not final, that the order is not
binding on the authorized representative as provided in this
section or that all required payments have been made. The
objection must be by affidavit.
(8) If the authorized representative objects by affidavit, the
court shall hear the motion. If the court determines that the
ability-to-pay order is final and binding on the authorized
representative and that all required payments have not been made,
the court shall order the authorized representative to comply
with the ability-to-pay order.
(9) If the authorized representative fails to object by
affidavit within 15 days of the filing of the motion, the court
shall order the authorized representative to comply with the
order. An authorized representative who willfully fails or
refuses to comply may be found in contempt of court and may be
held personally responsible.
(10) Nothing in this section shall affect the requirement that
the { - division - } { + agency + } issue a new order in
accordance with ORS 179.640 (5) if financial circumstances have
changed.
SECTION 5. ORS 179.655 is amended to read:
179.655. (1) If any amount due the Mental Health and
Developmental Disability Services Division { + or the Department
of Corrections + } for the cost of care of a person is not paid
within 30 days after it becomes due, and no provision is made to
secure the payment by bond, deposit or otherwise, pursuant to
rules adopted by the { - division - } { + appropriate
agency + }, the { - division - } { + agency + } may issue a
distraint warrant directed to any county of the state.
(2) After the receipt of the distraint warrant, the clerk of
the county shall enter in the County Clerk Lien Record the name
of the person, the amount for which the distraint warrant is
issued and the date the distraint warrant is recorded. The amount
of the distraint warrant shall become a lien upon the title to
and interest in any property owned or later acquired by the
debtor against whom it is issued, and it may be enforced by the
{ - division - } { + agency + } in the same manner as a
judgment of the circuit court.
(3) In the event that an ability-to-pay order issued under ORS
179.640 (4) or (5) becomes final, and supersedes a previous final
ability-to-pay order on which a distraint warrant had been
issued, the { - division - } { + agency + } shall issue a new
distraint warrant superseding the previous distraint warrant, and
the lien shall conform to the new order.
(4) The { - division - } { + agency + } may direct a copy
of the distraint warrant to the sheriff of any county of the
state commanding the sheriff to levy upon and sell the real and
personal property of the taxpayer found within that county, for
the payment of the amount due, with interest, collection charge
and the sheriff's fee. The sheriff shall return the distraint
warrant to the
{ - division - } { + agency + } and pay to it the money
collected not less than 60 days from the date the copy of the
distraint warrant was directed to the sheriff.
(5) The { - division - } { + agency + } may issue the
directive provided in subsection (4) of this section to any agent
of the { - division - } { + agency + }. In executing the
distraint warrant, the agent shall have the same powers conferred
by law upon sheriffs. However, the agent is not entitled to any
fee or compensation in excess of actual expenses incurred in the
performance of this duty.
SECTION 6. ORS 179.660 is amended to read:
179.660. If the Mental Health and Developmental Disability
Services Division { + or the Department of Corrections + }
believes a person at { - a - } { + one of its + } state
{ - institution - } { + institutions + } needs a guardian or
conservator, or both, and one has not been appointed, the
{ - division - } { + agency + } may request that the district
attorney institute proper proceedings for this appointment in the
court having probate jurisdiction. The county of which the person
is a resident, or was a resident at the time of admittance, shall
be the basis for determining the appropriate district attorney to
be contacted.
SECTION 7. ORS 179.701 is amended to read:
179.701. The cost-of-care rates for a person shall be
determined by the Mental Health and Developmental Disability
Services Division { + or the Department of Corrections, as
appropriate + }. The rates established shall be reasonably
related to current costs of the institutions as described in ORS
179.321. Current costs shall exclude costs of outpatient
services as defined in ORS 430.010 (4) and any other costs not
directly related to the care for a person at a state institution.
SECTION 8. ORS 179.711 is amended to read:
179.711. (1) Remittance of amounts due for care of persons at
state institutions as provided in ORS 179.610 to 179.770 shall be
made to the Mental Health and Developmental Disability Services
Division { + or the Department of Corrections, as
appropriate + }.
(2) The { - division - } { + agency + } shall refund any
unearned payment for the care of a person at a state institution
where payment has been made in advance and the person dies or is
discharged before the end of the period for which payment was
made. Any refund shall be paid to the person, to the authorized
representative of the person or to the decedent's estate if the
person has died. All claims for refunds approved by the
{ - division - } { + agency + } shall be paid as provided in
ORS 293.295 to 293.462. Any amounts necessary for payment of
refunds are appropriated from the money collected { + by that
agency + } under the provisions of ORS 179.610 to 179.770.
SECTION 9. ORS 179.731 is amended to read:
179.731. If the Mental Health and Developmental Disability
Services Division { + or the Department of Corrections + }
determines that collection of the amount payable under ORS
179.610 to 179.770 for the cost of care of a person would be
detrimental to the best interests of the person or the
{ - division - } { + agency + }, the { - division - } { +
agency + } may waive the collection of part or all of the amount
otherwise payable.
SECTION 10. ORS 179.740 is amended to read:
179.740. (1) The Mental Health and Developmental Disability
Services Division { + or the Department of Corrections, as
appropriate, + } may file a claim against the decedent's estate
for any unpaid charges under ORS 179.620 (3). This shall be done
in the same manner as claims of creditors and with the priorities
provided in ORS 115.125.
(2) If, within 90 days following the person's death, the
person's estate is not otherwise being probated, the
{ - division - } { + agency + } may petition any court of
competent jurisdiction for the issuance of letters of
administration or testamentary. This action would be for the
purpose of collecting the full amount of unpaid cost of care as
determined by ORS 179.701 and limited by ORS 179.620 (3).
However, the { - division shall - } { + agency may + } not
file a petition under this subsection until at least 90 days
after the death of the person who was at the state institution
and then only in the event that the person's estate is not
otherwise being probated.
(3) The { - division - } { + agency + } may settle any
claim against the decedent's estate during the pendency of the
probate proceeding by accepting other security or in any other
equitable manner. The
{ - division - } { + agency + } may waive all or part of the
claim if it finds collection of this amount due to be
inequitable.
(4) The { - division shall - } { + agency may + } not
recover amounts
{ - which - } { + that + } exceed the total cost of care of
the deceased person as computed under ORS 179.701 and limited by
ORS 179.620 (3).
SECTION 11. ORS 179.745 is amended to read:
179.745. The State of Oregon, by and through the Mental Health
and Developmental Disability Services Division { + or the
Department of Corrections + }, may take title to real and
personal property to carry out the provisions of ORS 179.620,
179.653, 179.655 and 179.740. With the written consent of the
owner of real property or an authorized representative of the
owner, the
{ - division - } { + agency + } may transfer real property
under the provisions of ORS 270.100 to 270.190. The
{ - division - } { + agency + } may transfer personal property
under rules adopted by the { - division - } { + agency + }.
The proceeds, less costs, of any real or personal property
transferred by the { - division - } { + agency + } under this
section shall be credited to and deposited in the Mental Health
and Developmental Disability Services Account established by ORS
430.180 { + or the Department of Corrections Account established
by ORS 423.097, as appropriate + }.
SECTION 12. ORS 179.770 is amended to read:
179.770. (1) In accordance with any applicable provisions of
ORS 183.310 to 183.550, { + both + } the Mental Health and
Developmental Disability Services Division { + and the
Department of Corrections + } may adopt any rules necessary to
carry out ORS 179.610 to 179.770.
(2) Subject to any applicable provision of the State Personnel
Relations Law, the { - division - } { + agency + } may employ
employees necessary to carry out ORS 179.610 to 179.770.
SECTION 13. ORS 115.125 is amended to read:
115.125. (1) If the applicable assets of the estate are
insufficient to pay all expenses and claims in full, the personal
representative shall make payment in the following order:
(a) Support of spouse and children, subject to the limitations
imposed by ORS 114.065.
(b) Expenses of administration.
(c) Expenses of a plain and decent funeral and disposition of
the remains of the decedent.
(d) Debts and taxes with preference under federal law.
(e) Reasonable and necessary medical and hospital expenses of
the last illness of the decedent, including compensation of
persons attending the decedent.
(f) Taxes with preference under the laws of this state that are
due and payable while possession of the estate of the decedent is
retained by the personal representative.
(g) Debts owed employees of the decedent for labor performed
within 90 days immediately preceding the date of death of the
decedent.
(h) The claim of the Adult and Family Services Division for the
net amount of public assistance, as defined in ORS 411.010, paid
to or for the decedent, and the claim of the Mental Health and
Developmental Disability Services Division { + or the Department
of Corrections + } for care and maintenance of any decedent who
was at a state institution to the extent provided in ORS 179.610
to 179.770.
(i) All other claims against the estate.
(2) If the applicable assets of the estate are insufficient to
pay in full all expenses or claims of any one class specified in
subsection (1) of this section, each expense or claim of that
class shall be paid only in proportion to the amount thereof.
SECTION 14. ORS 116.093 is amended to read:
116.093. (1) Upon filing the final account and petition for
decree of distribution, the personal representative shall fix a
time for filing objections thereto in a notice thereof. Not less
than 20 days before the time fixed in the notice, the personal
representative shall cause a copy of the notice to be mailed to:
(a) Each heir at the last-known address of the heir, if the
decedent died intestate.
(b) Each devisee at the last-known address of the devisee, if
the decedent died testate.
(c) Each creditor who has not received payment in full and
whose claim has not otherwise been barred.
(d) Any other person known to the personal representative to
have or to claim an interest in the estate being distributed.
(2) The notice need not be mailed to the personal
representative.
(3) Proof of the mailing to those persons entitled to notice
shall be made by affidavit and filed in the estate proceeding at
or before approval of the final account.
(4) If the Adult and Family Services Division or its authorized
agent has presented a claim under ORS chapters 411 to 415 and ORS
416.010 to 416.270, 416.310 to 416.340 and 416.510 to 416.990 or
417.010 to 417.080, or the Mental Health and Developmental
Disability Services Division { + or the Department of
Corrections + } or { - its - } { + the + } authorized agent
{ + of the division or the department + } has presented a claim
under ORS 179.620 (3), and the claim has not been settled or paid
in full, the personal representative shall cause to be mailed to
the division or department a copy of the final account at the
same time, and shall make proof of the mailing in the same
manner, as the notice provided for in this section.
SECTION 15. ORS 430.180 is amended to read:
430.180. (1) There is established in the General Fund of the
State Treasury an account to be known as the Mental Health and
Developmental Disability Services Account, to which all
reimbursements { + to the Mental Health and Developmental
Disability Services Division + } for cost and care of persons in
state programs collected pursuant to ORS 179.610 to 179.770,
426.241, 427.108 and 430.165 shall be deposited.
(2) The moneys in the Mental Health and Developmental
Disability Services Account are hereby continuously appropriated
to the Mental Health and Developmental Disability Services
Division of the Department of Human Services for the purposes of
paying the expenses of those state programs and associated
administrative costs for which revenues are collected pursuant to
ORS 179.770, 426.241 and 430.165 and revenues collected for those
programs established pursuant to ORS 427.104, 427.106 (1977
Replacement Part) and 427.108.
(3) The Mental Health and Developmental Disability Services
Division shall keep a record of all moneys credited to and
deposited in the Mental Health and Developmental Disability
Services Account. The record shall indicate by separate
cumulative accounts the source from which the moneys are derived.
(4) In order to facilitate financing the costs advanced as set
forth in subsection (2) of this section, the division may at any
time during the biennium transfer to the Mental Health and
Developmental Disability Services Account, with the approval of
the Director of the Oregon Department of Administrative Services,
such funds as it deems necessary, not to exceed $4 million, from
funds duly appropriated to the division for a biennial period.
Such funds so transferred shall be retransferred from the Mental
Health and Developmental Disability Services Account by the
division to the appropriation from which the original transfer
was made. The retransfers shall be accomplished prior to the last
day of each biennial period.
SECTION 16. { + ORS 179.653 and 179.655 are added to and made
a part of ORS 179.610 to 179.770. + }
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