Chapter 439 Oregon Laws 2005

AN ACT

HB 2141

Relating to corrections; creating new provisions; amending ORS 179.473 and 420.505; repealing ORS 179.475 and 179.477; and declaring an emergency.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 179.473 is amended to read:

179.473. (1) Whenever the health and welfare of the person and the efficient administration of the institution requires the transfer of an inmate of a Department of Corrections institution or a youth offender in a youth correction facility to another institution:

(a) The Department of Corrections [or the Oregon Youth Authority], with the consent of the Department of Human Services, may transfer a person at any institution under its jurisdiction to an institution for the mentally ill or mentally retarded, or, with the consent of the Oregon Health and Science University, to the Oregon Health and Science University.

(b) The Oregon Youth Authority, with the consent of the Department of Human Services, may transfer a person at any institution under its jurisdiction to a hospital or facility designated by the Department of Human Services or, with the consent of the Oregon Health and Science University, to the Oregon Health and Science University.

[(b)] (c) Except as provided in subsection (2) of this section, the Department of Corrections or the Oregon Youth Authority may make a transfer of a person from any institution under the jurisdiction of the department or authority to any other institution under the jurisdiction of the department or authority.

(2) A youth offender in a youth correction facility may not be transferred to a Department of Corrections institution under subsection (1) of this section. A youth offender in a youth correction facility who has been transferred to another institution may not be transferred from such other institution to a Department of Corrections institution.

SECTION 2. ORS 179.473, as amended by section 1 of this 2005 Act, is amended to read:

(a) The Department of Corrections or the Oregon Youth Authority, with the consent of the Department of Human Services, may transfer a person at any institution under its jurisdiction to an institution for the [mentally ill or] mentally retarded, or, with the consent of the Oregon Health and Science University, to the Oregon Health and Science University.

[(b) The Oregon Youth Authority, with the consent of the Department of Human Services, may transfer a person at any institution under its jurisdiction to a hospital or facility designated by the Department of Human Services or, with the consent of the Oregon Health and Science University, to the Oregon Health and Science University.]

(b) The Department of Corrections may transfer an inmate of a Department of Corrections institution to a state mental hospital listed in ORS 426.010 for evaluation and treatment pursuant to rules adopted jointly by the Department of Corrections and the Department of Human Services.

(c) The Oregon Youth Authority may transfer a youth offender or other person confined in a youth correction facility to a hospital or facility designated by the Department of Human Services for evaluation and treatment pursuant to rules adopted jointly by the Oregon Youth Authority and the Department of Human Services.

[(c)] (d) Except as provided in subsection (2) of this section, the Department of Corrections or the Oregon Youth Authority may make a transfer of a person from any institution under the jurisdiction of the department or authority to any other institution under the jurisdiction of the department or authority.

(3) The rules adopted under subsection (1)(b) and (c) of this section must:

(a) Provide the inmate or youth offender with the rights to which persons are entitled under ORS 179.485.

(b) Provide that a transfer of an inmate or a youth offender to the Department of Human Services for stabilization and evaluation for treatment may not exceed 30 days unless the transfer is extended pursuant to a hearing required by paragraph (c) of this subsection.

(c) Provide for an administrative commitment hearing if:

(A) The Department of Human Services determines that administrative commitment for treatment for a mental illness is necessary or advisable or that the Department of Human Services needs more than 30 days to stabilize or evaluate the inmate or youth offender for treatment; and

(B) The inmate or youth offender does not consent to the administrative commitment or an extension of the transfer.

(d) Provide for, at a minimum, all of the following for the administrative commitment hearing process:

(A) Written notice to the inmate or youth offender that an administrative commitment to a state mental hospital listed in ORS 426.010 or a hospital or facility designated by the Department of Human Services or an extension of the transfer is being considered. The notice required by this subparagraph must be provided far enough in advance of the hearing to permit the inmate or youth offender to prepare for the hearing.

(B) Disclosure to the inmate or youth offender, at the hearing, of the evidence that is being relied upon for the administrative commitment or the extension of the transfer.

(C) An opportunity, at the hearing, for the inmate or youth offender to be heard in person and to present documentary evidence.

(D) An opportunity, at the hearing, for the inmate or youth offender to present the testimony of witnesses and to confront and cross-examine witnesses called by the state. The opportunity required by this subparagraph may be denied upon a finding by the decision maker of good cause for not permitting the inmate or youth offender to present the testimony of witnesses or confront or cross-examine witnesses called by the state.

(E) An independent decision maker for the hearing.

(F) A written statement by the decision maker of the evidence relied upon by the decision maker and the reasons for administratively committing the inmate or youth offender or extending the transfer.

(G) A qualified and independent assistant for the inmate or youth offender to be provided by the state if the inmate or youth offender is financially unable to provide one.

(H) Effective and timely notice of the procedures required by subparagraphs (A) to (G) of this paragraph.

(e) Provide that an inmate or a youth offender may not be administratively committed involuntarily unless the independent decision maker finds by clear and convincing evidence that the inmate or youth offender is a mentally ill person as defined in ORS 426.005.

(f) Provide that the duration of an administrative commitment pursuant to an administrative commitment hearing be no more than 180 days unless the administrative commitment is renewed in a subsequent administrative commitment hearing. Notwithstanding this paragraph, an administrative commitment may not continue beyond the term of incarceration to which the inmate was sentenced or beyond the period of time that the youth offender may be placed in a youth correction facility.

SECTION 3. ORS 420.505 is amended to read:

420.505. (1) A youth offender at a youth correction facility may apply for admission to [an institution for the mentally ill] a hospital or facility designated by the Department of Human Services. The application may be made on behalf of the youth offender by the parents or legal guardian of the youth offender. However, the superintendent shall not be required to cause the examination of a youth offender who applies under this section more often than once in six months.

(2) Within five working days after receipt of the application, the superintendent of the youth correction facility shall cause the youth offender to be examined by one or more qualified persons at the [school] facility and shall request the examination of the youth offender by one or more qualified persons employed or designated by the department [of Human Services]. The examination conducted or authorized by the department shall take place within five working days after receipt of the request from the superintendent. The examiners shall prepare separate reports and shall submit such reports to the superintendent. A copy of the reports shall be given to the applicant.

(3) If the superintendent finds that there is a probable cause to believe that the youth offender is mentally ill and that it would be in the best interests of the youth offender to be admitted to [an institution under the jurisdiction of the department] a hospital or facility designated by the department, the superintendent shall notify the department and shall order the youth offender transferred pursuant to ORS [179.475] 179.473.

(4) No youth offender at a youth correction facility voluntarily admitted to [any state institution for the mentally ill under ORS 179.475] a hospital or facility designated by the department shall be detained therein more than 72 hours after the youth offender is of the age specified in ORS 420A.010 (5) setting the age limits for which the Oregon Youth Authority may retain legal and physical custody of the youth offender and has given notice in writing of the desire of the youth offender to be released. If the youth offender is under the age specified in ORS 420A.010 (5) setting the age limits for which the Oregon Youth Authority may retain legal and physical custody of the youth offender, the youth offender may be returned to the youth correction facility after notice in writing has been given by the parent or legal guardian of the youth offender, that such parent or guardian desires that the youth offender be discharged from the [state institution for the mentally ill] hospital or facility designated by the department.

SECTION 4. Notwithstanding the operative date of the amendments to ORS 179.473 by section 2 of this 2005 Act, the Department of Corrections, the Oregon Youth Authority and the Department of Human Services may take any action before the operative date of the amendments to ORS 179.473 by section 2 of this 2005 Act that is necessary to enable the Department of Corrections, the Oregon Youth Authority and the Department of Human Services to exercise, on and after the operative date of the amendments to ORS 179.473 by section 2 of this 2005 Act, the duties imposed by the amendments to ORS 179.473 by section 2 of this 2005 Act.

SECTION 5. ORS 179.475 and 179.477 are repealed.

SECTION 6. The amendments to ORS 179.473 and 420.505 by sections 2 and 3 of this 2005 Act and the repeal of ORS 179.475 and 179.477 by section 5 of this 2005 Act become operative on July 1, 2005.

SECTION 7. This 2005 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 2005 Act takes effect on its passage.

Approved by the Governor July 1, 2005

Filed in the office of Secretary of State July 1, 2005

Effective date July 1, 2005

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