74th OREGON LEGISLATIVE ASSEMBLY--2007 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 533
Senate Bill 157
Printed pursuant to Senate Interim Rule 213.28 by order of the
President of the Senate in conformance with presession filing
rules, indicating neither advocacy nor opposition on the part
of the President (at the request of Governor Theodore R.
Kulongoski for Department of Human Services)
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.
Designates Home Care Commission as independent agency by
transfer of duties, functions, powers, employees and property
associated with administration of commission from Department of
Human Services to commission.
Specifies authority of commission. Exempts commission from laws
relating to transfer of public employees, state personnel
relations, public contracting, public printing, interagency
services, state financial administration and salaries and
expenses of state officers and employees.
A BILL FOR AN ACT
Relating to the Home Care Commission; creating new provisions;
and amending ORS 181.534, 410.604 and 410.612.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + The duties, functions and powers of the
Department of Human Services relating to the Home Care Commission
are imposed upon, transferred to and vested in the Home Care
Commission. + }
SECTION 2. { + (1) The Director of Human Services shall:
(a) Deliver to the Home Care Commission all records and
property within the jurisdiction of the director that relate to
the duties, functions and powers transferred by section 1 of this
2007 Act; and
(b) Transfer to the commission those employees engaged
primarily in the exercise of the duties, functions and powers
transferred by section 1 of this 2007 Act.
(2) The commission shall take possession of the records and
property, and shall take charge of the employees and employ them
in the exercise of the duties, functions and powers transferred
by section 1 of this 2007 Act, without reduction of compensation
but subject to change or termination of employment or
compensation as provided by law.
(3) Any employee who transfers from the department to the
commission at any time prior to July 1, 2008, may retain any
accrued sick leave and up to 80 hours of accrued vacation.
(4) The department shall pay the Home Care Commission an amount
equal to the number of hours of sick leave and vacation retained
by a transferring employee multiplied by the employee's hourly
rate of pay. + }
SECTION 3. { + Sections 4 to 8 of this 2007 Act are added to
and made a part of ORS 410.600 to 410.614. + }
SECTION 4. { + (1) In carrying out its duties under ORS
410.600 to 410.614, the Home Care Commission may:
(a) Enter into an interagency agreement or a contract with any
state agency for the performance of the commission's duties or
the leasing of office space;
(b) Provide nonemployee compensation to home care workers or
prospective home care workers who attend training sessions
approved by the commission;
(c) On behalf of an elderly person or a disabled person who
hires a home care worker through the Home Care Commission
registry, elect workers' compensation coverage or health
insurance coverage, or both, for the person's home care workers;
(d) Unless the person to be served is a public assistance
recipient, impose fees upon any person seeking a referral from
the registry of qualified home care workers;
(e) Award grants from funds appropriated by the Legislative
Assembly to the commission for that purpose;
(f) Contract for, lease, acquire, hold, own, encumber, insure,
sell, provide, replace, deal in and with and dispose of
equipment, supplies, goods, other personal property, services and
real property in its own name; and
(g) Sue and be sued in its own name.
(2) A state agency that chooses to enter into an agreement or a
contract with the commission under subsection (1) of this section
may not charge the commission an amount that exceeds the actual
cost of providing the contracted services. + }
SECTION 5. { + (1) Except as otherwise provided in ORS 410.600
to 410.614, the provisions of ORS 236.605 to 236.640 and ORS
chapters 240, 276, 279, 279A, 279B, 279C, 282, 283, 291 and 292
do not apply to the Home Care Commission or employees of the
commission.
(2) A member of the commission or an employee of the commission
is an employee, eligible employee or public employee for purposes
of ORS 30.260 to 30.300 and ORS chapters 238, 238A, 243, 244 and
316.
(3) A member of the commission is a public official or public
officer for purposes of ORS 171.725 to 171.785 and 278.120 and
ORS chapters 295 and 297. + }
SECTION 6. { + (1) By September 1 of each even-numbered year,
the Home Care Commission shall submit to the Oregon Department of
Administrative Services a budget request for the next biennium.
The department shall include the request with the Governor's
budget request to the Legislative Assembly. Any such request
approved by the Legislative Assembly shall be appropriated to the
Oregon Department of Administrative Services for direct
allocation to the commission.
(2) The commission's budget request must be adopted in
accordance with generally accepted accounting principles, reflect
all sources of the commission's income and be adopted in
accordance with ORS 192.610 to 192.690. + }
SECTION 7. { + (1) Subject to the limits of subsection (2) of
this section, the unexpended balances of amounts authorized to be
expended by the Department of Human Services for the biennium
beginning July 1, 2007, from revenues dedicated, continuously
appropriated, appropriated or otherwise made available for the
purposes of administering and enforcing the duties, functions and
powers of the Home Care Commission are transferred to and are
available for expenditure by the commission beginning on the
effective date of this 2007 Act, for the purposes of
administering and enforcing the duties, functions and powers of
the commission.
(2) Any funds authorized to be expended by the Department of
Human Services for the biennium beginning July 1, 2007, from
revenues dedicated, continuously appropriated, appropriated or
otherwise made available to the department for the purposes of
administering and enforcing any duties, functions and powers that
are not transferred to the commission by section 1 of this 2007
Act shall be retained and expended by the department. + }
SECTION 8. { + For the purpose of requesting a state or
nationwide criminal records check under ORS 181.534 or 181.537,
the Home Care Commission may require the fingerprints of:
(1) A person seeking registration as a home care worker.
(2) A person who is employed by or applying for employment with
the commission.
(3) A person who provides services or seeks to provide services
to the commission as a contractor or volunteer and who has or
will have access to information, the disclosure of which is
prohibited by state or federal laws, rules or regulations, or to
information that is defined as confidential under state or
federal laws, rules or regulations. + }
SECTION 9. ORS 181.534 is amended to read:
181.534. (1) As used in this section:
(a) 'Authorized agency' means state government as defined in
ORS 174.111 { + , the Home Care Commission + } and the Oregon
State Bar. 'Authorized agency' does not include:
(A) The Oregon State Lottery Commission or the Oregon State
Lottery; or
(B) A criminal justice agency, as defined in ORS 181.010, that
is authorized by federal law to receive fingerprint-based
criminal records checks from the Federal Bureau of Investigation.
(b) 'Subject individual' means a person from whom an authorized
agency may require fingerprints pursuant to statute for the
purpose of enabling the authorized agency to request a state or
nationwide criminal records check.
(2) An authorized agency may request that the Department of
State Police conduct a criminal records check on a subject
individual for non-criminal justice purposes. If a nationwide
criminal records check of a subject individual is necessary, the
authorized agency may request that the Department of State Police
conduct the check, including fingerprint identification, through
the Federal Bureau of Investigation.
(3) The Department of State Police shall provide the results of
a criminal records check conducted pursuant to subsection (2) of
this section to the authorized agency requesting the check.
(4) The Federal Bureau of Investigation shall return or destroy
the fingerprint cards used to conduct the criminal records check
and may not keep any record of the fingerprints. If the federal
bureau policy authorizing return or destruction of the
fingerprint cards is changed, the Department of State Police
shall cease to send the cards to the federal bureau but shall
continue to process the information through other available
resources.
(5) If the Federal Bureau of Investigation returns the
fingerprint cards to the Department of State Police, the
department shall destroy the fingerprint cards and shall retain
no facsimiles or other material from which a fingerprint can be
reproduced.
(6) If only a state criminal records check is conducted, the
Department of State Police shall destroy the fingerprint cards
after the criminal records check is completed and the results of
the criminal records check provided to the authorized agency and
shall retain no facsimiles or other material from which a
fingerprint can be reproduced.
(7) An authorized agency may conduct criminal records checks on
subject individuals through the Law Enforcement Data System
maintained by the Department of State Police in accordance with
rules adopted, and procedures established, by the Department of
State Police.
(8) An authorized agency and the Department of State Police
shall permit a subject individual for whom a fingerprint-based
criminal records check was conducted to inspect the individual's
own state and national criminal offender records and, if
requested by the subject individual, provide the individual with
a copy of the individual's own state and national criminal
offender records.
(9) Each authorized agency, in consultation with the Department
of State Police, shall adopt rules to implement this section and
other statutes relating to criminal offender information obtained
through fingerprint-based criminal records checks. The rules
shall include but need not be limited to:
(a) Specifying categories of subject individuals who are
subject to criminal records checks.
(b) Specifying the information that may be required from a
subject individual to permit a criminal records check.
(c) Specifying which programs or services are subject to this
section.
(d) Specifying the types of crimes that may be considered in
reviewing criminal offender information of a subject individual.
(e) Specifying when a nationwide fingerprint-based criminal
records check must be conducted. An authorized agency shall
consider the additional cost of obtaining a nationwide
fingerprint-based criminal records check when adopting rules
under this subsection.
(f) If the authorized agency uses criminal records checks for
agency employment purposes:
(A) Determining when and under what conditions a subject
individual may be hired on a preliminary basis pending a criminal
records check; and
(B) Defining the conditions under which a subject individual
may participate in training, orientation and work activities
pending completion of a criminal records check.
(g) Establishing fees in an amount not to exceed the actual
cost of acquiring and furnishing criminal offender information.
(10) The Department of State Police shall verify that an
authorized agency has adopted the rules required by subsection
(9) of this section.
(11) Except as otherwise provided in ORS 181.612, an authorized
agency, using the rules adopted under subsection (9) of this
section, shall determine whether a subject individual is fit to
hold a position, provide services, be employed or be granted a
license, certification, registration or permit, based on the
criminal records check obtained pursuant to this section, on any
false statements made by the individual regarding the criminal
history of the individual and on any refusal to submit or consent
to a criminal records check including fingerprint identification.
If a subject individual is determined to be unfit, then the
individual may not hold the position, provide services, be
employed or be granted a license, certification, registration or
permit.
(12) Except as otherwise provided in ORS 181.612, in making the
fitness determination under subsection (11) of this section, the
authorized agency shall consider:
(a) The nature of the crime;
(b) The facts that support the conviction or pending indictment
or that indicate the making of the false statement;
(c) The relevancy, if any, of the crime or the false statement
to the specific requirements of the subject individual's present
or proposed position, services, employment, license,
certification or registration; and
(d) Intervening circumstances relevant to the responsibilities
and circumstances of the position, services, employment, license,
certification, registration or permit. Intervening circumstances
include but are not limited to:
(A) The passage of time since the commission of the crime;
(B) The age of the subject individual at the time of the crime;
(C) The likelihood of a repetition of offenses or of the
commission of another crime;
(D) The subsequent commission of another relevant crime;
(E) Whether the conviction was set aside and the legal effect
of setting aside the conviction; and
(F) A recommendation of an employer.
(13) An authorized agency and an employee of an authorized
agency acting within the course and scope of employment are
immune from any civil liability that might otherwise be incurred
or imposed for determining, pursuant to subsection (11) of this
section, that a subject individual is fit or not fit to hold a
position, provide services, be employed or be granted a license,
certification, registration or permit. An authorized agency and
an employee of an authorized agency acting within the course and
scope of employment who in good faith comply with this section
are not liable for employment-related decisions based on
determinations made under subsection (11) of this section. An
authorized agency or an employee of an authorized agency acting
within the course and scope of employment is not liable for
defamation or invasion of privacy in connection with the lawful
dissemination of information lawfully obtained under this
section.
(14)(a) Each authorized agency shall establish by rule a
contested case process by which a subject individual may appeal
the determination that the individual is fit or not fit to hold a
position, provide services, be employed or be granted a license,
certification, registration or permit on the basis of information
obtained as the result of a criminal records check conducted
pursuant to this section. Challenges to the accuracy or
completeness of information provided by the Department of State
Police, the Federal Bureau of Investigation and agencies
reporting information to the Department of State Police or
Federal Bureau of Investigation must be made through the
Department of State Police, Federal Bureau of Investigation or
reporting agency and not through the contested case process
required by this paragraph.
(b) A subject individual who is employed by an authorized
agency and who is determined not to be fit for a position on the
basis of information obtained as the result of a criminal records
check conducted pursuant to this section may appeal the
determination through the contested case process adopted under
this subsection or applicable personnel rules, policies and
collective bargaining provisions. An individual's decision to
appeal a determination through personnel rules, policies and
collective bargaining provisions is an election of remedies as to
the rights of the individual with respect to the fitness
determination and is a waiver of the contested case process.
(15) Criminal offender information is confidential. Authorized
agencies and the Department of State Police shall adopt rules to
restrict dissemination of information received under this section
to persons with a demonstrated and legitimate need to know the
information.
(16) If a subject individual refuses to consent to the criminal
records check or refuses to be fingerprinted, the authorized
agency shall deny the employment of the individual, or revoke or
deny any applicable position, authority to provide services,
license, certification, registration or permit.
(17) If an authorized agency requires a criminal records check
of employees, prospective employees, contractors, vendors or
volunteers or applicants for a license, certification,
registration or permit, the application forms of the authorized
agency must contain a notice that the person is subject to
fingerprinting and a criminal records check.
SECTION 10. ORS 410.604 is amended to read:
410.604. (1) The Home Care Commission shall ensure the quality
of home care services by:
(a) Establishing qualifications for home care workers with the
advice and consent of the Department of Human Services as the
single state Medicaid agency;
(b) Providing training opportunities for home care workers and
elderly and disabled persons who employ home care workers;
(c) Establishing and maintaining a registry of qualified home
care workers;
(d) Providing routine, emergency and respite referrals of home
care workers;
(e) Entering into contracts with public and private
organizations and individuals for the purpose of obtaining or
developing training materials and curriculum or other services as
may be needed by the commission; and
(f) Working cooperatively with area agencies and state and
local agencies to accomplish the duties listed in paragraphs (a)
to (e) of this subsection.
(2) { + (a) + } The commission shall employ an executive
director who is appointed by the Governor and who shall serve at
the pleasure of the Governor. The commission may employ other
staff as may be necessary to carry out its functions. An employee
of the commission is not an employee of the State of Oregon for
any purpose.
{ + (b) The commission shall adopt a compensation plan and
personnel policies for all commission employees including the
executive director. + }
(3) When conducting its activities, and in making decisions
relating to those activities, the commission shall first consider
the effect of its activities and decisions on:
(a) Improving the quality of service delivered by home care
workers; and
(b) Ensuring adequate hours of service are provided to elderly
and disabled persons by home care workers.
(4) The commission has the authority to { - contract, lease,
acquire, hold, own, encumber, insure, sell, replace, deal in and
with and dispose of real and personal property - } { + adopt by
rule standards for the establishment and collection of fees to
pay the expenses of administering functions under this
section + }.
SECTION 11. ORS 410.612 is amended to read:
410.612. (1) For purposes of collective bargaining under ORS
243.650 to 243.782, the Home Care Commission is the employer of
record for home care workers.
(2) { - Notwithstanding - } { + Except as provided in + }
subsection (1) of this section, { + a + } home care
{ - workers - } { + worker + } may not be considered for any
purposes to be an employee of the State of Oregon, an area agency
or other public agency.
(3) The Oregon Department of Administrative Services shall
represent the commission in collective bargaining negotiations
with the certified or recognized exclusive representatives of all
appropriate bargaining units of home care workers. The department
is authorized to agree to terms and conditions of collective
bargaining agreements on behalf of the commission { - and the
Department of Human Services - } .
SECTION 12. { + (1) Nothing in sections 1 to 8 of this 2007
Act or the amendments to ORS 181.534, 410.604 and 410.612 by
sections 9 to 11 of this 2007 Act relieves a person of a
liability, duty or obligation accruing under or with respect to
the duties, functions and powers transferred by section 1 of this
2007 Act. The Home Care Commission may undertake the collection
or enforcement of any such liability, duty or obligation.
(2) The rights and obligations of the Department of Human
Services legally incurred under contracts, leases and business
transactions executed, entered into or begun before the effective
date of this 2007 Act accruing under or with respect to the
duties, functions and powers transferred by section 1 of this
2007 Act are transferred to the commission. For the purpose of
succession to these rights and obligations, the commission is a
continuation of the department and not a new authority. + }
SECTION 13. { + Whenever, in any uncodified law or resolution
of the Legislative Assembly or in any rule, document, record or
proceeding authorized by the Legislative Assembly, in the context
of the duties, functions and powers transferred by section 1 of
this 2007 Act, reference is made to the Department of Human
Services, or an officer or employee of the department whose
duties, functions or powers are transferred by section 1 of this
2007 Act, the reference is considered to be a reference to the
Home Care Commission or an officer or employee of the commission
who by this 2007 Act is charged with carrying out such duties,
functions and powers. + }
----------