75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
House Bill 2009
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Health Care)
CHAPTER ................
AN ACT
Relating to health care; creating new provisions; amending ORS
25.323, 65.800, 87.533, 90.113, 90.440, 92.337, 93.270, 97.210,
97.450, 97.977, 105.580, 106.045, 106.081, 109.094, 109.096,
109.225, 109.251, 109.675, 109.680, 109.685, 109.695, 110.318,
113.085, 113.105, 113.145, 114.525, 114.535, 115.125, 116.093,
116.253, 124.050, 125.060, 127.646, 127.720, 127.865, 130.370,
130.425, 135.139, 135.917, 137.227, 137.228, 137.464, 137.466,
137.658, 144.102, 144.270, 161.315, 161.327, 161.336, 161.341,
161.346, 161.365, 161.370, 161.375, 161.385, 161.390, 163.206,
165.698, 166.250, 166.291, 166.412, 166.470, 169.076, 169.690,
179.010, 179.040, 179.050, 179.055, 179.065, 179.105, 179.110,
179.140, 179.150, 179.210, 179.230, 179.240, 179.321, 179.325,
179.331, 179.360, 179.370, 179.375, 179.380, 179.385, 179.390,
179.450, 179.460, 179.473, 179.479, 179.490, 179.492, 179.505,
179.509, 179.610, 179.620, 179.640, 179.653, 179.655, 179.660,
179.701, 179.711, 179.731, 179.740, 179.745, 179.770, 181.537,
181.637, 182.415, 182.515, 182.535, 184.345, 192.517, 192.519,
192.527, 192.535, 192.537, 192.539, 192.547, 192.549, 192.630,
197.660, 198.792, 199.461, 199.490, 199.495, 199.512, 222.120,
222.850, 222.860, 222.870, 222.875, 222.880, 222.883, 222.885,
222.890, 222.897, 222.900, 222.911, 244.050, 247.570, 276.180,
276.610, 276.612, 278.315, 279A.050, 285A.213, 285B.563,
291.371, 314.840, 315.604, 315.613, 320.308, 323.455, 323.625,
332.111, 336.222, 336.227, 336.235, 336.245, 339.333, 339.505,
339.869, 343.221, 343.499, 343.961, 345.535, 346.015, 346.035,
348.320, 351.105, 352.008, 401.259, 401.300, 401.347, 401.654,
401.657, 401.661, 401.667, 401.670, 401.871, 408.305, 408.310,
408.320, 408.325, 408.380, 408.570, 408.580, 409.010, 409.320,
409.330, 409.410, 409.420, 409.425, 409.430, 409.435, 409.500,
409.520, 409.530, 409.540, 409.600, 409.619, 409.621, 409.623,
409.625, 409.720, 409.740, 409.745, 409.747, 411.620, 411.708,
414.025, 414.033, 414.034, 414.042, 414.049, 414.051, 414.065,
414.073, 414.105, 414.106, 414.109, 414.115, 414.125, 414.135,
414.145, 414.151, 414.153, 414.211, 414.221, 414.225, 414.227,
414.312, 414.314, 414.316, 414.318, 414.320, 414.325, 414.327,
414.329, 414.330, 414.332, 414.334, 414.336, 414.338, 414.350,
414.355, 414.360, 414.365, 414.375, 414.380, 414.390, 414.410,
414.420, 414.426, 414.428, 414.534, 414.536, 414.538, 414.540,
414.630, 414.640, 414.707, 414.708, 414.709, 414.710, 414.712,
414.720, 414.725, 414.727, 414.728, 414.735, 414.736, 414.737,
414.738, 414.739, 414.740, 414.741, 414.742, 414.743, 414.750,
414.751, 414.805, 414.807, 414.815, 414.839, 416.430, 416.510,
Enrolled House Bill 2009 (HB 2009-C) Page 1
416.530, 416.540, 416.550, 416.560, 416.570, 416.580, 416.590,
416.600, 416.610, 416.990, 417.346, 417.728, 417.730, 417.735,
417.795, 417.845, 418.704, 418.706, 419B.005, 419B.839,
419C.239, 419C.443, 419C.507, 419C.529, 419C.530, 419C.532,
419C.533, 419C.538, 419C.542, 420.505, 420.870, 420A.135,
420A.145, 420A.155, 421.504, 426.005, 426.010, 426.020,
426.060, 426.070, 426.072, 426.074, 426.075, 426.095, 426.110,
426.120, 426.127, 426.130, 426.140, 426.150, 426.170, 426.180,
426.217, 426.220, 426.223, 426.225, 426.228, 426.231, 426.232,
426.233, 426.234, 426.235, 426.236, 426.237, 426.238, 426.241,
426.250, 426.273, 426.275, 426.278, 426.292, 426.300, 426.301,
426.303, 426.307, 426.330, 426.335, 426.370, 426.385, 426.395,
426.415, 426.495, 426.500, 426.502, 426.504, 426.506, 426.508,
426.650, 426.670, 426.675, 426.680, 427.104, 427.108, 427.112,
427.180, 427.185, 427.190, 427.235, 427.245, 427.255, 427.275,
427.280, 427.300, 427.306, 428.210, 428.220, 428.230, 428.240,
428.260, 428.270, 428.310, 428.320, 428.330, 430.010, 430.021,
430.030, 430.050, 430.071, 430.073, 430.078, 430.140, 430.160,
430.165, 430.170, 430.195, 430.205, 430.210, 430.215, 430.240,
430.255, 430.257, 430.259, 430.265, 430.270, 430.290, 430.306,
430.315, 430.335, 430.342, 430.345, 430.350, 430.357, 430.359,
430.364, 430.366, 430.368, 430.375, 430.380, 430.395, 430.397,
430.420, 430.422, 430.424, 430.426, 430.450, 430.535, 430.540,
430.545, 430.560, 430.565, 430.570, 430.610, 430.620, 430.630,
430.632, 430.635, 430.640, 430.665, 430.670, 430.672, 430.673,
430.675, 430.685, 430.690, 430.693, 430.695, 430.705, 430.715,
430.725, 430.735, 430.850, 430.860, 430.870, 430.880, 430.920,
430.925, 430.955, 431.035, 431.045, 431.110, 431.120, 431.150,
431.155, 431.157, 431.170, 431.175, 431.180, 431.190, 431.195,
431.210, 431.220, 431.230, 431.250, 431.260, 431.262, 431.264,
431.270, 431.290, 431.310, 431.330, 431.335, 431.340, 431.345,
431.350, 431.375, 431.380, 431.385, 431.415, 431.416, 431.418,
431.530, 431.550, 431.607, 431.609, 431.611, 431.613, 431.619,
431.623, 431.627, 431.633, 431.671, 431.705, 431.710, 431.715,
431.720, 431.725, 431.730, 431.735, 431.740, 431.745, 431.750,
431.760, 431.825, 431.827, 431.830, 431.831, 431.832, 431.834,
431.836, 431.853, 431.890, 431.915, 431.920, 431.940, 431.945,
431.950, 431.955, 431.990, 432.005, 432.010, 432.015, 432.020,
432.025, 432.030, 432.060, 432.085, 432.119, 432.146, 432.240,
432.287, 432.312, 432.317, 432.500, 432.510, 432.520, 432.530,
432.540, 432.900, 433.001, 433.004, 433.006, 433.008, 433.010,
433.012, 433.017, 433.035, 433.040, 433.045, 433.055, 433.060,
433.065, 433.075, 433.080, 433.085, 433.090, 433.094, 433.100,
433.110, 433.133, 433.140, 433.220, 433.235, 433.245, 433.255,
433.260, 433.267, 433.269, 433.271, 433.273, 433.282, 433.283,
433.285, 433.290, 433.295, 433.312, 433.314, 433.321, 433.323,
433.326, 433.345, 433.350, 433.355, 433.360, 433.365, 433.367,
433.370, 433.375, 433.407, 433.419, 433.423, 433.443, 433.452,
433.511, 433.517, 433.521, 433.526, 433.715, 433.750, 433.760,
433.810, 433.835, 433.850, 433.855, 433.860, 433.990, 435.090,
435.100, 435.105, 435.205, 435.225, 435.254, 435.256, 437.010,
437.030, 438.010, 438.060, 438.070, 438.110, 438.120, 438.130,
438.140, 438.150, 438.160, 438.210, 438.310, 438.320, 438.420,
438.435, 438.440, 438.450, 438.605, 438.610, 438.615, 438.620,
440.420, 441.017, 441.020, 441.022, 441.025, 441.030, 441.037,
441.050, 441.055, 441.057, 441.060, 441.062, 441.082, 441.085,
441.094, 441.164, 441.166, 441.170, 441.180, 441.630, 441.705,
441.710, 441.712, 441.715, 441.720, 441.750, 441.755, 441.815,
441.990, 442.011, 442.015, 442.120, 442.315, 442.325, 442.342,
442.502, 442.584, 442.700, 442.705, 442.710, 442.720, 442.725,
Enrolled House Bill 2009 (HB 2009-C) Page 2
442.730, 442.735, 442.740, 442.745, 442.750, 442.755, 442.760,
442.800, 442.807, 443.005, 443.015, 443.035, 443.045, 443.055,
443.085, 443.205, 443.225, 443.315, 443.325, 443.327, 443.340,
443.345, 443.400, 443.405, 443.410, 443.415, 443.420, 443.422,
443.425, 443.430, 443.435, 443.440, 443.445, 443.450, 443.455,
443.460, 443.705, 443.715, 443.720, 443.725, 443.730, 443.733,
443.735, 443.738, 443.740, 443.742, 443.745, 443.755, 443.760,
443.765, 443.767, 443.775, 443.780, 443.785, 443.790, 443.795,
443.865, 443.870, 443.991, 444.300, 444.310, 444.320, 444.330,
445.010, 445.030, 445.050, 445.070, 445.090, 445.110, 445.130,
445.140, 445.150, 445.180, 445.185, 446.310, 446.320, 446.321,
446.322, 446.324, 446.325, 446.330, 446.335, 446.340, 446.345,
446.347, 446.348, 446.350, 446.425, 447.124, 448.005, 448.011,
448.020, 448.030, 448.035, 448.037, 448.040, 448.051, 448.060,
448.100, 448.115, 448.119, 448.123, 448.131, 448.135, 448.140,
448.145, 448.150, 448.153, 448.155, 448.160, 448.165, 448.170,
448.175, 448.180, 448.250, 448.255, 448.268, 448.271, 448.273,
448.277, 448.278, 448.279, 448.280, 448.285, 448.295, 448.315,
448.330, 448.407, 448.409, 448.410, 448.450, 448.460, 448.465,
448.990, 450.165, 450.845, 451.445, 452.151, 452.300, 452.530,
453.001, 453.005, 453.035, 453.055, 453.065, 453.075, 453.085,
453.095, 453.105, 453.115, 453.125, 453.135, 453.205, 453.225,
453.235, 453.245, 453.255, 453.265, 453.342, 453.347, 453.370,
453.605, 453.635, 453.645, 453.665, 453.675, 453.685, 453.695,
453.705, 453.715, 453.745, 453.752, 453.754, 453.757, 453.761,
453.771, 453.775, 453.780, 453.785, 453.790, 453.795, 453.800,
453.805, 453.807, 453.864, 453.867, 453.870, 453.873, 453.876,
453.879, 453.885, 453.888, 453.891, 453.894, 453.897, 453.900,
453.903, 453.909, 453.995, 454.235, 455.680, 458.525, 458.532,
459.386, 459.390, 459.395, 466.135, 466.280, 466.605, 466.615,
468.035, 468.055, 468.060, 468A.707, 468B.150, 469.525,
469.533, 469.559, 469.611, 471.190, 471.235, 471.333, 471.432,
471.547, 471.732, 475.225, 475.302, 475.303, 475.304, 475.306,
475.309, 475.312, 475.316, 475.320, 475.331, 475.334, 475.338,
475.565, 476.030, 478.260, 479.215, 479.217, 479.220, 480.225,
497.162, 527.710, 537.532, 537.534, 541.845, 545.101, 547.045,
561.740, 609.652, 616.010, 616.015, 616.020, 616.077, 616.330,
616.711, 616.745, 619.095, 624.010, 624.020, 624.036, 624.041,
624.046, 624.051, 624.060, 624.070, 624.073, 624.077, 624.080,
624.086, 624.091, 624.096, 624.106, 624.111, 624.116, 624.121,
624.165, 624.310, 624.320, 624.330, 624.340, 624.370, 624.380,
624.390, 624.400, 624.410, 624.430, 624.490, 624.495, 624.510,
624.530, 624.550, 624.570, 624.630, 624.650, 624.670, 624.990,
624.992, 628.270, 634.550, 656.319, 657.010, 657.880, 657.885,
657A.260, 657A.400, 657A.410, 657A.420, 675.360, 675.365,
676.160, 677.290, 677.491, 677.510, 677.515, 677.805, 677.812,
678.153, 678.362, 678.440, 678.730, 680.205, 682.017, 682.019,
682.025, 682.028, 682.031, 682.039, 682.045, 682.047, 682.051,
682.056, 682.062, 682.068, 682.075, 682.079, 682.085, 682.105,
682.107, 682.109, 682.111, 682.117, 682.208, 682.212, 682.216,
682.220, 682.224, 682.245, 682.991, 685.055, 685.160, 688.545,
688.595, 688.625, 688.630, 688.635, 688.640, 688.645, 688.650,
688.655, 688.660, 688.665, 689.605, 689.645, 690.055, 690.057,
690.205, 691.405, 691.485, 692.300, 693.115, 701.505, 708A.430,
722.262, 723.466, 731.276, 735.610, 735.612, 735.614, 735.625,
735.630, 735.701, 735.706, 735.722, 735.734, 735.754, 735.756,
743.018, 743.730, 743.737, 743.831, 802.250, 807.720, 813.021,
813.025, 813.030, 813.240, 813.260, 813.270, 813.500, 815.260,
820.330, 820.360, 820.380 and 830.110 and sections 13 and 14,
chapter 653, Oregon Laws 1991, section 6, chapter 1059, Oregon
Enrolled House Bill 2009 (HB 2009-C) Page 3
Laws 1999, section 2, chapter 798, Oregon Laws 2001, section 2,
chapter 76, Oregon Laws 2003, section 18, chapter 810, Oregon
Laws 2003, sections 5 and 7, chapter 99, Oregon Laws 2007,
section 2, chapter 460, Oregon Laws 2007, section 2, chapter
665, Oregon Laws 2007, section 27, chapter 697, Oregon Laws
2007, sections 3 and 4, chapter 838, Oregon Laws 2007, section
2a, chapter 872, Oregon Laws 2007, section 21, chapter 18,
Oregon Laws 2008, and section 2, chapter 31, Oregon Laws 2008;
repealing ORS 414.019, 414.021, 414.022, 414.023, 414.024,
414.031, 414.032, 414.036, 414.038, 414.039, 414.085, 414.107,
414.660, 414.670, 414.744, 430.180, 430.190, 442.035, 442.045,
442.057, 445.270 and 735.706 and sections 10 and 13, chapter
810, Oregon Laws 2003; appropriating money; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
{ +
HEALTH AUTHORITY LAW + }
{ +
ESTABLISHING OREGON HEALTH POLICY BOARD + }
{ +
(Establishment; Appointment; Term; Confirmation; Per Diem) + }
SECTION 1. { + (1) There is established the Oregon Health
Policy Board, consisting of nine members appointed by the
Governor.
(2) The term of office of each member is four years, but a
member serves at the pleasure of the Governor. Before the
expiration of the term of a member, the Governor shall appoint a
successor whose term begins on January 1 next following. A member
is eligible for reappointment. If there is a vacancy for any
cause, the Governor shall make an appointment to become
immediately effective for the unexpired term.
(3) The appointment of the board is subject to confirmation by
the Senate in the manner prescribed in ORS 171.562 and 171.565.
(4) Members of the board are entitled to reimbursement of per
diem and travel expenses for their attendance at board meetings
and subcommittee meetings as provided in ORS 292.495. + }
SECTION 2. { + Notwithstanding the term of office specified by
section 1 of this 2009 Act, of the members first appointed to the
Oregon Health Policy Board:
(1) Two shall serve for terms ending December 31, 2011.
(2) Two shall serve for terms ending December 31, 2012.
(3) Two shall serve for terms ending December 31, 2013.
(4) Three shall serve for terms ending December 31, 2014. + }
{ + NOTE: + } Section 3 was deleted by amendment. Subsequent
sections were not renumbered.
{ +
(Qualification of Members) + }
SECTION 4. { + (1) The Oregon Health Policy Board consists of
individuals who:
(a) Are United States citizens and residents of this state;
(b) Have demonstrated leadership skills in their professional
and civic lives;
Enrolled House Bill 2009 (HB 2009-C) Page 4
(c) To the greatest extent practicable, represent the various
geographic, ethnic, gender, racial and economic diversity of this
state; and
(d) Collectively offer expertise, knowledge and experience in
consumer advocacy, management of a company that offers health
insurance to its employees, public health, finance, organized
labor, health care and the operation of a small business.
(2) No more than four members of the board may be individuals:
(a) Whose household incomes, during the individuals' tenure on
the board or during the 12-month period prior to the individuals'
appointment to the board, come from health care or from a health
care related field; or
(b) Who receive health care benefits from a publicly funded
state health benefit plan.
(3) No more than four members of the board may be, during the
individuals' tenure on the board or during the 12-month period
prior to the individuals' appointment to the board, employed in a
health care or health care related field.
(4) At least one member of the board shall have an active
license to provide health care in Oregon and shall be appointed
to serve in addition to the members offering the expertise,
knowledge and experience described in subsection (1)(d) of this
section. + }
{ +
(Officers; Quorum; Meetings) + }
SECTION 5. { + (1) The Governor shall select from the
membership of the Oregon Health Policy Board the chairperson and
vice chairperson.
(2) A majority of the members of the board constitutes a quorum
for the transaction of business.
(3) The board shall meet at least once every month and shall
meet at least once every two years in each congressional district
in this state, at a place, day and hour determined by the board.
The board may also meet at other times and places specified by
the call of the chairperson or a majority of the members of the
board, or as specified in bylaws adopted by the board. + }
{ +
(Authority to Adopt Rules) + }
SECTION 6. { + In accordance with applicable provisions of ORS
chapter 183, the Oregon Health Policy Board may adopt rules
necessary for the administration of the laws that the board is
charged with administering. + }
{ +
(Committees) + }
SECTION 7. { + (1) The Oregon Health Policy Board shall
establish the committees described in subsections (2) and (3) of
this section.
(2)(a) The Public Health Benefit Purchasers Committee shall
include individuals who purchase health care for the following:
(A) The Public Employees' Benefit Board.
(B) The Oregon Educators Benefit Board.
(C) Trustees of the Public Employees Retirement System.
(D) A city government.
(E) A county government.
Enrolled House Bill 2009 (HB 2009-C) Page 5
(F) A special district.
(G) Any private nonprofit organization that receives the
majority of its funding from the state and requests to
participate on the committee.
(b) The Public Health Benefit Purchasers Committee shall:
(A) Identify and make specific recommendations to achieve
uniformity across all public health benefit plan designs based on
the best available clinical evidence, recognized best practices
for health promotion and disease management, demonstrated
cost-effectiveness and shared demographics among the enrollees
within the pools covered by the benefit plans.
(B) Develop an action plan for ongoing collaboration to
implement the benefit design alignment described in subparagraph
(A) of this paragraph and shall leverage purchasing to achieve
benefit uniformity if practicable.
(C) Continuously review and report to the Oregon Health Policy
Board on the committee's progress in aligning benefits while
minimizing the cost shift to individual purchasers of insurance
without shifting costs to the private sector or the Oregon Health
Insurance Exchange.
(c) The Oregon Health Policy Board shall work with the Public
Health Benefit Purchasers Committee to identify uniform
provisions for state and local public contracts for health
benefit plans that achieve maximum quality and cost outcomes. The
board shall collaborate with the committee to develop steps to
implement joint contract provisions. The committee shall identify
a schedule for the implementation of contract changes. The
process for implementation of joint contract provisions must
include a review process to protect against unintended cost
shifts to enrollees or agencies.
(d) Proposals and plans developed in accordance with this
subsection shall be completed by October 1, 2010, and shall be
submitted to the Oregon Health Policy Board for its approval and
possible referral to the Legislative Assembly no later than
December 31, 2010.
(3)(a) The Health Care Workforce Committee shall include
individuals who have the collective expertise, knowledge and
experience in a broad range of health professions, health care
education and health care workforce development initiatives.
(b) The Health Care Workforce Committee shall coordinate
efforts to recruit and educate health care professionals and
retain a quality workforce to meet the demand that will be
created by the expansion in health care coverage, system
transformations and an increasingly diverse population.
(c) The Health Care Workforce Committee shall conduct an
inventory of all grants and other state resources available for
addressing the need to expand the health care workforce to meet
the needs of Oregonians for health care.
(4) Members of the committees described in subsections (2) and
(3) of this section who are not members of the Oregon Health
Policy Board are not entitled to compensation but shall be
reimbursed from funds available to the board for actual and
necessary travel and other expenses incurred by them by their
attendance at committee meetings, in the manner and amount
provided in ORS 292.495. + }
SECTION 7a. { + There is established in the State Treasury,
separate and distinct from the General Fund, the Health Care
Workforce Strategic Fund. The fund shall consist of moneys
obtained from federal and private sources as well as any moneys
appropriated to the fund by the Legislative Assembly. Moneys in
Enrolled House Bill 2009 (HB 2009-C) Page 6
the fund are continuously appropriated to the Oregon Health
Authority to meet the goals established by the Health Care
Workforce Committee established pursuant to section 7 of this
2009 Act. + }
{ +
(Advisory and Technical Committees) + }
SECTION 8. { + (1) The Oregon Health Policy Board may
establish such advisory and technical committees as the board
considers necessary to aid and advise the board in the
performance of the board's functions. These committees may be
continuing or temporary committees. The board shall determine the
representation, membership, terms and organization of the
committees and shall appoint the members of the committees.
(2) Members of the committees who are not members of the board
are not entitled to compensation, but at the discretion of the
board may be reimbursed from funds available to the board for
actual and necessary travel and other expenses incurred by them
in the performance of their official duties, in the manner and
amount provided in ORS 292.495. + }
{ +
(Duties) + }
SECTION 9. { + (1) The duties of the Oregon Health Policy
Board are to:
(a) Be the policy-making and oversight body for the Oregon
Health Authority established in section 10 of this 2009 Act and
all of the authority's departmental divisions, including the
Oregon Health Insurance Exchange described in section 17 of this
2009 Act.
(b) Develop and submit a plan to the Legislative Assembly by
December 31, 2010, to provide and fund access to affordable,
quality health care for all Oregonians by 2015.
(c) Develop a program to provide health insurance premium
assistance to all low and moderate income individuals who are
legal residents of Oregon.
(d) Establish and continuously refine uniform, statewide health
care quality standards for use by all purchasers of health care,
third-party payers and health care providers as quality
performance benchmarks.
(e) Establish evidence-based clinical standards and practice
guidelines that may be used by providers.
(f) Approve and monitor community-centered health initiatives
described in section 10 (1)(g) of this 2009 Act that are
consistent with public health goals, strategies, programs and
performance standards adopted by the Oregon Health Policy Board
to improve the health of all Oregonians, and shall regularly
report to the Legislative Assembly on the accomplishments and
needed changes to the initiatives.
(g) Establish cost containment mechanisms to reduce health care
costs.
(h) Ensure that Oregon's health care workforce is sufficient in
numbers and training to meet the demand that will be created by
the expansion in health coverage, health care system
transformations, an increasingly diverse population and an aging
workforce.
Enrolled House Bill 2009 (HB 2009-C) Page 7
(i) Work with the Oregon congressional delegation to advance
the adoption of changes in federal law or policy to promote
Oregon's comprehensive health reform plan.
(j) Establish a health benefit package in accordance with
section 16 of this 2009 Act to be used as the baseline for all
health benefit plans offered through the Oregon Health Insurance
Exchange.
(k) Develop and submit a plan to the Legislative Assembly by
December 31, 2010, with recommended policies and procedures for
the Oregon Health Insurance Exchange developed in accordance with
section 17 of this 2009 Act.
(L) Develop and submit a plan to the Legislative Assembly by
December 31, 2010, with recommendations for the development of a
publicly owned health benefit plan that operates in the exchange
under the same rules and regulations as all health insurance
plans offered through the exchange, including fully allocated
fixed and variable operating and capital costs.
(m) By December 31, 2010, investigate and report to the
Legislative Assembly, and annually thereafter, on the feasibility
and advisability of future changes to the health insurance market
in Oregon, including but not limited to the following:
(A) A requirement for every resident to have health insurance
coverage.
(B) A payroll tax as a means to encourage employers to continue
providing health insurance to their employees.
(C) Expansion of the exchange to include a program of premium
assistance and to advance reforms of the insurance market.
(D) The implementation of a system of interoperable electronic
health records utilized by all health care providers in this
state.
(n) Meet cost-containment goals by structuring reimbursement
rates to reward comprehensive management of diseases, quality
outcomes and the efficient use of resources by promoting
cost-effective procedures, services and programs including,
without limitation, preventive health, dental and primary care
services, web-based office visits, telephone consultations and
telemedicine consultations.
(o) Oversee the expenditure of moneys from the Health Care
Workforce Strategic Fund to support grants to primary care
providers and rural health practitioners, to increase the number
of primary care educators and to support efforts to create and
develop career ladder opportunities.
(p) Work with the Public Health Benefit Purchasers Committee,
administrators of the medical assistance program and the
Department of Corrections to identify uniform contracting
standards for health benefit plans that achieve maximum quality
and cost outcomes and align the contracting standards for all
state programs to the greatest extent practicable.
(2) The Oregon Health Policy Board is authorized to:
(a) Subject to the approval of the Governor, organize and
reorganize the authority as the board considers necessary to
properly conduct the work of the authority.
(b) Submit directly to the Legislative Counsel, no later than
October 1 of each even-numbered year, requests for measures
necessary to provide statutory authorization to carry out any of
the board's duties or to implement any of the board's
recommendations. The measures may be filed prior to the beginning
of the legislative session in accordance with the rules of the
House of Representatives and the Senate.
Enrolled House Bill 2009 (HB 2009-C) Page 8
(3) If the board or the authority is unable to perform, in
whole or in part, any of the duties described in sections 1 to 18
of this 2009 Act without federal approval, the board is
authorized to request waivers or other approval necessary to
perform those duties. The board shall implement any portions of
those duties not requiring legislative authority or federal
approval, to the extent practicable.
(4) The enumeration of duties, functions and powers in this
section is not intended to be exclusive nor to limit the duties,
functions and powers imposed on the board by sections 1 to 18 of
this 2009 Act and by other statutes.
(5) The board shall consult with the Department of Consumer and
Business Services in completing the tasks set forth in subsection
(1)(j), (k) and (m)(A) and (C) of this section. + }
{ +
ESTABLISHING OREGON HEALTH AUTHORITY + }
{ +
(Establishment; Duties; Powers) + }
SECTION 10. { + (1) The Oregon Health Authority is
established. The authority shall:
(a) Carry out policies adopted by the Oregon Health Policy
Board;
(b) Develop a plan for the Oregon Health Insurance Exchange in
accordance with section 17 of this 2009 Act;
(c) Administer the Oregon Prescription Drug Program;
(d) Administer the Family Health Insurance Assistance Program;
(e) Provide regular reports to the board with respect to the
performance of health services contractors serving recipients of
medical assistance, including reports of trends in health
services and enrollee satisfaction;
(f) Guide and support, with the authorization of the board,
community-centered health initiatives designed to address
critical risk factors, especially those that contribute to
chronic disease;
(g) Be the state Medicaid agency for the administration of
funds from Titles XIX and XXI of the Social Security Act and
administer medical assistance under ORS chapter 414;
(h) In consultation with the Director of the Department of
Consumer and Business Services, periodically review and recommend
standards and methodologies to the Legislative Assembly for:
(A) Review of administrative expenses of health insurers;
(B) Approval of rates; and
(C) Enforcement of rating rules adopted by the Department of
Consumer and Business Services;
(i) Structure reimbursement rates for providers that serve
recipients of medical assistance to reward comprehensive
management of diseases, quality outcomes and the efficient use of
resources and to promote cost-effective procedures, services and
programs including, without limitation, preventive health, dental
and primary care services, web-based office visits, telephone
consultations and telemedicine consultations;
(j) Guide and support community three-share agreements in which
an employer, state or local government and an individual all
contribute a portion of a premium for a community-centered health
initiative or for insurance coverage; and
(k) Develop, in consultation with the Department of Consumer
and Business Services and the Health Insurance Reform Advisory
Enrolled House Bill 2009 (HB 2009-C) Page 9
Committee, one or more products designed to provide more
affordable options for the small group market.
(2) The Oregon Health Authority is authorized to:
(a) Create an all-claims, all-payer database to collect health
care data and monitor and evaluate health care reform in Oregon
and to provide comparative cost and quality information to
consumers, providers and purchasers of health care about Oregon's
health care systems and health plan networks in order to provide
comparative information to consumers.
(b) Develop uniform contracting standards for the purchase of
health care, including the following:
(A) Uniform quality standards and performance measures;
(B) Evidence-based guidelines for major chronic disease
management and health care services with unexplained variations
in frequency or cost;
(C) Evidence-based effectiveness guidelines for select new
technologies and medical equipment; and
(D) A statewide drug formulary that may be used by publicly
funded health benefit plans.
(c) Submit directly to the Legislative Counsel, no later than
October 1 of each even-numbered year, requests for measures
necessary to provide statutory authorization to carry out any of
the authority's duties or to implement any of the board's
recommendations. The measures may be filed prior to the beginning
of the legislative session in accordance with the rules of the
House of Representatives and the Senate.
(3) The enumeration of duties, functions and powers in this
section is not intended to be exclusive nor to limit the duties,
functions and powers imposed on or vested in the Oregon Health
Authority by sections 1 to 18 of this 2009 Act or by other
statutes. + }
{ +
(Director) + }
SECTION 11. { + (1) The Oregon Health Authority is under the
supervision and control of a director, who is responsible for the
performance of the duties, functions and powers of the authority.
(2) The Governor shall appoint the Director of the Oregon
Health Authority, who holds office at the pleasure of the
Governor. The appointment of the director shall be subject to
confirmation by the Senate in the manner provided by ORS 171.562
and 171.565.
(3) The director shall have the power to:
(a) Contract for and procure, on a fee or part-time basis, or
both, such actuarial, technical or other professional services as
may be required for the discharge of duties.
(b) Obtain such other services as the director considers
necessary or desirable, including participation in organizations
of state insurance supervisory officials and appointment of
advisory committees. A member of an advisory committee so
appointed shall receive no compensation for services as a member,
but, subject to any other applicable law regulating travel and
other expenses of state officers, shall receive actual and
necessary travel and other expenses incurred in the performance
of official duties.
(4) The director may apply for, receive and accept grants,
gifts or other payments, including property or services from any
governmental or other public or private person and may make
arrangement for the use of the receipts, including the
Enrolled House Bill 2009 (HB 2009-C) Page 10
undertaking of special studies and other projects relating to the
costs of health care, access to health care, public health and
health care reform. + }
{ + NOTE: + } Section 12 was deleted by amendment. Subsequent
sections were not renumbered.
{ +
(Officers and Employees) + }
SECTION 13. { + Subject to any applicable provisions of ORS
chapter 240, the Director of the Oregon Health Authority shall
appoint all subordinate officers and employees of the Oregon
Health Authority, prescribe their duties and fix their
compensation. + }
{ +
(General Authority to Adopt Rules) + }
SECTION 14. { + In accordance with applicable provisions of
ORS chapter 183, the Director of the Oregon Health Authority may
adopt rules necessary for the administration of the laws that the
Oregon Health Authority is charged with administering. + }
{ +
(Oaths, Depositions and Subpoenas) + }
SECTION 15. { + The Director of the Oregon Health Authority,
each deputy director and authorized representatives of the
director may administer oaths, take depositions and issue
subpoenas to compel the attendance of witnesses and the
production of documents or other written information necessary to
carry out the provisions of sections 1 to 18 of this 2009 Act. If
any person fails to comply with a subpoena issued under this
section or refuses to testify on matters on which the person
lawfully may be interrogated, the director, deputy director or
authorized representative may follow the procedure set out in ORS
183.440 to compel obedience. + }
{ +
(Baseline Health Benefit Package) + }
SECTION 16. { + The Oregon Health Authority, in developing and
offering the health benefit package required by section 9 (1)(j)
of this 2009 Act, may not establish policies or procedures that
discourage insurers from offering more comprehensive health
benefit plans that provide greater consumer choice at a higher
cost. The health benefit package approved by the Oregon Health
Policy Board shall:
(1) Promote the provision of services through an integrated
health home model that reduces unnecessary hospitalizations and
emergency department visits.
(2) Require little or no cost sharing for evidence-based
preventive care and services, such as care and services that have
been shown to prevent acute exacerbations of disease symptoms in
individuals with chronic illnesses.
(3) Create incentives for individuals to actively participate
in their own health care and to maintain or improve their health
status.
(4) Require a greater contribution by an enrollee to the cost
of elective or discretionary health services.
Enrolled House Bill 2009 (HB 2009-C) Page 11
(5) Include a defined set of health care services that are
affordable, financially sustainable and based upon the
prioritized list of health services developed and updated by the
Health Services Commission under ORS 414.720. + }
{ +
ESTABLISHING DEPARTMENTAL ENTITIES WITHIN + }
{ +
OREGON HEALTH AUTHORITY + }
{ +
(Oregon Health Insurance Exchange) + }
SECTION 17. { + (1) The Oregon Health Authority, in
consultation with the Director of the Department of Consumer and
Business Services, shall develop a plan for the staffing, funding
and administration of the Oregon Health Insurance Exchange within
the Oregon Health Authority. The plan shall set forth the duties
and responsibilities of the exchange, which:
(a) Shall include consideration of the following:
(A) The selection and pricing of benefit plans to be offered
through the exchange, including the health benefit package
developed under section 9 (1)(j) of this 2009 Act. The plans
shall include a range of price, copayment and deductible options.
(B) The rating and underwriting standards applicable to the
exchange, including whether to incorporate community rating and
guaranteed issue.
(C) Determining the role of the Public Employees' Benefit
Board, the Oregon Educators Benefit Board and other public
purchasers, including state-funded private nonprofit
organizations.
(D) The development of a transition period for the rollover of
individual policies into the exchange.
(E) Enforcement of the rules governing the sale of insurance
within the exchange.
(F) Identifying the role of insurance producers.
(G) Providing benefit plans through the exchange at little or
no cost to low income individuals.
(H) Maximizing the participation of private insurance plans
offered through the exchange.
(I) Determining how to ensure that employees of small
employers, and part time and seasonal workers will have access to
portability plans.
(b) May include the following:
(A) Establishing criteria for the selection of insurance
carriers to participate in the exchange.
(B) Establishing a requirement that all residents of this state
have health care coverage.
(C) Determining whether the exchange should be the exclusive
market for individual and small group purchasers, or whether such
purchasers will continue to have other options to obtain
coverage.
(D) Determining whether and how to use health savings accounts.
(E) Determining whether and how to use high deductible plans.
(F) Determining the extent to which it is permissible under the
Internal Revenue Code to pay premiums, deductibles and copayments
on a pretax basis.
(G) Determining the need to develop and implement a reinsurance
program.
Enrolled House Bill 2009 (HB 2009-C) Page 12
(2) The Oregon Health Authority shall submit the plan developed
under this section to the Oregon Health Policy Board for
approval.
(3) No later than October 1, 2010, the board shall submit a
request to Legislative Counsel pursuant to section 9 (2)(b) of
this 2009 Act for a measure to implement the plan. + }
{ +
(Establishment of Oregon Health Authority Fund) + }
SECTION 18. { + The Oregon Health Authority Fund is
established in the State Treasury, separate and distinct from the
General Fund. Interest earned by the Oregon Health Authority Fund
shall be credited to the fund. Moneys in the fund are
continuously appropriated to the Oregon Health Authority for
carrying out the duties, functions and powers of the authority
under section 10 of this 2009 Act. + }
{ +
TRANSFER OF FUNCTIONS TO OREGON HEALTH AUTHORITY + }
{ +
(Duties, Functions and Powers) + }
SECTION 19. { + (1)(a) Except as provided in paragraph (b) of
this subsection, all of the duties, functions and powers of the
Department of Human Services with respect to health and health
care are imposed upon, transferred to and vested in the Oregon
Health Authority, including but not limited to:
(A) Developing the policies for and the provision of publicly
funded medical care and medical assistance in this state.
(B) Ensuring the promotion and protection of public health and
the licensing of health care facilities.
(C) Developing the policies for and the provision of mental
health treatment and treatment for substance use disorders.
(D) The administration of the Oregon Prescription Drug Program.
(E) Responsibility for the Office for Oregon Health Policy and
Research and all of the functions of the office.
(F) The responsibilities of the Oregon Health Fund Board
established in section 5, chapter 697, Oregon Laws 2007.
(b) The department shall retain all of its duties, functions
and powers with respect to:
(A) Services provided in long term care facilities, home-based
and community-based care settings and residential facilities to
individuals who have physical disabilities or developmental
disabilities or who receive residential facility care for
seniors; and
(B) Non-medical services provided to individuals by the
department.
(2) All duties, functions and powers of the Oregon Department
of Administrative Services with respect to the Public Employees'
Benefit Board and the Oregon Educators Benefit Board are imposed
upon, transferred to and vested in the Oregon Health Authority.
(3) All of the duties, functions and powers of the Department
of Consumer and Business Services with respect to the Oregon
Medical Insurance Pool Board and the operation of the Oregon
Medical Insurance Pool are imposed upon, transferred to and
vested in the Oregon Health Authority.
(4) All of the duties, functions and powers of the Office of
Private Health Partnerships, including the administration of the
Enrolled House Bill 2009 (HB 2009-C) Page 13
Family Health Insurance Assistance Program, are imposed upon,
transferred to and vested in the Oregon Health Authority.
(5) The Oregon Health Policy Commission is abolished. On the
operative date of this section, the tenure of office of the
members of the Oregon Health Policy Commission ceases. All the
duties, functions and powers of the Oregon Health Policy
Commission are imposed upon, transferred to and vested in the
Oregon Health Authority.
(6) The directors of the Department of Human Services, the
Oregon Department of Administrative Services and the Department
of Consumer and Business Services and the Administrator of the
Office of Private Health Partnerships shall work together to
establish a timeline and to implement the transfer of duties,
functions and powers pursuant to this section.
(7) All changes necessary to accomplish this section shall be
completed by June 30, 2011. When developing the 2011-2013
biennial budget, the Governor's budget shall reflect the
implementation of the provisions of this section. + }
SECTION 20. { + On or before January 2, 2012, the Department
of Human Services and the Oregon Health Authority may delegate to
each other any duties, functions or powers transferred by section
19 of this 2009 Act that the department or the authority deem
necessary for the efficient and effective operation of their
respective functions. + }
SECTION 21. { + (1) No later than June 30, 2011, the
Department of Human Services, the Oregon Department of
Administrative Services, the Department of Consumer and Business
Services, the Office of Private Health Partnerships and the
Oregon Health Policy Commission shall:
(a) Deliver to the Oregon Health Authority all records and
property within the jurisdiction of the departments and the
office that relate to the duties, functions and powers
transferred by section 19 of this 2009 Act; and
(b) Transfer to the Oregon Health Authority those employees
engaged primarily in the exercise of the duties, functions and
powers transferred by section 19 of this 2009 Act.
(2) The Director of the Oregon Health Authority 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 19 of this 2009 Act,
without reduction of compensation but subject to change or
termination of employment or compensation as provided by law.
With respect to any employees transferred to the Oregon Health
Authority under this section who are, on the effective date of
this 2009 Act, represented by a labor organization or covered by
a collective bargaining agreement, the authority shall recognize
the labor organization as the collective bargaining
representative for the employees and shall adopt and apply the
terms of the collective bargaining agreement covering the
employees.
(3) The Governor shall resolve any dispute between the
Department of Human Services, the Department of Consumer and
Business Services, the Oregon Department of Administrative
Services, the Office of Private Health Partnerships or the Oregon
Health Policy Commission and the Oregon Health Authority relating
to transfers of records, property and employees under this
section, and the Governor's decision is final. + }
{ +
(Effect on Actions, Proceedings and Prosecutions) + }
Enrolled House Bill 2009 (HB 2009-C) Page 14
SECTION 22. { + The transfer of duties, functions and powers
to the Oregon Health Authority by section 19 of this 2009 Act
does not affect any action, proceeding or prosecution involving
or with respect to such duties, functions and powers begun before
and pending at the time of the transfer, except that the Oregon
Health Authority is substituted for the Department of Human
Services, the Oregon Department of Administrative Services, the
Department of Consumer and Business Services, the Office of
Private Health Partnerships or the Oregon Health Policy
Commission in the action, proceeding or prosecution. + }
SECTION 23. { + Notwithstanding the transfer of duties,
functions and powers by section 19 of this 2009 Act, the rules of
the Department of Human Services, the Oregon Department of
Administrative Services, the Department of Consumer and Business
Services and the Office of Private Health Partnerships that
relate to the duties, functions and powers transferred by section
19 of this 2009 Act continue in effect until superseded or
repealed by the rules of the Oregon Health Authority. References
in the rules of the Department of Human Services, the Oregon
Department of Administrative Services, the Department of Consumer
and Business Services and the Office of Private Health
Partnerships or to an officer or employee of such entities are
considered to be references to the Oregon Health Authority or
employee of the Oregon Health Authority. + }
{ +
(Effect on Liabilities, Duties and Obligations) + }
SECTION 24. { + (1) Nothing in sections 19 to 22 of this 2009
Act relieves a person of a liability, duty or obligation accruing
under or with respect to the duties, functions and powers
transferred by section 19 of this 2009 Act. The Oregon Health
Authority may undertake the collection or enforcement of any such
liability, duty or obligation.
(2) The rights and obligations of the Department of Human
Services, the Oregon Department of Administrative Services, the
Department of Consumer and Business Services, the Office of
Private Health Partnerships and the Oregon Health Policy
Commission legally incurred under contracts, leases and business
transactions executed, entered into or begun before the effective
date of this 2009 Act and with respect to the duties, functions
and powers transferred by section 19 of this 2009 Act are
transferred to the Oregon Health Authority. For the purpose of
succession to these rights and obligations, the Oregon Health
Authority is a continuation of the Department of Human Services,
the Oregon Department of Administrative Services, the Department
of Consumer and Business Services, the Office of Private Health
Partnerships and the Oregon Health Policy Commission and not a
new authority. + }
SECTION 25. { + Whenever, in any uncodified law or resolution
of the Legislative Assembly or in any rule, document, record or
proceeding authorized by the Legislative Assembly, reference is
made to the Department of Human Services, the Oregon Department
of Administrative Services, the Department of Consumer and
Business Services, the Office of Private Health Partnerships or
the Oregon Health Policy Commission or an executive, officer or
employee of the departments, office or commission, with respect
to the duties, functions and powers transferred by section 19 of
this 2009 Act, the reference is considered to be a reference to
the Oregon Health Policy Board, the Oregon Health Authority or an
Enrolled House Bill 2009 (HB 2009-C) Page 15
executive, officer or employee of the Oregon Health
Authority. + }
{ +
NO RESTRAINT OF TRADE + }
SECTION 26. { + The activities of insurers working under the
direction of the Oregon Health Authority and the Department of
Consumer and Business Services pursuant to section 9 (1)(j) of
this 2009 Act or participating in the Oregon Health Insurance
Exchange created under section 17 of this 2009 Act do not
constitute a conspiracy or restraint of trade or an illegal
monopoly, nor are they carried out for the purposes of lessening
competition or fixing prices arbitrarily. + }
{ +
PREMIUM RATE FILING + }
SECTION 27. { + Sections 28 and 29 of this 2009 Act are added
to and made a part of ORS chapter 743. + }
SECTION 28. { + (1) When an insurer files a schedule or table
of premium rates for individual, portability or small employer
health insurance under ORS 743.018, the Director of the
Department of Consumer and Business Services shall open a 30-day
public comment period on the rate filing that begins on the date
the insurer files the schedule or table of premium rates. The
director shall post all comments to the website of the Department
of Consumer and Business Services without delay.
(2) The director shall give written notice to an insurer
approving or disapproving a rate filing or, with the written
consent of the insurer, modifying a rate filing submitted under
ORS 743.018 no later than 10 business days after the close of the
public comment period. The notice shall comply with the
requirements of ORS 183.415. + }
SECTION 29. { + An insurer licensed by the Department of
Consumer and Business Services shall include in any rate filing
under ORS 743.018 with respect to individual and small employer
health insurance policies a statement of administrative expenses
in the form and manner prescribed by the department by rule. The
statement must include, but is not limited to:
(1) A statement of administrative expenses on a per member per
month basis; and
(2) An explanation of the basis for any proposed premium rate
increases or decreases. + }
SECTION 30. { + Sections 28 and 29 of this 2009 Act and the
amendments to ORS 743.018 by section 31 of this 2009 Act apply to
rate filings submitted to the Department of Consumer and Business
Services on or after April 1, 2010. + }
SECTION 31. ORS 743.018 is amended to read:
743.018. (1) Except for group life and health insurance, and
except as provided in ORS 743.015, every insurer shall file with
the Director of the Department of Consumer and Business Services
all schedules and tables of premium rates for life and health
insurance to be used on risks in this state, and shall file any
amendments to or corrections of such schedules and tables.
{ + Premium rates are subject to approval, disapproval or
withdrawal of approval by the director as provided in ORS
742.003, 742.005 and 742.007. + }
(2) Except as provided in ORS 743.737 and 743.760 and
subsection (3) of this section, a rate filing by a carrier for
Enrolled House Bill 2009 (HB 2009-C) Page 16
any of the following health benefit plans subject to ORS 743.730
to 743.773 shall be available for public inspection immediately
upon submission of the filing to the director:
(a) Health benefit plans for small employers.
(b) Portability health benefit plans.
(c) Individual health benefit plans.
{ - (3) The director, upon request by a carrier, may exempt
from disclosure any part of the filing that the director
determines to contain trade secrets and that would, if disclosed,
harm competition. The part that the director determines to be
exempt from disclosure shall be considered confidential for
purposes of ORS 705.137. The director may not disclose a part of
a filing subject to a carrier's request pending the director's
determination under this subsection. - }
{ + (3) The director may by rule:
(a) Specify all information a carrier must submit as part of a
rate filing under this section; and
(b) Identify the information submitted that will be exempt from
disclosure under this section because the information constitutes
a trade secret and would, if disclosed, harm competition.
(4) The director, after conducting an actuarial review of the
rate filing, may approve a proposed premium rate for a health
benefit plan for small employers or for an individual health
benefit plan if, in the director's discretion, the proposed rates
are:
(a) Actuarially sound;
(b) Reasonable and not excessive, inadequate or unfairly
discriminatory; and
(c) Based upon reasonable administrative expenses.
(5) In order to determine whether the proposed premium rates
for a health benefit plan for small employers or for an
individual health benefit plan are reasonable and not excessive,
inadequate or unfairly discriminatory, the director may consider:
(a) The insurer's financial position, including but not limited
to profitability, surplus, reserves and investment savings.
(b) Historical and projected administrative costs and medical
and hospital expenses.
(c) Historical and projected loss ratio between the amounts
spent on medical services and earned premiums.
(d) Any anticipated change in the number of enrollees if the
proposed premium rate is approved.
(e) Changes to covered benefits or health benefit plan design.
(f) Changes in the insurer's health care cost containment and
quality improvement efforts since the insurer's last rate filing
for the same category of health benefit plan.
(g) Whether the proposed change in the premium rate is
necessary to maintain the insurer's solvency or to maintain rate
stability and prevent excessive rate increases in the future.
(h) Any public comments received under section 28 of this 2009
Act pertaining to the standards set forth in subsection (4) of
this section and this subsection.
(6) With the written consent of the insurer, the director may
modify a schedule or table of premium rates filed in accordance
with subsection (1) of this section.
(7) The requirements of this section do not supersede other
provisions of law that require insurers, health care service
contractors or multiple employer welfare arrangements providing
health insurance to file schedules or tables of premium rates or
proposed premium rates with the director or to seek the
director's approval of rates or changes to rates. + }
Enrolled House Bill 2009 (HB 2009-C) Page 17
{ + NOTE: + } Sections 32 to 54 were deleted by amendment.
Subsequent sections were not renumbered.
{ +
CONFORMING AMENDMENTS + }
SECTION 55. ORS 25.323 is amended to read:
25.323. (1) Except as provided in this section, whenever a
child support order is entered or modified under this chapter,
ORS chapter 107, 108, 109, 110 or ORS 416.400 to 416.465,
419B.400 or 419C.590, the court or the enforcing agency shall
order one or both parties to provide satisfactory health care
coverage that is reasonable in cost and accessible to the child.
An order for health care coverage under this subsection may
include health care coverage provided by a public entity.
(2) In addition to ordering health care coverage under
subsection (1) of this section, the court or enforcing agency may
order one or both parties to pay medical support for the child.
Medical support ordered under this subsection must be reasonable
in cost.
(3) If the court or the enforcing agency finds that the parties
cannot provide satisfactory health care coverage because
satisfactory health care coverage that is reasonable in cost and
accessible to the child is not available at the time the child
support order is entered, the court or the enforcing agency:
(a) Shall order one or both parties to provide satisfactory
health care coverage that is reasonable in cost and accessible to
the child when the coverage becomes available; and
(b) May order that, until the court or enforcing agency
determines that satisfactory health care coverage that is
reasonable in cost and accessible to the child is available and
modifies the order, one or both parties pay medical support that
is reasonable in cost. The court or enforcing agency shall make
written findings on whether to order the payment of medical
support under this paragraph.
(4) The cost of any amount ordered to provide satisfactory
health care coverage and medical support under this section must
be included in the child support calculation made under ORS
25.275.
{ - (5) The court or enforcing agency may not order a party
to pay medical support under this section if the party is
eligible to receive medical assistance under ORS 414.032, or has
a dependent child in the household who is eligible to receive
medical assistance under ORS 414.032. - }
{ - (6) - } { + (5) + } The Department of Justice shall
adopt rules for determining the reasonableness of the cost of
satisfactory health care coverage and of medical support for the
purposes of this section, and for determining how the costs of
providing health care coverage and medical support affect the
total support obligation for a child under ORS 25.275.
SECTION 56. ORS 65.800 is amended to read:
65.800. For purposes of ORS 65.803 to 65.815:
(1) 'Hospital' means a hospital as defined in ORS 442.015
{ - (19) - } .
(2) 'Noncharitable entity' means any person or entity that is
not a public benefit or religious corporation and is not wholly
owned or controlled by one or more public benefit or religious
corporations.
SECTION 57. ORS 87.533 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 18
87.533. A lien created by ORS 87.503 shall not be enforced so
as to interfere with:
(1) Any assets or income allowed to the community spouse or
dependent family member under 42 U.S.C. 1396r-5(d) or any rule of
the Department of Human Services.
(2) The priority given to the recovery of medical assistance
payments under ORS 115.125 (1)(i) { + or (j) + } or other
medical assistance claims under ORS 414.105 (2) and (3).
(3) The eligibility of a person for medical assistance or
entitlement to Medicaid assistance payments.
SECTION 58. ORS 90.113 is amended to read:
90.113. Residence in a { - Department of Human Services - }
licensed program, facility or home described in ORS 430.306 to
430.375, 430.380, 430.385, 430.395, 430.397 to 430.401, 430.405
to 430.565, 430.570, 430.590, 443.400 to 443.455, 443.705 to
443.825 or 443.835 is not governed by this chapter.
SECTION 59. ORS 90.440 is amended to read:
90.440. (1) As used in this section:
(a) 'Group recovery home' means a place that provides occupants
with shared living facilities and that meets the description of a
group home under 42 U.S.C. 300x-25.
(b) 'Illegal drugs' includes controlled substances or
prescription drugs:
(A) For which the tenant does not have a valid prescription; or
(B) That are used by the tenant in a manner contrary to the
prescribed regimen.
(c) 'Peace officer' means a sheriff, constable, marshal or
deputy or a member of a state or city police force.
(2) Notwithstanding ORS 90.375 and 90.435, a group recovery
home may terminate a tenancy and peaceably remove a tenant
without complying with ORS 105.105 to 105.168 if the tenant has
used or possessed alcohol or illegal drugs within the preceding
seven days. For purposes of this subsection, the following are
sufficient proof that a tenant has used or possessed alcohol or
illegal drugs:
(a) The tenant fails a test for alcohol or illegal drug use;
(b) The tenant refuses a request made in good faith by the
group recovery home that the tenant take a test for alcohol or
illegal drug use; or
(c) Any person has personally observed the tenant using or
possessing alcohol or illegal drugs.
(3) A group recovery home that undertakes the removal of a
tenant under this section shall personally deliver to the tenant
a written notice that:
(a) Describes why the tenant is being removed;
(b) Describes the proof that the tenant has used or possessed
alcohol or illegal drugs within the seven days preceding delivery
of the notice;
(c) Specifies the date and time by which the tenant must move
out of the group recovery home;
(d) Explains that if the removal was wrongful or in bad faith
the tenant may seek injunctive relief to recover possession under
ORS 105.121 and may bring an action to recover monetary damages;
and
(e) Gives contact information for the local legal services
office and for the Oregon State Bar's Lawyer Referral Service,
identifying those services as possible sources for free or
reduced-cost legal services.
(4) A written notice in substantially the following form meets
the requirements of subsection (3) of this section:
Enrolled House Bill 2009 (HB 2009-C) Page 19
_________________________________________________________________
This notice is to inform you that you must move out of
_____ (insert address of group recovery home) by _____ (insert
date and time that is not less than 24 hours after delivery of
notice).
The reason for this notice is _____ (specify use or possession
of alcohol or illegal drugs, as applicable, and dates of
occurrence).
The proof of your use or possession is _____ (specify facts).
If you did not use or possess alcohol or illegal drugs within
the seven days before delivery of this notice, if this notice was
given in bad faith or if your group recovery home has not
substantially complied with ORS 90.440, you may be able to get a
court to order the group recovery home to let you move back in.
You may also be able to recover monetary damages.
You may be eligible for free legal services at your local legal
services office _____ (insert telephone number) or reduced fee
legal services through the Oregon State Bar at 1-800-452-7636.
_________________________________________________________________
(5) Within the notice period, a group recovery home shall allow
a tenant removed under this section to follow any emergency
departure plan that was prepared by the tenant and approved by
the group recovery home at the time the tenancy began. If the
removed tenant does not have an emergency departure plan, a
representative of the group recovery home shall offer to take the
removed tenant to a public shelter, detoxification center or
similar location if existing in the community.
(6) The date and time for moving out specified in a notice
under subsection (3) of this section must be at least 24 hours
after the date and time the notice is delivered to the tenant. If
the tenant remains on the group recovery home premises after the
date and time for moving out specified in the notice, the tenant
is a person remaining unlawfully in a dwelling as described in
ORS 164.255 and not a person described in ORS 105.115. Only a
peace officer may forcibly remove a tenant who remains on the
group recovery home premises after the date and time specified
for moving out.
(7) A group recovery home that removes a tenant under this
section shall send a copy of the notice described in subsection
(3) of this section to the { - Department of Human Services - }
{ + Oregon Health Authority + } no later than 72 hours after
delivering the notice to the tenant.
(8) A tenant who is removed under subsection (2) of this
section may obtain injunctive relief to recover possession and
may recover an amount equal to the greater of actual damages or
three times the tenant's monthly rent if:
(a) The group recovery home removed the tenant in bad faith or
without substantially complying with this section; or
(b) If removal is under subsection (2)(c) of this section, the
removal was wrongful because the tenant did not use or possess
alcohol or illegal drugs.
(9) Notwithstanding ORS 12.125, a tenant who seeks to obtain
injunctive relief to recover possession under ORS 105.121 must
commence the action to seek relief not more than 90 days after
the date specified in the notice for the tenant to move out.
(10) In any court action regarding the removal of a tenant
under this section, a group recovery home may present evidence
that the tenant used or possessed alcohol or illegal drugs within
Enrolled House Bill 2009 (HB 2009-C) Page 20
seven days preceding the removal, whether or not the evidence was
described in the notice required by subsection (3) of this
section.
(11) This section does not prevent a group recovery home from
terminating a tenancy as provided by any other provision of this
chapter and evicting a tenant as provided in ORS 105.105 to
105.168.
SECTION 60. ORS 92.337 is amended to read:
92.337. (1) The Real Estate Commissioner shall grant an
exemption pursuant to this section if a subdivider or series
partitioner submits on a form prepared by the commissioner,
verification that:
(a) The subdivision or series partition is recorded pursuant to
ORS 92.010 to 92.190;
(b) Each lot or parcel is situated on a surfaced roadway which,
together with means for operation and maintenance, meets the
standards of the governing body of the local jurisdiction and is
either a concrete or asphalt surface road which has right of way
and improvements, including curbs and necessary and adequate
drainage structures, or a road which meets alternative standards
of the governing body of the local jurisdiction;
(c) The subdivision or series partition, where necessary, has
drainage structures and fill designed to prevent flooding and
approved by the appropriate governing body;
(d) Energy sources and telephone services for normal domestic
use are economically available to the subdivision or series
partition and are ready for hookup for each lot or parcel at time
of sale or lease;
(e) Water is available for each lot or parcel at the time of
sale or lease of each lot or parcel in quantity and quality for
domestic use as determined by the { - Department of Human
Services - } { + Oregon Health Authority + };
(f) A municipally owned disposal system, an individual or
collective subsurface sewage disposal system to serve the lot or
parcel, or a privately owned sewage disposal system is available
for each lot or parcel at the time of sale or lease of each lot
or parcel which meets the requirements of the Environmental
Quality Commission;
(g) A surety bond, or bonds, or other security or agreements to
complete the improvements is provided by the subdivider or series
partitioner to the city or county having jurisdiction so that all
of the subdivision or series partition improvements committed by
the subdivider or series partitioner to the city or county will
be completed; and
(h) Provisions, satisfactory to the commissioner, have been
made for satisfaction of all liens and encumbrances existing
against the subdivision or series partition which secure or
evidence the payment of money.
(2) A subdivision or series partition granted exemption under
this section shall be exempt from the provisions of ORS 92.305 to
92.495 and 92.820 except ORS 92.375, 92.385, 92.425, 92.427,
92.430, 92.433, 92.455, 92.460, 92.465, 92.475, 92.485, 92.490
and 92.495.
(3) The commissioner may withdraw the exemption provided by
this section if the commissioner determines that the subdivider
or series partitioner has provided false information or omitted
to state material facts to obtain the exemption or has failed to
comply with any provision to which the subdivider or series
partitioner is subject under subsections (1) and (2) of this
section.
Enrolled House Bill 2009 (HB 2009-C) Page 21
(4) In the event that any provision under subsection (1) of
this section is not or cannot be satisfied and without invoking
the power granted under subsection (3) of this section, the
commissioner and the subdivider or series partitioner may
mutually agree in writing upon a written disclosure of the
condition that shall be provided to any prospective purchaser
prior to the sale or lease of any interest in the subdivision or
series partition to carry out the public policy stated in ORS
92.313.
(5) The form required by subsection (1) of this section shall
be accompanied by a filing fee of $100 plus $10 for each lot,
parcel or interest in the subdivision or series partition, with a
maximum fee of $500.
(6) For purposes of verification by the subdivider or series
partitioner under subsection (1)(b), (c) and (g) of this section,
a copy of the conditions imposed by the appropriate governing
body will be sufficient.
SECTION 61. ORS 93.270, as amended by section 16, chapter 100,
Oregon Laws 2007, is amended to read:
93.270. (1) A person conveying or contracting to convey fee
title to real property may not include in an instrument for that
purpose a provision:
(a) Restricting the use of the real property by any person or
group of persons by reason of race, color, religion, sex, sexual
orientation, national origin or disability.
(b) Restricting the use of the real property by any home or
facility that is licensed { - by or under the authority of the
department - } under ORS 443.400 to 443.455 or 443.705 to
443.825 to provide residential care alone or in conjunction with
treatment or training or a combination thereof.
(2) Any provision in an instrument executed in violation of
subsection (1) of this section is void and unenforceable.
(3) An instrument that contains a provision restricting the use
of real property in a manner listed in subsection (1)(b) of this
section does not give rise to any public or private right of
action to enforce the restriction.
(4)(a) An instrument that contains a provision restricting the
use of real property by requiring roofing materials with a lower
fire rating than that required in the state building code
established under ORS chapter 455 does not give rise to any
public or private right of action to enforce the restriction in
an area determined by a local jurisdiction as a wildfire hazard
zone. Prohibitions on public or private right of action under
this paragraph are limited solely to considerations of fire
rating.
(b) As used in this subsection, 'wildfire hazard zones' are
areas that are legally declared by a governmental agency having
jurisdiction over the area to have special hazards caused by a
combination of combustible natural fuels, topography and climatic
conditions that result in a significant hazard of catastrophic
fire over relatively long periods each year. Wildfire hazard
zones shall be determined using criteria established by the State
Forestry Department.
SECTION 62. ORS 97.210 is amended to read:
97.210. The body of any person who died of smallpox,
diphtheria, scarlet fever or other disease that the
{ - Department of Human Services - } { + Oregon Health
Authority + }, by rule, may prescribe, shall not be subject to
the provisions of ORS 97.170 to 97.200.
SECTION 63. ORS 97.450 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 22
97.450. (1)(a) Whenever any cemetery that is within the limits
of any county, city or town has been abandoned, or it is
desirable to abandon such cemetery, the governing body of any
county, if the cemetery is owned by the county, or the corporate
authorities of the city or town, if the cemetery is owned by the
city or town, or the trustees or directors, if the cemetery is
owned by an association or corporation, may order that such
burial ground be discontinued, have the remains of all persons
interred in the cemetery moved to some other suitable place and
provide for the removal and reerection of all stones and
monuments marking said graves. Each removal must be made in an
appropriate manner and in accordance with the directions of the
Director of { - Human Services - } { + the Oregon Health
Authority + }. Prior to any removal authorized under this
section, written notice must be given to the family, or next of
kin of the deceased, if known, and if unknown, notice of the
removal shall be published for at least four successive weeks in
a newspaper of general circulation in the county in which the
cemetery is located and twice in a newspaper with statewide
circulation.
(b) Any removal and the costs of the proceedings under this
section shall be at the expense of the county, city or town,
individual, corporation or association owning the cemetery to be
moved.
(2) Notwithstanding subsection (1)(a) of this section, a
cemetery or burial ground containing human remains that were
interred before February 14, 1909, may not be discontinued or
declared abandoned or have remains removed from the burial ground
or cemetery without prior notice to and comment by the Oregon
Commission on Historic Cemeteries. When commenting on a request
to discontinue or declare abandoned a cemetery or burial ground,
the commission shall consider:
(a) The listing of the cemetery or burial ground under ORS
97.782;
(b) The historic significance of the cemetery or graves
included in the request; and
(c) The findings of any archaeological survey of the cemetery
or burial ground.
SECTION 64. ORS 97.977 is amended to read:
97.977. (1)(a) The { - Department of Human Services - }
{ + Oregon Health Authority + } may allow an organ procurement
organization to establish a donor registry.
(b) Only one donor registry may be established within this
state.
(c) The donor registry shall comply with subsections (3) and
(4) of this section.
(2) The Department of Transportation shall:
(a) Cooperate with a person who administers the donor registry
established under subsection (1) of this section for the purpose
of transferring to the donor registry all relevant information
regarding a donor's making, amending or revoking an anatomical
gift.
(b) When requested by the organ procurement organization that
has established the donor registry in this state, the department
shall electronically transfer to the organ procurement
organization the name, address, birthdate and donor designation
listed on the driver license or identification card of a person
designated as a donor. The organ procurement organization shall
treat the information transferred from the department as
Enrolled House Bill 2009 (HB 2009-C) Page 23
confidential and may use the information only to expedite the
making of anatomical gifts authorized by the donor.
(3) The donor registry must:
(a) Allow a donor or other person authorized under ORS 97.955
to include on the donor registry a statement or symbol that the
donor has made, amended or revoked an anatomical gift;
(b) Be accessible to a procurement organization to allow the
procurement organization to obtain relevant information on the
donor registry to determine, at or near death of the donor or a
prospective donor, whether the donor or prospective donor has
made, amended or revoked an anatomical gift; and
(c) Be accessible for purposes of this subsection seven days a
week on a 24-hour basis.
(4) Personally identifiable information on the donor registry
about a donor or prospective donor may not be used or disclosed
without the express consent of the donor, prospective donor or
person who made the anatomical gift for any purpose other than to
determine, at or near death of the donor or prospective donor,
whether the donor or prospective donor has made, amended or
revoked an anatomical gift.
SECTION 65. ORS 105.580 is amended to read:
105.580. (1) Except as provided in subsection (3) of this
section, if the existence of the nuisance is established in the
action, an order of abatement shall be entered as part of the
general judgment in the case.
(2) The order of abatement may direct the effectual closing of
the premises, building or place against its use for any purpose,
and so keeping it closed for a period of one year, unless sooner
released. The court shall not include provisions for the closing
of the premises under the provisions of this subsection unless
that relief is specifically requested in the complaint.
(3) The court, if satisfied of an owner's good faith, shall
enter no order of abatement as to that owner if the court finds
that the owner:
(a) Had no knowledge of the existence of the nuisance or has
been making reasonable efforts to abate the nuisance;
(b) Has not been guilty of any contempt of court in the
proceedings; and
(c) Will make best efforts to immediately abate any nuisance
that may exist and prevent it from being a nuisance for a period
of one year thereafter.
(4) Except for an order of abatement entered based on the
manufacture of a controlled substance, if an order of abatement
has been entered and an owner subsequently meets the requirements
of this section, the order of abatement shall be canceled as to
that owner.
(5) If the court enters an order under this section on the
basis that the property was used for the manufacture of a
controlled substance, the court shall send a copy of the order to
the Director of { - Human Services - } { + the Oregon Health
Authority + }. The director or the director's designee shall
declare the property to be an illegal drug manufacturing site for
purposes of ORS 453.855 to 453.912. An order of the court under
this section shall not be canceled until the director or the
director's designee determines the property to be fit for use.
Upon determining the property to be fit for use, the director or
designee shall notify the court, which shall cancel the abatement
order.
SECTION 65a. ORS 106.045 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 24
106.045. (1) In addition to any other fees provided by law, the
county clerk shall collect a fee of $25 upon the application for
a marriage license.
(2) The county clerk shall regularly pay over to the
{ - Director of Human Services - } { + Oregon Health
Authority + } all moneys collected under subsection (1) of this
section to be credited to the Domestic Violence Fund pursuant to
ORS 409.300.
SECTION 65b. Section 5, chapter 99, Oregon Laws 2007, is
amended to read:
{ + Sec. 5. + } (1) The { - Department of Human
Services - } { + Oregon Health Authority + } shall prepare
forms entitled:
(a) 'Declaration of Domestic Partnership' meeting the
requirements of section 6 { + , chapter 99, Oregon Laws 2007 + }
{ - of this 2007 Act - } ; and
(b) 'Certificate of Registered Domestic Partnership. '
(2) The { - department - } { + authority + } shall
distribute the forms to each county clerk. The
{ - department - } { + authority + } and each county clerk
shall make the Declaration of Domestic Partnership forms
available to the public.
SECTION 65c. Section 7, chapter 99, Oregon Laws 2007, is
amended to read:
{ + Sec. 7. + } (1) In addition to any other fees provided by
law, the county clerk shall collect a fee of $25 for registering
a Declaration of Domestic Partnership.
(2) The county clerk shall regularly pay over to the
{ - Director of Human Services - } { + Oregon Health
Authority + } all moneys collected under subsection (1) of this
section to be credited to the Domestic Violence Fund pursuant to
ORS 409.300.
SECTION 66. ORS 106.081 is amended to read:
106.081. When the county clerk issues a marriage license, the
county clerk shall also give to the licensees a pamphlet
describing the medical condition known as fetal alcohol syndrome,
its causes and its effects. The pamphlet shall be provided to the
counties by the { - Department of Human Services - }
{ + Oregon Health Authority + } under ORS 431.825 for
distribution under this section.
SECTION 67. ORS 109.094 is amended to read:
109.094. Upon the paternity of a child being established in the
proceedings, the father shall have the same rights as a father
who is or was married to the mother of the child. The clerk of
the court shall certify the fact of paternity to the Center for
Health Statistics of the { - Department of Human Services - }
{ + Oregon Health Authority + }, and the Center for Health
Statistics shall prepare a new birth certificate for the child.
SECTION 68. ORS 109.096 is amended to read:
109.096. (1) When the paternity of a child has not been
established under ORS 109.070, the putative father is entitled to
reasonable notice in adoption or other court proceedings
concerning the custody of the child, except for juvenile court
proceedings, if the petitioner knows, or by the exercise of
ordinary diligence should have known:
(a) That the child resided with the putative father at any time
during the 60 days immediately preceding the initiation of the
proceeding, or at any time since the child's birth if the child
is less than 60 days old when the proceeding is initiated; or
Enrolled House Bill 2009 (HB 2009-C) Page 25
(b) That the putative father repeatedly has contributed or
tried to contribute to the support of the child during the year
immediately preceding the initiation of the proceeding, or during
the period since the child's birth if the child is less than one
year old when the proceeding is initiated.
(2) Except as provided in subsection (3) or (4) of this
section, a verified statement of the mother of the child or of
the petitioner, or an affidavit of another person with knowledge
of the facts, filed in the proceeding and asserting that the
child has not resided with the putative father, as provided in
subsection (1)(a) of this section, and that the putative father
has not contributed or tried to contribute to the support of the
child, as provided in subsection (1)(b) of this section, is
sufficient proof to enable the court to grant the relief sought
without notice to the putative father.
(3) The putative father is entitled to reasonable notice in a
proceeding for the adoption of the child if notice of the
initiation of filiation proceedings as required by ORS 109.225
was on file with the Center for Health Statistics of the
{ - Department of Human Services - } { + Oregon Health
Authority + } prior to the child's being placed in the physical
custody of a person or persons for the purpose of adoption by
them. If the notice of the initiation of filiation proceedings
was not on file at the time of the placement, the putative father
is barred from contesting the adoption proceeding.
(4) Except as otherwise provided in subsection (3) of this
section, the putative father is entitled to reasonable notice in
court proceedings concerning the custody of the child, other than
juvenile court proceedings, if notice of the initiation of
filiation proceedings as required by ORS 109.225 was on file with
the Center for Health Statistics prior to the initiation of the
proceedings.
(5) Notice under this section is not required to be given to a
putative father who was a party to filiation proceedings under
ORS 109.125 that were dismissed or resulted in a finding that he
was not the father of the child.
(6) The notice required under this section shall be given in
the manner provided in ORS 109.330.
(7) No notice given under this section need disclose the name
of the mother of the child.
(8) A putative father has the primary responsibility to protect
his rights, and nothing in this section shall be used to set
aside an act of a permanent nature including, but not limited to,
adoption or termination of parental rights, unless the father
establishes within one year after the entry of the final judgment
or order fraud on the part of a petitioner in the proceeding with
respect to matters specified in subsections (1) to (5) of this
section.
SECTION 69. ORS 109.225 is amended to read:
109.225. (1) After filing the petition, the petitioner shall
cause the Center for Health Statistics of the { - Department of
Human Services - } { + Oregon Health Authority + } to be served
by mail with a notice setting forth the court in which the
petition was filed, the date of the filing therein, the case
number, the full name and address of the child, the date and
place of the child's birth, or if the child is not yet born, the
date and place of the child's conception and the probable date of
the child's birth, the full names and addresses of the child's
alleged parents, and the names and addresses of the petitioner
and of the respondents in the proceedings.
Enrolled House Bill 2009 (HB 2009-C) Page 26
(2) The Center for Health Statistics shall file immediately the
notice, or a copy thereof, with the record of the birth of the
child or in the same manner as its filing of records of birth if
the center does not have a record of the birth. The center shall
only provide the information contained in the notice to persons
whose names appear in the notice or to persons or agencies
showing a legitimate interest in the parent-child relationship
including, but not limited to, parties to adoption, juvenile
court or heirship proceedings.
SECTION 70. ORS 109.251 is amended to read:
109.251. As used in ORS 109.250 to 109.262, 'blood tests '
includes any test for genetic markers to determine paternity of a
type generally acknowledged as reliable by accreditation bodies
designated by the { - Department of Human Services - }
{ + Oregon Health Authority + } in compliance with the United
States Secretary of Health and Human Services, and performed by a
laboratory approved by such accreditation body. 'Blood tests'
includes but is not limited to the Human Leucocyte Antigen Test,
the deoxyribonucleic acid test and any test that extracts genetic
material from any human tissue.
SECTION 71. ORS 109.675 is amended to read:
109.675. (1) A minor 14 years of age or older may obtain,
without parental knowledge or consent, outpatient diagnosis or
treatment of a mental or emotional disorder or a chemical
dependency, excluding methadone maintenance, by a physician
licensed by the Oregon Medical Board, a psychologist licensed by
the State Board of Psychologist Examiners, a nurse practitioner
registered by the Oregon State Board of Nursing, a clinical
social worker licensed by the State Board of Clinical Social
Workers or a community mental health { - and developmental
disabilities - } program established and operated pursuant to
ORS 430.620 when approved to do so by the { - Department of
Human Services - } { + Oregon Health Authority + } pursuant to
rule.
(2) However, the person providing treatment shall have the
parents of the minor involved before the end of treatment unless
the parents refuse or unless there are clear clinical indications
to the contrary, which shall be documented in the treatment
record. The provisions of this subsection do not apply to:
(a) A minor who has been sexually abused by a parent; or
(b) An emancipated minor, whether emancipated under the
provisions of ORS 109.510 and 109.520 or 419B.550 to 419B.558 or,
for the purpose of this section only, emancipated by virtue of
having lived apart from the parents or legal guardian while being
self-sustaining for a period of 90 days prior to obtaining
treatment as provided by this section.
SECTION 72. ORS 109.680 is amended to read:
109.680. A physician, psychologist, nurse practitioner,
licensed clinical social worker or community mental health
{ - and developmental disabilities - } program described in ORS
109.675 may advise the parent or parents or legal guardian of any
minor described in ORS 109.675 of the diagnosis or treatment
whenever the disclosure is clinically appropriate and will serve
the best interests of the minor's treatment because the minor's
condition has deteriorated or the risk of a suicide attempt has
become such that inpatient treatment is necessary, or the minor's
condition requires detoxification in a residential or acute care
facility. If such disclosure is made, the physician,
psychologist, nurse practitioner, licensed clinical social worker
or community mental health { - and developmental
Enrolled House Bill 2009 (HB 2009-C) Page 27
disabilities - } program shall not be subject to any civil
liability for advising the parent, parents or legal guardian
without the consent of the minor.
SECTION 73. ORS 109.685 is amended to read:
109.685. A physician, psychologist, nurse practitioner,
licensed clinical social worker or community mental health
{ - and developmental disabilities - } program described in ORS
109.675 who in good faith provides diagnosis or treatment to a
minor as authorized by ORS 109.675 shall not be subject to any
civil liability for providing such diagnosis or treatment without
consent of the parent or legal guardian of the minor.
SECTION 74. ORS 109.695 is amended to read:
109.695. For the purpose of carrying out the policy and intent
of ORS 109.675 to 109.695 while taking into account the
respective rights of minors at risk of chemical dependency or
mental or emotional disorder and the rights and interests of
parents or legal guardians of such minors, the { - Department
of Human Services - } { + Oregon Health Authority + } shall
adopt rules for the implementation of ORS 109.675 to 109.695 by
community mental health { - and developmental disabilities - }
programs approved to do so. Such rules shall provide for the
earliest feasible involvement of the parents or guardians in the
treatment plan consistent with clinical requirements of the
minor.
SECTION 75. ORS 110.318 is amended to read:
110.318. In a proceeding to establish, enforce or modify a
support order or to determine parentage, a tribunal of this state
may exercise personal jurisdiction over a nonresident individual
if:
(1) The individual is personally served with notice within this
state;
(2) The individual submits to the jurisdiction of this state by
consent, by entering a general appearance or by filing a
responsive document having the effect of waiving any contest to
personal jurisdiction;
(3) The individual resided with the child in this state;
(4) The individual resided in this state and provided prenatal
expenses or support for the child;
(5) The child resides in this state as a result of the acts or
directives of the individual;
(6) The individual engaged in sexual intercourse in this state
and the child may have been conceived by that act of intercourse;
(7) The individual asserted parentage in the registry
maintained in this state by the Center for Health Statistics of
the { - Department of Human Services - } { + Oregon Health
Authority + } by filing a voluntary acknowledgment of paternity
under ORS 109.070; or
(8) There is any other basis consistent with the Constitutions
of the State of Oregon and the United States for the exercise of
personal jurisdiction.
SECTION 76. ORS 113.085 is amended to read:
113.085. (1) Except as provided in subsection (2) of this
section, upon the filing of the petition, if there is no will or
there is a will and it has been proved, the court shall appoint a
qualified person it finds suitable as personal representative,
giving preference in the following order:
(a) To the executor named in the will.
(b) To the surviving spouse of the decedent or the nominee of
the surviving spouse of the decedent.
Enrolled House Bill 2009 (HB 2009-C) Page 28
(c) To the nearest of kin of the decedent or the nominee of the
nearest of kin of the decedent.
(d) To the Director of Human Services or a designee, if it
appears the decedent received public assistance pursuant to ORS
chapter 411 { - or 414 and that such assistance is a claim
against the estate - } .
{ + (e) To the Director of the Oregon Health Authority or a
designee, if it appears the decedent received medical assistance
pursuant to ORS chapter 414. + }
{ - (e) - } { + (f) + } To the Department of Veterans'
Affairs, if the decedent was a protected person under ORS 406.050
(7), and the department has joined in the petition for such
appointment.
{ - (f) - } { + (g) + } To any other person.
(2) Except as provided in subsection (3) of this section, the
court shall appoint the Department of State Lands as personal
representative if it appears that the decedent died wholly
intestate and without known heirs. The Attorney General shall
represent the Department of State Lands in the administration of
the estate. Any funds received by the Department of State Lands
in the capacity of personal representative may be deposited in
accounts, separate and distinct from the General Fund,
established with the State Treasurer. Interest earned by such
account shall be credited to that account.
(3) The court may appoint a person other than the Department of
State Lands to administer the estate of a decedent who died
wholly intestate and without known heirs if the person filing a
petition under ORS 113.035 attaches written authorization from an
estate administrator of the Department of State Lands appointed
under ORS 113.235 approving the filing of the petition by the
person. Except as provided by rule adopted by the Director of the
Department of State Lands, an estate administrator may consent to
the appointment of another person to act as personal
representative only if it appears after investigation that the
estate is insolvent.
SECTION 77. ORS 113.105 is amended to read:
113.105. (1) Unless a testator provides in a will that no bond
shall be required of the executor of the estate, or unless the
personal representative is the sole heir or devisee or is the
Department of State Lands, { - or is the Director of Human
Services or a designee, or is - } the Department of Veterans'
Affairs { + , the Director of Human Services or a designee or the
Director of the Oregon Health Authority or a designee + }, the
personal representative may not act nor shall letters be issued
to the personal representative until the personal representative
files with the clerk of the court a bond. The bond shall be
executed by a surety company authorized to transact surety
business in this state, or by one or more sufficient personal
sureties approved by the court. A personal surety must be a
resident of this state. The court may, in its discretion, require
a bond notwithstanding any provision in a will that no bond is
required. The bond shall be for the security and benefit of all
interested persons and shall be conditioned upon the personal
representative faithfully performing the duties of the trust.
(2) The amount of the bond set by the court shall be adequate
to protect interested persons, but in no event shall it be less
than $1,000. In setting the amount of the bond the court shall
consider:
(a) The nature, liquidity and apparent value of the assets of
the estate.
Enrolled House Bill 2009 (HB 2009-C) Page 29
(b) The anticipated income during administration.
(c) The probable indebtedness and taxes.
(3) Nothing in this section affects the provisions of ORS
709.240, relating to a trust company acting as personal
representative.
(4) Notwithstanding any other provisions of this section, a
court may, in its discretion, waive the requirement of a bond if
all devisees and heirs known to the court agree in writing that
the requirement be waived and the signed agreement is filed with
the court at the time of filing of the petition for the
appointment of a personal representative.
SECTION 78. ORS 113.145 is amended to read:
113.145. (1) Upon appointment a personal representative shall
deliver or mail to the devisees, heirs and the persons described
in ORS 113.035 (8) and (9) who were required to be named in the
petition for appointment of a personal representative, at the
addresses therein shown, information that shall include:
(a) The title of the court in which the estate proceeding is
pending and the clerk's file number;
(b) The name of the decedent and the place and date of the
death of the decedent;
(c) Whether or not a will of the decedent has been admitted to
probate;
(d) The name and address of the personal representative and the
attorney of the personal representative;
(e) The date of the appointment of the personal representative;
(f) A statement advising the devisee, heir or other interested
person that the rights of the devisee, heir or other interested
person may be affected by the proceeding and that additional
information may be obtained from the records of the court, the
personal representative or the attorney for the personal
representative;
(g) If information under this section is required to be
delivered or mailed to a person described in ORS 113.035 (8), a
statement that the rights of the person in the estate may be
barred unless the person proceeds as provided in ORS 113.075
within four months of the delivery or mailing of the information;
and
(h) If information under this section is required to be
delivered or mailed to a person described in ORS 113.035 (9), a
statement that the rights of the person in the estate may be
barred unless the person proceeds as provided in ORS 112.049
within four months of the delivery or mailing of the information.
(2) If the personal representative is a devisee, heir or other
interested person named in the petition the personal
representative is not required to deliver or mail the information
under this section to the personal representative.
(3) The failure of the personal representative to give
information under this section is a breach of duty to the persons
concerned, but does not affect the validity of appointment,
duties or powers or the exercise of duties or powers.
(4) Within 30 days after the date of appointment a personal
representative shall cause to be filed in the estate proceeding
proof of the delivery or mailing required by this section or a
waiver of notice as provided under ORS 111.225. The proof shall
include a copy of the information delivered or mailed and the
names of the persons to whom it was delivered or mailed.
(5) If before the filing of the final account the personal
representative has actual knowledge that the petition did not
include the name and address of any person described in ORS
Enrolled House Bill 2009 (HB 2009-C) Page 30
113.035 (4), (5), (7), (8) or (9), the personal representative
shall:
(a) Make reasonable efforts under the circumstances to
ascertain each of those names and addresses;
(b) Promptly deliver or mail information as described in
subsection (1) of this section to each of those persons located
after the filing of the petition and before the filing of the
final account; and
(c) File in the estate proceeding, on or before filing the
final account under ORS 116.083, proof of compliance with this
subsection or a waiver of notice as provided under ORS 111.225.
(6) Within 30 days after the appointment of a personal
representative, the personal representative must mail or deliver
the information specified in subsection (1) of this section and a
copy of the death certificate of the decedent to the Department
of Human Services { + and the Oregon Health Authority + }.
SECTION 79. ORS 114.525 is amended to read:
114.525. An affidavit filed under ORS 114.515 shall:
(1) State the name, age, domicile, post-office address and
Social Security number of the decedent;
(2) State the date and place of the decedent's death. A
certified copy of the death certificate shall be attached to the
affidavit;
(3) Describe and state the fair market value of all property in
the estate, including a legal description of any real property;
(4) State that no application or petition for the appointment
of a personal representative has been granted in Oregon;
(5) State whether the decedent died testate or intestate, and
if the decedent died testate, the will shall be attached to the
affidavit;
(6) List the heirs of the decedent and the last address of each
heir as known to the affiant, and state that a copy of the
affidavit showing the date of filing and a copy of the will, if
the decedent died testate, will be delivered to each heir or
mailed to the heir at the last-known address;
(7) If the decedent died testate, list the devisees of the
decedent and the last address of each devisee as known to the
affiant and state that a copy of the will and a copy of the
affidavit showing the date of filing will be delivered to each
devisee or mailed to the devisee at the last-known address;
(8) State the interest in the property described in the
affidavit to which each heir or devisee is entitled and the
interest, if any, that will escheat;
(9) State that reasonable efforts have been made to ascertain
creditors of the estate. List the expenses of and claims against
the estate remaining unpaid or on account of which the affiant or
any other person is entitled to reimbursement from the estate,
including the known or estimated amounts thereof and the names
and addresses of the creditors as known to the affiant, and state
that a copy of the affidavit showing the date of filing will be
delivered to each creditor who has not been paid in full or
mailed to the creditor at the last-known address;
(10) Separately list the name and address of each person known
to the affiant to assert a claim against the estate that the
affiant disputes and the known or estimated amount thereof and
state that a copy of the affidavit showing the date of filing
will be delivered to each such person or mailed to the person at
the last-known address;
Enrolled House Bill 2009 (HB 2009-C) Page 31
(11) State that a copy of the affidavit showing the date of
filing will be mailed or delivered to the Department of Human
Services { + and the Oregon Health Authority + };
(12) State that claims against the estate not listed in the
affidavit or in amounts larger than those listed in the affidavit
may be barred unless:
(a) A claim is presented to the affiant within four months of
the filing of the affidavit at the address stated in the
affidavit for presentment of claims; or
(b) A personal representative of the estate is appointed within
the time allowed under ORS 114.555; and
(13) If the affidavit lists one or more claims that the affiant
disputes, state that any such claim may be barred unless:
(a) A petition for summary determination is filed within four
months of the filing of the affidavit; or
(b) A personal representative of the estate is appointed within
the time allowed under ORS 114.555.
SECTION 80. ORS 114.535 is amended to read:
114.535. (1) Any person indebted to the decedent or having
possession of personal property belonging to the estate, to whom
a certified copy of the affidavit filed under ORS 114.515 is
delivered by the affiant on or after the 10th day following the
filing of the affidavit, shall pay, transfer or deliver the
personal property to the affiant. Any person who has received
property of the decedent under ORS 446.616, 722.262 or 803.094,
or any similar statute providing for the transfer of property of
an estate which is not being probated shall pay, transfer or
deliver the property to the affiant if the person would be
required to pay, transfer or deliver the property to a personal
representative of the estate. The transferor is discharged and
released from any liability or responsibility for the transfer in
the same manner and with the same effect as if the property had
been transferred, delivered or paid to a personal representative
of the estate of the decedent.
(2) A transfer agent of any corporate security registered in
the name of the decedent shall change the registered ownership on
the books of the corporation to the person entitled thereto on
presentation of a certified copy of the affidavit filed under ORS
114.515.
(3) If a person to whom an affidavit is delivered refuses to
pay, deliver or transfer any personal property to the affiant or
the person entitled to the property as disclosed in the affidavit
filed under ORS 114.515, the property may be recovered or its
payment, delivery or transfer compelled upon proof of the
transferee's entitlement in a proceeding brought for the purpose
by or on behalf of the transferee.
(4) If the { - affidavit was signed by the Director of Human
Services or a designee of the director, the director or the
designee - } { + Director of Human Services, the designee of
the Director of Human Services, the Director of the Oregon Health
Authority or the designee of the Director of the Oregon Health
Authority signs the affidavit, the Director of Human Services,
the designee of the Director of Human Services, the Director of
the Oregon Health Authority or the designee of the Director of
the Oregon Health Authority + } may certify a copy of the
affidavit for the purposes described in subsection (1) or (2) of
this section.
SECTION 81. ORS 115.125 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 32
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) Child support arrearages.
{ + (i) The claim of the Oregon Health Authority for the
amount of the state's monthly contribution to the federal
government to defray the costs of outpatient prescription drug
coverage provided to a person who is eligible for Medicare Part D
prescription drug coverage and who receives benefits under the
state medical assistance program or Title XIX of the Social
Security Act. + }
{ - (i) - } { + (j) + } The claim of the Department of
Human Services for the net amount of assistance paid to or for
the decedent, in the following order:
{ - (A) The amount of the state's monthly contribution to the
federal government to defray the costs of outpatient prescription
drug coverage provided to a person who is eligible for Medicare
Part D prescription drug coverage and who receives benefits under
the state medical assistance program or Title XIX of the Social
Security Act; - }
{ - (B) - } { + (A) + } Public assistance, as defined in
ORS 411.010, funded entirely by moneys from the General Fund;
{ + and + }
{ - (C) - } { + (B) + } Public assistance, as defined in
ORS 411.010, funded by a combination of state and federal funds
{ - ; and - } { + . + }
{ - (D) - } { + (k) The claim of the Department of Human
Services or the Oregon Health Authority for the care + }
{ - Care - } and maintenance of the decedent at a state
institution, as provided in ORS 179.610 to 179.770.
{ - (j) - } { + (L) + } The claim of 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.
{ - (k) - } { + (m) + } 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 82. ORS 116.093 is amended to read:
116.093. (1) Upon filing the final account and petition for a
judgment of distribution, the personal representative shall fix a
time for filing objections thereto in a notice thereof. Not less
Enrolled House Bill 2009 (HB 2009-C) Page 33
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 filed in the estate proceeding at or before approval of
the final account.
(4) If the Department of Human Services has presented a claim
under ORS chapter 411 { - or 414 or ORS 416.310 to 416.340,
416.510 to 416.990 or 417.010 to 417.080 - } { + or ORS 416.310
to 416.340 or 417.010 to 417.080, or the Oregon Health Authority
has presented a claim under ORS chapter 414 or ORS 416.310 to
416.340 or 416.510 to 416.990 + }, or the Department of
Corrections { - or the authorized agent of the Department of
Corrections - } has presented a claim under ORS 179.620 (3), and
the claim has not been settled or paid in full, the personal
representative shall mail to the appropriate 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 83. ORS 116.253 is amended to read:
116.253. (1) Within 10 years after the death of a decedent
whose estate escheated in whole or in part to the state, or
within eight years after the entry of a judgment or order
escheating property of an estate to the state, a claim may be
made for the property escheated, or the proceeds thereof, by or
on behalf of a person not having actual knowledge of the escheat
or by or on behalf of a person who at the time of the escheat was
unable to prove entitlement to the escheated property.
(2) The claim shall be made by a petition filed with the
Director of the Department of State Lands. The claim is
considered a contested case as provided in ORS 183.310 and there
is the right of judicial review as provided in ORS 183.480. The
petition must include a declaration under penalty of perjury in
the form required by ORCP 1 E and shall state:
(a) The age and place of residence of the claimant by whom or
on whose behalf the petition is filed;
(b) That the claimant lawfully is entitled to the property or
proceeds, briefly describing the property or proceeds;
(c) That at the time the property escheated to the state the
claimant had no knowledge or notice thereof or was unable to
prove entitlement to the escheated property and has subsequently
acquired new evidence of that entitlement;
(d) That the claimant claims the property or proceeds as an
heir or devisee or as the personal representative of the estate
of an heir or devisee, setting forth the relationship, if any, of
the claimant to the decedent who at the time of death was the
owner;
(e) That 10 years have not elapsed since the death of the
decedent, or that eight years have not elapsed since the entry of
the judgment or order escheating the property to the state; and
Enrolled House Bill 2009 (HB 2009-C) Page 34
(f) If the petition is not filed by the claimant, the status of
the petitioner.
(3) If it is determined that the claimant is entitled to the
property or the proceeds thereof, the Director of the Department
of State Lands shall deliver the property to the petitioner,
subject to and charged with any tax on the property and the costs
and expenses of the state in connection therewith.
(4) If the person whose property escheated or reverted to the
state was at any time an inmate of a state institution in Oregon
for persons with mental illness or mental retardation, the
reasonable unpaid cost { - , as determined by the Department of
Human Services, - } of the care and maintenance of the person
while a ward of the institution, regardless of when the cost was
incurred, may be deducted from, or, if necessary, be offset in
full against, the amount of the escheated property. { + The
reasonable unpaid cost of care and maintenance shall be
determined by:
(a) The Department of Human Services for patients of the
Eastern Oregon Training Center; and
(b) The Oregon Health Authority for patients of the Blue
Mountain Recovery Center and the Oregon State Hospital. + }
(5) For the purposes of this section, the death of the decedent
is presumed to have occurred on the date shown in the decedent's
death certificate or in any other similar document issued by the
jurisdiction in which the death occurred or issued by an agency
of the federal government.
SECTION 84. ORS 124.050 is amended to read:
124.050. As used in ORS 124.050 to 124.095:
(1) 'Abuse' means one or more of the following:
(a) Any physical injury caused by other than accidental means,
or which appears to be at variance with the explanation given of
the injury.
(b) Neglect which leads to physical harm through withholding of
services necessary to maintain health and well-being.
(c) Abandonment, including desertion or willful forsaking of an
elderly person or the withdrawal or neglect of duties and
obligations owed an elderly person by a caretaker or other
person.
(d) Willful infliction of physical pain or injury.
(e) An act that constitutes a crime under ORS 163.375, 163.405,
163.411, 163.415, 163.425, 163.427, 163.465 or 163.467.
(f) Wrongfully taking or appropriating money or property, or
knowingly subjecting an elderly person or person with a
disability to alarm by conveying a threat to wrongfully take or
appropriate money or property, which threat reasonably would be
expected to cause the person to believe that the threat will be
carried out.
(2) 'Elderly person' means any person 65 years of age or older
who is not subject to the provisions of ORS 441.640 to 441.665.
(3) 'Law enforcement agency' means:
(a) Any city or municipal police department.
(b) Any county sheriff's office.
(c) The Oregon State Police.
(d) Any district attorney.
(4) 'Public or private official' means:
(a) Physician, naturopathic physician, osteopathic physician,
chiropractor or podiatric physician and surgeon, including any
intern or resident.
(b) Licensed practical nurse, registered nurse, nurse's aide,
home health aide or employee of an in-home health service.
Enrolled House Bill 2009 (HB 2009-C) Page 35
(c) Employee of the Department of Human Services { - , county
health department or community mental health and - } { + or
community + } developmental disabilities program.
{ + (d) Employee of the Oregon Health Authority, county
health department or community mental health program. + }
{ - (d) - } { + (e) + } Peace officer.
{ - (e) - } { + (f) + } Member of the clergy.
{ - (f) - } { + (g) + } Licensed clinical social worker.
{ - (g) - } { + (h) + } Physical, speech or occupational
therapists.
{ - (h) - } { + (i) + } Senior center employee.
{ - (i) - } { + (j) + } Information and referral or
outreach worker.
{ - (j) - } { + (k) + } Licensed professional counselor or
licensed marriage and family therapist.
{ - (k) - } { + (L) + } Any public official who comes in
contact with elderly persons in the performance of the official's
official duties.
{ - (L) - } { + (m) + } Firefighter or emergency medical
technician.
SECTION 85. 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 for
public assistance provided under ORS chapter 411 { - or 414 - }
by the State of Oregon through the Department of Human Services,
a representative of the department.
{ + (j) If the respondent is receiving moneys paid or payable
for medical assistance provided under ORS chapter 414 by the
Enrolled House Bill 2009 (HB 2009-C) Page 36
State of Oregon through the Oregon Health Authority, a
representative of the authority. + }
{ - (j) - } { + (k) + } 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) - } { + (L) + } If the respondent is a foreign
national, the consulate for the respondent's country.
{ - (L) - } { + (m) + } 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, 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 protected person 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 protected person 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 Department of Human Services 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 Ombudsman.
Enrolled House Bill 2009 (HB 2009-C) Page 37
(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 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 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
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.
{ + NOTE: + } Section 86 was deleted by amendment. Subsequent
sections were not renumbered.
SECTION 87. ORS 127.646 is amended to read:
127.646. As used in ORS 127.646 to 127.654:
(1) 'Health care organization' means a home health agency,
hospice program, hospital, long term care facility or health
maintenance organization.
(2) 'Health maintenance organization' has the meaning given
that term in ORS 750.005, except that 'health maintenance
organization' includes only those organizations that participate
in the federal Medicare or Medicaid programs.
(3) 'Home health agency' has the meaning given that term in ORS
443.005.
(4) 'Hospice program' has the meaning given that term in ORS
443.850.
(5) 'Hospital' has the meaning given that term in ORS 442.015
{ - (19) - } , except that 'hospital' does not include a special
inpatient care facility.
(6) 'Long term care facility' has the meaning given that term
in ORS 442.015, except that 'long term care facility' does not
include an intermediate care facility for individuals with mental
retardation.
SECTION 88. ORS 127.720 is amended to read:
127.720. (1) The physician or provider may subject the
principal to mental health treatment in a manner contrary to the
principal's wishes as expressed in a declaration for mental
health treatment only:
(a) If the principal is committed to the { - Department of
Human Services - } { + Oregon Health Authority + } pursuant to
ORS 426.005 to 426.390 and treatment is authorized in compliance
with ORS 426.385 (3) and administrative rule; or
(b) In cases of emergency endangering life or health.
Enrolled House Bill 2009 (HB 2009-C) Page 38
(2) A declaration does not limit any authority provided in ORS
426.005 to 426.390 either to take a person into custody, or to
admit, retain or treat a person in a health care facility.
SECTION 89. ORS 127.865 is amended to read:
127.865. s3.11. Reporting requirements. (1)(a) The
{ - Department of Human Services - } { + Oregon Health
Authority + } shall annually review a sample of records
maintained pursuant to ORS 127.800 to 127.897.
(b) The { - department - } { + authority + } shall require
any health care provider upon dispensing medication pursuant to
ORS 127.800 to 127.897 to file a copy of the dispensing record
with the
{ - department - } { + authority + }.
(2) The { - department - } { + authority + } shall make
rules to facilitate the collection of information regarding
compliance with ORS 127.800 to 127.897. Except as otherwise
required by law, the information collected shall not be a public
record and may not be made available for inspection by the
public.
(3) The { - department - } { + authority + } shall generate
and make available to the public an annual statistical report of
information collected under subsection (2) of this section.
SECTION 90. ORS 130.370 is amended to read:
130.370. (1) Within three months after a petition is entered in
the register of the court under ORS 130.355, or within such
longer time as the court allows, a trustee must make reasonably
diligent efforts to investigate the financial records and affairs
of the settlor and to take such further actions as are reasonably
necessary to ascertain the identity and address of each person
who has or asserts a claim against the trust estate. The court
shall allow the trustee as much time as requested by the trustee
for the purpose of determining the claims against the trust
estate. The trustee must thereafter cause to be delivered or
mailed a notice containing the information required in subsection
(2) of this section to each person known by the trustee to have
or to assert a claim against the trust estate and to the
Department of Human Services { + and the Oregon Health
Authority + }. Notice under this section is not required for any
claim that has already been presented, accepted or paid in full
or on account of a claim that is merely conjectural.
(2) The notice required by this section must include:
(a) The name and Social Security number of the settlor;
(b) The name of the trustee and the address at which claims
must be presented;
(c) A statement that claims against the trust estate that are
not presented to the trustee within 30 days after the date of the
notice may be barred;
(d) The date of the notice, which shall be the date on which
the notice is delivered or mailed; and
(e) A copy of the settlor's death certificate.
SECTION 91. ORS 130.425 is amended to read:
130.425. (1) Claims allowed against the trust estate under ORS
130.350 to 130.450 must be paid by the trustee in the following
order of priority:
(a) Expenses of administering the trust estate.
(b) Expenses of a plain and decent funeral and disposition of
the remains of the settlor.
(c) Debts and taxes with preference under federal law.
Enrolled House Bill 2009 (HB 2009-C) Page 39
(d) Reasonable and necessary medical and hospital expenses of
the last illness of the settlor, including compensation of
persons attending the settlor.
(e) Taxes with preference under the laws of this state that are
due and payable while possession of the trust estate of the
settlor is retained by the trustee.
(f) Debts owed employees of the settlor for labor performed
within 90 days immediately preceding the date of death of the
settlor.
(g) Child support arrearages.
(h) A claim of the Department of Human Services for the net
amount of public assistance, as defined in ORS 411.010 { - ,
paid to or for the settlor, and the claim of the department for
care and maintenance of any settlor who was at a state
institution to the extent provided in ORS 179.610 to 179.770 - }
.
{ + (i) A claim of the Department of Human Services or the
Oregon Health Authority for the care and maintenance of any
settlor who was a patient at a state institution under ORS
179.610 to 179.770. + }
{ - (i) - } { + (j) + } All other claims against the trust
estate.
(2) If the assets of the trust 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 92. ORS 135.139 is amended to read:
135.139. (1) When a person has been charged with a crime in
which it appears from the nature of the charge that the
transmission of body fluids from one person to another may have
been involved, the district attorney, upon the request of the
victim or the parent or guardian of a minor or incapacitated
victim, shall seek the consent of the person charged to submit to
a test for HIV and any other communicable disease. In the absence
of such consent or failure to submit to the test, the district
attorney may petition the court for an order requiring the person
charged to submit to a test for HIV and any other communicable
disease.
(2)(a) At the time of an appearance before a circuit court
judge on a criminal charge, the judge shall inform every person
arrested and charged with a crime, in which it appears from the
nature of the charge that the transmission of body fluids from
one person to another may have been involved, of the availability
of testing for HIV and other communicable diseases and shall
cause the alleged victim of such a crime, if any, or a parent or
guardian of the victim, if any, to be notified that testing for
HIV and other communicable diseases is available. The judge shall
inform the person arrested and charged and the victim, or parent
or guardian of the victim, of the availability of counseling
under the circumstances described in subsection (7) of this
section.
(b) Notwithstanding the provisions of ORS 433.045, if the
district attorney files a petition under subsection (1) of this
section, the court shall order the person charged to submit to
testing if the court determines there is probable cause to
believe that:
(A) The person charged committed the crime; and
(B) The victim has received a substantial exposure, as defined
by rule of the { - Department of Human Services - }
{ + Oregon Health Authority + }.
Enrolled House Bill 2009 (HB 2009-C) Page 40
(3) Notwithstanding the provisions of ORS 433.045, upon
conviction of a person for any crime in which the court
determines from the facts that the transmission of body fluids
from one person to another was involved and if the person has not
been tested pursuant to subsection (2) of this section, the court
shall seek the consent of the convicted person to submit to a
test for HIV and other communicable diseases. In the absence of
such consent or failure to submit to the test, the court shall
order the convicted person to submit to the test if the victim of
the crime, or a parent or guardian of the victim, requests the
court to make such order.
(4) When a test is ordered under subsection (2) or (3) of this
section, the victim of the crime or a parent or guardian of the
victim, shall designate an attending physician to receive such
information on behalf of the victim.
(5) If an HIV test results in a negative reaction, the court
may order the person to submit to another HIV test six months
after the first test was administered.
(6) The result of any test ordered under this section is not a
public record and shall be available only to:
(a) The victim.
(b) The parent or guardian of a minor or incapacitated victim.
(c) The attending physician who is licensed to practice
medicine.
(d) The { - Department of Human Services - } { + Oregon
Health Authority + }.
(e) The person tested.
(7) If an HIV test ordered under this section results in a
positive reaction, the individual subject to the test shall
receive post-test counseling as required by the { - Department
of Human Services, - } { + Oregon Health Authority + } by rule.
The results of HIV tests ordered under this section shall be
reported to the
{ - Department of Human Services - } { + authority + }.
Counseling and referral for appropriate health care, testing and
support services as directed by the Director of { - Human
Services - } { + the Oregon Health Authority + } shall be
provided to the victim or victims at the request of the victim or
victims, or the parent or guardian of a minor or incapacitated
victim.
(8) The costs of testing and counseling provided under
subsections (2), (3) and (7) of this section shall be paid
through the compensation for crime victims program authorized by
ORS 147.005 to 147.367 from amounts appropriated for such
purposes. Restitution to the state for payment of the costs of
any counseling provided under this section and for payment of the
costs of any test ordered under this section shall be included by
the court in any order requiring the convicted person to pay
restitution.
(9) When a court orders a convicted person to submit to a test
under this section, the withdrawal of blood may be performed only
by a physician licensed to practice medicine or by a licensed
health care provider acting within the provider's licensed scope
of practice or acting under the supervision of a physician
licensed to practice medicine.
(10) No person authorized by subsection (9) of this section to
withdraw blood, no person assisting in the performance of the
test nor any medical care facility where blood is withdrawn or
tested that has been ordered by the court to withdraw or test
blood shall be liable in any civil or criminal action when the
Enrolled House Bill 2009 (HB 2009-C) Page 41
act is performed in a reasonable manner according to generally
accepted medical practices.
(11) The results of tests or reports, or information therein,
obtained under this section shall be confidential and shall not
be divulged to any person not authorized by this section to
receive the information. Any violation of this subsection is a
Class C misdemeanor.
(12) As used in this section:
(a) 'HIV test' means a test as defined in ORS 433.045.
(b) 'Parent or guardian of the victim' means a custodial parent
or legal guardian of a victim who is a minor or incapacitated
person.
(c) 'Positive reaction' means a positive HIV test with a
positive confirmatory test result as specified by the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(d) 'Transmission of body fluids' means the transfer of blood,
semen, vaginal secretions or other body fluids identified by rule
of the { - Department of Human Services - }
{ + authority + }, from the perpetrator of a crime to the mucous
membranes or potentially broken skin of the victim.
(e) 'Victim' means the person or persons to whom transmission
of body fluids from the perpetrator of the crime occurred or was
likely to have occurred in the course of the crime.
SECTION 93. ORS 135.917 is amended to read:
135.917. (1) Courts having jurisdiction over the offense of
possession of less than one ounce of marijuana shall designate
agencies or organizations to perform the diagnostic assessment
and treatment required under possession of marijuana diversion
agreements described in ORS 135.907. The designated agencies or
organizations must meet the standards set by the { - Department
of Human Services - } { + Oregon Health Authority + } to
perform the diagnostic assessment and treatment of drug
dependency and must be certified by the { - Department of Human
Services - } { + authority + }. Wherever possible, a court
shall designate agencies or organizations to perform the
diagnostic assessment that are separate from those that may be
designated to carry out a program of treatment for drug
dependency.
(2) Monitoring of a defendant's progress under a diversion
agreement shall be the responsibility of the diagnostic
assessment agency or organization. It shall make a report to the
court stating the defendant's successful completion or failure to
complete all or any part of the treatment program specified by
the diagnostic assessment. The form of the report shall be
determined by agreement between the court and the diagnostic
assessment agency or organization. The court shall make the
report of the diagnostic assessment agency or organization that
is required by this subsection a part of the record of the case.
SECTION 94. ORS 137.227 is amended to read:
137.227. (1) After a defendant has been convicted of a crime,
the court may cause the defendant to be evaluated to determine if
the defendant is an alcoholic or a drug-dependent person, as
those terms are defined in ORS 430.306. The evaluation shall be
conducted by an agency or organization designated under
subsection (2) of this section.
(2) The court shall designate agencies or organizations to
perform the evaluations required under subsection (1) of this
section. The designated agencies or organizations must meet the
standards set by the { - Department of Human Services - }
Enrolled House Bill 2009 (HB 2009-C) Page 42
{ + Oregon Health Authority + } to perform the evaluations for
drug dependency and must be approved by the { - department - }
{ + authority + }. Wherever possible, a court shall designate
agencies or organizations to perform the evaluations that are
separate from those that may be designated to carry out a program
of treatment for alcohol or drug dependency.
SECTION 95. ORS 137.228 is amended to read:
137.228. (1) When a defendant is sentenced for a crime, the
court may enter a finding that the defendant is an alcoholic or a
drug-dependent person, as those terms are defined in ORS 430.306.
The finding may be based upon any evidence before the court,
including, but not limited to, the facts of the case,
stipulations of the parties and the results of any evaluation
conducted under ORS 137.227.
(2) When the court finds that the defendant is an alcoholic or
a drug-dependent person, the court, when it sentences the
defendant to a term of imprisonment, shall direct the Department
of Corrections to place the defendant in an appropriate alcohol
or drug treatment program, to the extent that resources are
available. The alcohol or drug treatment program shall meet the
standards promulgated by the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
430.357.
SECTION 96. ORS 137.464 is amended to read:
137.464. (1)(a) At the death warrant hearing under ORS 137.463,
the court shall order that the { - Department of Human
Services - } { + Oregon Health Authority + } or its designee
perform an assessment of the defendant's mental capacity to
engage in reasoned choices of legal strategies and options if:
(A) The defendant indicates the wish to waive the right to
counsel; and
(B) The court has substantial reason to believe that, due to
mental incapacity, the defendant cannot engage in reasoned
choices of legal strategies and options.
(b) The court also shall order an assessment described in
paragraph (a) of this subsection upon motion by the state.
(2) If the requirements of subsection (1) of this section are
met, the court may order the defendant to be committed to a state
mental hospital designated by the { - Department of Human
Services - } { + authority + } for a period not exceeding 30
days for the purpose of assessing the defendant's mental
capacity. The report of any competency assessment performed under
this section must include, but need not be limited to, the
following:
(a) A description of the nature of the assessment;
(b) A statement of the mental condition of the defendant; and
(c) A statement regarding the defendant's mental capacity to
engage in reasoned choices of legal strategies and options.
(3) If the competency assessment cannot be conducted because
the defendant is unwilling to participate, the report must so
state and must include, if possible, an opinion as to whether the
unwillingness of the defendant is the result of a mental
condition affecting the defendant's mental capacity to engage in
reasoned choices of legal strategies and options.
(4) The { - Department of Human Services - }
{ + authority + } shall file three copies of the report of the
competency assessment with the clerk of the court, who shall
cause copies to be delivered to the district attorney and to
counsel for the defendant.
SECTION 97. ORS 137.466 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 43
137.466. (1) If the court has ordered the { - Department of
Human Services - } { + Oregon Health Authority + } to perform a
competency assessment of the defendant under ORS 137.464 and the
assessment has been completed, the court shall determine the
issue of the defendant's mental capacity to engage in reasoned
choices of legal strategies and options. If neither the state nor
counsel for the defendant contests the finding of the report
filed under ORS 137.464, the court may make the determination of
the defendant's mental capacity to engage in reasoned choices of
legal strategies and options on the basis of the report. If the
finding is contested, the court shall hold a hearing on the
issue. If the report is received in evidence at the hearing, the
party contesting the finding has the right to summon and to
cross-examine the psychiatrist or psychologist who submitted the
report and to offer evidence on the issue. Either party may
introduce other evidence regarding the defendant's mental
capacity to engage in reasoned choices of legal strategies and
options.
(2) If the court determines that, due to mental incapacity, the
defendant cannot engage in reasoned choices of legal strategies
and options, the court shall continue the appointment of counsel
provided under ORS 137.463.
(3) No appeal may be taken from an order issued pursuant to
this section.
SECTION 98. ORS 137.658 is amended to read:
137.658. (1) The chairperson of the Oregon Criminal Justice
Commission may create any committees within the commission as the
chairperson may think necessary. Persons who are not commission
members may be appointed as members to serve on the committees
with the approval of the commission.
(2) The chairperson shall appoint members of committees created
under this section in such a manner as to ensure representation
from all segments of the criminal justice system that are
affected by the work of the committee. In selecting members for
committee assignments, the chairperson shall consider, but is not
limited to, representatives from the following:
(a) The Attorney General;
(b) The Director of the Department of Corrections;
(c) The chairperson of the State Board of Parole and
Post-Prison Supervision;
(d) The Superintendent of State Police;
(e) The chief administrative employee of the Psychiatric
Security Review Board;
(f) The Director of Human Services;
{ + (g) The Director of the Oregon Health Authority; + }
{ - (g) - } { + (h) + } The Director of the Oregon Youth
Authority;
{ - (h) - } { + (i) + } Trial judges;
{ - (i) - } { + (j) + } Judges of the Oregon Supreme Court
or Court of Appeals;
{ - (j) - } { + (k) + } Majority and minority parties of
the House of Representatives and the Senate;
{ - (k) - } { + (L) + } District attorneys;
{ - (L) - } { + (m) + } Criminal defense attorneys;
{ - (m) - } { + (n) + } County sheriffs;
{ - (n) - } { + (o) + } County commissioners;
{ - (o) - } { + (p) + } County community corrections
directors;
{ - (p) - } { + (q) + } Chiefs of police;
{ - (q) - } { + (r) + } Victims of crime;
Enrolled House Bill 2009 (HB 2009-C) Page 44
{ - (r) - } { + (s) + } The public at large;
{ - (s) - } { + (t) + } The director of a nonprofit entity
created for the purpose of increasing understanding of the adult
and juvenile justice systems and promotion of effective policies
for prevention and control of crime; and
{ - (t) - } { + (u) + } Private contract providers.
SECTION 99. ORS 144.102 is amended to read:
144.102. (1) The State Board of Parole and Post-Prison
Supervision or local supervisory authority responsible for
correctional services for a person shall specify in writing the
conditions of post-prison supervision imposed under ORS 144.096.
A copy of the conditions shall be given to the person upon
release from prison or jail.
(2) The board or the supervisory authority shall determine, and
may at any time modify, the conditions of post-prison
supervision, which may include, among other conditions, that the
person shall:
(a) Comply with the conditions of post-prison supervision as
specified by the board or supervisory authority.
(b) Be under the supervision of the Department of Corrections
and its representatives or other supervisory authority and abide
by their direction and counsel.
(c) Answer all reasonable inquiries of the board, the
department or the supervisory authority.
(d) Report to the parole officer as directed by the board, the
department or the supervisory authority.
(e) Not own, possess or be in control of any weapon.
(f) Respect and obey all municipal, county, state and federal
laws.
(g) Understand that the board or supervisory authority may, at
its discretion, punish violations of post-prison supervision.
(h) Attend a victim impact treatment session in a county that
has a victim impact program. If the board or supervisory
authority requires attendance under this paragraph, the board or
supervisory authority may require the person, as an additional
condition of post-prison supervision, to pay a reasonable fee to
the victim impact program to offset the cost of the person's
participation. The board or supervisory authority may not order
a person to pay a fee in excess of $5 under this paragraph.
(i) If required to report as a sex offender under ORS 181.595,
report with the Department of State Police, a chief of police, a
county sheriff or the supervising agency:
(A) When supervision begins;
(B) Within 10 days of a change in residence;
(C) Once each year within 10 days of the person's date of
birth;
(D) Within 10 days of the first day the person works at,
carries on a vocation at or attends an institution of higher
education; and
(E) Within 10 days of a change in work, vocation or attendance
status at an institution of higher education.
(3)(a) The board or supervisory authority may establish special
conditions as the board or supervisory authority determines
necessary because of the individual circumstances of the person
on post-prison supervision.
(b) If the person is on post-prison supervision following
conviction of a sex crime, as defined in ORS 181.594, the board
or supervisory authority shall include all of the following as
special conditions of the person's post-prison supervision:
Enrolled House Bill 2009 (HB 2009-C) Page 45
(A) Agreement to comply with any curfew set by the board, the
supervisory authority or the supervising officer.
(B) A prohibition against contacting a person under 18 years of
age without the prior written approval of the board, supervisory
authority or supervising officer.
(C) A prohibition against being present more than one time,
without the prior written approval of the board, supervisory
authority or supervising officer, at a place where persons under
18 years of age regularly congregate.
(D) In addition to the prohibition under subparagraph (C) of
this paragraph, a prohibition against being present, without the
prior written approval of the board, supervisory authority or
supervising officer, at, or on property adjacent to, a school,
child care center, playground or other place intended for use
primarily by persons under 18 years of age.
(E) A prohibition against working or volunteering at a school,
child care center, park, playground or other place where persons
under 18 years of age regularly congregate.
(F) Entry into and completion of or successful discharge from a
sex offender treatment program approved by the board, supervisory
authority or supervising officer. The program may include
polygraph and plethysmograph testing. The person is responsible
for paying for the treatment program.
(G) A prohibition against any contact with the victim, directly
or indirectly, unless approved by the victim, the person's
treatment provider and the board, supervisory authority or
supervising officer.
(H) Unless otherwise indicated for the treatment required under
subparagraph (F) of this paragraph, a prohibition against
viewing, listening to, owning or possessing any sexually
stimulating visual or auditory materials that are relevant to the
person's deviant behavior.
(I) Agreement to consent to a search of the person or the
vehicle or residence of the person upon the request of a
representative of the board or supervisory authority if the
representative has reasonable grounds to believe that evidence of
a violation of a condition of post-prison supervision will be
found.
(J) Participation in random polygraph examinations to obtain
information for risk management and treatment. The person is
responsible for paying the expenses of the examinations. The
results of a polygraph examination under this subparagraph may
not be used in evidence in a hearing to prove a violation of
post-prison supervision.
(K) Maintenance of a driving log and a prohibition against
driving a motor vehicle alone unless approved by the board,
supervisory authority or supervising officer.
(L) A prohibition against using a post-office box unless
approved by the board, supervisory authority or supervising
officer.
(M) A prohibition against residing in any dwelling in which
another sex offender who is on probation, parole or post-prison
supervision resides unless approved by the board, supervisory
authority or supervising officer, or in which more than one other
sex offender who is on probation, parole or post-prison
supervision resides unless approved by the board or the director
of the supervisory authority, or a designee of the board or
director. As soon as practicable, the supervising officer of a
person subject to the requirements of this subparagraph shall
review the person's living arrangement with the person's sex
Enrolled House Bill 2009 (HB 2009-C) Page 46
offender treatment provider to ensure that the arrangement
supports the goals of offender rehabilitation and community
safety. As used in this subparagraph:
(i) 'Dwelling' has the meaning given that term in ORS 469.160.
(ii) 'Dwelling' does not include a residential treatment
facility or a halfway house.
(iii) 'Halfway house' means a publicly or privately operated
profit or nonprofit residential facility that provides
rehabilitative care and treatment for sex offenders.
(c)(A) If the person is on post-prison supervision following
conviction of a sex crime, as defined in ORS 181.594, or an
assault, as defined in ORS 163.175 or 163.185, and the victim was
under 18 years of age, the board or supervisory authority, if
requested by the victim, shall include as a special condition of
the person's post-prison supervision that the person not reside
within three miles of the victim unless:
(i) The victim resides in a county having a population of less
than 130,000 and the person is required to reside in that county
under subsection (6) of this section;
(ii) The person demonstrates to the board or supervisory
authority by a preponderance of the evidence that no mental
intimidation or pressure was brought to bear during the
commission of the crime;
(iii) The person demonstrates to the board or supervisory
authority by a preponderance of the evidence that imposition of
the condition will deprive the person of a residence that would
be materially significant in aiding in the rehabilitation of the
person or in the success of the post-prison supervision; or
(iv) The person resides in a halfway house. As used in this
sub-subparagraph, 'halfway house' means a publicly or privately
operated profit or nonprofit residential facility that provides
rehabilitative care and treatment for sex offenders.
(B) A victim may request imposition of the special condition of
post-prison supervision described in this paragraph at the time
of sentencing in person or through the prosecuting attorney. A
victim's request may be included in the judgment document.
(C) If the board or supervisory authority imposes the special
condition of post-prison supervision described in this paragraph
and if at any time during the period of post-prison supervision
the victim moves to within three miles of the person's residence,
the board or supervisory authority may not require the person to
change the person's residence in order to comply with the special
condition of post-prison supervision.
(4)(a) The board or supervisory authority may require the
person to pay, as a condition of post-prison supervision, any
compensatory fines, restitution or attorney fees:
(A) As determined, imposed or required by the sentencing court;
or
(B) When previously required as a condition of any type of
supervision that is later revoked.
(b) The board may require a person to pay restitution as a
condition of post-prison supervision imposed for an offense other
than the offense for which the restitution was ordered if the
person:
(A) Was ordered to pay restitution as a result of another
conviction; and
(B) Has not fully paid the restitution by the time the person
has completed the period of post-prison supervision imposed for
the offense for which the restitution was ordered.
Enrolled House Bill 2009 (HB 2009-C) Page 47
(5) A person's failure to apply for or accept employment at any
workplace where there is a labor dispute in progress does not
constitute a violation of the conditions of post-prison
supervision. As used in this subsection, 'labor dispute' has the
meaning given that term in ORS 662.010.
(6)(a) When a person is released from imprisonment on
post-prison supervision, the board shall order, as a condition of
post-prison supervision, that the person reside for the first six
months after release in the county where the person resided at
the time of the offense that resulted in the imprisonment.
(b) Upon motion of the board, the person, a victim or a
district attorney, the board may waive the residency requirement
only after making a finding that one of the following conditions
has been met:
(A) The person provides proof of employment with no set ending
date in a county other than the established county of residence;
(B) The person is found to pose a significant danger to a
victim of the person's crime, or a victim or victim's family is
found to pose a significant danger to the person residing in the
established county of residence;
(C) The person has a spouse or biological or adoptive family
residing in a county other than the established county of
residence who will be materially significant in aiding in the
rehabilitation of the person and in the success of the
post-prison supervision;
(D) As another condition of post-prison supervision, the person
is required to participate in a treatment program that is not
available in the established county of residence;
(E) The person desires to be released to another state; or
(F) The board finds other good cause, of a nature similar to
the other conditions listed in this paragraph, for the waiver.
(c)(A) The board shall determine the county where the person
resided at the time of the offense by establishing the person's
last address at the time of the offense. In making its
determination, the board shall examine all of the following:
(i) An Oregon driver license, regardless of its validity;
(ii) Records maintained by the Department of Revenue;
(iii) Records maintained by the Department of State Police
bureau of criminal identification;
(iv) Records maintained by the Department of Human Services;
{ - and - }
(v) Records maintained by the Department of Corrections
{ - . - } { + ; and + }
{ + (vi) Records maintained by the Oregon Health
Authority. + }
(B) When the person did not have an identifiable address of
record at the time of the offense, the person is considered to
have resided in the county where the offense occurred.
(C) If the person is serving multiple sentences, the county of
residence shall be determined according to the date of the last
arrest resulting in a conviction.
(D) In determining the person's county of residence for
purposes of this subsection, the board may not consider offenses
committed by the person while the person was incarcerated in a
Department of Corrections facility.
(7) As used in this section, 'attends,' 'institution of higher
education,' 'works' and 'carries on a vocation' have the meanings
given those terms in ORS 181.594.
SECTION 100. ORS 144.270 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 48
144.270. (1) The State Board of Parole and Post-Prison
Supervision, in releasing a person on parole, shall specify in
writing the conditions of the parole and a copy of such
conditions shall be given to the person paroled.
(2) The board shall determine, and may at any time modify, the
conditions of parole, which may include, among other conditions,
that the parolee shall:
(a) Accept the parole granted subject to all terms and
conditions specified by the board.
(b) Be under the supervision of the Department of Corrections
and its representatives and abide by their direction and counsel.
(c) Answer all reasonable inquiries of the board or the parole
officer.
(d) Report to the parole officer as directed by the board or
parole officer.
(e) Not own, possess or be in control of any weapon.
(f) Respect and obey all municipal, county, state and federal
laws.
(g) Understand that the board may, in its discretion, suspend
or revoke parole if it determines that the parole is not in the
best interest of the parolee, or in the best interest of society.
(3)(a) The board may establish such special conditions as it
determines are necessary because of the individual circumstances
of the parolee.
(b) If the person is on parole following conviction of a sex
crime, as defined in ORS 181.594, the board shall include all of
the following as special conditions of the person's parole:
(A) Agreement to comply with any curfew set by the board or the
supervising officer.
(B) A prohibition against contacting a person under 18 years of
age without the prior written approval of the board or
supervising officer.
(C) A prohibition against being present more than one time,
without the prior written approval of the board or supervising
officer, at a place where persons under 18 years of age regularly
congregate.
(D) In addition to the prohibition under subparagraph (C) of
this paragraph, a prohibition against being present, without the
prior written approval of the board or supervising officer, at,
or on property adjacent to, a school, child care center,
playground or other place intended for use primarily by persons
under 18 years of age.
(E) A prohibition against working or volunteering at a school,
child care center, park, playground or other place where persons
under 18 years of age regularly congregate.
(F) Entry into and completion of or successful discharge from a
sex offender treatment program approved by the board or
supervising officer. The program may include polygraph and
plethysmograph testing. The person is responsible for paying for
the treatment program.
(G) A prohibition against any contact with the victim, directly
or indirectly, unless approved by the victim, the person's
treatment provider and the board or supervising officer.
(H) Unless otherwise indicated for the treatment required under
subparagraph (F) of this paragraph, a prohibition against
viewing, listening to, owning or possessing any sexually
stimulating visual or auditory materials that are relevant to the
person's deviant behavior.
(I) Agreement to consent to a search of the person or the
vehicle or residence of the person upon the request of a
Enrolled House Bill 2009 (HB 2009-C) Page 49
representative of the board if the representative has reasonable
grounds to believe that evidence of a violation of a condition of
parole will be found.
(J) Participation in random polygraph examinations to obtain
information for risk management and treatment. The person is
responsible for paying the expenses of the examinations. The
results of a polygraph examination under this subparagraph may
not be used in evidence in a hearing to prove a violation of
parole.
(K) Maintenance of a driving log and a prohibition against
driving a motor vehicle alone unless approved by the board or
supervising officer.
(L) A prohibition against using a post-office box unless
approved by the board or supervising officer.
(M) A prohibition against residing in any dwelling in which
another sex offender who is on probation, parole or post-prison
supervision resides unless approved by the board or supervising
officer, or in which more than one other sex offender who is on
probation, parole or post-prison supervision resides unless
approved by the board or a designee of the board. As soon as
practicable, the supervising officer of a person subject to the
requirements of this subparagraph shall review the person's
living arrangement with the person's sex offender treatment
provider to ensure that the arrangement supports the goals of
offender rehabilitation and community safety. As used in this
subparagraph:
(i) 'Dwelling' has the meaning given that term in ORS 469.160.
(ii) 'Dwelling' does not include a residential treatment
facility or a halfway house.
(iii) 'Halfway house' means a publicly or privately operated
profit or nonprofit residential facility that provides
rehabilitative care and treatment for sex offenders.
(c)(A) If the person is on parole following conviction of a sex
crime, as defined in ORS 181.594, or an assault, as defined in
ORS 163.175 or 163.185, and the victim was under 18 years of age,
the board, if requested by the victim, shall include as a special
condition of the person's parole that the person not reside
within three miles of the victim unless:
(i) The victim resides in a county having a population of less
than 130,000 and the person is required to reside in that county
under subsection (5) of this section;
(ii) The person demonstrates to the board by a preponderance of
the evidence that no mental intimidation or pressure was brought
to bear during the commission of the crime;
(iii) The person demonstrates to the board by a preponderance
of the evidence that imposition of the condition will deprive the
person of a residence that would be materially significant in
aiding in the rehabilitation of the person or in the success of
the parole; or
(iv) The person resides in a halfway house. As used in this
sub-subparagraph, 'halfway house' means a publicly or privately
operated profit or nonprofit residential facility that provides
rehabilitative care and treatment for sex offenders.
(B) A victim may request imposition of the special condition of
parole described in this paragraph at the time of sentencing in
person or through the prosecuting attorney. A victim's request
may be included in the judgment document.
(C) If the board imposes the special condition of parole
described in this paragraph and if at any time during the period
of parole the victim moves to within three miles of the parolee's
Enrolled House Bill 2009 (HB 2009-C) Page 50
residence, the board may not require the parolee to change the
parolee's residence in order to comply with the special condition
of parole.
(4) It is not a cause for revocation of parole that the parolee
failed to apply for or accept employment at any workplace where
there is a labor dispute in progress. As used in this subsection,
'labor dispute' has the meaning given that term in ORS 662.010.
(5)(a) When the board grants an inmate parole from the custody
of the Department of Corrections, the board shall order, as a
condition of parole, that the inmate reside for the first six
months in the county where the inmate resided at the time of the
offense that resulted in the imprisonment.
(b) Upon motion of the board, an inmate, a victim or a district
attorney, the board may waive the residency requirement only
after making a finding that one of the following conditions has
been met:
(A) The inmate provides proof of a job with no set ending date
in a county other than the established county of residence;
(B) The inmate is found to pose a significant danger to the
victim of the offender's crime, or the victim or victim's family
is found to pose a significant danger to the inmate residing in
the county of residence;
(C) The inmate has a spouse or biological or adoptive family
residing in other than the county of residence who will be
materially significant in aiding in the rehabilitation of the
offender and in the success of the parole;
(D) As another condition of parole, the inmate is required to
participate in a treatment program that is not available or
located in the county of residence;
(E) The inmate desires to be paroled to another state; or
(F) The board finds other good cause, of a nature similar to
the other conditions listed in this paragraph, for the waiver.
(c)(A) For purposes of this subsection, 'residency' means the
last address at the time of the offense, as established by an
examination of all of the following:
(i) An Oregon driver license, regardless of its validity;
(ii) Records maintained by the Department of Revenue;
(iii) Records maintained by the Department of State Police
bureau of criminal identification;
(iv) Records maintained by the Department of Human Services;
{ - and - }
(v) Records maintained by the Department of Corrections
{ - . - } { + ; and + }
{ + (vi) Records maintained by the Oregon Health
Authority. + }
(B) When an inmate did not have one identifiable address of
record at the time of the offense, the inmate shall be considered
to have resided in the county where the offense occurred.
(C) If the inmate is serving multiple sentences, the county of
residence shall be determined according to the date of the last
arrest resulting in a conviction.
(D) If the inmate is being rereleased after revocation of
parole, the county of residence shall be determined according to
the date of the arrest resulting in a conviction of the
underlying offense.
(E) In determining the inmate's county of residence, a
conviction for an offense that the inmate committed while
incarcerated in a state corrections institution may not be
considered.
Enrolled House Bill 2009 (HB 2009-C) Page 51
(6) When the board grants an inmate parole from the custody of
the Department of Corrections and if the inmate is required to
report as a sex offender under ORS 181.595, the board, as a
condition of parole, shall order the inmate to report with the
Department of State Police, a chief of police, a county sheriff
or the supervising agency:
(a) When supervision begins;
(b) Within 10 days of a change in residence;
(c) Once each year within 10 days of the inmate's date of
birth;
(d) Within 10 days of the first day the person works at,
carries on a vocation at or attends an institution of higher
education; and
(e) Within 10 days of a change in work, vocation or attendance
status at an institution of higher education.
(7) As used in this section, 'attends,' 'institution of higher
education,' 'works' and 'carries on a vocation' have the meanings
given those terms in ORS 181.594.
SECTION 101. ORS 161.315 is amended to read:
161.315. Upon filing of notice or the introduction of evidence
by the defendant as provided in ORS 161.309 (3), the state shall
have the right to have at least one psychiatrist or licensed
psychologist of its selection examine the defendant. The state
shall file notice with the court of its intention to have the
defendant examined. Upon filing of the notice, the court, in its
discretion, may order the defendant committed to a state
institution or any other suitable facility, if the defendant is
18 years of age or older, for observation and examination as the
court may designate for a period not to exceed 30 days. If the
defendant is under 18 years of age, upon filing of the notice,
the court, in its discretion, may order the defendant committed
to a secure intensive community inpatient facility designated by
the
{ - Department of Human Services - } { + Oregon Health
Authority + } for observation and examination as the court may
designate for a period not to exceed 30 days. If the defendant
objects to the examiner chosen by the state, the court for good
cause shown may direct the state to select a different examiner.
SECTION 102. ORS 161.327 is amended to read:
161.327. (1)(a) Following the entry of a judgment pursuant to
ORS 161.319 and the dispositional determination under ORS
161.325, if the court finds that the person would have been
guilty of a felony, or of a misdemeanor during a criminal episode
in the course of which the person caused physical injury or risk
of physical injury to another, the court shall order that a
psychiatric or psychological evaluation be performed and a report
of the evaluation be provided to the court if an evaluation was
not performed or a report was not provided to the court prior to
trial. Upon receipt of the evaluation, the court shall order that
the person be placed under the jurisdiction of the Psychiatric
Security Review Board for care and treatment if the court finds
by a preponderance of the evidence that the person is affected by
mental disease or defect and presents a substantial danger to
others requiring commitment to:
(A) A state hospital designated by the { - Department of
Human Services - } { + Oregon Health Authority + } if the
person is at least 18 years of age; or
(B) A secure intensive community inpatient facility designated
by the { - Department of Human Services - } { + authority + }
if the person is under 18 years of age.
Enrolled House Bill 2009 (HB 2009-C) Page 52
(b) The period of jurisdiction of the board is equal to the
maximum sentence provided by statute for the crime for which the
person was found guilty except for insanity.
(c) When a court orders a psychiatric or psychological
evaluation of a financially eligible person under this
subsection, the court shall order the public defense services
executive director to pay a reasonable fee for the evaluation
from funds available for the purpose.
(2) The court shall determine whether the person should be
committed to a state hospital, or to a secure intensive community
inpatient facility, designated by the { - Department of Human
Services - } { + authority + } or conditionally released
pending any hearing before the board as follows:
(a) If the court finds that the person presents a substantial
danger to others and is not a proper subject for conditional
release, the court shall order the person committed to a state
hospital designated by the { - Department of Human Services - }
{ + authority + } if the person is at least 18 years of age, or
to a secure intensive community inpatient facility designated by
the
{ - Department of Human Services - } { + authority + } if the
person is under 18 years of age, for custody, care and treatment
pending hearing before the board in accordance with ORS 161.341
to 161.351.
(b) If the court finds that the person presents a substantial
danger to others but that the person can be adequately controlled
with supervision and treatment if conditionally released and that
necessary supervision and treatment are available, the court may
order the person conditionally released, subject to those
supervisory orders of the court as are in the best interests of
justice, the protection of society and the welfare of the person.
The court shall designate a person or state, county or local
agency to supervise the person upon release, subject to those
conditions as the court directs in the order for conditional
release. Prior to the designation, the court shall notify the
person or agency to whom conditional release is contemplated and
provide the person or agency an opportunity to be heard before
the court. After receiving an order entered under this paragraph,
the person or agency designated shall assume supervision of the
person pursuant to the direction of the Psychiatric Security
Review Board. The person or agency designated as supervisor shall
be required to report in writing no less than once per month to
the board concerning the supervised person's compliance with the
conditions of release.
(3) For purposes of this section, a person affected by a mental
disease or defect in a state of remission is considered to have a
mental disease or defect requiring supervision when the disease
may, with reasonable medical probability, occasionally become
active and, when active, render the person a danger to others.
(4) In determining whether a person should be conditionally
released, the court may order evaluations, examinations and
compliance as provided in ORS 161.336 (4) and 161.346 (2).
(5) In determining whether a person should be committed to a
state hospital or to a secure intensive community inpatient
facility or conditionally released, the court shall have as its
primary concern the protection of society.
(6) Upon placing a person on conditional release, the court
shall notify the board in writing of the court's conditional
release order, the supervisor appointed, and all other conditions
of release, and the person shall be on conditional release
Enrolled House Bill 2009 (HB 2009-C) Page 53
pending hearing before the board in accordance with ORS 161.336
to 161.351. Upon compliance with this subsection and subsections
(1) and (2) of this section, the court's jurisdiction over the
person is terminated and the board assumes jurisdiction over the
person.
(7) An order of the court under this section is a final order
appealable by the person found guilty except for insanity in
accordance with ORS 19.205 (5). Notwithstanding ORS 19.255,
notice of an appeal under this section shall be served and filed
within 90 days after the order appealed from is entered in the
register. The person shall be entitled on appeal to suitable
counsel possessing skills and experience commensurate with the
nature and complexity of the case. If the person is financially
eligible, suitable counsel shall be appointed in the manner
provided in ORS 138.500 (1), and the compensation for counsel and
costs and expenses of the person necessary to the appeal shall be
determined and paid as provided in ORS 138.500.
(8) Upon placing a person under the jurisdiction of the board,
the court shall notify the person of the right to appeal and the
right to a hearing before the board in accordance with ORS
161.336 (7) and 161.341 (4).
SECTION 103. ORS 161.336 is amended to read:
161.336. (1) If the Psychiatric Security Review Board
determines that the person presents a substantial danger to
others but can be adequately controlled with supervision and
treatment if conditionally released and that necessary
supervision and treatment are available, the board may order the
person conditionally released, subject to those supervisory
orders of the board as are in the best interests of justice, the
protection of society and the welfare of the person. The board
may designate any person or state, county or local agency the
board considers capable of supervising the person upon release,
subject to those conditions as the board directs in the order for
conditional release. Prior to the designation, the board shall
notify the person or agency to whom conditional release is
contemplated and provide the person or agency an opportunity to
be heard before the board. After receiving an order entered under
this section, the person or agency designated shall assume
supervision of the person pursuant to the direction of the board.
(2) Conditions of release contained in orders entered under
this section may be modified from time to time and conditional
releases may be terminated by order of the board as provided in
ORS 161.351.
(3) For purposes of this section, a person affected by a mental
disease or defect in a state of remission is considered to have a
mental disease or defect requiring supervision when the disease
may, with reasonable medical probability, occasionally become
active and, when active, render the person a danger to others.
The person may be continued on conditional release by the board
as provided in this section.
(4)(a) As a condition of release, the board may require the
person to report to any state or local mental health facility for
evaluation. Whenever medical, psychiatric or psychological
treatment is recommended, the board may order the person, as a
condition of release, to cooperate with and accept the treatment
from the facility.
(b) The facility to which the person has been referred for
evaluation shall perform the evaluation and submit a written
report of its findings to the board. If the facility finds that
Enrolled House Bill 2009 (HB 2009-C) Page 54
treatment of the person is appropriate, it shall include its
recommendations for treatment in the report to the board.
(c) Whenever treatment is provided by the facility, it shall
furnish reports to the board on a regular basis concerning the
progress of the person.
(d) Copies of all reports submitted to the board pursuant to
this section shall be furnished to the person and the person's
counsel. The confidentiality of these reports is determined
pursuant to ORS 192.501 to 192.505.
(e) The facility shall comply with any other conditions of
release prescribed by order of the board.
(5) If at any time while the person is under the jurisdiction
of the board it appears to the board or its chairperson that the
person has violated the terms of the conditional release or that
the mental health of the individual has changed, the board or its
chairperson may order the person returned for evaluation or
treatment to a state hospital designated by the { - Department
of Human Services - } { + Oregon Health Authority + } if the
person is at least 18 years of age, or to a secure intensive
community inpatient facility designated by the { - Department
of Human Services - } { + authority + } if the person is under
18 years of age. A written order of the board, or its chairperson
on behalf of the board, is sufficient warrant for any law
enforcement officer to take into custody such person and
transport the person accordingly. A sheriff, municipal police
officer, constable, parole and probation officer, prison official
or other peace officer shall execute the order, and the person
shall be returned as soon as practicable to the custody of the
{ - Department of Human Services - } { + authority + }.
Within 20 days following the return of the person to the custody
of the { - Department of Human Services - }
{ + authority + }, the board shall conduct a hearing. Notice of
the time and place of the hearing shall be given to the person,
the attorney representing the person and the Attorney General.
The board may continue the person on conditional release or, if
it finds by a preponderance of the evidence that the person is
affected by mental disease or defect and presents a substantial
danger to others and cannot be adequately controlled if
conditional release is continued, it may order the person
committed to a state hospital designated by the
{ - Department of Human Services - } { + authority + } if the
person is at least 18 years of age, or to a secure intensive
community inpatient facility designated by the { - Department
of Human Services - } { + authority + } if the person is under
18 years of age. The state must prove by a preponderance of the
evidence the person's unfitness for conditional release. A person
in custody pursuant to this subsection has the same rights as any
person appearing before the board pursuant to ORS 161.346.
(6) The community mental health { - and developmental
disabilities - } program director, the director of the facility
providing treatment to a person on conditional release, any peace
officer or any person responsible for the supervision of a person
on conditional release may take a person on conditional release
into custody or request that the person be taken into custody if
there is reasonable cause to believe the person is a substantial
danger to others because of mental disease or defect and that the
person is in need of immediate care, custody or treatment. Any
person taken into custody pursuant to this subsection shall be
transported as soon as practicable to a state hospital designated
by the { - Department of Human Services - } { + authority + }
Enrolled House Bill 2009 (HB 2009-C) Page 55
if the person is at least 18 years of age, or to a secure
intensive community inpatient facility designated by the
{ - Department of Human Services - } { + authority + } if the
person is under 18 years of age. A person taken into custody
under this subsection has the same rights as any person appearing
before the board pursuant to ORS 161.346.
(7)(a) Any person conditionally released under this section may
apply to the board for discharge from or modification of an order
of conditional release on the ground that the person is no longer
affected by mental disease or defect or, if still so affected, no
longer presents a substantial danger to others and no longer
requires supervision, medication, care or treatment. Notice of
the hearing on an application for discharge or modification of an
order of conditional release shall be made to the Attorney
General. The applicant, at the hearing pursuant to this
subsection, must prove by a preponderance of the evidence the
applicant's fitness for discharge or modification of the order of
conditional release. Applications by the person for discharge or
modification of conditional release shall not be filed more often
than once every six months.
(b) Upon application by any person or agency responsible for
supervision or treatment pursuant to an order of conditional
release, the board shall conduct a hearing to determine if the
conditions of release shall be continued, modified or terminated.
The application shall be accompanied by a report setting forth
the facts supporting the application.
(8) The total period of commitment and conditional release
ordered pursuant to this section may not exceed the maximum
sentence provided by statute for the crime for which the person
was found guilty except for insanity.
(9) The board shall maintain and keep current the medical,
social and criminal history of all persons committed to its
jurisdiction. The confidentiality of records maintained by the
board shall be determined pursuant to ORS 192.501 to 192.505.
(10) In determining whether a person should be committed to a
state hospital or to a secure intensive community inpatient
facility, conditionally released or discharged, the board shall
have as its primary concern the protection of society.
SECTION 104. ORS 161.341 is amended to read:
161.341. (1) If the Psychiatric Security Review Board finds,
upon its initial hearing, that the person presents a substantial
danger to others and is not a proper subject for conditional
release, the board shall order the person committed to, or
retained in, a state hospital designated by the { - Department
of Human Services - } { + Oregon Health Authority + } if the
person is at least 18 years of age, or to a secure intensive
community inpatient facility designated by the { - Department
of Human Services - } { + authority + } if the person is under
18 years of age, for custody, care and treatment. The period of
commitment ordered by the board may not exceed the maximum
sentence provided by statute for the crime for which the person
was found guilty except for insanity.
(2) If at any time after the commitment of a person to a state
hospital, or to a secure intensive community inpatient facility,
designated by the { - Department of Human Services - }
{ + authority + } under this section, the superintendent of the
hospital or the director of the secure intensive community
inpatient facility is of the opinion that the person is no longer
affected by mental disease or defect, or, if so affected, no
longer presents a substantial danger to others or that the person
Enrolled House Bill 2009 (HB 2009-C) Page 56
continues to be affected by mental disease or defect and
continues to be a danger to others, but that the person can be
controlled with proper care, medication, supervision and
treatment if conditionally released, the superintendent or
director shall apply to the board for an order of discharge or
conditional release. The application shall be accompanied by a
report setting forth the facts supporting the opinion of the
superintendent or director. If the application is for conditional
release, the application must also be accompanied by a verified
conditional release plan. The board shall hold a hearing on the
application within 60 days of its receipt. Not less than 20 days
prior to the hearing before the board, copies of the report shall
be sent to the Attorney General.
(3) The attorney representing the state may choose a
psychiatrist or licensed psychologist to examine the person prior
to the initial or any later decision by the board on discharge or
conditional release. The results of the examination shall be in
writing and filed with the board, and shall include, but need not
be limited to, an opinion as to the mental condition of the
person, whether the person presents a substantial danger to
others and whether the person could be adequately controlled with
treatment as a condition of release.
(4) Any person who has been committed to a state hospital, or
to a secure intensive community inpatient facility, designated by
the { - Department of Human Services - } { + authority + }
for custody, care and treatment or another person acting on the
person's behalf may apply to the board for an order of discharge
or conditional release upon the grounds:
(a) That the person is no longer affected by mental disease or
defect;
(b) If so affected, that the person no longer presents a
substantial danger to others; or
(c) That the person continues to be affected by a mental
disease or defect and would continue to be a danger to others
without treatment, but that the person can be adequately
controlled and given proper care and treatment if placed on
conditional release.
(5) When application is made under subsection (4) of this
section, the board shall require that a report from the
superintendent of the hospital or the director of the secure
intensive community inpatient facility be prepared and
transmitted as provided in subsection (2) of this section. The
applicant must prove by a preponderance of the evidence the
applicant's fitness for discharge or conditional release under
the standards of subsection (4) of this section, unless more than
two years has passed since the state had the burden of proof on
that issue, in which case the state shall have the burden of
proving by a preponderance of the evidence the applicant's lack
of fitness for discharge or conditional release. Applications for
discharge or conditional release under subsection (4) of this
section shall not be filed more often than once every six months
commencing with the date of the initial board hearing.
(6) The board is not required to hold a hearing on a first
application under subsection (4) of this section any sooner than
90 days after the initial hearing. However, hearings resulting
from any subsequent requests shall be held within 60 days of the
filing of the application.
(7)(a) In no case shall any person committed by the court under
ORS 161.327 to a state hospital, or to a secure intensive
community inpatient facility, designated by the { - Department
Enrolled House Bill 2009 (HB 2009-C) Page 57
of Human Services - } { + authority + } be held in the hospital
or facility for more than 90 days from the date of the court's
commitment order without an initial hearing before the board to
determine whether the person should be conditionally released or
discharged.
(b) In no case shall a person be held pursuant to this section
for a period of time exceeding two years without a hearing before
the board to determine whether the person should be conditionally
released or discharged.
SECTION 105. ORS 161.346 is amended to read:
161.346. (1) The Psychiatric Security Review Board shall
conduct hearings upon any application for discharge, conditional
release, commitment or modification filed pursuant to ORS
161.336, 161.341 or 161.351 and as otherwise required by ORS
161.336 to 161.351 and shall make findings on the issues before
it which may include:
(a) If the board finds that the person is no longer affected by
mental disease or defect, or, if so affected, no longer presents
a substantial danger to others, the board shall order the person
discharged from commitment or from conditional release.
(b) If the board finds that the person is still affected by a
mental disease or defect and is a substantial danger to others,
but can be controlled adequately if conditionally released with
treatment as a condition of release, the board shall order the
person conditionally released as provided in ORS 161.336.
(c) If the board finds that the person has not recovered from
the mental disease or defect and is a substantial danger to
others and cannot adequately be controlled if conditionally
released on supervision, the board shall order the person
committed to, or retained in, a state hospital designated by the
{ - Department of Human Services - } { + Oregon Health
Authority + } if the person is at least 18 years of age, or a
secure intensive community inpatient facility designated by the
{ - Department of Human Services - } { + authority + } if the
person is under 18 years of age, for care, custody and treatment.
(2) At any time, the board may appoint a psychiatrist or
licensed psychologist to examine the person and to submit a
report to the board. Reports filed with the board pursuant to the
examination shall include, but need not be limited to, an opinion
as to the mental condition of the person and whether the person
presents a substantial danger to others, and whether the person
could be adequately controlled with treatment as a condition of
release. To facilitate the examination of the person, the board
may order the person placed in the temporary custody of any state
hospital or other suitable facility.
(3) The board may make the determination regarding discharge or
conditional release based upon the written reports submitted
pursuant to this section. If any member of the board desires
further information from the examining psychiatrist or licensed
psychologist who submitted the report, these persons shall be
summoned by the board to give testimony. The board shall consider
all evidence available to it which is material, relevant and
reliable regarding the issues before the board. Such evidence may
include but is not limited to the record of trial, the
information supplied by the attorney representing the state or by
any other interested party, including the person, and information
concerning the person's mental condition and the entire
psychiatric and criminal history of the person. All evidence of a
type commonly relied upon by reasonably prudent persons in the
conduct of their serious affairs shall be admissible at hearings.
Enrolled House Bill 2009 (HB 2009-C) Page 58
Testimony shall be taken upon oath or affirmation of the witness
from whom received. The officer presiding at the hearing shall
administer oaths or affirmations to witnesses.
(4) The board shall furnish to the person about whom the
hearing is being conducted, the attorney representing the person,
the Attorney General, the district attorney and the court or
department of the county from which the person was committed
written notice of any hearing pending under this section within a
reasonable time prior to the hearing. The notice shall include:
(a) The time, place and location of the hearing.
(b) The nature of the hearing and the specific action for which
a hearing has been requested, the issues to be considered at the
hearing and a reference to the particular sections of the
statutes and rules involved.
(c) A statement of the authority and jurisdiction under which
the hearing is to be held.
(d) A statement of all rights under subsection (6) of this
section.
(5) Prior to the commencement of a hearing, the board or
presiding officer shall serve personally or by mail a written
notice to each party as provided in ORS 183.413 (2).
(6) At the hearing, the person about whom the hearing is being
held shall have the right:
(a) To appear at all proceedings held pursuant to this section,
except board deliberations.
(b) To cross-examine all witnesses appearing to testify at the
hearing.
(c) To subpoena witnesses and documents as provided in ORS
161.395.
(d) To be represented by suitable legal counsel possessing
skills and experience commensurate with the nature and complexity
of the case, to consult with counsel prior to the hearing and, if
financially eligible, to have suitable counsel appointed at state
expense.
(e) To examine all information, documents and reports which the
board considers. If then available to the board, the information,
documents and reports shall be disclosed to the person so as to
allow examination prior to the hearing.
(7) A record shall be kept of all hearings before the board,
except board deliberations.
(8) Upon request of any party before the board, or on its own
motion, the board may continue a hearing for a reasonable period
not to exceed 60 days to obtain additional information or
testimony or for other good cause shown.
(9) Within 15 days following the conclusion of the hearing, the
board shall provide to the person, the attorney representing the
person, the Attorney General or other attorney representing the
state, if any, written notice of the board's decision.
(10) The burden of proof on all issues at hearings of the board
shall be by a preponderance of the evidence.
(11) If the board determines that the person about whom the
hearing is being held is financially eligible, the board shall
appoint suitable counsel to represent the person. Counsel so
appointed shall be an attorney who satisfies the professional
qualifications established by the Public Defense Services
Commission under ORS 151.216. The public defense services
executive director shall determine and allow fair compensation
for counsel appointed under this subsection and the reasonable
expenses of the person in respect to the hearing. Compensation
payable to appointed counsel shall not be less than the
Enrolled House Bill 2009 (HB 2009-C) Page 59
applicable compensation level established under ORS 151.216. The
compensation and expenses so allowed shall be paid by the public
defense services executive director from funds available for the
purpose.
(12) The Attorney General may represent the state at contested
hearings before the board unless the district attorney of the
county from which the person was committed elects to represent
the state. The district attorney of the county from which the
person was committed shall cooperate with the Attorney General in
securing the material necessary for presenting a contested
hearing before the board. If the district attorney elects to
represent the state, the district attorney shall give timely
written notice of such election to the Attorney General, the
board and the attorney representing the person.
SECTION 106. ORS 161.365 is amended to read:
161.365. (1) Whenever the court has reason to doubt the
defendant's fitness to proceed by reason of incapacity as defined
in ORS 161.360, the court may call to its assistance in reaching
its decision any witness and may appoint a psychiatrist or
psychologist to examine the defendant and advise the court.
(2) If the court determines the assistance of a psychiatrist or
psychologist would be helpful, the court may order the defendant
to be committed for the purpose of an examination for a period
not exceeding 30 days to a state mental hospital designated by
the { - Department of Human Services - } { + Oregon Health
Authority + } if the defendant is at least 18 years of age, or to
a secure intensive community inpatient facility designated by the
{ - Department of Human Services - } { + authority + } if the
defendant is under 18 years of age. The report of each
examination shall include, but is not necessarily limited to, the
following:
(a) A description of the nature of the examination;
(b) A statement of the mental condition of the defendant; and
(c) If the defendant suffers from a mental disease or defect,
an opinion as to whether the defendant is incapacitated within
the definition set out in ORS 161.360.
(3) Except when the defendant and the court both request to the
contrary, the report may not contain any findings or conclusions
as to whether the defendant as a result of mental disease or
defect was subject to the provisions of ORS 161.295 or 161.300 at
the time of the criminal act charged.
(4) If the examination by the psychiatrist or psychologist
cannot be conducted by reason of the unwillingness of the
defendant to participate therein, the report shall so state and
shall include, if possible, an opinion as to whether such
unwillingness of the defendant was the result of mental disease
or defect affecting capacity to proceed.
(5) The report of the examination shall be filed in triplicate
with the clerk of the court, who shall cause copies to be
delivered to the district attorney and to counsel for defendant.
(6) When upon motion of the court or a financially eligible
defendant, the court has ordered a psychiatric or psychological
examination of the defendant, a county or justice court shall
order the county to pay, and a circuit court shall order the
public defense services executive director to pay from funds
available for the purpose:
(a) A reasonable fee if the examination of the defendant is
conducted by a psychiatrist or psychologist in private practice;
and
Enrolled House Bill 2009 (HB 2009-C) Page 60
(b) All costs including transportation of the defendant if the
examination is conducted by a psychiatrist or psychologist in the
employ of the { - Department of Human Services - } { + Oregon
Health Authority + } or a community mental health { - and
developmental disabilities - } program established under ORS
430.610 to 430.670.
(7) When such an examination is ordered at the request or with
the acquiescence of a defendant who is determined not to be
financially eligible, the examination shall be performed at the
defendant's expense. When such an examination is ordered at the
request of the prosecution, the county shall pay for the expense
of the examination.
SECTION 107. ORS 161.370 is amended to read:
161.370. (1) When the defendant's fitness to proceed is drawn
in question, the issue shall be determined by the court. If
neither the prosecuting attorney nor counsel for the defendant
contests the finding of the report filed by a psychiatrist or
psychologist under ORS 161.365, the court may make the
determination on the basis of such report. If the finding is
contested, the court shall hold a hearing on the issue. If the
report is received in evidence upon such hearing, the party who
contests the finding thereof shall have the right to summon and
to cross-examine any psychiatrist or psychologist who submitted
the report and to offer evidence upon the issue. Other evidence
regarding the defendant's fitness to proceed may be introduced by
either party.
(2) If the court determines that the defendant lacks fitness to
proceed, the proceeding against the defendant shall be suspended,
except as provided in subsection (12) of this section, and the
court shall commit the defendant to the custody of the
superintendent of a state mental hospital designated by the
{ - Department of Human Services - } { + Oregon Health
Authority + } if the defendant is at least 18 years of age, or to
the custody of the director of a secure intensive community
inpatient facility designated by the { - Department of Human
Services - } { + authority + } if the defendant is under 18
years of age, or shall release the defendant on supervision for
as long as such unfitness shall endure. The court may release the
defendant on supervision if it determines that care other than
commitment for incapacity to stand trial would better serve the
defendant and the community. It may place conditions which it
deems appropriate on the release, including the requirement that
the defendant regularly report to the
{ - Department of Human Services - } { + authority + } or a
community mental health { - and developmental disabilities - }
program for examination to determine if the defendant has
regained capacity to stand trial. When the court, on its own
motion or upon the application of the superintendent of the
hospital or director of the secure intensive community inpatient
facility in which the defendant is committed, a person examining
the defendant as a condition of release on supervision, or either
party, determines, after a hearing, if a hearing is requested,
that the defendant has regained fitness to proceed, the
proceeding shall be resumed. If, however, the court is of the
view that so much time has elapsed since the commitment or
release of the defendant on supervision that it would be unjust
to resume the criminal proceeding, the court on motion of either
party may dismiss the charge and may order the defendant to be
discharged or cause a proceeding to be commenced forthwith under
ORS 426.070 to 426.170 or 427.235 to 427.290.
Enrolled House Bill 2009 (HB 2009-C) Page 61
(3) The superintendent of a state hospital or director of a
secure intensive community inpatient facility shall cause the
defendant to be evaluated within 60 days from the defendant's
delivery into the superintendent's or director's custody, for the
purpose of determining whether there is a substantial probability
that, in the foreseeable future, the defendant will have the
capacity to stand trial.
(4) In addition, the superintendent or director shall:
(a) Immediately notify the committing court if the defendant,
at any time, gains or regains the capacity to stand trial or will
never have the capacity to stand trial.
(b) Within 90 days of the defendant's delivery into the
superintendent's or director's custody, notify the committing
court that:
(A) The defendant has the present capacity to stand trial;
(B) There is no substantial probability that, in the
foreseeable future, the defendant will gain or regain the
capacity to stand trial; or
(C) There is a substantial probability that, in the foreseeable
future, the defendant will gain or regain the capacity to stand
trial. If such a probability exists, the superintendent or
director shall give the court an estimate of the time in which
the defendant, with appropriate treatment, is expected to gain or
regain capacity.
(5) If the superintendent or director determines that there is
a substantial probability that, in the foreseeable future, the
defendant will gain or regain the capacity to stand trial, unless
the court otherwise orders, the defendant shall remain in the
superintendent's or director's custody where the defendant shall
receive treatment designed for the purpose of enabling the
defendant to gain or regain capacity. In keeping with the notice
requirement under subsection (4)(b) of this section, the
superintendent or director shall, for the duration of the
defendant's period of commitment, submit a progress report to the
committing court, concerning the defendant's capacity or
incapacity, at least once every 180 days as measured from the
date of the defendant's delivery into the superintendent's or
director's custody.
(6) A defendant who remains committed under subsection (5) of
this section shall be discharged within a period of time that is
reasonable for making a determination concerning whether or not,
and when, the defendant may gain or regain capacity. However,
regardless of the number of charges with which the defendant is
accused, in no event shall the defendant be committed for longer
than whichever of the following, measured from the defendant's
initial custody date, is shorter:
(a) Three years; or
(b) A period of time equal to the maximum sentence the court
could have imposed if the defendant had been convicted.
(7) The superintendent or director shall notify the committing
court of the defendant's impending discharge 30 days before the
date on which the superintendent or director is required to
discharge the defendant under subsection (6) of this section.
(8) When the committing court receives a notice from the
superintendent or director under either subsection (4) or (7) of
this section concerning the defendant's progress or lack thereof,
the committing court shall determine after a hearing, if a
hearing is requested, whether the defendant presently has the
capacity to stand trial.
Enrolled House Bill 2009 (HB 2009-C) Page 62
(9) If under subsection (8) of this section the court
determines that the defendant lacks the capacity to stand trial,
the court shall further determine whether there is a substantial
probability that the defendant, in the foreseeable future, will
gain or regain the capacity to stand trial and whether the
defendant is entitled to discharge under subsection (6) of this
section. If the court determines that there is no substantial
probability that the defendant, in the foreseeable future, will
gain or regain the capacity to stand trial or that the defendant
is entitled to discharge under subsection (6) of this section,
the court shall dismiss, without prejudice, all charges against
the defendant and:
(a) Order that the defendant be discharged; or
(b) Initiate commitment proceedings under ORS 426.070 or
427.235 to 427.290.
(10) All notices required under this section shall be filed
with the clerk of the court and delivered to both the district
attorney and the counsel for the defendant.
(11) If the defendant regains fitness to proceed, the term of
any sentence received by the defendant for conviction of the
crime charged shall be reduced by the amount of time the
defendant was committed under this section to the custody of a
state mental hospital, or to the custody of a secure intensive
community inpatient facility, designated by the { - Department
of Human Services - } { + Oregon Health Authority + }.
(12) The fact that the defendant is unfit to proceed does not
preclude any objection through counsel and without the personal
participation of the defendant on the grounds that the indictment
is insufficient, that the statute of limitations has run, that
double jeopardy principles apply or upon any other ground at the
discretion of the court which the court deems susceptible of fair
determination prior to trial.
SECTION 108. ORS 161.375 is amended to read:
161.375. (1) When a patient, who has been placed at the Oregon
State Hospital for evaluation, care, custody and treatment under
the jurisdiction of the Psychiatric Security Review Board or by
court order under ORS 161.315, 161.365 or 161.370, has escaped or
is absent without authorization from the Oregon State Hospital or
from the custody of any person in whose charge the superintendent
has placed the patient, the superintendent may order the arrest
and detention of the patient.
(2) When a patient, who has been placed at a secure intensive
community inpatient facility for evaluation, care, custody and
treatment under the jurisdiction of the Psychiatric Security
Review Board or by court order under ORS 161.315, 161.365,
161.370 or 419C.527, has escaped or is absent without
authorization from the facility or from the custody of any person
in whose charge the director of the facility has placed the
patient, the director of the facility shall notify the Director
of { - Human Services. The Director of Human Services - }
{ + the Oregon Health Authority. The Director of the Oregon
Health Authority + }may order the arrest and detention of the
patient.
(3) The superintendent or the { - Director of Human
Services - } { + Director of the Oregon Health Authority + } may
issue an order under this section based upon a reasonable belief
that grounds exist for issuing the order. When reasonable, the
superintendent or the
Enrolled House Bill 2009 (HB 2009-C) Page 63
{ - Director of Human Services - } { + Director of the Oregon
Health Authority + } shall investigate to ascertain whether such
grounds exist.
(4) Any order issued by the superintendent or the
{ - Director of Human Services - } { + Director of the Oregon
Health Authority + } as authorized by this section constitutes
full authority for the arrest and detention of the patient and
all laws applicable to warrant or arrest apply to the order. An
order issued by the superintendent or the { - Director of Human
Services - } { + Director of the Oregon Health Authority + }
under this section expires 72 hours after being signed by the
superintendent or the { - Director of Human Services - }
{ + Director of the Oregon Health Authority + }.
(5) As used in this section, 'superintendent' means the
superintendent of the Oregon State Hospital or the
superintendent's authorized representative.
SECTION 109. ORS 161.385 is amended to read:
161.385. (1) There is hereby created a Psychiatric Security
Review Board consisting of 10 members appointed by the Governor
and subject to confirmation by the Senate under section 4,
Article III of the Oregon Constitution.
(2) The membership of the board may not include any district
attorney, deputy district attorney or public defender. The
Governor shall appoint:
(a) A psychiatrist experienced in the criminal justice system
and not otherwise employed on a full-time basis by the
{ - Department of Human Services - } { + Oregon Health
Authority + } or a community mental health { - and
developmental disabilities - } program;
(b) A licensed psychologist experienced in the criminal justice
system and not otherwise employed on a full-time basis by the
{ - Department of Human Services - } { + authority + } or a
community mental health { - and developmental disabilities - }
program;
(c) A member with substantial experience in the processes of
parole and probation;
(d) A lawyer with substantial experience in criminal trial
practice;
(e) A psychiatrist certified, or eligible to be certified, by
the Oregon Medical Board in child psychiatry who is experienced
in the juvenile justice system and not employed on a full-time
basis by the { - Department of Human Services - }
{ + authority + } or a community mental health { - and
developmental disabilities - } program;
(f) A licensed psychologist who is experienced in child
psychology and the juvenile justice system and not employed on a
full-time basis by the { - Department of Human Services - }
{ + authority + } or a community mental health { - and
developmental disabilities - } program;
(g) A member with substantial experience in the processes of
juvenile parole and probation;
(h) A lawyer with substantial experience in juvenile law
practice; and
(i) Two members of the general public.
(3) The term of office of each member is four years. The
Governor at any time may remove any member for inefficiency,
neglect of duty or malfeasance in office. Before the expiration
of the term of a member, the Governor shall appoint a successor
whose term begins on July 1 next following. A member is eligible
for reappointment. If there is a vacancy for any cause, the
Enrolled House Bill 2009 (HB 2009-C) Page 64
Governor shall make an appointment to become immediately
effective for the unexpired term.
(4) A member of the board not otherwise employed full-time by
the state shall be paid on a per diem basis an amount equal to
$289.22, adjusted according to the executive pay plan for the
biennium, for each day during which the member is engaged in the
performance of official duties, including necessary travel time.
In addition, subject to ORS 292.220 to 292.250 regulating travel
and other expenses of state officers and employees, the member
shall be reimbursed for actual and necessary travel and other
expenses incurred in the performance of official duties.
(5) Subject to any applicable provision of the State Personnel
Relations Law, the board may hire employees to aid it in
performing its duties.
(6) The board consists of two five-member panels. The adult
panel is responsible for persons placed under the board's
jurisdiction under ORS 161.327 and 419C.544 and consists of those
members appointed under subsection (2)(a) to (d) of this section
and one of the public members. The juvenile panel is responsible
for young persons placed under the board's jurisdiction under ORS
419C.529 and consists of those members appointed under subsection
(2)(e) to (h) of this section and the other public member.
(7)(a) Each panel shall select one of its members as
chairperson to serve for a one-year term with such duties and
powers as the panel determines.
(b) A majority of the voting members of a panel constitutes a
quorum for the transaction of business of the panel.
(8) Each panel shall meet at least twice every month, unless
the chairperson determines that there is not sufficient business
before the panel to warrant a meeting at the scheduled time. The
panel shall also meet at other times and places specified by the
call of the chairperson or of a majority of the members of the
panel.
(9)(a) When a person over whom a panel of the board exercises
its jurisdiction is adversely affected or aggrieved by a final
order of the panel, the person is entitled to judicial review of
the final order. The person is entitled on judicial review to
suitable counsel possessing skills and experience commensurate
with the nature and complexity of the case. If the person is
financially eligible, suitable counsel shall be appointed by the
reviewing court in the manner provided in ORS 138.500 (1). If the
person is financially eligible, the public defense services
executive director shall determine and pay, as provided in ORS
138.500, the cost of briefs, any other expenses of the person
necessary to the review and compensation for counsel appointed
for the person. The costs, expenses and compensation so allowed
shall be paid as provided in ORS 138.500.
(b) The order and the proceedings underlying the order are
subject to review by the Court of Appeals upon petition to that
court filed within 60 days of the order for which review is
sought. The panel shall submit to the court the record of the
proceeding or, if the person agrees, a shortened record. The
record may include a certified true copy of a tape recording of
the proceedings at a hearing in accordance with ORS 161.346. A
copy of the record transmitted shall be delivered to the person
by the panel.
(c) The court may affirm, reverse or remand the order on the
same basis as provided in ORS 183.482 (8).
Enrolled House Bill 2009 (HB 2009-C) Page 65
(d) The filing of the petition does not stay the panel's order,
but the panel or the Court of Appeals may order a stay upon
application on such terms as are deemed proper.
SECTION 110. ORS 161.390 is amended to read:
161.390. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall promulgate rules for the
assignment of persons to state mental hospitals or secure
intensive community inpatient facilities under ORS 161.341,
161.365 and 161.370 and for establishing standards for evaluation
and treatment of persons committed to a state hospital or a
secure intensive community inpatient facility, designated by the
{ - department - } { + authority + }, or ordered to a
community mental health { - and developmental disabilities - }
program under ORS 161.315 to 161.351 { - and 428.210 - } .
(2) Whenever the Psychiatric Security Review Board requires the
preparation of a predischarge or preconditional release plan
before a hearing or as a condition of granting discharge or
conditional release for a person committed under ORS 161.327 or
161.341 to a state hospital or a secure intensive community
inpatient facility for custody, care and treatment, the
{ - Department of Human Services - } { + authority + } is
responsible for and shall prepare the plan.
(3) In carrying out a conditional release plan prepared under
subsection (2) of this section, the { - Department of Human
Services - } { + authority + } may contract with a community
mental health { - and developmental disabilities - } program,
other public agency or private corporation or an individual to
provide supervision and treatment for the conditionally released
person.
SECTION 111. ORS 165.698 is amended to read:
165.698. The prosecuting attorney shall notify the
{ - Department of Human Services - } { + Oregon Health
Authority + } and any appropriate licensing boards of the
conviction of a person under ORS 165.692.
SECTION 112. ORS 166.250 is amended to read:
166.250. (1) Except as otherwise provided in this section or
ORS 166.260, 166.270, 166.274, 166.291, 166.292 or 166.410 to
166.470, a person commits the crime of unlawful possession of a
firearm if the person knowingly:
(a) Carries any firearm concealed upon the person;
(b) Possesses a handgun that is concealed and readily
accessible to the person within any vehicle; or
(c) Possesses a firearm and:
(A) Is under 18 years of age;
(B)(i) While a minor, was found to be within the jurisdiction
of the juvenile court for having committed an act which, if
committed by an adult, would constitute a felony or a misdemeanor
involving violence, as defined in ORS 166.470; and
(ii) Was discharged from the jurisdiction of the juvenile court
within four years prior to being charged under this section;
(C) Has been convicted of a felony or found guilty, except for
insanity under ORS 161.295, of a felony;
(D) Was committed to the { - Department of Human Services - }
{ + Oregon Health Authority + } under ORS 426.130; or
(E) Was found to be mentally ill and subject to an order under
ORS 426.130 that the person be prohibited from purchasing or
possessing a firearm as a result of that mental illness.
(2) This section does not prohibit:
(a) A minor, who is not otherwise prohibited under subsection
(1)(c) of this section, from possessing a firearm:
Enrolled House Bill 2009 (HB 2009-C) Page 66
(A) Other than a handgun, if the firearm was transferred to the
minor by the minor's parent or guardian or by another person with
the consent of the minor's parent or guardian; or
(B) Temporarily for hunting, target practice or any other
lawful purpose; or
(b) Any citizen of the United States over the age of 18 years
who resides in or is temporarily sojourning within this state,
and who is not within the excepted classes prescribed by ORS
166.270 and subsection (1) of this section, from owning,
possessing or keeping within the person's place of residence or
place of business any handgun, and no permit or license to
purchase, own, possess or keep any such firearm at the person's
place of residence or place of business is required of any such
citizen. As used in this subsection, 'residence' includes a
recreational vessel or recreational vehicle while used, for
whatever period of time, as residential quarters.
(3) Firearms carried openly in belt holsters are not concealed
within the meaning of this section.
(4) Unlawful possession of a firearm is a Class A misdemeanor.
SECTION 113. ORS 166.291 is amended to read:
166.291. (1) The sheriff of a county, upon a person's
application for an Oregon concealed handgun license, upon receipt
of the appropriate fees and after compliance with the procedures
set out in this section, shall issue the person a concealed
handgun license if the person:
(a)(A) Is a citizen of the United States; or
(B) Is a legal resident alien who can document continuous
residency in the county for at least six months and has declared
in writing to the United States Citizenship and Immigration
Services the intent to acquire citizenship status and can present
proof of the written declaration to the sheriff at the time of
application for the license;
(b) Is at least 21 years of age;
(c) Is a resident of the county;
(d) Has no outstanding warrants for arrest;
(e) Is not free on any form of pretrial release;
(f) Demonstrates competence with a handgun by any one of the
following:
(A) Completion of any hunter education or hunter safety course
approved by the State Department of Fish and Wildlife or a
similar agency of another state if handgun safety was a component
of the course;
(B) Completion of any National Rifle Association firearms
safety or training course if handgun safety was a component of
the course;
(C) Completion of any firearms safety or training course or
class available to the general public offered by law enforcement,
community college, or private or public institution or
organization or firearms training school utilizing instructors
certified by the National Rifle Association or a law enforcement
agency if handgun safety was a component of the course;
(D) Completion of any law enforcement firearms safety or
training course or class offered for security guards,
investigators, reserve law enforcement officers or any other law
enforcement officers if handgun safety was a component of the
course;
(E) Presents evidence of equivalent experience with a handgun
through participation in organized shooting competition or
military service;
Enrolled House Bill 2009 (HB 2009-C) Page 67
(F) Is licensed or has been licensed to carry a firearm in this
state, unless the license has been revoked; or
(G) Completion of any firearms training or safety course or
class conducted by a firearms instructor certified by a law
enforcement agency or the National Rifle Association if handgun
safety was a component of the course;
(g) Has never been convicted of a felony or found guilty,
except for insanity under ORS 161.295, of a felony;
(h) Has not been convicted of a misdemeanor or found guilty,
except for insanity under ORS 161.295, of a misdemeanor within
the four years prior to the application;
(i) Has not been committed to the { - Department of Human
Services - } { + Oregon Health Authority + } under ORS 426.130;
(j) Has not been found to be mentally ill and is not subject to
an order under ORS 426.130 that the person be prohibited from
purchasing or possessing a firearm as a result of that mental
illness;
(k) Has been discharged from the jurisdiction of the juvenile
court for more than four years if, while a minor, the person was
found to be within the jurisdiction of the juvenile court for
having committed an act that, if committed by an adult, would
constitute a felony or a misdemeanor involving violence, as
defined in ORS 166.470;
(L) Has not been convicted of an offense involving controlled
substances or participated in a court-supervised drug diversion
program, except this disability does not operate to exclude a
person if:
(A) The person has been convicted only once of violating ORS
475.864 (3) and has not completed a court-supervised drug
diversion program under ORS 135.907; or
(B) The person has completed a court-supervised drug diversion
program under ORS 135.907 and has not been convicted of violating
ORS 475.864 (3);
(m) Is not subject to a citation issued under ORS 163.735 or an
order issued under ORS 30.866, 107.700 to 107.735 or 163.738;
(n) Has not received a dishonorable discharge from the Armed
Forces of the United States; and
(o) Is not required to register as a sex offender in any state.
(2) A person who has been granted relief under ORS 166.274 or
166.293 or 18 U.S.C. 925(c) or has had the person's record
expunged under the laws of this state or equivalent laws of other
jurisdictions is not subject to the disabilities in subsection
(1)(g) to (L) of this section.
(3) Before the sheriff may issue a license:
(a) The application must state the applicant's legal name,
current address and telephone number, date and place of birth,
hair and eye color and height and weight. The application must
also list the applicant's residence address or addresses for the
previous three years. The application must contain a statement by
the applicant that the applicant meets the requirements of
subsection (1) of this section. The application may include the
Social Security number of the applicant if the applicant
voluntarily provides this number. The application must be signed
by the applicant.
(b) The applicant must submit to fingerprinting and
photographing by the sheriff. The sheriff shall fingerprint and
photograph the applicant and shall conduct any investigation
necessary to corroborate the requirements listed under subsection
(1) of this section. If a nationwide criminal records check is
necessary, the sheriff shall request the Department of State
Enrolled House Bill 2009 (HB 2009-C) Page 68
Police to conduct the check, including fingerprint
identification, through the Federal Bureau of Investigation. The
Federal Bureau of Investigation shall return the fingerprint
cards used to conduct the criminal records check and may not keep
any record of the fingerprints. The Department of State Police
shall report the results of the fingerprint-based criminal
records check to the sheriff. The Department of State Police
shall also furnish the sheriff with any information about the
applicant that the Department of State Police may have in its
possession from its central bureau of criminal identification
including, but not limited to, manual or computerized criminal
offender information.
(4) Application forms for concealed handgun licenses shall be
supplied by the sheriff upon request. The forms shall be uniform
throughout the state in substantially the following form:
_________________________________________________________________
APPLICATION FOR LICENSE TO CARRY CONCEALED HANDGUN
Date_____
I hereby declare as follows:
I am a citizen of the United States or a legal resident alien
who can document continuous residency in the county for at least
six months and have declared in writing to the United States
Citizenship and Immigration Services my intention to become a
citizen and can present proof of the written declaration to the
sheriff at the time of this application. I am at least 21 years
of age. I have been discharged from the jurisdiction of the
juvenile court for more than four years if, while a minor, I was
found to be within the jurisdiction of the juvenile court for
having committed an act that, if committed by an adult, would
constitute a felony or a misdemeanor involving violence, as
defined in ORS 166.470. I have never been convicted of a felony
or found guilty, except for insanity under ORS 161.295, of a
felony in the State of Oregon or elsewhere. I have not, within
the last four years, been convicted of a misdemeanor or found
guilty, except for insanity under ORS 161.295, of a misdemeanor.
Except as provided in ORS 166.291 (1)(L), I have not been
convicted of an offense involving controlled substances or
completed a court-supervised drug diversion program. There are no
outstanding warrants for my arrest and I am not free on any form
of pretrial release. I have not been committed to the
{ - Department of Human Services - } { + Oregon Health
Authority + } under ORS 426.130, nor have I been found mentally
ill and presently subject to an order prohibiting me from
purchasing or possessing a firearm because of mental illness. If
any of the previous conditions do apply to me, I have been
granted relief or wish to petition for relief from the disability
under ORS 166.274 or 166.293 or 18 U.S.C. 925(c) or have had the
records expunged. I am not subject to a citation issued under ORS
163.735 or an order issued under ORS 30.866, 107.700 to 107.735
or 163.738. I have never received a dishonorable discharge from
the Armed Forces of the United States. I am not required to
register as a sex offender in any state. I understand I will be
fingerprinted and photographed.
Legal name ________
Age ____ Date of birth _____
Place of birth ________
Social Security number _______
Enrolled House Bill 2009 (HB 2009-C) Page 69
(Disclosure of your Social Security account number is voluntary.
Solicitation of the number is authorized under ORS 166.291. It
will be used only as a means of identification.)
Proof of identification (Two pieces of current identification are
required, one of which must bear a photograph of the applicant.
The type of identification and the number on the identification
are to be filled in by the sheriff.):
1.________
2.________
Height ___ Weight ___
Hair color ___ Eye color ___
Current address _____
(List residence addresses for the
past three years on the back.)
City ___ County ___ Zip ___
Phone ___
I have read the entire text of this application, and the
statements therein are correct and true. (Making false statements
on this application is a misdemeanor.)
__________
(Signature of Applicant)
Character references.
__________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name Address
__________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name Address
Approved __ Disapproved __ by __
Competence with handgun demonstrated by ___ (to be filled in by
sheriff) Date ___ Fee Paid ___
License No. ___
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
(5)(a) Fees for concealed handgun licenses are:
(A) $15 to the Department of State Police for conducting the
fingerprint check of the applicant.
(B) $50 to the sheriff for the issuance or renewal of a
concealed handgun license.
Enrolled House Bill 2009 (HB 2009-C) Page 70
(C) $15 to the sheriff for the duplication of a license because
of loss or change of address.
(b) The sheriff may enter into an agreement with the Department
of Transportation to produce the concealed handgun license.
(6) No civil or criminal liability shall attach to the sheriff
or any authorized representative engaged in the receipt and
review of, or an investigation connected with, any application
for, or in the issuance, denial or revocation of, any license
under ORS 166.291 to 166.295 as a result of the lawful
performance of duties under those sections.
(7) Immediately upon acceptance of an application for a
concealed handgun license, the sheriff shall enter the
applicant's name into the Law Enforcement Data System indicating
that the person is an applicant for a concealed handgun license
or is a license holder.
(8) The county sheriff may waive the residency requirement in
subsection (1)(c) of this section for a resident of a contiguous
state who has a compelling business interest or other legitimate
demonstrated need.
(9) For purposes of subsection (1)(c) of this section, a person
is a resident of a county if the person:
(a) Has a current Oregon driver license issued to the person
showing a residence address in the county;
(b) Is registered to vote in the county and has a memorandum
card issued to the person under ORS 247.181 showing a residence
address in the county;
(c) Has documentation showing that the person currently leases
or owns real property in the county; or
(d) Has documentation showing that the person filed an Oregon
tax return for the most recent tax year showing a residence
address in the county.
SECTION 114. ORS 166.412 is amended to read:
166.412. (1) As used in this section:
(a) 'Antique firearm' has the meaning given that term in 18
U.S.C. 921;
(b) 'Department' means the Department of State Police;
(c) 'Firearm' has the meaning given that term in ORS 166.210,
except that it does not include an antique firearm;
(d) 'Firearms transaction record' means the firearms
transaction record required by 18 U.S.C. 921 to 929;
(e) 'Firearms transaction thumbprint form' means a form
provided by the department under subsection (12) of this section;
(f) 'Gun dealer' means a person engaged in the business, as
defined in 18 U.S.C. 921, of selling, leasing or otherwise
transferring a firearm, whether the person is a retail dealer,
pawnbroker or otherwise;
(g) 'Handgun' has the meaning given that term in ORS 166.210;
and
(h) 'Purchaser' means a person who buys, leases or otherwise
receives a firearm from a gun dealer.
(2) Except as provided in subsections (3)(c) and (13) of this
section, a gun dealer shall comply with the following before a
handgun is delivered to a purchaser:
(a) The purchaser shall present to the dealer current
identification meeting the requirements of subsection (4) of this
section.
(b) The gun dealer shall complete the firearms transaction
record and obtain the signature of the purchaser on the record.
(c) The gun dealer shall obtain the thumbprints of the
purchaser on the firearms transaction thumbprint form and attach
Enrolled House Bill 2009 (HB 2009-C) Page 71
the form to the gun dealer's copy of the firearms transaction
record to be filed with that copy.
(d) The gun dealer shall request by telephone that the
department conduct a criminal history record check on the
purchaser and shall provide the following information to the
department:
(A) The federal firearms license number of the gun dealer;
(B) The business name of the gun dealer;
(C) The place of transfer;
(D) The name of the person making the transfer;
(E) The make, model, caliber and manufacturer's number of the
handgun being transferred;
(F) The name and date of birth of the purchaser;
(G) The Social Security number of the purchaser if the
purchaser voluntarily provides this number to the gun dealer; and
(H) The type, issuer and identification number of the
identification presented by the purchaser.
(e) The gun dealer shall receive a unique approval number for
the transfer from the department and record the approval number
on the firearms transaction record and on the firearms
transaction thumbprint form.
(f) The gun dealer may destroy the firearms transaction
thumbprint form five years after the completion of the firearms
transaction thumbprint form.
(3)(a) Upon receipt of a request of the gun dealer for a
criminal history record check, the department shall immediately,
during the gun dealer's telephone call or by return call:
(A) Determine, from criminal records and other information
available to it, whether the purchaser is disqualified under ORS
166.470 from completing the purchase; and
(B) Notify the dealer when a purchaser is disqualified from
completing the transfer or provide the dealer with a unique
approval number indicating that the purchaser is qualified to
complete the transfer.
(b) If the department is unable to determine if the purchaser
is qualified or disqualified from completing the transfer within
30 minutes, the department shall notify the dealer and provide
the dealer with an estimate of the time when the department will
provide the requested information.
(c) If the department fails to provide a unique approval number
to a gun dealer or to notify the gun dealer that the purchaser is
disqualified under paragraph (a) of this subsection before the
close of the gun dealer's next business day following the request
by the dealer for a criminal history record check, the dealer may
deliver the handgun to the purchaser.
(4)(a) Identification required of the purchaser under
subsection (2) of this section shall include one piece of current
identification bearing a photograph and the date of birth of the
purchaser that:
(A) Is issued under the authority of the United States
Government, a state, a political subdivision of a state, a
foreign government, a political subdivision of a foreign
government, an international governmental organization or an
international quasi- governmental organization; and
(B) Is intended to be used for identification of an individual
or is commonly accepted for the purpose of identification of an
individual.
(b) If the identification presented by the purchaser under
paragraph (a) of this subsection does not include the current
address of the purchaser, the purchaser shall present a second
Enrolled House Bill 2009 (HB 2009-C) Page 72
piece of current identification that contains the current address
of the purchaser. The Superintendent of State Police may specify
by rule the type of identification that may be presented under
this paragraph.
(c) The department may require that the dealer verify the
identification of the purchaser if that identity is in question
by sending the thumbprints of the purchaser to the department.
(5) The department shall establish a telephone number that
shall be operational seven days a week between the hours of 8
a.m. and 10 p.m. for the purpose of responding to inquiries from
dealers for a criminal history record check under this section.
(6) No public employee, official or agency shall be held
criminally or civilly liable for performing the investigations
required by this section provided the employee, official or
agency acts in good faith and without malice.
(7)(a) The department may retain a record of the information
obtained during a request for a criminal records check for no
more than five years.
(b) The record of the information obtained during a request for
a criminal records check by a gun dealer is exempt from
disclosure under public records law.
(8) The { - Department of Human Services - } { + Oregon
Health Authority + } shall provide the Department of State Police
with direct electronic access to information from the
{ - Department of Human Services' - } { + authority's + }
database of information identifying persons meeting the criteria
in ORS 166.470 (1)(e) and (f) who were committed or subject to an
order under ORS 426.130. The
{ - Department of State Police and the Department of Human
Services - } { + department and the authority + } shall enter
into an agreement describing the access to information under this
subsection.
(9) A law enforcement agency may inspect the records of a gun
dealer relating to transfers of handguns with the consent of a
gun dealer in the course of a reasonable inquiry during a
criminal investigation or under the authority of a properly
authorized subpoena or search warrant.
(10) When a handgun is delivered, it shall be unloaded.
(11) In accordance with applicable provisions of ORS chapter
183, the Superintendent of State Police may adopt rules necessary
for:
(a) The design of the firearms transaction thumbprint form;
(b) The maintenance of a procedure to correct errors in the
criminal records of the department;
(c) The provision of a security system to identify dealers who
request a criminal history record check under subsection (2) of
this section; and
(d) The creation and maintenance of a database of the business
hours of gun dealers.
(12) The department shall publish the firearms transaction
thumbprint form and shall furnish the form to gun dealers on
application at cost.
(13) This section does not apply to transactions between
persons licensed as dealers under 18 U.S.C. 923.
SECTION 115. ORS 166.470 is amended to read:
166.470. (1) Unless relief has been granted under ORS 166.274,
18 U.S.C. 925(c) or the expunction laws of this state or an
equivalent law of another jurisdiction, a person may not
intentionally sell, deliver or otherwise transfer any firearm
Enrolled House Bill 2009 (HB 2009-C) Page 73
when the transferor knows or reasonably should know that the
recipient:
(a) Is under 18 years of age;
(b) Has been convicted of a felony or found guilty, except for
insanity under ORS 161.295, of a felony;
(c) Has any outstanding felony warrants for arrest;
(d) Is free on any form of pretrial release for a felony;
(e) Was committed to the { - Department of Human Services - }
{ + Oregon Health Authority + } under ORS 426.130;
(f) After January 1, 1990, was found to be mentally ill and
subject to an order under ORS 426.130 that the person be
prohibited from purchasing or possessing a firearm as a result of
that mental illness; or
(g) Has been convicted of a misdemeanor involving violence or
found guilty, except for insanity under ORS 161.295, of a
misdemeanor involving violence within the previous four years. As
used in this paragraph, 'misdemeanor involving violence' means a
misdemeanor described in ORS 163.160, 163.187, 163.190, 163.195
or 166.155 (1)(b).
(2) A person may not sell, deliver or otherwise transfer any
firearm that the person knows or reasonably should know is
stolen.
(3) Subsection (1)(a) of this section does not prohibit:
(a) The parent or guardian, or another person with the consent
of the parent or guardian, of a minor from transferring to the
minor a firearm, other than a handgun; or
(b) The temporary transfer of any firearm to a minor for
hunting, target practice or any other lawful purpose.
(4) Violation of this section is a Class A misdemeanor.
SECTION 116. ORS 169.076 is amended to read:
169.076. Each local correctional facility shall:
(1) Provide sufficient staff to perform all audio and visual
functions involving security, control, custody and supervision of
all confined detainees and prisoners, with personal inspection at
least once each hour. The supervision may include the use of
electronic monitoring equipment when approved by the Department
of Corrections and the governing body of the area in which the
facility is located.
(2) Have a comprehensive written policy with respect to:
(a) Legal confinement authority.
(b) Denial of admission.
(c) Telephone calls.
(d) Admission and release medical procedures.
(e) Medication and prescriptions.
(f) Personal property accountability which complies with ORS
133.455.
(g) Vermin and communicable disease control.
(h) Release process to include authority, identification and
return of personal property.
(i) Rules of the facility governing correspondence and
visitations.
(3) Formulate and publish plans to meet emergencies involving
escape, riots, assaults, fires, rebellions and other types of
emergencies; and regulations for the operation of the facility.
(4) Not administer any physical punishment to any prisoner at
any time.
(5) Provide for emergency medical and dental health, having
written policies providing for:
(a) Licensed physician or nurse practitioner review of the
facility's medical and dental plans.
Enrolled House Bill 2009 (HB 2009-C) Page 74
(b) The security of medication and medical supplies.
(c) A medical and dental record system to include request for
medical and dental attention, treatment prescribed,
prescriptions, special diets and other services provided.
(d) First aid supplies and staff first aid training.
(6) Prohibit firearms from the security area of the facility
except in times of emergency as determined by the administrator
of the facility.
(7) Insure that confined detainees and prisoners:
(a) Will be fed daily at least three meals served at regular
times, with no more than 14 hours between meals except when
routinely absent from the facility for work or other purposes.
(b) Will be fed nutritionally adequate meals in accordance with
a plan reviewed by a registered dietitian or the { - Department
of Human Services - } { + Oregon Health Authority + }.
(c) Be provided special diets as prescribed by the designated
facility physician or nurse practitioner.
(d) Shall have food procured, stored, prepared, distributed and
served under sanitary conditions, as defined by { - the
Department of Human Services rules as authorized by ORS
624.041 - } { + the authority under ORS 624.041 + }.
(8) Insure that the facility be clean, and provide each
confined detainee or prisoner:
(a) Materials to maintain personal hygiene.
(b) Clean clothing twice weekly.
(c) Mattresses and blankets that are clean and fire-retardant.
(9) Require each prisoner to shower at least twice weekly.
(10) Forward, without examination or censorship, each
prisoner's outgoing written communications to the Governor, jail
administrator, Attorney General, judge, Department of Corrections
or the attorney of the prisoner.
(11) Keep the facility safe and secure in accordance with the
State of Oregon Structural Specialty Code and Fire and Life
Safety Code.
(12) Have and provide each prisoner with written rules for
inmate conduct and disciplinary procedures. If a prisoner cannot
read or is unable to understand the written rules, the
information shall be conveyed to the prisoner orally.
(13) Not restrict the free exercise of religion unless failure
to impose the restriction will cause a threat to facility or
order.
(14) Safeguard and insure that the prisoner's legal rights to
access to legal materials are protected.
SECTION 117. ORS 169.690 is amended to read:
169.690. (1)(a) Before the Department of Corrections,
{ - Oregon Youth Authority or Department of Human Services - }
{ + Department of Human Services, Oregon Health Authority,
Oregon Youth Authority + } or any city, county or other public
agency establishes a facility described in paragraph (c) of this
subsection, the city, county, department, { - youth - }
authority or agency must designate a citizens advisory committee
in the proposed affected geographic area.
(b) If there is an established citizens group or neighborhood
organization in the affected geographic area which is established
or recognized by the city or county where it is located, it shall
be asked to nominate the committee. If there is none, the local
government body having jurisdiction over the affected area shall
appoint a committee selected from residents of the area.
(c) The facilities to which paragraph (a) of this subsection
applies are:
Enrolled House Bill 2009 (HB 2009-C) Page 75
(A) Halfway houses, work release centers or any other
domiciliary facilities for persons released from any penal or
correctional facility but still in the custody of the city,
county or public agency; and
(B) Youth care centers or other facilities authorized to accept
youth offenders under ORS 419C.478.
(2) The local governmental body having jurisdiction over the
affected geographic area shall appoint to the citizens advisory
committee persons from those nominated under subsection (1) of
this section and shall invite the participation of officers of
local governments having jurisdiction over the area.
(3) For each proposed house, center or other facility, the
agency responsible for establishing the house, center or facility
shall inform fully the citizens advisory committee of each
affected geographic area of the following:
(a) The proposed location, estimated population size and use;
(b) The numbers and qualifications of resident professional
staff;
(c) The proposed rules of conduct and discipline to be imposed
on residents; and
(d) Such other relevant information as the agency responsible
for establishing the house, center or facility considers
appropriate or which the advisory committee requests.
(4) The citizens advisory committee shall advise the agency
responsible for establishing the house, center or facility as to
the suitability of the proposed house, center or other facility
and may suggest changes in the proposal submitted under
subsection (3) of this section. The advice shall be in writing
and must represent the view of the majority of the committee.
(5) If the agency responsible for establishing the house,
center or facility rejects any of the advice of the citizens
advisory committee, it must submit its reasons in writing to the
committee.
(6) No person serving on a committee established under this
section should be entitled to receive any compensation or
reimbursement for service on such committee.
SECTION 118. ORS 179.010 is amended to read:
179.010. As used in this chapter, unless the context requires
otherwise { - , 'institutions' means the institutions designated
in ORS 179.321. - } { + :
(1) 'Institution' means the institutions designated in ORS
179.321.
(2) 'Agency' means:
(a) The Department of Corrections when the institution is a
Department of Corrections institution, as defined in ORS 421.005;
(b) The Department of Human Services when the institution is
the Eastern Oregon Training Center; or
(c) The Oregon Health Authority when the institution is the
Blue Mountain Recovery Center or an Oregon State Hospital
campus. + }
SECTION 119. ORS 179.040 is amended to read:
179.040. (1) { - The Department of Corrections and the
Department of Human Services - } { + The Department of
Corrections, the Department of Human Services and the Oregon
Health Authority + } shall:
(a) Govern, manage and administer the affairs of the public
institutions and works within their respective jurisdictions.
(b) Enter into contracts for the planning, erection, completion
and furnishings of all new buildings or additions at their
respective institutions.
Enrolled House Bill 2009 (HB 2009-C) Page 76
(c) Subject to any applicable provisions of ORS 279A.125,
279A.255, 279A.275, 279A.280, 279A.285, 279A.290, 279B.025,
279B.240, 279B.270, 279B.275, 279B.280 and 283.110 to 283.395,
enter into contracts for the purchase of supplies for their
respective institutions.
(d) Make and adopt rules, not inconsistent with law, for the
guidance of the { - Department of Corrections or the Department
of Human Services - } { + agencies + } and for the government
of their respective institutions.
(2) The { - Department of Corrections and the Department of
Human Services - } { + agencies + }, respectively, may:
(a) Sue and plead in all courts of law and equity.
(b) Perform all legal and peaceful acts requisite and necessary
for the successful management and maintenance of the institutions
within their respective jurisdictions.
SECTION 120. ORS 179.050 is amended to read:
179.050. The { - Department of Corrections and the Department
of Human Services - } { + Department of Corrections, the
Department of Human Services and the Oregon Health Authority + }
may receive, take and hold property, both real and personal, for
any institution within their respective jurisdictions. Title
shall be taken in the name of the state.
SECTION 121. ORS 179.055 is amended to read:
179.055. (1) The revenue from the rental or lease of property
administered by an institution governed or managed by the
{ - Department of Corrections or the Department of Human
Services - } { + Department of Corrections, the Department of
Human Services or the Oregon Health Authority + }, except
dormitory and housing rentals at institutions governed by
{ - either department - } { + the agencies + }, shall be
deposited in the account of the respective { - department - }
{ + agency + } for use by the respective { - department - }
{ + agency + } to pay for the cost of administration, taxes,
repairs and improvements on the property.
(2) The { - Department of Corrections or Department of Human
Services - } { + agencies + } may request the Oregon Department
of Administrative Services to make necessary repairs and
improvements on the property described in subsection (1) of this
section to be paid for by the { - Department of Corrections or
Department of Human Services - } { + agencies + } from the
proceeds derived from such rental or lease of the property or
from appropriations otherwise available.
SECTION 122. ORS 179.065 is amended to read:
179.065. The { - Department of Corrections and the Department
of Human Services - } { + Department of Corrections, the
Department of Human Services and the Oregon Health Authority + }
shall have the same powers with respect to furnishing heat,
light, power, sewage, fire protection and communications
facilities to institutions under their respective jurisdictions
as is granted to the Oregon Department of Administrative Services
under ORS 276.210 to 276.228, 276.234 to 276.244, 276.250 and
276.252. The powers shall be exercised in accordance with and
subject to the provisions of such sections.
SECTION 123. ORS 179.105 is amended to read:
179.105. (1) For a purpose of ORS 179.040, including aid and
support of research in any of the institutions, the
{ - Department of Corrections and the Department of Human
Services - } { + Department of Corrections, the Department of
Human Services and the Oregon Health Authority + } may in their
respective discretions accept from the United States or any of
Enrolled House Bill 2009 (HB 2009-C) Page 77
its agencies financial assistance and grants in the form of money
or labor, or from any other source any donation or grant of land
or gift of money or any other thing. Funds accepted in
accordance with the provisions of this section and ORS 179.110
shall be deposited with the State Treasurer and, subject to
subsection (2) of this section, are continuously appropriated to
the Department of Corrections { + , the + } { - or - }
Department of Human Services { + or the Oregon Health
Authority + }, as appropriate, and may be expended by the
Department { + of Corrections, the Department of Human Services
or the Oregon Health Authority + } according to the conditions
and terms of the grant or donation.
(2) Funds received under subsection (1) of this section or ORS
179.110 shall be expended subject to expenditure limitations
imposed on the Department of Corrections { + , the + }
{ - or - } Department of Human Services { + or the Oregon
Health Authority + } by the Legislative Assembly or, in the
absence of such limitations, only after approval of the
Legislative Assembly or of the Emergency Board, if approval is
required during the interim between sessions of the Legislative
Assembly.
(3) In any case where prior approval of the authority to expend
any funds available under subsection (1) of this section or ORS
179.110 is imposed as a term or condition of receipt of such
funds, the Legislative Assembly or the Emergency Board may
approve expenditures of such funds prior to their receipt.
SECTION 124. ORS 179.110 is amended to read:
179.110. Subject to the approval of the Director of the Oregon
Department of Administrative Services, the { - Department of
Corrections and the Department of Human Services - }
{ + Department of Corrections, the Department of Human Services
and the Oregon Health Authority + }, respectively, may accept and
receive grants of funds from the United States or any of its
agencies for the construction, equipment and betterment of any of
the institutions under its jurisdiction and may cooperate with
the United States or its agencies in such construction, equipment
and betterment. Any balances of appropriations for capital outlay
for any institution resulting from the use of funds so received
shall be placed in a common fund. The Department of
Corrections { + , + } { - and - } the Department of Human
Services { + and the Oregon Health Authority + } are authorized
and empowered in their discretion to expend such common fund or
any portion thereof in the construction, equipment or betterment
of any institution under its jurisdiction.
SECTION 125. ORS 179.140 is amended to read:
179.140. Subject to any applicable provision of ORS 279A.125,
279A.255, 279A.275, 279A.280, 279A.285, 279A.290, 279B.025,
279B.240, 279B.270, 279B.275, 279B.280, 283.110 to 283.395 and
291.232 to 291.260, all claims for supplies or materials
furnished or services rendered to institutions shall be audited
and approved as provided by law, upon the presentation of duly
verified vouchers therefor, approved in writing by the Director
of the Department of Corrections { + , + } { - or by - } the
Director of Human Services { + or the Director of the Oregon
Health Authority + }, or by their designees.
SECTION 126. ORS 179.150 is amended to read:
179.150. No officer of the Department of Corrections { + , + }
{ - or - } the Department of Human Services { + or the Oregon
Health Authority + } or officer, employee or other person
connected with an institution shall be pecuniarily interested in
Enrolled House Bill 2009 (HB 2009-C) Page 78
any contract for supplies or services furnished or rendered to an
institution, other than the services of regular employment.
SECTION 127. ORS 179.210 is amended to read:
179.210. (1) The Department of Human Services, the Department
of Corrections { + , the Oregon Health Authority + } and the
Superintendent of Public Instruction may audit, allow and pay a
claim for damage to property made by an employee of one of those
agencies if:
(a) The damage to property arises out of the claimant's
employment at one of the institutions or facilities operated by
the { - Department of Human Services or the Department of
Corrections - } { + agencies + }, or one of the schools
operated by the Superintendent of Public Instruction under ORS
346.010; and
(b) The employee files a written claim with the employee's
employer within 180 days after the employee discovers or should
have discovered the damage.
(2) No claim under subsection (1) of this section shall be
paid:
(a) That exceeds, in the aggregate with payments of other
claims, the moneys appropriated for such purpose.
(b) To the extent that the person incurring damage has been or
may be compensated by liability insurance or otherwise.
(c) If the { - Department of Human Services, the Department
of Corrections - } { + agencies + } or the Superintendent of
Public Instruction determines the cause or occasion of the
accident resulting in damage is chargeable to the conduct or
negligence of the party damaged.
SECTION 128. ORS 179.230 is amended to read:
179.230. The decision of the Department of Human Services, the
Department of Corrections { + , the Oregon Health Authority + }
or the Superintendent of Public Instruction to reject any claim
filed under ORS 179.210 is final, and is not subject to review
under ORS chapter 183, or by any other agency or court. The
provisions of this section do not affect any other remedy that
may be available to the claimant under law.
SECTION 129. ORS 179.240 is amended to read:
179.240. (1) If any person owes a debt to this state or a state
agency, and the debt has been fixed by final judgment of a court
of competent jurisdiction or is no longer subject to judicial
review, the { - Department of Corrections or the Department of
Human Services - } { + Department of Corrections, the
Department of Human Services or the Oregon Health Authority + }
shall deduct the amount of the debt from any award made to that
person under ORS 179.210.
(2) The { - Department of Corrections or the Department of
Human Services - } { + agencies + } shall request the State
Treasurer to transfer to the appropriate fund or account to which
the debt is owed, an amount equal to the amount deducted from the
award under subsection (1) of this section, for use during that
biennium in accordance with law by the state agency administering
the fund or account to which the debt is owed. The State
Treasurer shall evidence the transfer by proper bookkeeping
entries. If the
{ - Department of Corrections, Department of Human Services - }
{ + Department of Corrections, the Department of Human Services,
the Oregon Health Authority + } or { + the + } State Treasurer
cannot determine the appropriate fund or account, the amount
shall be transferred to the General Fund for general governmental
purposes.
Enrolled House Bill 2009 (HB 2009-C) Page 79
(3) Any debt owed by a person to this state or a state agency
is satisfied, upon the completion of a transfer made pursuant to
subsection (2) of this section, to the extent of the amount so
transferred.
SECTION 130. ORS 179.321 is amended to read:
179.321. (1) The Department of Human Services shall operate,
control, manage and supervise { - the Blue Mountain Recovery
Center, the Eastern Oregon Training Center and the Oregon State
Hospital - } { + the Eastern Oregon Training Center + }.
{ + (2) The Oregon Health Authority shall operate, control,
manage and supervise the Blue Mountain Recovery Center and the
Oregon State Hospital campuses. + }
{ - (2) - } { + (3) + } The Department of Corrections shall
operate, control, manage and supervise those institutions defined
as Department of Corrections institutions in ORS 421.005.
SECTION 131. ORS 179.325 is amended to read:
179.325. { + (1) + } The Department of Human Services may
order the change, in all or part, of the purpose and use of any
state institution being used as an institution for the care and
treatment of persons with { - mental illness or - } mental
retardation in order to care for persons committed to its custody
whenever the department determines that a change in purpose and
use will better enable { - the - } { + this + } state to meet
its responsibilities to persons with { - mental illness or - }
mental retardation. In determining whether to order the change,
the department shall consider changes in the number and source of
the admissions of persons with { - mental illness or - }
mental retardation.
{ + (2) The Oregon Health Authority may order the change, in
all or part, of the purpose and use of any state institution
being used as an institution for the care and treatment of
persons with mental illness in order to care for persons
committed to its custody whenever the authority determines that a
change in purpose and use will better enable this state to meet
its responsibilities to persons with mental illness. In
determining whether to order the change, the authority shall
consider changes in the number and source of the admissions of
persons with mental illness. + }
SECTION 132. ORS 179.331 is amended to read:
179.331. (1) The superintendents shall be appointed and,
whenever the public service requires such action, may be removed,
suspended or discharged, as follows:
(a) { - Superintendents of institutions described in ORS
179.321 (1) - } { + The superintendent of the Eastern Oregon
Training Center + }, by the Director of Human Services.
{ + (b) The superintendents of the Blue Mountain Recovery
Center and the Oregon State Hospital, by the Director of the
Oregon Health Authority. + }
{ - (b) - } { + (c) The + } superintendents of Department
of Corrections institutions as defined in ORS 421.005, by the
Director of the Department of Corrections.
(2) For purposes of the State Personnel Relations Law, the
superintendents are assigned to the unclassified service.
SECTION 133. ORS 179.360 is amended to read:
179.360. (1) Each superintendent shall:
(a) Have custody of the residents of the institution under
jurisdiction of the superintendent.
(b) Direct the care, custody and training of the residents
unless otherwise directed by law or by rule.
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(c) Adopt sanitary measures for the health and comfort of the
residents.
(d) Promote the mental, moral and physical welfare and
development of the residents.
(e) Enjoy the other powers and privileges and perform the other
duties that are prescribed by law or by rule or that naturally
attach themselves to the position of superintendent.
(f) Designate a physician licensed by the Oregon Medical Board
to serve as chief medical officer as provided in ORS 426.020 and
427.010, who will be directly responsible to the superintendent
for administration of the medical treatment programs at the
institution and assume such other responsibilities as are
assigned by the superintendent.
(2) { - The Director of the Department of Corrections or the
Director of Human Services - } { + The Director of the
Department of Corrections, the Director of Human Services and the
Director of the Oregon Health Authority + } shall prescribe for
their respective institutions:
(a) The duties of the superintendents where the duties are not
prescribed by law.
(b) The additional duties, beyond those prescribed by law, that
{ - the Director of the Department of Corrections or the
Director of Human Services - } { + each agency director + }
considers necessary for the good of the public service.
SECTION 134. ORS 179.370 is amended to read:
179.370. { - The Director of the Department of Corrections or
the Director of Human Services - } { + The Director of the
Department of Corrections, the Director of Human Services or the
Director of the Oregon Health Authority + } may require that a
superintendent reside in state-provided housing at the
institution under the jurisdiction of the superintendent. The
rental shall be determined pursuant to ORS 182.425.
SECTION 135. ORS 179.375 is amended to read:
179.375. (1) The { - Department of Corrections and the
Department of Human Services - } { + Department of Corrections,
the Department of Human Services and the Oregon Health
Authority + } shall
{ - insure - } { + ensure + } that adequate chaplaincy
services, including but not limited to Protestant and Roman
Catholic, are available at their respective institutions.
(2) Chaplains serving the various institutions shall, with
respect to the inmates or patients at such institutions:
(a) Provide for and attend to their spiritual needs.
(b) Visit them for the purpose of giving religious and moral
instruction.
(c) Participate in the rehabilitation programs affecting them.
SECTION 136. ORS 179.380 is amended to read:
179.380. (1) The { - Department of Corrections and the
Department of Human Services - } { + Department of Corrections,
the Department of Human Services and the Oregon Health
Authority + } shall authorize the employment of all necessary
physicians, attendants, nurses, engineers, messengers, clerks,
guards, cooks, waiters and other officers and employees not
specifically authorized by law and necessary to the successful
maintenance of their respective institutions. The amounts
expended for the services of such officers and employees shall
not exceed the amounts provided therefor in the biennial
appropriations for the institution.
(2) The { - Department of Corrections and the Department of
Human Services - } { + agencies + } shall designate in their
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respective rules which employees shall be officers, and shall
require all officers to take and subscribe to an oath of office
and, if the circumstances require it, to furnish bonds.
SECTION 137. ORS 179.385 is amended to read:
179.385. The { - Department of Corrections and the Department
of Human Services - } { + Department of Corrections, the
Department of Human Services and the Oregon Health Authority + },
respectively, may establish scholarship programs to provide
assistance in securing qualified personnel at state institutions
governed by them. Scholarships authorized by this section shall
be granted in accordance with rules and regulations adopted
respectively by the
{ - departments - } { + agencies + }.
SECTION 138. ORS 179.390 is amended to read:
179.390. (1) The superintendent of an institution { - other
than an institution within the jurisdiction of the Department of
Human Services shall, subject to the approval of the Director of
Human Services or the - } { + within the jurisdiction of the
Department of Corrections shall, subject to the approval of
the + } Director of the Department of Corrections, appoint in the
manner provided by law all assistants, officers and other
employees at the institution under the jurisdiction of the
superintendent. The superintendent may suspend or remove an
assistant, officer or other employee in the manner provided by
law, reporting all acts of suspension or removal to the
{ - Director of Human Services or - } Director of the
Department of Corrections for approval or disapproval. { - The
Director of Human Services or Director of the Department of
Corrections shall fix the salaries of assistants, officers and
employees where their salary is not fixed by law. The Director of
Human Services or Director of the Department of Corrections
shall, subject to any applicable provisions of the State
Personnel Relations Law, suspend or discharge any subordinate of
a superintendent when public service requires such action. - }
{ + (2) The Director of the Department of Corrections, the
Director of Human Services and the Director of the Oregon Health
Authority shall:
(a) Fix the salaries of assistants, officers and employees
where their salary is not fixed by law.
(b) Suspend or discharge any subordinate of a superintendent
when public service requires such action, except when suspending
or discharging the subordinate violates the State Personnel
Relations Law. + }
{ - (2) - } { + (3) + } The Director of Human Services or a
designee at
{ - each - } { + a + } facility under jurisdiction of the
Department of Human Services shall, as provided by law, appoint,
suspend or discharge an employee of the department. The Director
of Human Services may designate up to three employees at each
facility to act in the name of the director in accordance with
ORS 240.400.
{ + (4) The Director of the Oregon Health Authority or a
designee at a facility under jurisdiction of the Oregon Health
Authority shall, as provided by law, appoint, suspend or
discharge an employee of the authority. The director may
designate up to three employees at each facility to act in the
name of the director in accordance with ORS 240.400. + }
{ - (3) - } { + (5) + } In addition to or in lieu of
employing physicians, the Director of the Department of
Corrections or the designee thereof may contract for the personal
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services of physicians licensed to practice medicine by the
Oregon Medical Board to serve as medical advisors for the
{ - Department of Human Services - } { + Oregon Health
Authority + }. Advisors under such contracts shall be directly
responsible for administration of medical treatment programs at
penal and correctional institutions, as defined in ORS 421.005.
SECTION 139. ORS 179.450 is amended to read:
179.450. The { - Department of Corrections may direct the
employment of able-bodied persons at the Department of
Corrections institutions and the Department of Human Services may
direct the employment of able-bodied persons at institutions for
persons with mental illness or mental retardation - }
{ + Department of Corrections, the Department of Human Services
and the Oregon Health Authority may direct the employment of
able-bodied persons at the agencies' respective institutions + },
in the performance of useful work upon land owned by the state if
it does not compete with free labor. Work may not be performed
upon any such land except by consent and approval of the agency
of the state having management of the land.
SECTION 140. ORS 179.460 is amended to read:
179.460. (1) In order to encourage industry and thereby
increase productiveness in the institutions, the { - Department
of Corrections and the Department of Human Services - }
{ + Department of Corrections, the Department of Human Services
and the Oregon Health Authority + } shall prescribe rules and
regulations for the sale and exchange of surplus products of
each.
(2) The funds derived from the sale of the surplus products
shall be paid into the State Treasury and become a part of a fund
to be known as the State Institutional Betterment Fund, which
fund shall be expended by the { - Department of Corrections and
the Department of Human Services - } { + agencies + },
respectively, for the benefit of the institutions in proportion
to the amount earned by each.
(3) The provisions of this section apply to schools operated
under ORS 346.010.
SECTION 141. 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 require 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 persons with mental retardation, 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 - } { + Oregon Health
Authority + }.
(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 - } { + Oregon Health Authority + } for evaluation and
treatment pursuant to rules adopted jointly by the Oregon Youth
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Authority and the { - Department of Human Services - }
{ + Oregon Health Authority + }.
(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 { + the Oregon Youth + }
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.
(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 - } { + Oregon Health
Authority + } 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 - } { + Oregon
Health Authority + } determines that administrative commitment
for treatment for a mental illness is necessary or advisable or
that the
{ - Department of Human Services - } { + authority + } 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 - } { + Oregon Health
Authority + } 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
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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 142. ORS 179.479 is amended to read:
179.479. (1) The superintendent or other chief executive
officer of an institution described in ORS 179.321 may, when
authorized by regulation or direction of the { - Department of
Corrections or Department of Human Services - } { + Department
of Corrections, the Department of Human Services or the Oregon
Health Authority + }, convey an inmate to a physician, clinic or
hospital, including the Oregon Health and Science University, for
medical, surgical or dental treatment when such treatment cannot
satisfactorily be provided at the institution. An inmate conveyed
for treatment pursuant to this section shall be kept in the
custody of the institution from which the inmate is conveyed.
(2) The Department of Corrections { + , + } { - and - } the
Department of Human Services { - each - } { + and the Oregon
Health Authority + } shall prescribe rules and regulations
governing conveyances authorized by this section.
SECTION 143. ORS 179.490 is amended to read:
179.490. In the case of a necessary or emergency operation,
requiring the services of a specialist, and where the relatives
or guardians, in the judgment of the { - Department of
Corrections or Department of Human Services - } { + Department
of Corrections, the Department of Human Services or the Oregon
Health Authority + }, are unable to pay a part or the whole cost
of the operation, { - either department, in its discretion, - }
{ + the agencies + } may have the operation performed, the cost
of the operation to be payable from the funds of the institution
concerned.
SECTION 144. ORS 179.492 is amended to read:
179.492. (1) The { - Department of Human Services or the
Department of Corrections - } { + Department of Corrections,
the Department of Human Services or the Oregon Health
Authority + } shall dispense as written a prescription for a
brand-name mental health drug prescribed for a person while the
person is in the custody of an institution described in ORS
179.321 if the prescription specifies 'dispense as written' or
contains the notation ' D.A.W.' or other words of similar
meaning.
(2) If, at the time of commitment to the custody of an
institution described in ORS 179.321, a person has a prescription
for a specified brand-name mental health drug and the
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prescription specifies 'dispense as written' or contains the
notation ' D.A.W.' or other words of similar meaning, the
{ - Department of Human Services or the - } Department of
Corrections { + , the Department of Human Services or the Oregon
Health Authority + } shall ensure that the person is prescribed
the specified brand-name drug until a licensed health
professional with prescriptive privileges evaluates the person
and becomes responsible for the treatment of the person.
SECTION 145. ORS 179.505 is amended to read:
179.505. (1) As used in this section:
(a) 'Disclosure' means the release of, transfer of, provision
of access to or divulgence in any other manner of information
outside the health care services provider holding the
information.
(b) 'Health care services provider' means:
(A) Medical personnel or other staff employed by or under
contract with a public provider to provide health care or
maintain written accounts of health care provided to individuals;
or
(B) Units, programs or services designated, operated or
maintained by a public provider to provide health care or
maintain written accounts of health care provided to individuals.
(c) 'Individually identifiable health information' means any
health information that is:
(A) Created or received by a health care services provider; and
(B) Identifiable to an individual, including demographic
information that identifies the individual, or for which there is
a reasonable basis to believe the information can be used to
identify an individual, and that relates to:
(i) The past, present or future physical or mental health or
condition of an individual;
(ii) The provision of health care to an individual; or
(iii) The past, present or future payment for the provision of
health care to an individual.
(d) 'Personal representative' includes but is not limited to:
(A) A person appointed as a guardian under ORS 125.305,
419B.370, 419C.481 or 419C.555 with authority to make medical and
health care decisions;
(B) A person appointed as a health care representative under
ORS 127.505 to 127.660 or a representative under ORS 127.700 to
127.737 to make health care decisions or mental health treatment
decisions; and
(C) A person appointed as a personal representative under ORS
chapter 113.
(e) 'Psychotherapy notes' means notes recorded in any medium:
(A) By a mental health professional, in the performance of the
official duties of the mental health professional;
(B) Documenting or analyzing the contents of conversation
during a counseling session; and
(C) That are maintained separately from the rest of the
individual's record.
(f) 'Psychotherapy notes' does not mean notes documenting:
(A) Medication prescription and monitoring;
(B) Counseling session start and stop times;
(C) Modalities and frequencies of treatment furnished;
(D) Results of clinical tests; or
(E) Any summary of the following items:
(i) Diagnosis;
(ii) Functional status;
(iii) Treatment plan;
Enrolled House Bill 2009 (HB 2009-C) Page 86
(iv) Symptoms;
(v) Prognosis; or
(vi) Progress to date.
(g) 'Public provider' means:
(A) The { - state institutions for the care and treatment of
individuals with mental illness or developmental disabilities
operated by the Department of Human Services - } { + Blue
Mountain Recovery Center, the Eastern Oregon Training Center and
the Oregon State Hospital campuses + };
(B) Department of Corrections institutions as defined in ORS
421.005;
(C) A contractor of the { - Department of Human Services or
the Department of Corrections - } { + Department of
Corrections, the Department of Human Services or the Oregon
Health Authority + } that provides health care to individuals
residing in a state institution operated by the { - Department
of Human Services or the Department of Corrections - }
{ + agencies + };
(D) A community mental health { - and - } { + program or
community + } developmental disabilities program as described in
ORS 430.610 to 430.695 and the public and private entities with
which it contracts to provide mental health or developmental
disabilities programs or services;
(E) A program or service provided under ORS 431.250, 431.375 to
431.385 or 431.416;
(F) A program or service { - licensed, approved, established,
maintained or operated by or contracted with the Department of
Human Services under ORS 430.630 for individuals with
developmental disabilities and individuals with mental or
emotional disturbances - } { + established or maintained under
ORS 430.630 + };
(G) A program or facility providing an organized full-day or
part-day program of treatment that is licensed, approved,
established, maintained or operated by or contracted with the
{ - Department of Human Services - } { + Oregon Health
Authority + } for alcoholism, drug addiction or mental or
emotional disturbance; or
(H) A program or service providing treatment by appointment
that is licensed, approved, established, maintained or operated
by or contracted with the { - Department of Human Services - }
{ + authority + } for alcoholism, drug addiction or mental or
emotional disturbance.
(h) 'Written account' means records containing only
individually identifiable health information.
(2) Except as provided in subsections (3), (4), (6), (7), (8),
(9), (11), (12), (14), (15), (16) and (17) of this section or
unless otherwise permitted or required by state or federal law or
by order of the court, written accounts of the individuals served
by any health care services provider maintained in or by the
health care services provider by the officers or employees
thereof who are authorized to maintain written accounts within
the official scope of their duties are not subject to access and
may not be disclosed. This subsection applies to written accounts
maintained in or by facilities of the Department of Corrections
only to the extent that the written accounts concern the medical,
dental or psychiatric treatment as patients of those under the
jurisdiction of the Department of Corrections.
(3) If the individual or a personal representative of the
individual provides an authorization, the content of any written
account referred to in subsection (2) of this section must be
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disclosed accordingly, if the authorization is in writing and is
signed and dated by the individual or the personal representative
of the individual and sets forth with specificity the following:
(a) Name of the health care services provider authorized to
make the disclosure, except when the authorization is provided by
recipients of or applicants for public assistance to a
governmental entity for purposes of determining eligibility for
benefits or investigating for fraud;
(b) Name or title of the persons or organizations to which the
information is to be disclosed or that information may be
disclosed to the public;
(c) Name of the individual;
(d) Extent or nature of the information to be disclosed; and
(e) Statement that the authorization is subject to revocation
at any time except to the extent that action has been taken in
reliance thereon, and a specification of the date, event or
condition upon which it expires without express revocation.
However, a revocation of an authorization is not valid with
respect to inspection or records necessary to validate
expenditures by or on behalf of governmental entities.
(4) The content of any written account referred to in
subsection (2) of this section may be disclosed without an
authorization:
(a) To any person to the extent necessary to meet a medical
emergency.
(b) At the discretion of the responsible officer of the health
care services provider, which in the case of any
{ - Department of Human Services facility or community mental
health and developmental disabilities program shall be the
Director of Human Services - } { + Oregon Health Authority
facility or community mental health program is the Director of
the Oregon Health Authority + }, to persons engaged in scientific
research, program evaluation, peer review and fiscal audits.
However, individual identities may not be disclosed to such
persons, except when the disclosure is essential to the research,
evaluation, review or audit and is consistent with state and
federal law.
(c) To governmental agencies when necessary to secure
compensation for services rendered in the treatment of the
individual.
(5) When an individual's identity is disclosed under subsection
(4) of this section, a health care services provider shall
prepare, and include in the permanent records of the health care
services provider, a written statement indicating the reasons for
the disclosure, the written accounts disclosed and the recipients
of the disclosure.
(6) The content of any written account referred to in
subsection (2) of this section and held by a health care services
provider currently engaged in the treatment of an individual may
be disclosed to officers or employees of that provider, its
agents or cooperating health care services providers who are
currently acting within the official scope of their duties to
evaluate treatment programs, to diagnose or treat or to assist in
diagnosing or treating an individual when the written account is
to be used in the course of diagnosing or treating the
individual. Nothing in this subsection prevents the transfer of
written accounts referred to in subsection (2) of this section
among health care services providers, the Department of Human
Services, the Department of Corrections { + , the Oregon Health
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Authority + } or a local correctional facility when the transfer
is necessary or beneficial to the treatment of an individual.
(7) When an action, suit, claim, arbitration or proceeding is
brought under ORS 34.105 to 34.240 or 34.310 to 34.730 and
involves a claim of constitutionally inadequate medical care,
diagnosis or treatment, or is brought under ORS 30.260 to 30.300
and involves the Department of Corrections or an institution
operated by the department, nothing in this section prohibits the
disclosure of any written account referred to in subsection (2)
of this section to the Department of Justice, Oregon Department
of Administrative Services, or their agents, upon request, or the
subsequent disclosure to a court, administrative hearings
officer, arbitrator or other administrative decision maker.
(8)(a) When an action, suit, claim, arbitration or proceeding
involves { - the Department of Human Services or an institution
operated by the department - } { + the Department of Human
Services, the Oregon Health Authority or an institution operated
by the department or authority + }, nothing in this section
prohibits the disclosure of any written account referred to in
subsection (2) of this section to the Department of Justice,
Oregon Department of Administrative Services, or their agents.
(b) Disclosure of information in an action, suit, claim,
nonlabor arbitration or proceeding is limited by the relevancy
restrictions of ORS 40.010 to 40.585, 183.710 to 183.725, 183.745
and 183.750 and ORS chapter 183. Only written accounts of a
plaintiff, claimant or petitioner shall be disclosed under this
paragraph.
(c) Disclosure of information as part of a labor arbitration or
proceeding to support a personnel action taken against staff is
limited to written accounts directly relating to alleged action
or inaction by staff for which the personnel action was imposed.
(9)(a) The copy of any written account referred to in
subsection (2) of this section, upon written request of the
individual or a personal representative of the individual, shall
be disclosed to the individual or the personal representative of
the individual within a reasonable time not to exceed five
working days. The individual or the personal representative of
the individual shall have the right to timely access to any
written accounts.
(b) If the disclosure of psychiatric or psychological
information contained in the written account would constitute an
immediate and grave detriment to the treatment of the individual,
disclosure may be denied, if medically contraindicated by the
treating physician or a licensed health care professional in the
written account of the individual.
(c) The Department of Corrections may withhold psychiatric or
psychological information if:
(A) The information relates to an individual other than the
individual seeking it.
(B) Disclosure of the information would constitute a danger to
another individual.
(C) Disclosure of the information would compromise the privacy
of a confidential source.
(d) However, a written statement of the denial under paragraph
(c) of this subsection and the reasons therefor must be entered
in the written account.
(10) A health care services provider may require a person
requesting disclosure of the contents of a written account under
this section to reimburse the provider for the reasonable costs
incurred in searching files, abstracting if requested and copying
Enrolled House Bill 2009 (HB 2009-C) Page 89
if requested. However, an individual or a personal representative
of the individual may not be denied access to written accounts
concerning the individual because of inability to pay.
(11) A written account referred to in subsection (2) of this
section may not be used to initiate or substantiate any criminal,
civil, administrative, legislative or other proceedings conducted
by federal, state or local authorities against the individual or
to conduct any investigations of the individual. If the
individual, as a party to an action, suit or other judicial
proceeding, voluntarily produces evidence regarding an issue to
which a written account referred to in subsection (2) of this
section would be relevant, the contents of that written account
may be disclosed for use in the proceeding.
(12) Information obtained in the course of diagnosis,
evaluation or treatment of an individual that, in the
professional judgment of the health care services provider,
indicates a clear and immediate danger to others or to society
may be reported to the appropriate authority. A decision not to
disclose information under this subsection does not subject the
provider to any civil liability. Nothing in this subsection may
be construed to alter the provisions of ORS 146.750, 146.760,
419B.010, 419B.015, 419B.020, 419B.025, 419B.030, 419B.035,
419B.040 and 419B.045.
(13) The prohibitions of this section apply to written accounts
concerning any individual who has been treated by any health care
services provider irrespective of whether or when the individual
ceases to receive treatment.
(14) Persons other than the individual or the personal
representative of the individual who are granted access under
this section to the contents of a written account referred to in
subsection (2) of this section may not disclose the contents of
the written account to any other person except in accordance with
the provisions of this section.
(15) Nothing in this section prevents the Department of Human
Services { + or the Oregon Health Authority + } from disclosing
the contents of written accounts in its possession to individuals
or agencies with whom children in its custody are placed.
(16) The system described in ORS 192.517 (1) shall have access
to records, as defined in ORS 192.515, as provided in ORS
192.517.
(17)(a) Except as provided in paragraph (b) of this subsection,
a health care services provider must obtain an authorization from
an individual or a personal representative of the individual to
disclose psychotherapy notes.
(b) A health care services provider may use or disclose
psychotherapy notes without obtaining an authorization from the
individual or a personal representative of the individual to
carry out the following treatment, payment and health care
operations:
(A) Use by the originator of the psychotherapy notes for
treatment;
(B) Disclosure by the health care services provider for its own
training program in which students, trainees or practitioners in
mental health learn under supervision to practice or improve
their skills in group, joint, family or individual counseling; or
(C) Disclosure by the health care services provider to defend
itself in a legal action or other proceeding brought by the
individual or a personal representative of the individual.
(c) An authorization for the disclosure of psychotherapy notes
may not be combined with an authorization for a disclosure of any
Enrolled House Bill 2009 (HB 2009-C) Page 90
other individually identifiable health information, but may be
combined with another authorization for a disclosure of
psychotherapy notes.
SECTION 146. ORS 179.509 is amended to read:
179.509. (1) The superintendent of each state institution shall
submit quarterly reports on the number of deaths, including the
ages of the deceased, the causes of death and the disposition of
the remains, within the institution to the { - Department of
Human Services or to the Department of Corrections - }
{ + Department of Corrections, the Department of Human Services
or the Oregon Health Authority + }, as the case may be, having
jurisdiction over the institution.
(2) The { - Department of Human Services or the Department of
Corrections - } { + agencies + } shall compile the reports
described in subsection (1) of this section and submit them
quarterly to the offices of the President of the Senate and of
the Speaker of the House of Representatives.
SECTION 147. 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 Department of Human
Services for a person in a state institution described in ORS
179.321 (1) or the Department of Corrections for a person in a
Department of Corrections institution as defined in ORS
421.005. - }
{ - (2) - } { + (1) + } '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.
{ - (3) - } { + (2) + } 'Care' means all services rendered
by the state institutions as described in ORS 179.321 or by the
{ - Department of Human Services or the Department of
Corrections - } { + Department of Corrections, Department of
Human Services or Oregon Health Authority + } 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.
{ - (4) - } { + (3) + } 'Decedent's estate' has the meaning
given ' estate' in ORS 111.005 (15).
{ - (5) - } { + (4) + } '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) - } { + (5) + } '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 148. 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.
Enrolled House Bill 2009 (HB 2009-C) Page 91
(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) - } { + (5) + }, 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 Department of Human Services nor the Department
of Corrections may - } { + the Department of Corrections, the
Department of Human Services and the Oregon Health Authority 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, death or, if the
collection is being made by the Department of Corrections, the
false imprisonment of the person that occurred when the person
was in a state institution listed in ORS 179.321 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 149. ORS 179.640 is amended to read:
179.640. (1)(a) { - Both the Department of Human Services and
the Department of Corrections - } { + The Department of
Corrections, the Department of Human Services and the Oregon
Health Authority + } 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. Each agency may also consider
the probable length of stay at the state institution. Nothing in
this section requires the Department of Corrections to
investigate a person's ability to pay or to issue an
ability-to-pay order.
(b) When adopting rules under paragraph (a) of this subsection,
the Department of Corrections shall consider the person's needs
for funds to pay for the support of the person's children and to
pay any monetary obligations imposed on the person as a result of
the person's conviction.
(2) In determining a person's ability to pay, { - neither
agency - } { + none of the agencies + } may 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, death or, if the
collection is being made by the Department of Corrections, the
false imprisonment of the person that occurred when the person
was in a state institution listed in ORS 179.321 and for which
Enrolled House Bill 2009 (HB 2009-C) Page 92
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
agency that is necessary to determine the person's ability to
pay. To determine ability to pay, the agency may use any
information available to the 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 agency. When the person or the
person's authorized representative fails to provide evidence to
demonstrate an inability to pay full cost of care, the agency may
determine the person has the ability to pay the full cost of
care.
(4) The agency shall provide actual notice to the person and
any authorized representative, if known to the 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 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 agency receives new financial information that
shows a change in the person's financial circumstances, the
agency shall consider the changed circumstances and issue a new
ability-to-pay order.
(6) Orders issued after the person is released may not require
the person to make payments toward the cost of care for more than
36 consecutive months following release. However, the 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) Notwithstanding ORS 183.315 (5), 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 agency as provided in subsection (5) of this section.
Enrolled House Bill 2009 (HB 2009-C) Page 93
(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 or administrative law judge
determines is relevant and must be produced.
SECTION 150. 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 { - Department of
Human Services or the Department of Corrections - }
{ + Department of Corrections, the Department of Human Services
or the Oregon Health Authority + } 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 agency. The 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 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 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 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
agency.
(6) If the authorized representative does not comply with the
demand, the 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.
Enrolled House Bill 2009 (HB 2009-C) Page 94
(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 agency issue a new order in accordance with ORS 179.640 (5)
if financial circumstances have changed.
SECTION 151. ORS 179.655 is amended to read:
179.655. (1) If any amount due the { - Department of Human
Services or the Department of Corrections - } { + Department of
Corrections, the Department of Human Services or the Oregon
Health Authority + } 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 appropriate agency, the 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
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 agency shall issue a new distraint warrant
superseding the previous distraint warrant, and the lien shall
conform to the new order.
(4) The 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 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 agency may issue the directive provided in subsection
(4) of this section to any agent of the 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 152. ORS 179.660 is amended to read:
179.660. If the { - Department of Human Services or the
Department of Corrections - } { + Department of Corrections,
Enrolled House Bill 2009 (HB 2009-C) Page 95
the Department of Human Services or the Oregon Health
Authority + } believes a person at one of its state institutions
needs a guardian or conservator, or both, and one has not been
appointed, the 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 153. ORS 179.701 is amended to read:
179.701. The cost-of-care rates for a person shall be
determined by the { - Department of Human Services or the
Department of Corrections - } { + Department of Corrections,
the Department of Human Services or the Oregon Health
Authority + }, 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) - } { + (5) + } and any other costs not directly
related to the care for a person at a state institution.
SECTION 154. 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 { - Department of Human Services or the Department
of Corrections - } { + Department of Corrections, the
Department of Human Services or the Oregon Health Authority + },
as appropriate.
(2) The 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 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 155. ORS 179.731 is amended to read:
179.731. If the { - Department of Human Services or the
Department of Corrections - } { + Department of Corrections,
the Department of Human Services or the Oregon Health
Authority + } 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
agency, the agency may waive the collection of part or all of the
amount otherwise payable.
SECTION 156. ORS 179.740 is amended to read:
179.740. (1) The { - Department of Human Services or the
Department of Corrections - } { + Department of Corrections,
the Department of Human Services or the Oregon Health
Authority + }, 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 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).
Enrolled House Bill 2009 (HB 2009-C) Page 96
However, the 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 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 agency may
waive all or part of the claim if it finds collection of this
amount due to be inequitable.
(4) The agency may not recover amounts 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 157. ORS 179.745 is amended to read:
179.745. The State of Oregon, by and through the
{ - Department of Human Services or the Department of
Corrections - } { + Department of Corrections, the Department
of Human Services or the Oregon Health Authority + }, 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 agency may transfer real
property under the provisions of ORS 270.100 to 270.190. The
agency may transfer personal property under rules adopted by the
agency. The proceeds, less costs, of any real or personal
property transferred by the 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 - } { + Department of Corrections Account, the
Department of Human Services Account or the Oregon Health
Authority Fund + }, as appropriate.
SECTION 158. ORS 179.770 is amended to read:
179.770. (1) In accordance with any applicable provisions of
ORS chapter 183, { - both the Department of Human Services and
the Department of Corrections - } { + the Department of
Corrections, the Department of Human Services and the Oregon
Health Authority + } 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 agency may employ employees necessary to carry
out ORS 179.610 to 179.770.
SECTION 159. ORS 181.537 is amended to read:
181.537. (1) As used in this section:
(a) 'Care' means the provision of care, treatment, education,
training, instruction, supervision, placement services,
recreation or support to children, the elderly or persons with
disabilities.
(b) 'Qualified entity' means a community mental health
{ - and developmental disabilities program, - } { + program, a
community developmental disabilities program, + } a local health
department or an individual or business or organization, whether
public, private, for-profit, nonprofit or voluntary, that
provides care, including a business or organization that
licenses, certifies or registers others to provide care.
(2) The Department of Human Services { + , the Oregon Health
Authority + } and the Employment Department may require the
fingerprints of a person for the purpose of requesting a state or
nationwide criminal records check of the person under ORS
181.534:
(a) For agency employment purposes;
Enrolled House Bill 2009 (HB 2009-C) Page 97
(b) For the purposes of licensing, certifying, registering or
otherwise regulating or administering programs, persons or
qualified entities that provide care;
(c) For the purposes of employment decisions by or for
qualified entities that are regulated or otherwise subject to
oversight by the Department of Human Services { + or the Oregon
Health Authority + } and that provide care; or
(d) For the purposes of employment decisions made by a mass
transit district or transportation district for qualified
entities that, under contracts with the district or the
{ - Department of Human Services - } { + Oregon Health
Authority + }, employ persons to operate motor vehicles for the
transportation of medical assistance program clients.
(3) The Department of Human Services { + and the Oregon Health
Authority + } may conduct criminal records checks on a person
through the Law Enforcement Data System maintained by the
Department of State Police, if deemed necessary by the Department
of Human Services { + or the Oregon Health Authority + } to
protect children, elderly persons, persons with disabilities or
other vulnerable persons.
(4) The Department of Human Services { + and the Oregon Health
Authority + } may furnish to qualified entities, in accordance
with the { - Department of Human Services' - } rules { + of
the Department of Human Services or the Oregon Health
Authority + } and the rules of the Department of State Police,
information received from the Law Enforcement Data System.
However, any criminal offender records and information furnished
to the Department of Human Services { + or the Oregon Health
Authority + } by the Federal Bureau of Investigation through the
Department of State Police may not be disseminated to qualified
entities.
(5) A qualified entity, using rules adopted by the Department
of Human Services { + or the Oregon Health Authority + }, shall
determine under this section whether a person is fit to hold a
position, provide services, be employed or, if the qualified
entity has authority to make such a determination, be licensed,
certified or registered, based on the criminal records check
obtained pursuant to ORS 181.534, any false statements made by
the person regarding the criminal history of the person and any
refusal to submit or consent to a criminal records check
including fingerprint identification. If a person is determined
to be unfit, then that person may not hold the position, provide
services or be employed, licensed, certified or registered.
(6) In making the fitness determination under subsection (5) of
this section, the qualified entity shall consider:
(a) The nature of the crime;
(b) The facts that support the conviction or pending indictment
or 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 person'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 or registration. Intervening circumstances include
but are not limited to the passage of time since the commission
of the crime, the age of the person at the time of the crime, the
likelihood of a repetition of offenses, the subsequent commission
of another relevant crime and a recommendation of an employer.
Enrolled House Bill 2009 (HB 2009-C) Page 98
(7) The Department of Human Services { + , the Oregon Health
Authority + } and the Employment Department may make fitness
determinations based on criminal offender records and information
furnished by the Federal Bureau of Investigation through the
Department of State Police only as provided in ORS 181.534.
(8) A qualified entity and an employee of a qualified entity
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 (5) of this section that a
person is fit or not fit to hold a position, provide services or
be employed, licensed, certified or registered. A qualified
entity, employee of a qualified entity acting within the course
and scope of employment and an employer or employer's agent who
in good faith comply with this section and the decision of the
qualified entity or employee of the qualified entity acting
within the course and scope of employment are not liable for the
failure to hire a prospective employee or the decision to
discharge an employee on the basis of the qualified entity's
decision. An employee of the state 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.
(9) The Department of Human Services { + and the Oregon Health
Authority + } shall develop { - a system that maintains - }
{ + systems that maintain + } information regarding criminal
records checks in order to minimize the administrative burden
imposed by this section and ORS 181.534. Records maintained under
this subsection are confidential and may not be disseminated
except for the purposes of this section and in accordance with
the rules of the Department of Human Services { + , the Oregon
Health Authority + } and the Department of State Police. Nothing
in this subsection permits the Department of Human Services to
retain fingerprint cards obtained pursuant to this section.
(10) In addition to the rules required by ORS 181.534, the
Department of Human Services { + and the Oregon Health
Authority + }, in consultation with the Department of State
Police, shall adopt rules:
(a) Specifying which qualified entities are subject to this
section;
(b) Specifying which qualified entities may request criminal
offender information;
(c) Specifying which qualified entities are responsible for
deciding whether a subject individual is not fit for a position,
service, license, certification, registration or employment; and
(d) Specifying when a qualified entity, in lieu of conducting a
completely new criminal records check, may proceed to make a
fitness determination under subsection (5) of this section using
the information maintained by the Department of Human Services
{ + and the Oregon Health Authority + } pursuant to subsection
(9) of this section.
(11) If a person refuses to consent to the criminal records
check or refuses to be fingerprinted, the qualified entity shall
deny or terminate the employment of the person, or revoke or deny
any applicable position, authority to provide services,
employment, license, certification or registration.
(12) If the qualified entity requires a criminal records check
of employees or other persons, the application forms of the
qualified entity must contain a notice that employment is subject
to fingerprinting and a criminal records check.
SECTION 160. ORS 181.637 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 99
181.637. (1) The Board on Public Safety Standards and Training
shall establish the following policy committees:
(a) Corrections Policy Committee;
(b) Fire Policy Committee;
(c) Police Policy Committee;
(d) Telecommunications Policy Committee; and
(e) Private Security Policy Committee.
(2) The members of each policy committee shall select a
chairperson and vice chairperson for the policy committee. Only
members of the policy committee who are also members of the board
are eligible to serve as a chairperson or vice chairperson. The
vice chairperson may act as chairperson in the absence of the
chairperson.
(3) The Corrections Policy Committee consists of:
(a) All of the board members who represent the corrections
discipline;
(b) The chief administrative officer of the training division
of the Department of Corrections;
(c) A security manager from the Department of Corrections; and
(d) The following, who may not be current board members,
appointed by the chairperson of the board:
(A) One person recommended by and representing the Oregon State
Sheriffs' Association;
(B) Two persons recommended by and representing the Oregon Jail
Managers' Association;
(C) One person recommended by and representing a statewide
association of community corrections directors;
(D) One nonmanagement corrections officer employed by the
Department of Corrections; and
(E) One corrections officer who is a female, who is employed by
the Department of Corrections at a women's correctional facility
and who is a member of a bargaining unit.
(4) The Fire Policy Committee consists of:
(a) All of the board members who represent the fire service
discipline; and
(b) The following, who may not be current board members,
appointed by the chairperson of the board:
(A) One person recommended by and representing a statewide
association of fire instructors;
(B) One person recommended by and representing a statewide
association of fire marshals;
(C) One person recommended by and representing community
college fire programs; and
(D) One nonmanagement firefighter recommended by a statewide
organization of firefighters.
(5) The Police Policy Committee consists of:
(a) All of the board members who represent the law enforcement
discipline; and
(b) The following, who may not be current board members,
appointed by the chairperson of the board:
(A) One person recommended by and representing the Oregon
Association Chiefs of Police;
(B) Two persons recommended by and representing the Oregon
State Sheriffs' Association;
(C) One command officer recommended by and representing the
Oregon State Police; and
(D) One nonmanagement law enforcement officer.
(6) The Telecommunications Policy Committee consists of:
(a) All of the board members who represent the
telecommunications discipline; and
Enrolled House Bill 2009 (HB 2009-C) Page 100
(b) The following, who may not be current board members,
appointed by the chairperson of the board:
(A) Two persons recommended by and representing a statewide
association of public safety communications officers;
(B) One person recommended by and representing the Oregon
Association Chiefs of Police;
(C) One person recommended by and representing the Oregon State
Police;
(D) Two persons representing telecommunicators;
(E) One person recommended by and representing the Oregon State
Sheriffs' Association;
(F) One person recommended by and representing the Oregon Fire
Chiefs' Association;
(G) One person recommended by and representing the Emergency
Medical Services and Trauma Systems Program of the
{ - Department of Human Services - } { + Oregon Health
Authority + }; and
(H) One person representing paramedics and recommended by a
statewide association dealing with fire medical issues.
(7) The Private Security Policy Committee consists of:
(a) All of the board members who represent the private security
industry; and
(b) The following, who may not be current board members,
appointed by the chairperson of the board:
(A) One person representing unarmed private security
professionals;
(B) One person representing armed private security
professionals;
(C) One person representing the health care industry;
(D) One person representing the manufacturing industry;
(E) One person representing the retail industry;
(F) One person representing the hospitality industry;
(G) One person representing private business or a governmental
entity that utilizes private security services;
(H) One person representing persons who monitor alarm systems;
(I) Two persons who are investigators licensed under ORS
703.430, one of whom is recommended by the Oregon State Bar and
one of whom is in private practice; and
(J) One person who represents the public at large and who is
not related within the second degree by affinity or consanguinity
to a person who is employed or doing business as a private
security professional or executive manager, as defined in ORS
181.870, or as an investigator, as defined in ORS 703.401.
(8) In making appointments to the policy committees under this
section, the chairperson of the board shall seek to reflect the
diversity of the state's population. An appointment made by the
chairperson of the board must be ratified by the board before the
appointment is effective. The chairperson of the board may remove
an appointed member for just cause. An appointment to a policy
committee that is based on the member's employment is
automatically revoked if the member changes employment. The
chairperson of the board shall fill a vacancy in the same manner
as making an initial appointment. The term of an appointed member
is two years. An appointed member may be appointed to a second
term.
(9) A policy committee may meet at such times and places as
determined by the policy committee in consultation with the
Department of Public Safety Standards and Training. A majority of
a policy committee constitutes a quorum to conduct business. A
policy committee may create subcommittees if needed.
Enrolled House Bill 2009 (HB 2009-C) Page 101
(10)(a) Each policy committee shall develop policies,
requirements, standards and rules relating to its specific
discipline. A policy committee shall submit its policies,
requirements, standards and rules to the board for the board's
consideration. When a policy committee submits a policy,
requirement, standard or rule to the board for the board's
consideration, the board shall:
(A) Approve the policy, requirement, standard or rule;
(B) Disapprove the policy, requirement, standard or rule; or
(C) Defer a decision and return the matter to the policy
committee for revision or reconsideration.
(b) The board may defer a decision and return a matter
submitted by a policy committee under paragraph (a) of this
subsection only once. If a policy, requirement, standard or rule
that was returned to a policy committee is resubmitted to the
board, the board shall take all actions necessary to implement
the policy, requirement, standard or rule unless the board
disapproves the policy, requirement, standard or rule.
(c) Disapproval of a policy, requirement, standard or rule
under paragraph (a) or (b) of this subsection requires a
two-thirds vote by the members of the board.
(11) At any time after submitting a matter to the board, the
chairperson of the policy committee may withdraw the matter from
the board's consideration.
SECTION 161. ORS 182.415 is amended to read:
182.415. As used in ORS 182.415 to 182.435 and 240.086 unless
the context requires otherwise:
(1) 'Furnishings' includes furniture usually used in connection
with occupancy of a household but does not include rugs,
draperies, range, refrigerator, washer, dryer or any item of
furnishings received by the state or one of its agencies as a
gift, nor does it include any furniture purchased for the
state-owned residence required in relation to the official duties
of an institutional executive or the Chancellor of the Department
of Higher Education prior to September 9, 1971.
(2) 'Housing' includes single and multiple family dwellings,
apartments, and manufactured dwellings and manufactured dwelling
pads, available on a monthly tenancy but does not include guard
stations maintained by the State Forestry Department or dormitory
facilities at any state institution or at any state institution
of higher education.
(3) 'Dormitory' includes any facility which houses students and
those facilities used primarily for sleeping purposes by the
employees of the Department of Human Services { + or the Oregon
Health Authority + }.
(4) 'State agency' has the same meaning as in ORS 291.002.
SECTION 162. ORS 182.515 is amended to read:
182.515. As used in this section and ORS 182.525:
(1) 'Agency' means:
(a) The Department of Corrections;
(b) The Oregon Youth Authority;
(c) The State Commission on Children and Families; and
(d) That part of the { - Department of Human Services - }
{ + Oregon Health Authority + } that deals with mental health
and addiction issues.
(2) 'Cost effective' means that cost savings realized over a
reasonable period of time are greater than costs.
(3) 'Evidence-based program' means a program that:
(a) Incorporates significant and relevant practices based on
scientifically based research; and
Enrolled House Bill 2009 (HB 2009-C) Page 102
(b) Is cost effective.
(4)(a) 'Program' means a treatment or intervention program or
service that is intended to:
(A) Reduce the propensity of a person to commit crimes;
(B) Improve the mental health of a person with the result of
reducing the likelihood that the person will commit a crime or
need emergency mental health services; or
(C) Reduce the propensity of a person who is less than 18 years
of age to engage in antisocial behavior with the result of
reducing the likelihood that the person will become a juvenile
offender.
(b) 'Program' does not include:
(A) An educational program or service that an agency is
required to provide to meet educational requirements imposed by
state law; or
(B) A program that provides basic medical services.
(5) 'Scientifically based research' means research that obtains
reliable and valid knowledge by:
(a) Employing systematic, empirical methods that draw on
observation or experiment;
(b) Involving rigorous data analyses that are adequate to test
the stated hypotheses and justify the general conclusions drawn;
and
(c) Relying on measurements or observational methods that
provide reliable and valid data across evaluators and observers,
across multiple measurements and observations and across studies
by the same or different investigators.
SECTION 163. ORS 182.535 is amended to read:
182.535. For purposes of ORS 182.535 to 182.550, 'natural
resource agency' means the Department of Environmental Quality,
the State Department of Agriculture, the Water Resources
Department, the State Department of Fish and Wildlife, the State
Forestry Department, the Department of State Lands, the
Department of Education, the State Department of Geology and
Mineral Industries, the Department of Land Conservation and
Development, the State Marine Board, the Public Utility
Commission, the Department of Transportation, the State Fire
Marshal and the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
SECTION 164. ORS 184.345 is amended to read:
184.345. (1) The Oregon Department of Administrative Services
shall provide on a reimbursable basis administrative and other
services, as agreed to, to:
(a) The Department of Corrections;
(b) The Department of Human Services; { - and - }
{ + (c) The Oregon Health Authority; and + }
{ - (c) - } { + (d) + } The State Board of Education.
(2) In addition to its duties under subsection (1) of this
section, the Oregon Department of Administrative Services shall
provide clerical support to the Energy Facility Siting Council.
SECTION 165. ORS 192.517 is amended to read:
192.517. (1) The system designated to protect and advocate for
the rights of individuals shall have access to all records of:
(a) Any individual who is a client of the system if the
individual or the legal guardian or other legal representative of
the individual has authorized the system to have such access;
(b) Any individual, including an individual who has died or
whose whereabouts are unknown:
Enrolled House Bill 2009 (HB 2009-C) Page 103
(A) If the individual by reason of the individual's mental or
physical condition or age is unable to authorize such access;
(B) If the individual does not have a legal guardian or other
legal representative, or the state or a political subdivision of
this state is the legal guardian of the individual; and
(C) If a complaint regarding the rights or safety of the
individual has been received by the system or if, as a result of
monitoring or other activities which result from a complaint or
other evidence, there is probable cause to believe that the
individual has been subject to abuse or neglect; and
(c) Any individual who has a legal guardian or other legal
representative, who is the subject of a complaint of abuse or
neglect received by the system, or whose health and safety is
believed with probable cause to be in serious and immediate
jeopardy if the legal guardian or other legal representative:
(A) Has been contacted by the system upon receipt of the name
and address of the legal guardian or other legal representative;
(B) Has been offered assistance by the system to resolve the
situation; and
(C) Has failed or refused to act on behalf of the individual.
(2) The system shall have access to the name, address and
telephone number of any legal guardian or other legal
representative of an individual.
(3) The system that obtains access to records under this
section shall maintain the confidentiality of the records to the
same extent as is required of the provider of the services,
except as provided under the Protection and Advocacy for Mentally
Ill Individuals Act (42 U.S.C. 10806) as in effect on January 1,
2003.
(4) The system shall have reasonable access to facilities,
including the residents and staff of the facilities.
(5) This section is not intended to limit or overrule the
provisions of ORS 41.675 or 441.055 { - (9) - } { + (10) + }.
SECTION 166. ORS 192.519 is amended to read:
192.519. As used in ORS 192.518 to 192.529:
(1) 'Authorization' means a document written in plain language
that contains at least the following:
(a) A description of the information to be used or disclosed
that identifies the information in a specific and meaningful way;
(b) The name or other specific identification of the person or
persons authorized to make the requested use or disclosure;
(c) The name or other specific identification of the person or
persons to whom the covered entity may make the requested use or
disclosure;
(d) A description of each purpose of the requested use or
disclosure, including but not limited to a statement that the use
or disclosure is at the request of the individual;
(e) An expiration date or an expiration event that relates to
the individual or the purpose of the use or disclosure;
(f) The signature of the individual or personal representative
of the individual and the date;
(g) A description of the authority of the personal
representative, if applicable; and
(h) Statements adequate to place the individual on notice of
the following:
(A) The individual's right to revoke the authorization in
writing;
(B) The exceptions to the right to revoke the authorization;
Enrolled House Bill 2009 (HB 2009-C) Page 104
(C) The ability or inability to condition treatment, payment,
enrollment or eligibility for benefits on whether the individual
signs the authorization; and
(D) The potential for information disclosed pursuant to the
authorization to be subject to redisclosure by the recipient and
no longer protected.
(2) 'Covered entity' means:
(a) A state health plan;
(b) A health insurer;
(c) A health care provider that transmits any health
information in electronic form to carry out financial or
administrative activities in connection with a transaction
covered by ORS 192.518 to 192.529; or
(d) A health care clearinghouse.
(3) 'Health care' means care, services or supplies related to
the health of an individual.
(4) 'Health care operations' includes but is not limited to:
(a) Quality assessment, accreditation, auditing and improvement
activities;
(b) Case management and care coordination;
(c) Reviewing the competence, qualifications or performance of
health care providers or health insurers;
(d) Underwriting activities;
(e) Arranging for legal services;
(f) Business planning;
(g) Customer services;
(h) Resolving internal grievances;
(i) Creating de-identified information; and
(j) Fundraising.
(5) 'Health care provider' includes but is not limited to:
(a) A psychologist, occupational therapist, clinical social
worker, professional counselor or marriage and family therapist
licensed under ORS chapter 675 or an employee of the
psychologist, occupational therapist, clinical social worker,
professional counselor or marriage and family therapist;
(b) A physician, podiatric physician and surgeon, physician
assistant or acupuncturist licensed under ORS chapter 677 or an
employee of the physician, podiatric physician and surgeon,
physician assistant or acupuncturist;
(c) A nurse or nursing home administrator licensed under ORS
chapter 678 or an employee of the nurse or nursing home
administrator;
(d) A dentist licensed under ORS chapter 679 or an employee of
the dentist;
(e) A dental hygienist or denturist licensed under ORS chapter
680 or an employee of the dental hygienist or denturist;
(f) A speech-language pathologist or audiologist licensed under
ORS chapter 681 or an employee of the speech-language pathologist
or audiologist;
(g) An emergency medical technician certified under ORS chapter
682;
(h) An optometrist licensed under ORS chapter 683 or an
employee of the optometrist;
(i) A chiropractic physician licensed under ORS chapter 684 or
an employee of the chiropractic physician;
(j) A naturopathic physician licensed under ORS chapter 685 or
an employee of the naturopathic physician;
(k) A massage therapist licensed under ORS 687.011 to 687.250
or an employee of the massage therapist;
Enrolled House Bill 2009 (HB 2009-C) Page 105
(L) A direct entry midwife licensed under ORS 687.405 to
687.495 or an employee of the direct entry midwife;
(m) A physical therapist licensed under ORS 688.010 to 688.201
or an employee of the physical therapist;
(n) A radiologic technologist licensed under ORS 688.405 to
688.605 or an employee of the radiologic technologist;
(o) A respiratory care practitioner licensed under ORS 688.800
to 688.840 or an employee of the respiratory care practitioner;
(p) A pharmacist licensed under ORS chapter 689 or an employee
of the pharmacist;
(q) A dietitian licensed under ORS 691.405 to 691.585 or an
employee of the dietitian;
(r) A funeral service practitioner licensed under ORS chapter
692 or an employee of the funeral service practitioner;
(s) A health care facility as defined in ORS 442.015;
(t) A home health agency as defined in ORS 443.005;
(u) A hospice program as defined in ORS 443.850;
(v) A clinical laboratory as defined in ORS 438.010;
(w) A pharmacy as defined in ORS 689.005;
(x) A diabetes self-management program as defined in ORS
743A.184; and
(y) Any other person or entity that furnishes, bills for or is
paid for health care in the normal course of business.
(6) 'Health information' means any oral or written information
in any form or medium that:
(a) Is created or received by a covered entity, a public health
authority, an employer, a life insurer, a school, a university or
a health care provider that is not a covered entity; and
(b) Relates to:
(A) The past, present or future physical or mental health or
condition of an individual;
(B) The provision of health care to an individual; or
(C) The past, present or future payment for the provision of
health care to an individual.
(7) 'Health insurer' means:
(a) An insurer as defined in ORS 731.106 who offers:
(A) A health benefit plan as defined in ORS 743.730;
(B) A short term health insurance policy, the duration of which
does not exceed six months including renewals;
(C) A student health insurance policy;
(D) A Medicare supplemental policy; or
(E) A dental only policy.
(b) The Oregon Medical Insurance Pool operated by the Oregon
Medical Insurance Pool Board under ORS 735.600 to 735.650.
(8) 'Individually identifiable health information' means any
oral or written health information in any form or medium that is:
(a) Created or received by a covered entity, an employer or a
health care provider that is not a covered entity; and
(b) Identifiable to an individual, including demographic
information that identifies the individual, or for which there is
a reasonable basis to believe the information can be used to
identify an individual, and that relates to:
(A) The past, present or future physical or mental health or
condition of an individual;
(B) The provision of health care to an individual; or
(C) The past, present or future payment for the provision of
health care to an individual.
(9) 'Payment' includes but is not limited to:
(a) Efforts to obtain premiums or reimbursement;
(b) Determining eligibility or coverage;
Enrolled House Bill 2009 (HB 2009-C) Page 106
(c) Billing activities;
(d) Claims management;
(e) Reviewing health care to determine medical necessity;
(f) Utilization review; and
(g) Disclosures to consumer reporting agencies.
(10) 'Personal representative' includes but is not limited to:
(a) A person appointed as a guardian under ORS 125.305,
419B.370, 419C.481 or 419C.555 with authority to make medical and
health care decisions;
(b) A person appointed as a health care representative under
ORS 127.505 to 127.660 or a representative under ORS 127.700 to
127.737 to make health care decisions or mental health treatment
decisions;
(c) A person appointed as a personal representative under ORS
chapter 113; and
(d) A person described in ORS 192.526.
(11)(a) 'Protected health information' means individually
identifiable health information that is maintained or transmitted
in any form of electronic or other medium by a covered entity.
(b) 'Protected health information' does not mean individually
identifiable health information in:
(A) Education records covered by the federal Family Educational
Rights and Privacy Act (20 U.S.C. 1232g);
(B) Records described at 20 U.S.C. 1232g(a)(4)(B)(iv); or
(C) Employment records held by a covered entity in its role as
employer.
(12) 'State health plan' means:
(a) The state Medicaid program;
(b) The Oregon State Children's Health Insurance Program;
{ - or - }
(c) The Family Health Insurance Assistance Program established
in ORS 735.720 to 735.740 { - . - } { + ; or
(d) Any medical assistance or premium assistance program
operated by the Oregon Health Authority. + }
(13) 'Treatment' includes but is not limited to:
(a) The provision, coordination or management of health care;
and
(b) Consultations and referrals between health care providers.
SECTION 167. ORS 192.527 is amended to read:
192.527. (1) Notwithstanding ORS 179.505, a state health plan
or a prepaid managed care health services organization may
disclose the protected health information of an individual listed
in subsection (2) of this section, without obtaining an
authorization from the individual or a personal representative of
the individual, to another prepaid managed care health services
organization for treatment activities of a prepaid managed care
health services organization when the prepaid managed care health
services organization is providing behavioral or physical health
care services to the individual.
(2) The protected health information that may be disclosed
pursuant to subsection (1) of this section includes the
following, as defined by the { - Department of Human
Services - } { + Oregon Health Authority + } by rule:
(a) { - Oregon Health Plan member - } { + Medicaid
recipient + } name;
(b) Medicaid recipient number;
(c) Performing provider number;
(d) Hospital provider name;
(e) Attending physician;
(f) Diagnosis;
Enrolled House Bill 2009 (HB 2009-C) Page 107
(g) Date or dates of service;
(h) Procedure code;
(i) Revenue code;
(j) Quantity of units of service provided; or
(k) Medication prescription and monitoring.
(3) As used in this section, 'prepaid managed care health
services organization' has the meaning given that term in ORS
414.736.
SECTION 168. ORS 192.535 is amended to read:
192.535. (1) A person may not obtain genetic information from
an individual, or from an individual's DNA sample, without first
obtaining informed consent of the individual or the individual's
representative, except:
(a) As authorized by ORS 181.085 or comparable provisions of
federal criminal law relating to the identification of persons,
or for the purpose of establishing the identity of a person in
the course of an investigation conducted by a law enforcement
agency, a district attorney, a medical examiner or the Criminal
Justice Division of the Department of Justice;
(b) For anonymous research or coded research conducted under
conditions described in ORS 192.537 (2), after notification
pursuant to ORS 192.538 or pursuant to ORS 192.547 (7)(b);
(c) As permitted by rules of the { - Department of Human
Services - } { + Oregon Health Authority + } for identification
of deceased individuals;
(d) As permitted by rules of the { - Department of Human
Services - } { + Oregon Health Authority + } for newborn
screening procedures;
(e) As authorized by statute for the purpose of establishing
paternity; or
(f) For the purpose of furnishing genetic information relating
to a decedent for medical diagnosis of blood relatives of the
decedent.
(2) Except as provided in subsection (3) of this section, a
physician licensed under ORS chapter 677 shall seek the informed
consent of the individual or the individual's representative for
the purposes of subsection (1) of this section in the manner
provided by ORS 677.097. Except as provided in subsection (3) of
this section, any other licensed health care provider or facility
must seek the informed consent of the individual or the
individual's representative for the purposes of subsection (1) of
this section in a manner substantially similar to that provided
by ORS 677.097 for physicians.
(3) A person conducting research shall seek the informed
consent of the individual or the individual's representative for
the purposes of subsection (1) of this section in the manner
provided by ORS 192.547.
(4) Except as provided in ORS 746.135 (1), any person not
described in subsection (2) or (3) of this section must seek the
informed consent of the individual or the individual's
representative for the purposes of subsection (1) of this section
in the manner provided by rules adopted by the { - Department
of Human Services - } { + Oregon Health Authority + }.
(5) The { - Department of Human Services - } { + Oregon
Health Authority + } may not adopt rules under subsection (1)(d)
of this section that would require the providing of a DNA sample
for the purpose of obtaining complete genetic information used to
screen all newborns.
SECTION 169. ORS 192.537 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 108
192.537. (1) Subject to the provisions of ORS 192.531 to
192.549, 659A.303 and 746.135, an individual's genetic
information and DNA sample are private and must be protected, and
an individual has a right to the protection of that privacy. Any
person authorized by law or by an individual or an individual's
representative to obtain, retain or use an individual's genetic
information or any DNA sample must maintain the confidentiality
of the information or sample and protect the information or
sample from unauthorized disclosure or misuse.
(2)(a) A person may use an individual's DNA sample or genetic
information that is derived from a biological specimen or
clinical individually identifiable health information for
anonymous research or coded research only if the individual:
(A) Has granted informed consent for the specific anonymous
research or coded research project;
(B) Has granted consent for genetic research generally;
(C) Was notified in accordance with ORS 192.538 that the
individual's biological specimen or clinical individually
identifiable health information may be used for anonymous
research or coded research and the individual did not, at the
time of notification, request that the biological specimen or
clinical individually identifiable health information not be used
for anonymous research or coded research; or
(D) Was not notified, due to emergency circumstances, in
accordance with ORS 192.538 that the individual's biological
specimen or clinical individually identifiable health information
may be used for anonymous research or coded research and the
individual died before receiving the notice.
(b) Paragraph (a) of this subsection does not apply to
biological specimens or clinical individually identifiable health
information obtained before July 29, 2005, if an institutional
review board operating under ORS 192.547 (1)(b) meets the
requirements described in ORS 192.547 (7)(b).
(3) A person may not retain another individual's genetic
information or DNA sample without first obtaining authorization
from the individual or the individual's representative, unless:
(a) Retention is authorized by ORS 181.085 or comparable
provisions of federal criminal law relating to identification of
persons, or is necessary for the purpose of a criminal or death
investigation, a criminal or juvenile proceeding, an inquest or a
child fatality review by a county multidisciplinary child abuse
team;
(b) Retention is authorized by specific court order pursuant to
rules adopted by the Chief Justice of the Supreme Court for civil
actions;
(c) Retention is permitted by rules of the { - Department of
Human Services - } { + Oregon Health Authority + } for
identification of, or testing to benefit blood relatives of,
deceased individuals;
(d) Retention is permitted by rules of the { - Department of
Human Services - } { + authority + } for newborn screening
procedures; or
(e) Retention is for anonymous research or coded research
conducted after notification or with consent pursuant to
subsection (2) of this section or ORS 192.538.
(4) The DNA sample of an individual from which genetic
information has been obtained shall be destroyed promptly upon
the specific request of that individual or the individual's
representative, unless:
Enrolled House Bill 2009 (HB 2009-C) Page 109
(a) Retention is authorized by ORS 181.085 or comparable
provisions of federal criminal law relating to identification of
persons, or is necessary for the purpose of a criminal or death
investigation, a criminal or juvenile proceeding, an inquest or a
child fatality review by a county multidisciplinary child abuse
team;
(b) Retention is authorized by specific court order pursuant to
rules adopted by the Chief Justice of the Supreme Court for civil
actions; or
(c) Retention is for anonymous research or coded research
conducted after notification or with consent pursuant to
subsection (2) of this section or ORS 192.538.
(5) A DNA sample from an individual that is the subject of a
research project, other than an anonymous research project, shall
be destroyed promptly upon completion of the project or
withdrawal of the individual from the project, whichever occurs
first, unless the individual or the individual's representative
directs otherwise by informed consent.
(6) A DNA sample from an individual for insurance or employment
purposes shall be destroyed promptly after the purpose for which
the sample was obtained has been accomplished unless retention is
authorized by specific court order pursuant to rules adopted by
the Chief Justice of the Supreme Court for civil, criminal and
juvenile proceedings.
(7) An individual or an individual's representative, promptly
upon request, may inspect, request correction of and obtain
genetic information from the records of the individual.
(8) Subject to the provisions of ORS 192.531 to 192.549, and to
policies adopted by the person in possession of a DNA sample, an
individual or the individual's representative may request that
the individual's DNA sample be made available for additional
genetic testing for medical diagnostic purposes. If the
individual is deceased and has not designated a representative to
act on behalf of the individual after death, a request under this
subsection may be made by the closest surviving blood relative of
the decedent or, if there is more than one surviving blood
relative of the same degree of relationship to the decedent, by
the majority of the surviving closest blood relatives of the
decedent.
(9) The { - Department of Human Services - } { + Oregon
Health Authority + } shall coordinate the implementation of this
section.
(10) Subsections (3) to (8) of this section apply only to a DNA
sample or genetic information that is coded, identified or
identifiable.
(11) This section does not apply to any law, contract or other
arrangement that determines a person's rights to compensation
relating to substances or information derived from an
individual's DNA sample.
SECTION 170. ORS 192.539 is amended to read:
192.539. (1) Regardless of the manner of receipt or the source
of genetic information, including information received from an
individual or a blood relative of the individual, a person may
not disclose or be compelled, by subpoena or any other means, to
disclose the identity of an individual upon whom a genetic test
has been performed or the identity of a blood relative of the
individual, or to disclose genetic information about the
individual or a blood relative of the individual in a manner that
permits identification of the individual, unless:
Enrolled House Bill 2009 (HB 2009-C) Page 110
(a) Disclosure is authorized by ORS 181.085 or comparable
provisions of federal criminal law relating to identification of
persons, or is necessary for the purpose of a criminal or death
investigation, a criminal or juvenile proceeding, an inquest, or
a child fatality review by a county multidisciplinary child abuse
team;
(b) Disclosure is required by specific court order entered
pursuant to rules adopted by the Chief Justice of the Supreme
Court for civil actions;
(c) Disclosure is authorized by statute for the purpose of
establishing paternity;
(d) Disclosure is specifically authorized by the tested
individual or the tested individual's representative by signing a
consent form prescribed by rules of the { - Department of Human
Services - } { + Oregon Health Authority + };
(e) Disclosure is for the purpose of furnishing genetic
information relating to a decedent for medical diagnosis of blood
relatives of the decedent; or
(f) Disclosure is for the purpose of identifying bodies.
(2) The prohibitions of this section apply to any redisclosure
by any person after another person has disclosed genetic
information or the identity of an individual upon whom a genetic
test has been performed, or has disclosed genetic information or
the identity of a blood relative of the individual.
(3) A release or publication is not a disclosure if:
(a) It involves a good faith belief by the person who caused
the release or publication that the person was not in violation
of this section;
(b) It is not due to willful neglect;
(c) It is corrected in the manner described in ORS 192.541 (4);
(d) The correction with respect to genetic information is
completed before the information is read or heard by a third
party; and
(e) The correction with respect to DNA samples is completed
before the sample is retained or genetically tested by a third
party.
SECTION 171. ORS 192.547 is amended to read:
192.547. (1)(a) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules for
conducting research using DNA samples, genetic testing and
genetic information. Rules establishing minimum research
standards shall conform to the Federal Policy for the Protection
of Human Subjects, 45 C.F.R. 46, that is current at the time the
rules are adopted. The rules may be changed from time to time as
may be necessary.
(b) The rules adopted by the { - Department of Human
Services - } { + Oregon Health Authority + } shall address the
operation and appointment of institutional review boards. The
rules shall conform to the compositional and operational
standards for such boards contained in the Federal Policy for the
Protection of Human Subjects that is current at the time the
rules are adopted. The rules must require that research conducted
under paragraph (a) of this subsection be conducted with the
approval of the institutional review board.
(c) Persons proposing to conduct anonymous research, coded
research or genetic research that is otherwise thought to be
exempt from review must obtain from an institutional review board
prior to conducting such research a determination that the
proposed research is exempt from review.
Enrolled House Bill 2009 (HB 2009-C) Page 111
(2) A person proposing to conduct research under subsection (1)
of this section, including anonymous research or coded research,
must disclose to the institutional review board the proposed use
of DNA samples, genetic testing or genetic information.
(3) The { - Department of Human Services - } { + Oregon
Health Authority + } shall adopt rules requiring that all
institutional review boards operating under subsection (1)(b) of
this section register with the department. The Advisory Committee
on Genetic Privacy and Research shall use the registry to educate
institutional review boards about the purposes and requirements
of the genetic privacy statutes and administrative rules relating
to genetic research.
(4) The { - Department of Human Services - } { + Oregon
Health Authority + } shall consult with the Advisory Committee on
Genetic Privacy and Research before adopting the rules required
under subsections (1) and (3) of this section, including rules
identifying those parts of the Federal Policy for the Protection
of Human Subjects that are applicable to this section.
(5) Genetic research in which the DNA sample or genetic
information is coded shall satisfy the following requirements:
(a)(A) The subject has granted informed consent for the
specific research project;
(B) The subject has consented to genetic research generally; or
(C) The DNA sample or genetic information is derived from a
biological specimen or from clinical individually identifiable
health information that was obtained or retained in compliance
with ORS 192.537 (2).
(b) The research has been approved by an institutional review
board after disclosure by the investigator to the board of risks
associated with the coding.
(c) The code is:
(A) Not derived from individual identifiers;
(B) Kept securely and separately from the DNA samples and
genetic information; and
(C) Not accessible to the investigator unless specifically
approved by the institutional review board.
(d) Data is stored securely in password protected electronic
files or by other means with access limited to necessary
personnel.
(e) The data is limited to elements required for analysis and
meets the criteria in 45 C.F.R 164.514(e) for a limited data set.
(f) The investigator is a party to the data use agreement as
provided by 45 C.F.R. 164.514(e) for limited data set recipients.
(6) Research conducted in accordance with this section is
rebuttably presumed to comply with ORS 192.535 and 192.539.
(7)(a) Notwithstanding ORS 192.535, a person may use a DNA
sample or genetic information obtained, with blanket informed
consent, before June 25, 2001, for genetic research.
(b) Notwithstanding ORS 192.535, a person may use a DNA sample
or genetic information obtained without specific informed consent
and derived from a biological specimen or clinical individually
identifiable health information for anonymous research or coded
research if an institutional review board operating under
subsection (1)(b) of this section:
(A) Waives or alters the consent requirements pursuant to the
Federal Policy for the Protection of Human Subjects; and
(B) Waives authorization pursuant to the federal Health
Insurance Portability and Accountability Act privacy regulations,
45 C.F.R. parts 160 and 164.
Enrolled House Bill 2009 (HB 2009-C) Page 112
(c) Except as provided in subsection (5)(a) of this section or
paragraph (b) of this subsection, a person must have specific
informed consent from an individual to use a DNA sample or
genetic information of the individual obtained on or after June
25, 2001, for genetic research.
(8) Except as otherwise allowed by rule of the { - Department
of Human Services - } { + Oregon Health Authority + }, if DNA
samples or genetic information obtained for either clinical or
research purposes is used in research, a person may not recontact
the individual or the individual's physician by using research
information that is identifiable or coded. The { - Department
of Human Services - } { + Oregon Health Authority + } shall
adopt by rule criteria for recontacting an individual or an
individual's physician. In adopting the criteria, the department
shall consider the recommendations of national organizations such
as those created by executive order by the President of the
United States and the recommendations of the Advisory Committee
on Genetic Privacy and Research.
(9) The requirements for consent to, or notification of,
obtaining a DNA sample or genetic information for genetic
research are governed by the provisions of ORS 192.531 to 192.549
and the administrative rules that were in effect on the effective
date of the institutional review board's most recent approval of
the study.
SECTION 172. ORS 192.549 is amended to read:
192.549. (1) The Advisory Committee on Genetic Privacy and
Research is established consisting of 15 members. The President
of the Senate and the Speaker of the House of Representatives
shall each appoint one member and one alternate. The Director of
{ - Human Services - } { + the Oregon Health Authority + }
shall appoint one representative and one alternate from each of
the following categories:
(a) Academic institutions involved in genetic research;
(b) Physicians licensed under ORS chapter 677;
(c) Voluntary organizations involved in the development of
public policy on issues related to genetic privacy;
(d) Hospitals;
{ - (e) The Department of Human Services; - }
{ - (f) The Department of Consumer and Business Services; - }
{ - (g) Health care service contractors involved in genetic
and health services research; - }
{ - (h) The biosciences industry; - }
{ - (i) The pharmaceutical industry; - }
{ - (j) Health care consumers; - }
{ - (k) Organizations advocating for privacy of medical
information; - }
{ - (L) Public members of institutional review boards;
and - }
{ - (m) Organizations or individuals promoting public
education about genetic research and genetic privacy and public
involvement in policymaking related to genetic research and
genetic privacy. - }
{ + (e) The Department of Consumer and Business Services;
(f) The Oregon Health Authority;
(g) Health care service contractors involved in genetic and
health services research;
(h) The biosciences industry;
(i) The pharmaceutical industry;
(j) Health care consumers;
Enrolled House Bill 2009 (HB 2009-C) Page 113
(k) Organizations advocating for privacy of medical
information;
(L) Public members of institutional review boards; and
(m) Organizations or individuals promoting public education
about genetic research and genetic privacy and public involvement
in policymaking related to genetic research and genetic
privacy. + }
(2) Organizations and individuals representing the categories
listed in subsection (1) of this section may recommend nominees
for membership on the advisory committee to the President, the
Speaker and the director.
(3) Members and alternate members of the advisory committee
serve two-year terms and may be reappointed.
(4) Members and alternate members of the advisory committee
serve at the pleasure of the appointing entity.
(5) The { - Department of Human Services - } { + Oregon
Health Authority + } shall provide staff for the advisory
committee.
(6) The advisory committee shall report biennially to the
Legislative Assembly in the manner provided by ORS 192.245. The
report shall include the activities and the results of any
studies conducted by the advisory committee. The advisory
committee may make any recommendations for legislative changes
deemed necessary by the advisory committee.
(7) The advisory committee shall study the use and disclosure
of genetic information and shall develop and refine a legal
framework that defines the rights of individuals whose DNA
samples and genetic information are collected, stored, analyzed
and disclosed.
(8) The advisory committee shall create opportunities for
public education on the scientific, legal and ethical development
within the fields of genetic privacy and research. The advisory
committee shall also elicit public input on these matters. The
advisory committee shall make reasonable efforts to obtain public
input that is representative of the diversity of opinion on this
subject. The advisory committee's recommendations to the
Legislative Assembly shall take into consideration public
concerns and values related to these matters.
SECTION 173. ORS 192.630, as amended by section 21, chapter
100, Oregon Laws 2007, is amended to read:
192.630. (1) All meetings of the governing body of a public
body shall be open to the public and all persons shall be
permitted to attend any meeting except as otherwise provided by
ORS 192.610 to 192.690.
(2) A quorum of a governing body may not meet in private for
the purpose of deciding on or deliberating toward a decision on
any matter except as otherwise provided by ORS 192.610 to
192.690.
(3) A governing body may not hold a meeting at any place where
discrimination on the basis of race, color, creed, sex, sexual
orientation, national origin, age or disability is practiced.
However, the fact that organizations with restricted membership
hold meetings at the place does not restrict its use by a public
body if use of the place by a restricted membership organization
is not the primary purpose of the place or its predominate use.
(4) Meetings of the governing body of a public body shall be
held within the geographic boundaries over which the public body
has jurisdiction, or at the administrative headquarters of the
public body or at the other nearest practical location. Training
sessions may be held outside the jurisdiction as long as no
Enrolled House Bill 2009 (HB 2009-C) Page 114
deliberations toward a decision are involved. A joint meeting of
two or more governing bodies or of one or more governing bodies
and the elected officials of one or more federally recognized
Oregon Indian tribes shall be held within the geographic
boundaries over which one of the participating public bodies or
one of the Oregon Indian tribes has jurisdiction or at the
nearest practical location. Meetings may be held in locations
other than those described in this subsection in the event of an
actual emergency necessitating immediate action.
(5)(a) It is discrimination on the basis of disability for a
governing body of a public body to meet in a place inaccessible
to persons with disabilities, or, upon request of a person who is
deaf or hard of hearing, to fail to make a good faith effort to
have an interpreter for persons who are deaf or hard of hearing
provided at a regularly scheduled meeting. The sole remedy for
discrimination on the basis of disability shall be as provided in
ORS 192.680.
(b) The person requesting the interpreter shall give the
governing body at least 48 hours' notice of the request for an
interpreter, shall provide the name of the requester, sign
language preference and any other relevant information the
governing body may request.
(c) If a meeting is held upon less than 48 hours' notice,
reasonable effort shall be made to have an interpreter present,
but the requirement for an interpreter does not apply to
emergency meetings.
(d) If certification of interpreters occurs under state or
federal law, the { - Department of Human Services - } { +
Oregon Health Authority + } or other state or local agency shall
try to refer only certified interpreters to governing bodies for
purposes of this subsection.
(e) As used in this subsection, 'good faith effort ' includes,
but is not limited to, contacting the department or other state
or local agency that maintains a list of qualified interpreters
and arranging for the referral of one or more qualified
interpreters to provide interpreter services.
SECTION 174. ORS 197.660 is amended to read:
197.660. As used in ORS 197.660 to 197.670, 215.213, 215.263,
215.283, 215.284 and 443.422:
(1) 'Residential facility' means a residential care,
residential training or residential treatment facility, as those
terms are defined in ORS 443.400, { - licensed under ORS
443.400 to 443.460 or licensed under ORS 418.205 to 418.327 by
the Department of Human Services - } that provides residential
care alone or in conjunction with treatment or training or a
combination thereof for six to fifteen individuals who need not
be related. Staff persons required to meet licensing requirements
shall not be counted in the number of facility residents, and
need not be related to each other or to any resident of the
residential facility.
(2) 'Residential home' means a residential treatment or
training { - or adult foster home licensed by or under the
authority of the department, as defined in ORS 443.400, under ORS
443.400 to 443.825, - } { + home, as defined in ORS
443.400, + } a residential facility registered under ORS 443.480
to 443.500 or an adult foster home licensed under ORS 443.705 to
443.825 that provides residential care alone or in conjunction
with treatment or training or a combination thereof for five or
fewer individuals who need not be related. Staff persons required
to meet licensing requirements shall not be counted in the number
Enrolled House Bill 2009 (HB 2009-C) Page 115
of facility residents, and need not be related to each other or
to any resident of the residential home.
(3) 'Zoning requirement' means any standard, criteria,
condition, review procedure, permit requirement or other
requirement adopted by a city or county under the authority of
ORS chapter 215 or 227 that applies to the approval or siting of
a residential facility or residential home. A zoning requirement
does not include a state or local health, safety, building,
occupancy or fire code requirement.
SECTION 175. ORS 198.792 is amended to read:
198.792. (1) Proceedings may be initiated by the county board
or any other public agency in accordance with ORS 431.705 to
431.760:
(a) To annex the affected territory to a district, as defined
by ORS 431.705; or
(b) To form a metropolitan service district as authorized by
ORS chapter 268, or a county service district as authorized by
ORS chapter 451, to include the affected territory.
(2) The findings of the Director of { - Human Services - }
{ + the Oregon Health Authority + } when filed with the county
board in accordance with ORS 431.735 or 431.750 shall be
considered a petition for the purposes of ORS 198.705 to 198.955.
The county board of the principal county shall conduct
proceedings in accordance with the findings and order of the
director and with ORS 198.705 to 198.955.
(3) In proceedings described by subsection (1) of this section,
the county board shall determine whether the affected territory
shall be included in a new district or annexed to an existing
district. The county board shall not inquire into the need for
the proposed service facilities or adjust the boundaries of the
affected territory. ORS 198.805 (2), and the provisions of ORS
198.810 and 198.815 providing for an election on the formation of
or annexation to a district, do not apply to proceedings under
this section.
SECTION 176. ORS 199.461 is amended to read:
199.461. (1) When the boundary commission receives a petition
in a boundary change proceeding or an application for any
proceeding allowed under ORS 199.464, it shall:
(a) Cause a study to be made of the proposal.
(b) Conduct one or more public hearings on the proposal.
(2) After the study and hearings, the boundary commission may
alter the boundaries set out in a petition for formation or a
minor boundary change of a city or district or in a petition for
consolidation of cities so as either to include or exclude
territory. If the commission determines that any land has been
improperly omitted from the proposal and that the owner of the
land has not appeared at the hearing, in person or by a
representative designated in writing, the commission shall
continue the hearing on the petition and shall order notice given
to the nonappearing owner requiring appearance of the owner
before the commission to show cause, if any, why the land should
not be included in the proposal. For minor boundary change
modifications, notice to nonappearing owners may be given by
personal service or by letter sent by first-class mail, at least
10 days prior to the date to which the hearing has been
continued. For major boundary change modifications, notice to
nonappearing owners may be given by personal service, by letter
sent by first-class mail or by a legal advertisement in a
newspaper of general circulation in the area at least 15 days
Enrolled House Bill 2009 (HB 2009-C) Page 116
prior to the date to which the hearing has been continued. The
required notice may be waived by the nonappearing owner.
(3) After the study and hearings the boundary commission may
alter the application for extraterritorial sewer or water line
extensions to include or exclude line and connections thereto,
and may alter the application for formation of a privately owned
sewer or water system or allocation of territory to a community
water supply system to include or exclude territory. If the
commission determines that any land has been improperly omitted
from a proposal to form a private water or sewer system or
allocate territory to a community water system, or that any line
or connections have been improperly omitted from a proposal to
extend extraterritorially a water or sewer line, and that the
owner of the property to be included or to which the line is
being extended has not appeared at the hearing, in person or by a
representative designated in writing, the commission shall
continue the hearing on the proposal and shall order notice given
to the nonappearing owner requiring appearance of the owner
before the commission to show cause, if any, why the land or line
or connection should not be included in the proposal. Notice to
nonappearing owners may be given by personal service or by letter
sent by first-class mail, at least 10 days prior to the date to
which the hearing has been continued. The required notice may be
waived by the nonappearing owner.
(4) On the basis of the study and on the basis of the facts
presented at the hearing, the boundary commission shall approve
the proposed boundary change or application under ORS 199.464 as
presented or as modified by the commission or disapprove the
proposed change, by an order stating the reasons for the decision
of the commission. Jurisdiction for judicial review of such an
order is conferred upon the Court of Appeals. Except as provided
in ORS 183.315 (1), any person interested in a boundary change
may petition for judicial review of the order under ORS 183.482.
(5) Immediately after the effective date of a final order
entered under subsection (4) of this section and a proclamation
declaring a minor boundary change approved if any is entered
under ORS 199.505 (3), the commission shall file a copy of the
order and proclamation, if any, with the Secretary of State, the
Department of Revenue, the assessor and the county clerk of each
county in which the affected territory, city or district is
located, and the clerk of the affected city or district. If the
commission disapproves a minor boundary change, it shall send a
copy of the final order to the person who actually filed the
petition and to the affected city or district.
(6) Immediately after the effective date of a final order on an
application under ORS 199.464, the commission shall file a copy
of the order with the applicant, the { - Department of Human
Services - } { + Oregon Health Authority + }, the Department of
Environmental Quality and the county planning department.
SECTION 177. ORS 199.490 is amended to read:
199.490. (1) A proceeding for a minor boundary change other
than a transfer of territory may be initiated:
(a) By resolution of the governing body of the affected city or
district;
(b) By petition signed by 10 percent of the electors registered
in the affected territory;
(c) By petition signed by the owners of at least one-half the
land area in the affected territory;
(d) By resolution of a boundary commission having jurisdiction
of the affected territory; or
Enrolled House Bill 2009 (HB 2009-C) Page 117
(e) When the minor boundary change is a withdrawal of a city
from a district, by resolution of the governing body of the city,
which shall be an affected city for the purposes of ORS 199.410
to 199.534.
(2)(a)(A) An annexation proceeding may also be initiated by a
resolution adopted by the governing body of the affected city or
district upon receiving consent to annex their land in writing
from more than half of the owners of land in the territory
proposed to be annexed, who also own more than half of the land
in the territory proposed to be annexed and of real property
therein representing more than half of the assessed value of all
real property in the territory proposed to be annexed.
(B) A resolution adopted by the governing body of the affected
city or district upon receiving written consent to annexation
from a majority of the electors registered in the territory
proposed to be annexed and written consent to the annexation of
their land from the owners of more than half the land in the
territory proposed to be annexed.
(b) However, before soliciting statements of consent for the
purpose of authorizing an annexation under a proceeding initiated
as provided by this subsection, the governing body of the
affected city or district shall file a notice of intent to annex
with the boundary commission having jurisdiction of the affected
territory. The notice of intent to annex shall name the affected
city or district and generally describe the boundaries of the
territory sought to be annexed, which territory must be
contiguous to the city or district or separated from it only by a
public right of way or a stream, bay, lake or other body of
water. The notice of intent to annex shall have attached to it a
county assessor's cadastral map showing the location of the
affected territory that the city or district proposes to annex.
(c) For the purpose of this subsection, consent need not be
obtained for any land in a public way included within or
contiguous to the territory proposed to be annexed. However, land
in such a public way shall, as determined by the commission, be
considered annexed to the affected city or district if the minor
boundary change is approved, regardless of the land's ownership,
size or assessed valuation.
(d) For the purpose of this subsection, consent need not be
obtained for any real property that is publicly owned, is the
right of way for a public utility, telecommunications utility or
railroad or is exempt from ad valorem taxation unless the owner
of such property files a statement consenting to or opposing
annexation with the legislative body of the annexing city or
district on or before the date the city or district adopts the
resolution required by paragraph (a) of this subsection.
(e) As used in this subsection, 'owner' has the additional
meaning given that term in ORS 222.120 (7).
(3) A transfer of territory proceeding may be initiated:
(a) By joint resolution of the governing bodies of the affected
districts or cities;
(b) By petition signed by 10 percent of the electors registered
in the affected territory;
(c) By petition signed by the owners of at least one-half the
land area in the affected territory; or
(d) By resolution of a boundary commission having jurisdiction
of the affected territory.
(4) The petition or resolution shall:
(a) Name the affected city or district and state whether it is
proposed to annex, withdraw or transfer territory;
Enrolled House Bill 2009 (HB 2009-C) Page 118
(b) Describe the boundaries of the affected territory;
(c) If the proposal concerns a district, designate the
applicable principal Act;
(d) Have attached a county assessor's cadastral map showing the
location of the affected territory; and
(e) Be filed with the boundary commission having jurisdiction
of the affected territory.
(5) When a city annexation is initiated:
(a) As provided by ORS 222.750 the petition proposing the
annexation shall be filed with the boundary commission having
jurisdiction of the annexation.
(b) As provided by ORS 222.840 to 222.915, the findings adopted
by the Director of { - Human Services - } { + the Oregon
Health Authority + } under ORS 222.880 shall be considered the
initiatory action and a certified copy of the findings shall be
filed with the boundary commission having jurisdiction of the
annexation, at the same time a copy of the finding is filed with
the affected city.
(6) Except when a boundary change is initiated by an affected
city or district under subsection (1), (2), (3) or (5) of this
section or by the { - Director of Human Services - }
{ + director + } as provided by subsection (5)(b) of this
section, the boundary commission shall notify the affected city
or district that a petition has been filed or that the commission
has adopted a resolution. If the petition complies with the
requirements of the applicable statutes, the commission shall
proceed as provided by ORS 199.460 to 199.463 and 199.490 to
199.519.
(7) Unless the parties appearing at a hearing for a minor
boundary change or application under ORS 199.464 agree to a
postponement of the adoption of a final order, a final order
approving or disapproving a minor boundary change must be adopted
within 90 days after the date the petition, resolution or
application is filed with the commission. If a final order
approving or disapproving a minor boundary change is not adopted
within 90 days after the petition, resolution or application is
filed or within the period of postponement, the petition,
resolution or application shall be considered approved by the
commission. A postponement shall not be for a period exceeding
one year from the date the petition, resolution or application
initiating the proposal is filed with the commission.
SECTION 178. ORS 199.495 is amended to read:
199.495. In a proceeding initiated as provided by ORS 199.490
(2) and (5):
(1) If the proposed annexation is approved by the commission,
the final order shall be effective at the time specified in the
final order except that the effective date for an annexation
initiated as provided by ORS 199.490 (5) shall not be more than
one year after the date the final order is adopted and for an
annexation initiated as provided by ORS 199.490 (2) shall not be
more than 10 years after the date the final order is adopted. If
no effective date is specified in the final order, the order
shall take effect on the date the order is adopted. The order
shall not be subject to ORS 199.505.
(2) ORS 222.883 to 222.896, 222.900 (1) and (3) and 222.915 do
not apply to proceedings initiated by the findings of the
Director of { - Human Services - } { + the Oregon Health
Authority + }.
SECTION 179. ORS 199.512 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 119
199.512. (1) The findings of the Director of { - Human
Services - } { + the Oregon Health Authority + } filed with a
boundary commission in accordance with ORS 431.740 or 431.750
shall be considered a petition for the purposes of ORS 199.410 to
199.534. When the findings of the director are filed with a
commission, it shall proceed in accordance with the findings and
with ORS 199.410 to 199.534, but the commission shall not inquire
into the need for the proposed facilities or adjust the
boundaries of the affected territory.
(2) In proceedings described by subsection (1) of this section,
the boundary commission shall determine whether the affected
territory shall be included in a new city, new metropolitan
service district or new county service district or annexed to an
existing district. The final order of the commission shall
conclude the proceedings for all purposes; and the formation or
annexation approved and ordered by the commission shall take
effect 45 days after the date the commission adopts the final
order in the proceeding.
SECTION 180. ORS 222.120 is amended to read:
222.120. (1) Except when expressly required to do so by the
city charter, the legislative body of a city is not required to
submit a proposal for annexation of territory to the electors of
the city for their approval or rejection.
(2) When the legislative body of the city elects to dispense
with submitting the question of the proposed annexation to the
electors of the city, the legislative body of the city shall fix
a day for a public hearing before the legislative body at which
time the electors of the city may appear and be heard on the
question of annexation.
(3) The city legislative body shall cause notice of the hearing
to be published once each week for two successive weeks prior to
the day of hearing, in a newspaper of general circulation in the
city, and shall cause notices of the hearing to be posted in four
public places in the city for a like period.
(4) After the hearing, the city legislative body may, by an
ordinance containing a legal description of the territory in
question:
(a) Declare that the territory is annexed to the city upon the
condition that the majority of the votes cast in the territory is
in favor of annexation;
(b) Declare that the territory is annexed to the city where
electors or landowners in the contiguous territory consented in
writing to such annexation, as provided in ORS 222.125 or
222.170, prior to the public hearing held under subsection (2) of
this section; or
(c) Declare that the territory is annexed to the city where the
{ - Department of Human Services - } { + Oregon Health
Authority + }, prior to the public hearing held under subsection
(1) of this section, has issued a finding that a danger to public
health exists because of conditions within the territory as
provided by ORS 222.840 to 222.915.
(5) If the territory described in the ordinance issued under
subsection (4) of this section is a part less than the entire
area of a district named in ORS 222.510, the ordinance may also
declare that the territory is withdrawn from the district on the
effective date of the annexation or on any subsequent date
specified in the ordinance. However, if the affected district is
a district named in ORS 222.465, the effective date of the
withdrawal of territory shall be determined as provided in ORS
222.465.
Enrolled House Bill 2009 (HB 2009-C) Page 120
(6) The ordinance referred to in subsection (4) of this section
is subject to referendum.
(7) For the purpose of this section, ORS 222.125 and 222.170, '
owner' or 'landowner' means the legal owner of record or, where
there is a recorded land contract which is in force, the
purchaser thereunder. If there is a multiple ownership in a
parcel of land each consenting owner shall be counted as a
fraction to the same extent as the interest of the owner in the
land bears in relation to the interest of the other owners and
the same fraction shall be applied to the parcel's land mass and
assessed value for purposes of the consent petition. If a
corporation owns land in territory proposed to be annexed, the
corporation shall be considered the individual owner of that
land.
SECTION 181. ORS 222.850 is amended to read:
222.850. As used in ORS 222.840 to 222.915, unless the context
requires otherwise:
(1) 'Affected territory' means an area within the urban growth
boundary of a city and which is otherwise eligible for annexation
to that city and in which there exists an actual or alleged
danger to public health.
{ + (2) 'Authority' means the Oregon Health Authority. + }
{ - (2) - } { + (3) + } 'City council' means the
legislative body of a city.
{ - (3) - } { + (4) + } 'Commission' means the
Environmental Quality Commission.
{ - (4) - } { + (5) + } 'Danger to public health' means a
condition which is conducive to the propagation of communicable
or contagious disease-producing organisms and which presents a
reasonably clear possibility that the public generally is being
exposed to disease-caused physical suffering or illness,
including a condition such as:
(a) Impure or inadequate domestic water.
(b) Inadequate installations for the disposal or treatment of
sewage, garbage or other contaminated or putrefying waste.
(c) Inadequate improvements for drainage of surface water and
other fluid substances.
{ - (5) 'Department' means the Department of Human
Services. - }
(6) 'Director' means the Director of { - Human Services - }
{ + the Oregon Health Authority + }.
(7) 'District' means any one of the following:
(a) A metropolitan service district formed under ORS chapter
268.
(b) A county service district formed under ORS chapter 451.
(c) A sanitary district formed under ORS 450.005 to 450.245.
(d) A sanitary authority, water authority or joint water and
sanitary authority formed under ORS 450.600 to 450.989.
(e) A domestic water supply district formed under ORS chapter
264.
SECTION 182. ORS 222.860 is amended to read:
222.860. (1) The city council of any city shall adopt a
resolution containing a proposal for annexation without vote or
consent in the affected territory. The proposal may contain terms
of annexation as provided in ORS 222.111 and shall:
(a) Describe the boundaries of the affected territory; and
(b) Describe the conditions alleged to be causing a danger to
public health.
(2) The governing body of any district having jurisdiction over
the affected territory may adopt a resolution containing a
Enrolled House Bill 2009 (HB 2009-C) Page 121
proposal for annexation to the city without vote or consent in
the affected territory. The proposal shall:
(a) Describe the boundaries of the affected territory; and
(b) Describe the conditions alleged to be causing a danger to
public health.
(3) The local board of health having jurisdiction shall verify
the conditions alleged in the proposal to be causing a danger to
public health, based upon its knowledge of those conditions.
(4) The council or governing body shall cause a certified copy
of the resolution together with verification by the local board
of health having jurisdiction, to be forwarded to the
{ - Department of Human Services - } { + Oregon Health
Authority + } and request the { - department - }
{ + authority + } to ascertain whether conditions dangerous to
public health exist in the affected territory.
SECTION 183. ORS 222.870 is amended to read:
222.870. (1) Upon receipt of the certified copy of the
resolution, and verification by the local board of health having
jurisdiction, the { - Department of Human Services - }
{ + Oregon Health Authority + } shall review and investigate
conditions in the affected territory. If it finds substantial
evidence that a danger to public health exists in the territory,
it shall issue an order for a hearing to be held within the
affected territory, or at a place near the affected territory if
there is no suitable place within that territory at which to hold
the hearing, not sooner than 30 days from the date of the order.
(2) Upon issuance of an order for a hearing, the
{ - department - } { + authority + } shall immediately give
notice of the resolution and order by publishing them in a
newspaper of general circulation within the city and the affected
territory once each week for two successive weeks and by posting
copies of the order in four public places within the affected
territory.
SECTION 184. ORS 222.875 is amended to read:
222.875. (1) The hearing shall be for the sole purpose of
determining whether a danger to public health exists due to
conditions in the affected territory. It may be conducted by one
or more members of the staff of the { - Department of Human
Services - } { + Oregon Health Authority + } to whom authority
to conduct such a hearing is delegated. It shall proceed in
accordance with rules which may be established by the
{ - department - } { + authority + }. Any person who may be
affected by the finding, including residents of the city, may be
heard. Within 60 days following the hearing, the person
conducting the hearing shall prepare and submit to the
{ - department - } { + authority + } written findings of fact
and recommendations based thereon. The { - department - }
{ + authority + } shall publish a notice of the issuance of such
findings and recommendations in the newspaper utilized for the
notice of hearing under ORS 222.870, advising of the opportunity
for presentation of a petition under subsection (2) of this
section.
(2) Within 15 days after the publication of notice of issuance
of findings in accordance with subsection (1) of this section any
person who may be affected by the findings, including residents
of the city, or the affected city, may petition the Director of
{ - Human Services - } { + the Oregon Health Authority + }
according to rules of the { - department - }
{ + authority + } to present written or oral arguments on the
Enrolled House Bill 2009 (HB 2009-C) Page 122
proposal. If a petition is received the director may set a time
and place for receipt of argument.
SECTION 185. ORS 222.880 is amended to read:
222.880. (1) Within 30 days following the final hearing of any
arguments received by petition under the provisions of ORS
222.875 (2) the Director of { - Human Services - } { + the
Oregon Health Authority + } shall review the arguments and the
findings and recommendations of the person conducting the hearing
as provided in ORS 222.875 (2). If the director finds no danger
to public health exists because of conditions within the affected
territory, the director shall issue an order terminating the
proceedings under ORS 222.840 to 222.915 with reference to the
affected territory.
(2) If the director finds that a danger to public health exists
because of conditions within the affected territory, the director
shall file a certified copy of findings with the city and, except
where the condition causing the danger to public health is impure
or inadequate domestic water, with the Environmental Quality
Commission.
(3) If the director determines that a danger to public health
exists because of conditions within only part of the affected
territory, the director may, upon petition and hearing, reduce
the boundaries of the affected territory to that part of the
territory that presents a danger if the area to be excluded would
not be surrounded by the affected territory remaining to be
annexed and would not be directly served by the sanitary, water
or other facilities necessary to remove or alleviate the danger
to public health existing within the affected territory remaining
to be annexed. The findings shall describe the boundaries of the
affected territory as reduced by the director. The director shall
file a certified copy of findings with the city and, except where
the condition causing the danger to public health is impure or
inadequate domestic water, the commission.
(4) In determining whether to exclude any area the director may
consider whether or not such exclusion would unduly interfere
with the removal or alleviation of the danger to public health in
the affected territory remaining to be annexed and whether the
exclusion would result in an illogical boundary for the extension
of services normally provided by an incorporated city.
(5) The city shall, when requested, aid in the determinations
made under subsections (3) and (4) of this section and, if
necessary, cause a study to be made.
(6) Notwithstanding ORS 222.111 (3), the director, in
implementing an order under ORS 222.840 to 222.915, may allow the
use of the tax differential authorized by ORS 222.111 (3) for a
period not exceeding 15 years with the consent of the affected
city.
SECTION 186. ORS 222.883 is amended to read:
222.883. At any time after the Director of { - Human
Services - } { + the Oregon Health Authority + } under ORS
222.880 finds that conditions dangerous to public health exist,
the { - Department of Human Services - } { + Oregon Health
Authority + } may order further proceedings on the findings filed
under ORS 222.880 halted in order to allow a city, district or
persons affected by the findings to develop and propose an
alternative plan to annexation for the removal or alleviation of
the conditions dangerous to public health. Proceedings may be
stayed under this section for not longer than 30 days.
SECTION 187. ORS 222.885 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 123
222.885. (1) Within 60 days after the Director of { - Human
Services - } { + the Oregon Health Authority + } under ORS
222.880 finds that conditions dangerous to public health exist, a
petition, signed by not less than 51 percent of the electors
registered in the affected territory, may be filed with the
{ - Department of Human Services - } { + Oregon Health
Authority + }. Such petition shall suggest an alternative plan to
annexation to the city for removal or alleviation of the
conditions dangerous to public health. The petition shall state
the intent of the residents to seek annexation to an existing
district authorized by law to provide facilities within the
affected territory necessary to remove or alleviate the dangerous
conditions or to seek, with the approval of the city or district,
extraterritorial extension of a city's or district's sewer or
water lines. The petition shall be accompanied by a proposed plan
which shall state the type of facilities to be constructed, a
proposed means of financing the facilities, and an estimate of
the time required to construct such facilities and place them in
operation.
(2) Within 30 days after the director under ORS 222.880 finds
that conditions dangerous to public health exist, a resolution
adopted by the city council or the governing body of any district
having jurisdiction over the affected territory may be filed with
the { - department - } { + authority + }. The resolution
shall suggest an alternative plan to annexation to the city for
removal or alleviation of the conditions dangerous to public
health. The resolution shall be accompanied by a proposed plan
which shall state the type of facilities to be constructed, a
proposed means of financing the facilities, and an estimate of
the time required to construct such facilities and place them in
operation.
(3) Upon receipt of such petition or resolution adopted by a
district or city council, the { - department - }
{ + authority + } shall:
(a) Immediately forward copies of any petition or resolution to
the city or district referred to in the petition or resolution,
and, except where the condition causing the danger to public
health is impure or inadequate domestic water, to the
Environmental Quality Commission.
(b) Order further proceedings on the findings filed under ORS
222.880 stayed pending the review permitted under ORS 222.890 and
this section.
SECTION 188. ORS 222.890 is amended to read:
222.890. (1) An alternative plan referred to in ORS 222.885
shall be reviewed by the { - Department of Human Services - }
{ + Oregon Health Authority + } in cases where danger to public
health is caused by impure or inadequate domestic water and in
all other cases by the Environmental Quality Commission. The plan
shall be approved or rejected by the { - appropriate - }
authority { + or commission + }. In reviewing the alternative
plan contained in the petition, the authority { + or
commission + } shall consider whether, in its judgment, the plan
contains a preferable alternative for the alleviation or removal
of the conditions dangerous to public health. If it determines
that annexation to the city provides the best and most
expeditious method of removing or alleviating the dangerous
conditions, the alternative plan shall be rejected and further
proceedings on the finding filed under ORS 222.880 shall resume.
(2) If the { - reviewing - } authority { + or
commission + } finds that the alternative plan provides a
Enrolled House Bill 2009 (HB 2009-C) Page 124
preferable method of alleviating or removing the dangerous
conditions, the petitioners or appropriate governing body shall
have six months within which to present to
{ - such - } { + the + } authority { + or commission + }
information showing:
(a) That the territory in which the conditions dangerous to
public health exist has received approval for the extension of a
city's or district's sewer or water lines within the territory or
has annexed to a district authorized by law to provide facilities
necessary to remove or alleviate the dangerous conditions, and
that financing of the facilities for extension of such facilities
to the territory has been assured.
(b) Detailed plans and specifications for the construction of
such facilities.
(c) A time schedule for the construction of such facilities.
(d) That such facilities, if constructed, will remove or
alleviate the conditions dangerous to public health in a manner
as satisfactory and expeditious as would be accomplished by the
proposed annexation to the city.
(3) The authority { + or commission + } shall review the final
plan presented to it by the petitioners, city or district and
shall promptly certify whether the requirements of subsection (2)
of this section have been met. If the requirements have been met,
the
{ - department - } { + authority + } shall certify the
alternative plan. Further annexation proceedings on the findings
filed under ORS 222.880 shall be suspended and the city shall be
so notified. If the requirements of subsection (2) of this
section are not met by the petitioners, city or district or
whenever the { - reviewing - } authority { + or commission + }
determines that the requirements of the certified plan are not
being satisfied, further proceedings on the findings filed under
ORS 222.880 shall resume.
SECTION 189. ORS 222.897 is amended to read:
222.897. (1) Upon receipt of a certified copy of the findings
of the { - Department of Human Services - } { + Oregon Health
Authority + } under ORS 222.880, the city council shall cause a
study to be made and preliminary plans and specifications
developed for the sanitary, water or other facilities necessary
to remove or alleviate the conditions causing a danger to public
health. The council shall prepare a schedule setting out the
steps necessary to put the plan into operation and the time
required for each step in the implementation of the plan. A copy
of the plans and specifications and the time schedule shall, in
the case where the danger to public health is caused by impure or
inadequate domestic water, be submitted to the
{ - department - } { + authority + } and in all other cases to
the Environmental Quality Commission.
(2) If the city within 90 days, fails to complete the
requirements in subsection (1) of this section, the
{ - department - } { + authority + } shall conduct the
necessary studies and prepare plans and other documents required
for the consideration of the proposal and the final determination
of the proceedings. The expense of the study and preparation of
the plans and other documents shall be paid by the city upon
vouchers properly certified by the Director of { - Human
Services - } { + the Oregon Health Authority + }.
SECTION 190. ORS 222.900 is amended to read:
222.900. (1) Subject to subsection (2) of this section, upon
receipt of the certified copy of the finding as provided in ORS
Enrolled House Bill 2009 (HB 2009-C) Page 125
222.880 (2) or (3) and certification of approval of plans under
ORS 222.898, the city council shall adopt an ordinance which
shall:
(a) Contain the legal description of the territory annexed;
(b) Contain the terms of the annexation, if any, made under ORS
222.111;
(c) Adopt the plans, specifications and time schedule as
approved by the { - Department of Human Services - }
{ + Oregon Health Authority + } or Environmental Quality
Commission; and
(d) Declare the territory annexed to the city in accordance
with ORS 222.840 to 222.915.
(2) An ordinance shall not be enacted as provided in subsection
(1) of this section until the expiration of the time for appeal
under the provisions of ORS 222.896 and, in the event an appeal
is filed, following the determination of that appeal.
(3) If the { - department - } { + authority + } makes its
finding under ORS 222.880 (3), the city shall not annex a greater
area than that described in the finding. The recorder, or other
officer performing the duties of the recorder, shall transmit a
transcript to the Secretary of State, including certified copies
of the resolution required in ORS 222.860, the finding of the
Director of
{ - Human Services - } { + the Oregon Health Authority + },
and the ordinance proclaiming annexation of the territory.
(4) If the city council adopts the ordinance of annexation as
provided in subsection (1) of this section, it shall within one
year thereafter prepare plans and specifications for the
sanitary, water or other facilities proposed to be provided in
the annexed area, in compliance with ORS 448.115 to 448.285 or
468B.055 and shall then proceed in accordance with the time
schedule to construct or install these facilities. The commission
shall use its powers of enforcement under ORS 448.305, 454.010 to
454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to
454.755, and ORS chapters 468, 468A and 468B to insure that the
facilities are constructed or installed in conformance with the
approved plans and schedule. The manner of financing the cost of
the facilities shall be determined by the city council.
SECTION 191. ORS 222.911 is amended to read:
222.911. No officer or employee of the { - Department of
Human Services - } { + Oregon Health Authority + } who owns
property or resides within affected territory that is subject to
proceedings under the provisions of ORS 222.840 to 222.915 shall
participate in an official capacity in any investigation, hearing
or recommendation relating to such proceedings. If the Director
of { - Human Services - } { + the Oregon Health Authority + }
is such a person, the director shall so inform the Governor, who
shall appoint another person to fulfill the duties of the
director in any investigation, hearing or recommendation relating
to such proceeding.
SECTION 192. ORS 244.050 is amended to read:
244.050. (1) On or before April 15 of each year the following
persons shall file with the Oregon Government Ethics Commission a
verified statement of economic interest as required under this
chapter:
(a) The Governor, Secretary of State, State Treasurer, Attorney
General, Commissioner of the Bureau of Labor and Industries,
Superintendent of Public Instruction, district attorneys and
members of the Legislative Assembly.
Enrolled House Bill 2009 (HB 2009-C) Page 126
(b) Any judicial officer, including justices of the peace and
municipal judges, except any pro tem judicial officer who does
not otherwise serve as a judicial officer.
(c) Any candidate for a public office designated in paragraph
(a) or (b) of this subsection.
(d) The Deputy Attorney General.
(e) The Legislative Administrator, the Legislative Counsel, the
Legislative Fiscal Officer, the Secretary of the Senate and the
Chief Clerk of the House of Representatives.
(f) The Chancellor and Vice Chancellors of the Oregon
University System and the president and vice presidents, or their
administrative equivalents, in each institution under the
jurisdiction of the State Board of Higher Education.
(g) The following state officers:
(A) Adjutant General.
(B) Director of Agriculture.
(C) Manager of State Accident Insurance Fund Corporation.
(D) Water Resources Director.
(E) Director of Department of Environmental Quality.
(F) Director of Oregon Department of Administrative Services.
(G) State Fish and Wildlife Director.
(H) State Forester.
(I) State Geologist.
(J) Director of Human Services.
(K) Director of the Department of Consumer and Business
Services.
(L) Director of the Department of State Lands.
(M) State Librarian.
(N) Administrator of Oregon Liquor Control Commission.
(O) Superintendent of State Police.
(P) Director of the Public Employees Retirement System.
(Q) Director of Department of Revenue.
(R) Director of Transportation.
(S) Public Utility Commissioner.
(T) Director of Veterans' Affairs.
(U) Executive Director of Oregon Government Ethics Commission.
(V) Director of the State Department of Energy.
(W) Director and each assistant director of the Oregon State
Lottery.
{ + (X) Director of the Oregon Health Authority. + }
(h) Any assistant in the Governor's office other than personal
secretaries and clerical personnel.
(i) Every elected city or county official.
(j) Every member of a city or county planning, zoning or
development commission.
(k) The chief executive officer of a city or county who
performs the duties of manager or principal administrator of the
city or county.
(L) Members of local government boundary commissions formed
under ORS 199.410 to 199.519.
(m) Every member of a governing body of a metropolitan service
district and the executive officer thereof.
(n) Each member of the board of directors of the State Accident
Insurance Fund Corporation.
(o) The chief administrative officer and the financial officer
of each common and union high school district, education service
district and community college district.
(p) Every member of the following state boards and commissions:
(A) Board of Geologic and Mineral Industries.
(B) Oregon Economic and Community Development Commission.
Enrolled House Bill 2009 (HB 2009-C) Page 127
(C) State Board of Education.
(D) Environmental Quality Commission.
(E) Fish and Wildlife Commission of the State of Oregon.
(F) State Board of Forestry.
(G) Oregon Government Ethics Commission.
(H) Oregon Health Policy { - Commission - } { + Board + }.
(I) State Board of Higher Education.
(J) Oregon Investment Council.
(K) Land Conservation and Development Commission.
(L) Oregon Liquor Control Commission.
(M) Oregon Short Term Fund Board.
(N) State Marine Board.
(O) Mass transit district boards.
(P) Energy Facility Siting Council.
(Q) Board of Commissioners of the Port of Portland.
(R) Employment Relations Board.
(S) Public Employees Retirement Board.
(T) Oregon Racing Commission.
(U) Oregon Transportation Commission.
(V) Wage and Hour Commission.
(W) Water Resources Commission.
(X) Workers' Compensation Board.
(Y) Oregon Facilities Authority.
(Z) Oregon State Lottery Commission.
(AA) Pacific Northwest Electric Power and Conservation Planning
Council.
(BB) Columbia River Gorge Commission.
(CC) Oregon Health and Science University Board of Directors.
(q) The following officers of the State Treasurer:
(A) Chief Deputy State Treasurer.
(B) Chief of staff for the office of the State Treasurer.
(C) Director of the Investment Division.
(r) Every member of the board of commissioners of a port
governed by ORS 777.005 to 777.725 or 777.915 to 777.953.
(s) Every member of the board of directors of an authority
created under ORS 441.525 to 441.595.
(2) By April 15 next after the date an appointment takes
effect, every appointed public official on a board or commission
listed in subsection (1) of this section shall file with the
Oregon Government Ethics Commission a statement of economic
interest as required under ORS 244.060, 244.070 and 244.090.
(3) By April 15 next after the filing deadline for the primary
election, each candidate for public office described in
subsection (1) of this section shall file with the commission a
statement of economic interest as required under ORS 244.060,
244.070 and 244.090.
(4) Within 30 days after the filing deadline for the general
election, each candidate for public office described in
subsection (1) of this section who was not a candidate in the
preceding primary election, or who was nominated for public
office described in subsection (1) of this section at the
preceding primary election by write-in votes, shall file with the
commission a statement of economic interest as required under ORS
244.060, 244.070 and 244.090.
(5) Subsections (1) to (4) of this section apply only to
persons who are incumbent, elected or appointed public officials
as of April 15 and to persons who are candidates for public
office on April 15. Subsections (1) to (4) of this section also
apply to persons who do not become candidates until 30 days after
the filing deadline for the statewide general election.
Enrolled House Bill 2009 (HB 2009-C) Page 128
(6) If a statement required to be filed under this section has
not been received by the commission within five days after the
date the statement is due, the commission shall notify the public
official or candidate and give the public official or candidate
not less than 15 days to comply with the requirements of this
section. If the public official or candidate fails to comply by
the date set by the commission, the commission may impose a civil
penalty as provided in ORS 244.350.
SECTION 193. ORS 247.570 is amended to read:
247.570. (1) Not later than five business days after receiving
a certificate of death under ORS 432.307, a county registrar
designated under ORS 432.035 shall furnish to the county clerk of
that county the name, age, date of birth and residence address of
the person for whom the registrar has received the certificate of
death. If the person was registered to vote in the county, the
county clerk immediately shall cancel the registration of the
person.
(2) Not later than five business days after receiving
information from the county registrar under subsection (1) of
this section, the county clerk shall furnish the information to
the Secretary of State. The Secretary of State shall furnish a
copy of the appropriate names received under this subsection to
each county clerk. Each county clerk immediately shall cancel the
registrations of those persons.
(3) The { - Department of Human Services - } { + Oregon
Health Authority + }, during the last week of each month, shall
furnish to the Secretary of State a list of the name, age, date
of birth, county of residence and residence address of each
resident of this state who has died during the preceding month
and for whom a certificate of death was not filed with a county
registrar. The Secretary of State shall furnish a copy of the
appropriate names to each county clerk. Each county clerk
immediately shall cancel registrations of those persons.
SECTION 194. ORS 276.180 is amended to read:
276.180. When vacated and no longer required for institution
uses, all or any portion of the buildings, grounds and facilities
presently operated and controlled by the Department of Human
Services, { + the + } Department of Corrections { + , the Oregon
Health Authority + } or the State Board of Education, are
transferred to the Oregon Department of Administrative Services
when so ordered by the Oregon Department of Administrative
Services. Title shall vest automatically in the Oregon Department
of Administrative Services in the name of the State of Oregon and
the department shall operate and maintain all facilities
described in this section.
SECTION 195. ORS 276.610 is amended to read:
276.610. There is established a fund in the State Treasury to
be known as the State Building Fund which shall be used for the
construction, alteration and repair of buildings required for use
of institutions and activities under the jurisdiction of the
Department of Corrections, { + the + } Department of Human
Services { + , the Oregon Health Authority + } or the State Board
of Education and the State Board of Higher Education and for the
furnishing and equipping of buildings so constructed, altered or
repaired.
SECTION 196. ORS 276.612 is amended to read:
276.612. The Department of Corrections, { + the + } Department
of Human Services { + , the Oregon Health Authority + } and the
State Board of Education each shall determine the buildings to be
constructed, altered, repaired, furnished and equipped for the
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use of institutions and activities under their respective
jurisdictions. The State Board of Higher Education shall
determine the buildings to be constructed, altered, repaired,
furnished and equipped for the use of institutions or activities
under its jurisdiction.
SECTION 197. ORS 278.315 is amended to read:
278.315. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may provide tort liability
coverage through the Oregon Department of Administrative Services
to any county or private community care provider that has
contracted with the { - Department of Human Services - }
{ + authority + } to provide supervision, care, treatment or
training of persons under the jurisdiction of the Psychiatric
Security Review Board. Counties or private community care
providers, and the officers and employees of those counties and
providers acting within the scope of their employment, may be
covered to the extent that any tort claim arises out of the
provision of supervision, care, treatment or training of persons
pursuant to the terms of the contract. Tort liability coverage
under this section must be in writing, and may be part of the
contract between the { - Department of Human Services - }
{ + authority + } and the county or private community care
provider. The coverage provided under this section shall be
self-insurance by the State of Oregon to the limits contained in
ORS 30.260 to 30.300.
(2) Counties or private community care providers that have
contracted with the { - Department of Human Services - }
{ + authority + } to provide supervision, care, treatment or
training of persons under the jurisdiction of the Psychiatric
Security Review Board, and the officers and employees of those
counties and providers, are not agents of the
{ - department - } { + authority + } for the purposes of ORS
30.260 to 30.300.
SECTION 198. ORS 279A.050 is amended to read:
279A.050. (1)(a) Except as otherwise provided in the Public
Contracting Code, a contracting agency shall exercise all
procurement authority in accordance with the provisions of the
Public Contracting Code.
(b) When a contracting agency has authority under this section
to carry out functions described in this section, or has
authority to make procurements under a provision of law other
than the Public Contracting Code, the contracting agency is not
required to exercise that authority in accordance with the
provisions of the code if, under ORS 279A.025, the code does not
apply to the contract or contracting authority.
(2) Except as otherwise provided in the Public Contracting
Code, for state agencies the Director of the Oregon Department of
Administrative Services has all the authority to carry out the
provisions of the Public Contracting Code.
(3) Except as otherwise provided in the Public Contracting
Code, the Director of Transportation has all the authority to:
(a) Procure or supervise the procurement of all services and
personal services to construct, acquire, plan, design, maintain
and operate passenger terminal facilities and motor vehicle
parking facilities in connection with any public transportation
system in accordance with ORS 184.689 (5);
(b) Procure or supervise the procurement of all goods,
services, public improvements and personal services relating to
the operation, maintenance or construction of highways, bridges
Enrolled House Bill 2009 (HB 2009-C) Page 130
and other transportation facilities that are subject to the
authority of the Department of Transportation; and
(c) Establish standards for, prescribe forms for and conduct
the prequalification of prospective bidders on public improvement
contracts related to the operation, maintenance or construction
of highways, bridges and other transportation facilities that are
subject to the authority of the Department of Transportation.
(4) Except as otherwise provided in the Public Contracting
Code, the Secretary of State has all the authority to procure or
supervise the procurement of goods, services and personal
services related to programs under the authority of the Secretary
of State.
(5) Except as otherwise provided in the Public Contracting
Code, the State Treasurer has all the authority to procure or
supervise the procurement of goods, services and personal
services related to programs under the authority of the State
Treasurer.
(6) The state agencies listed in this subsection have all the
authority to do the following in accordance with the Public
Contracting Code:
(a) The Department of Human Services to procure or supervise
the procurement of goods, services and personal services for the
construction, demolition, exchange, maintenance, operation and
equipping of housing { - : - } { + for the purpose of
providing care to individuals with mental retardation or other
developmental disabilities, subject to applicable provisions of
ORS 427.335;
(b) The Oregon Health Authority to procure or supervise the
procurement of goods, services and personal services for the
construction, demolition, exchange, maintenance, operation and
equipping of housing for persons with chronic mental illness,
subject to applicable provisions of ORS 426.504; + }
{ - (A) For persons with chronic mental illness, subject to
applicable provisions of ORS 426.504; and - }
{ - (B) For the purpose of providing care to individuals with
mental retardation or other developmental disabilities, subject
to applicable provisions of ORS 427.335; - }
{ - (b) - } { + (c) + } The State Department of Fish and
Wildlife to procure or supervise the procurement of construction
materials, equipment, supplies, services and personal services
for public improvements, public works or ordinary construction
described in ORS 279C.320 that is subject to the authority of the
State Department of Fish and Wildlife;
{ - (c) - } { + (d) + } The State Parks and Recreation
Department to procure or supervise the procurement of all goods,
services, public improvements and personal services relating to
state parks;
{ - (d) - } { + (e) + } The Oregon Department of Aviation
to procure or supervise the procurement of construction
materials, equipment, supplies, services and personal services
for public improvements, public works or ordinary construction
described in ORS 279C.320 that is subject to the authority of the
Oregon Department of Aviation;
{ - (e) - } { + (f) + } The Economic and Community
Development Department to procure or supervise the procurement of
all goods, services, personal services and public improvements
related to its foreign trade offices operating outside the state;
{ - (f) - } { + (g) + } The Housing and Community Services
Department to procure or supervise the procurement of goods,
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services and personal services as provided in ORS 279A.025
(2)(o);
{ - (g) - } { + (h) + } The Department of Corrections to
procure or supervise the procurement of construction materials,
equipment, supplies, services and personal services for public
improvements, public works or ordinary construction described in
ORS 279C.320 that is subject to the authority of the Department
of Corrections;
{ - (h) - } { + (i) + } The Department of Corrections,
subject to any applicable provisions of ORS 279A.120, 279A.125,
279A.145 and 283.110 to 283.395, to procure or supervise the
procurement of goods for its institutions;
{ - (i) - } { + (j) + } The Department of Veterans' Affairs
to procure or supervise the procurement of real estate broker and
principal real estate broker services related to programs under
the department's authority;
{ - (j) - } { + (k) + } The Oregon Military Department to
procure or supervise the procurement of construction materials,
equipment, supplies, services and personal services for public
improvements, public works or ordinary construction described in
ORS 279C.320 that is subject to the authority of the Oregon
Military Department;
{ - (k) - } { + (L) + } The Department of Education,
subject to any applicable provisions of ORS 329.075, 329.085 and
329.485 and the federal No Child Left Behind Act of 2001 (P.L.
107-110, 115 Stat. 1425), to procure or supervise the
procurement of goods, services, personal services and information
technology relating to student assessment; and
{ - (L) - } { + (m) + } Any state agency to conduct a
procurement when the agency is specifically authorized by any
provision of law other than the Public Contracting Code to enter
into a contract.
(7) Notwithstanding this section and ORS 279A.140 (1), the
Director of the Oregon Department of Administrative Services has
exclusive authority to procure or supervise the procurement of
all state agency information technology contracts and all price
agreements on behalf of the state agencies identified in
subsection (6)(a) to { - (j) - } { + (k) + } of this section
under which more than one state agency may order goods, services
or personal services unless the director delegates this
authority. This subsection does not apply to contracts under
which the contractor delivers to the state agency information
technology products or services incidental to the performance of
personal services contracts described in ORS chapter 279C or
construction contracts described in ORS chapter 279C. A state
agency identified in subsection (3) or (6)(a) to { - (j) - }
{ + (k) + } of this section may not establish a price agreement
or enter into a contract for goods, services or personal services
without the approval of the director if the director has
established a price agreement for the goods, services or personal
services.
SECTION 199. ORS 285A.213 is amended to read:
285A.213. (1) There is established in the State Treasury,
separate and distinct from the General Fund, the Safe Drinking
Water Revolving Loan Fund. All moneys in the Safe Drinking Water
Revolving Loan Fund are continuously appropriated to the Economic
and Community Development Department.
(2) The Economic and Community Development Department shall
administer the Safe Drinking Water Revolving Loan Fund in
accordance with a memorandum of understanding between the
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department and the { - Department of Human Services - }
{ + Oregon Health Authority + }.
(3) The Safe Drinking Water Revolving Loan Fund shall consist
of:
(a) Moneys transferred to the fund by the { - Department of
Human Services - } { + authority + } for purposes authorized by
the memorandum of understanding between the { - Department of
Human Services and the Economic and Community Development
Department - } { + authority and the department + }.
(b) Moneys transferred to the fund by the federal government,
other state agencies or local governments.
(c) Moneys transferred to the fund by the Legislative Assembly
or the Oregon Economic and Community Development Commission.
(d) Proceeds from the sale of revenue bonds.
(e) Repayment of financial assistance provided with moneys from
the fund.
(f) Interest and other earnings on moneys in the fund.
(4) Moneys in the Safe Drinking Water Revolving Loan Fund shall
be used to provide financial or other assistance to publicly
owned and privately owned water systems under the Safe Drinking
Water Act Amendments of 1996, P.L. 104-182, and rules of the
{ - Economic and Community Development Department. As used in
this subsection, 'assistance' includes direct purchase by the
Economic and Community Development Department of goods or
services related to a water system project to the extent
permitted by the memorandum of understanding between the Economic
and Community Development Department and the Department of Human
Services, the Safe Drinking Water Act Amendments of 1996, and as
authorized by rules of the Economic and Community Development
Department - } { + department. As used in this subsection,
'assistance' includes direct purchase by the department of goods
or services related to a water system project to the extent
permitted by the memorandum of understanding between the
department and the authority, the Safe Drinking Water Act
Amendments of 1996, and as authorized by rules of the
department + }.
(5) The owner of a water system may borrow from the Safe
Drinking Water Revolving Loan Fund by entering into a loan
agreement with the { - Economic and Community Development
Department - } { + department + }. The owner of a municipally
owned water system may enter into a loan agreement with the
department notwithstanding any restriction on indebtedness in the
charter or bylaws of the municipality or any other provision of
law. Moneys owed to the department by the borrower under a loan
agreement may be paid from:
(a) Revenue from any water system project of the borrower,
including special assessment revenue;
(b) Amounts withheld under subsection (6) of this section;
(c) The general fund of the borrower;
(d) Any combination of sources listed in paragraphs (a) to (c)
of this subsection; or
(e) Any other source.
(6) If a borrower fails to comply with a loan agreement entered
into under subsection (5) of this section, the { - Economic and
Community Development Department - } { + department + } may
seek appropriate legal remedies to secure any repayment due the
Safe Drinking Water Revolving Loan Fund. If a borrower defaults
on repayment due the fund, the State of Oregon may withhold any
amounts otherwise due to the borrower. Any amounts withheld under
Enrolled House Bill 2009 (HB 2009-C) Page 133
this subsection shall be credited toward repayment of the
borrower's indebtedness to the fund.
SECTION 200. ORS 285B.563 is amended to read:
285B.563. (1) There is established in the State Treasury,
separate and distinct from the General Fund, the Water Fund. All
moneys in the Water Fund are continuously appropriated to the
Economic and Community Development Department for the purposes
described in ORS 285B.560 to 285B.599, including the direct
project management costs.
(2)(a) Moneys in the Water Fund may be obligated to water
projects.
(b) Moneys shall be used primarily to make loans to
municipalities. The department may make a loan only if:
(A) The municipality applying for the loan certifies to the
department that adequate funds will be available to repay the
loan; and
(B) The department determines that the amount of the loan
applied for is based on a reasonable and prudent expectation of
the municipality's ability to repay the loan.
(c) The department may award a grant only if a loan is not
feasible due to:
(A) Financial hardship to the municipality, as determined by
the department, based on consideration of anticipated water
service charges or anticipated waste water service charges, the
per capita income of the municipality and any other factors as
the department by rule may establish; and
(B) Special circumstances of the water project.
(d) The department may determine the amount of grant or loan
funding on a case-by-case basis.
(3) The moneys in the fund may also be used to assist the
department in selling revenue bonds on behalf of municipalities
in order to carry out the purposes of ORS 285B.560 to 285B.599.
(4) Moneys in the Water Fund may be invested as provided by ORS
293.701 to 293.820. The earnings from the investments and other
program income shall be credited to the Water Fund.
(5) The Water Fund shall consist of:
(a) Moneys appropriated to the fund by the Legislative
Assembly.
(b) Moneys transferred to the fund by the Economic and
Community Development Department from the Special Public Works
Fund created by ORS 285B.455.
(c) Moneys transferred to the Water Fund by the Water Resources
Commission from the Water Development Fund created by Article
XI-I(1) of the Oregon Constitution.
(d) Moneys from any federal, state or other grants.
(e) Proceeds of revenue bonds issued under ORS 285B.575.
(f) Earnings on the Water Fund.
(6) The department shall administer the fund.
(7) The department shall adopt rules and policies for the
administration of the fund. The department shall coordinate its
rulemaking regarding safe drinking water projects with the Water
Resources Department and the { - Department of Human
Services - } { + Oregon Health Authority + }. The rules adopted
under this subsection for safe drinking water projects shall:
(a) Require the installation of meters on all new active
service connections from any distribution lines funded with
moneys from the fund or from the proceeds of revenue bonds issued
under ORS 285B.572 to 285B.578.
(b) Require a plan, to be adopted by a municipality receiving
financial assistance from the fund, for installation of meters on
Enrolled House Bill 2009 (HB 2009-C) Page 134
all service connections throughout the drinking water system not
later than two years after the completion of a safe drinking
water project.
(8)(a) The Economic and Community Development Department shall
manage the Water Fund and any expenditures from accounts in the
fund and transfers between accounts so that the fund provides a
continuing source of financing consistent with ORS 285B.413.
(b) If necessary to ensure repayment of bonds issued under ORS
285B.560 to 285B.599, the department may reduce the value of the
fund when the department:
(A) Finds that without a reduction in fund value, bonds secured
by the fund are likely to be in default; and
(B) Imposes a moratorium on grants until the requirements of
paragraph (a) of this subsection are satisfied.
(9)(a) The department may charge administrative costs to the
fund, but not to moneys segregated in the account created by
subsection (11) of this section, to pay for administrative costs
incurred by the department.
(b) To the extent permitted by federal law, administrative
costs of the department may be paid from bond proceeds.
(10) The department may establish other accounts within the
Water Fund for the payment of water projects costs, reserves,
debt service payments, credit enhancements, costs of issuing
revenue bonds, administrative costs and operating expenses or any
other purpose necessary to carry out ORS 285B.560 to 285B.599.
(11) There is created within the Water Fund a separate and
distinct account for the proceeds from the sale of water
development general obligation bonds issued for safe drinking
water projects and credited to the special account under this
section. Any investment earnings thereon shall be segregated in
and continuously appropriated to a special, separately accounted
for subaccount of this account. Moneys credited to this account
shall be maintained separate and distinct from moneys credited to
subaccounts created under subsection (10) of this section.
Notwithstanding ORS 285B.566 or subsection (4) of this section,
all repayments of moneys loaned from the account created by this
subsection, including interest on the moneys, shall be credited
to the Water Development Administration and Bond Sinking Fund
created by ORS 541.830.
(12) As used in this section, 'administrative costs ' include
the department's direct and indirect costs for investigating and
processing an application, developing a contract, monitoring the
use of funds by a municipality, investigating and resolving a
budget discrepancy, closing a project and providing financial and
other assistance to a municipality.
{ + NOTE: + } Section 201 was deleted by amendment.
Subsequent sections were not renumbered.
SECTION 202. ORS 291.371 is amended to read:
291.371. (1) As used in this section, 'legislative review
agency' means the Joint Committee on Ways and Means during the
period when the Legislative Assembly is in session and the
Emergency Board during the interim period between sessions.
(2) Prior to making any changes in a salary plan, the Oregon
Department of Administrative Services shall submit the proposed
changes to the legislative review agency.
(3)(a) The Oregon Department of Administrative Services may
approve the reallocation of positions or the establishment of new
positions not specifically provided for in the budget of the
affected agency if it finds that the proposed change:
Enrolled House Bill 2009 (HB 2009-C) Page 135
(A) Can be financed by the agency within the limits of its
biennial budget and legislatively approved program;
(B) Will not produce future budgetary increases; and
(C) Conforms to legislatively approved salary policies.
(b) Proposed changes not meeting the requirements of paragraph
(a) of this subsection shall be presented to the legislative
review agency.
(4) Agencies within the Department of Human Services { + , the
Oregon Health Authority + } and the Department of Corrections
shall report on a biennial basis to the legislative review
agency. Each report shall include the number of vacant budgeted
positions, including all job categories and classifications,
within the agency. The legislative review agency shall order the
reporting agency to show cause why the budgeted positions have
not been filled and shall assess fully the impact the vacancies
have on:
(a) The agency's delivery of services, accounting for any
seasonal fluctuation in the need for those services;
(b) The agency's budget due to increased use of overtime;
(c) The agency's use of temporary employees; and
(d) Employee workload.
(5) It is declared to be the policy of this state that the
total personal services, budget and full-time equivalent
positions approved for any state agency shall be the maximum
amount necessary to meet the requirements of the agency for the
biennium. Notwithstanding ORS 291.232 to 291.260, the Governor
and the Oregon Department of Administrative Services may transfer
vacant position authority among and within state agencies to
achieve maximum utilization of authorized positions within
agencies.
SECTION 203. ORS 314.840 is amended to read:
314.840. (1) The Department of Revenue may:
(a) Furnish any taxpayer, representative authorized to
represent the taxpayer under ORS 305.230 or person designated by
the taxpayer under ORS 305.193, upon request of the taxpayer,
representative or designee, with a copy of the taxpayer's income
tax return filed with the department for any year, or with a copy
of any report filed by the taxpayer in connection with the
return, or with any other information the department considers
necessary.
(b) Publish lists of taxpayers who are entitled to unclaimed
tax refunds.
(c) Publish statistics so classified as to prevent the
identification of income or any particulars contained in any
report or return.
(d) Disclose a taxpayer's name, address, telephone number,
refund amount, amount due, Social Security number, employer
identification number or other taxpayer identification number to
the extent necessary in connection with collection activities or
the processing and mailing of correspondence or of forms for any
report, return or claim required in the administration of ORS
310.630 to 310.706, any local tax under ORS 305.620, or any law
imposing a tax upon or measured by net income.
(2) The department also may disclose and give access to
information described in ORS 314.835 to:
(a) The Governor of the State of Oregon or the authorized
representative of the Governor:
(A) With respect to an individual who is designated as being
under consideration for appointment or reappointment to an office
Enrolled House Bill 2009 (HB 2009-C) Page 136
or for employment in the office of the Governor. The information
disclosed shall be confined to whether the individual:
(i) Has filed returns with respect to the taxes imposed by ORS
chapter 316 for those of not more than the three immediately
preceding years for which the individual was required to file an
Oregon individual income tax return.
(ii) Has failed to pay any tax within 30 days from the date of
mailing of a deficiency notice or otherwise respond to a
deficiency notice within 30 days of its mailing.
(iii) Has been assessed any penalty under the Oregon personal
income tax laws and the nature of the penalty.
(iv) Has been or is under investigation for possible criminal
offenses under the Oregon personal income tax laws. Information
disclosed pursuant to this paragraph shall be used only for the
purpose of making the appointment, reappointment or decision to
employ or not to employ the individual in the office of the
Governor.
(B) For use by an officer or employee of the Oregon Department
of Administrative Services duly authorized or employed to prepare
revenue estimates, or a person contracting with the Oregon
Department of Administrative Services to prepare revenue
estimates, in the preparation of revenue estimates required for
the Governor's budget under ORS 291.201 to 291.226, or required
for submission to the Emergency Board, or if the Legislative
Assembly is in session, to the Joint Committee on Ways and Means,
and to the Legislative Revenue Officer under ORS 291.342, 291.348
and 291.445. The Department of Revenue shall disclose and give
access to the information described in ORS 314.835 for the
purposes of this subparagraph only if:
(i) The request for information is made in writing, specifies
the purposes for which the request is made and is signed by an
authorized representative of the Oregon Department of
Administrative Services. The form for request for information
shall be prescribed by the Oregon Department of Administrative
Services and approved by the Director of the Department of
Revenue.
(ii) The officer, employee or person receiving the information
does not remove from the premises of the Department of Revenue
any materials that would reveal the identity of a personal or
corporate taxpayer.
(b) The Commissioner of Internal Revenue or authorized
representative, for tax administration and compliance purposes
only.
(c) For tax administration and compliance purposes, the proper
officer or authorized representative of any of the following
entities that has or is governed by a provision of law that meets
the requirements of any applicable provision of the Internal
Revenue Code as to confidentiality:
(A) A state;
(B) A city, county or other political subdivision of a state;
(C) The District of Columbia; or
(D) An association established exclusively to provide services
to federal, state or local taxing authorities.
(d) The Multistate Tax Commission or its authorized
representatives, for tax administration and compliance purposes
only. The Multistate Tax Commission may make the information
available to the Commissioner of Internal Revenue or the proper
officer or authorized representative of any governmental entity
described in and meeting the qualifications of paragraph (c) of
this subsection.
Enrolled House Bill 2009 (HB 2009-C) Page 137
(e) The Attorney General, assistants and employees in the
Department of Justice, or other legal representative of the State
of Oregon, to the extent the department deems disclosure or
access necessary for the performance of the duties of advising or
representing the department pursuant to ORS 180.010 to 180.240
and the tax laws of this state.
(f) Employees of the State of Oregon, other than of the
Department of Revenue or Department of Justice, to the extent the
department deems disclosure or access necessary for such
employees to perform their duties under contracts or agreements
between the department and any other department, agency or
subdivision of the State of Oregon, in the department's
administration of the tax laws.
(g) Other persons, partnerships, corporations and other legal
entities, and their employees, to the extent the department deems
disclosure or access necessary for the performance of such
others' duties under contracts or agreements between the
department and such legal entities, in the department's
administration of the tax laws.
(h) The Legislative Revenue Officer or authorized
representatives upon compliance with ORS 173.850. Such officer or
representative shall not remove from the premises of the
department any materials that would reveal the identity of any
taxpayer or any other person.
(i) The Department of Consumer and Business Services, to the
extent the department requires such information to determine
whether it is appropriate to adjust those workers' compensation
benefits the amount of which is based pursuant to ORS chapter 656
on the amount of wages or earned income received by an
individual.
(j) Any agency of the State of Oregon, or any person, or any
officer or employee of such agency or person to whom disclosure
or access is given by state law and not otherwise referred to in
this section, including but not limited to the Secretary of State
as Auditor of Public Accounts under section 2, Article VI of the
Oregon Constitution; the Department of Human Services pursuant to
ORS 314.860 and 412.094; the Division of Child Support of the
Department of Justice and district attorney regarding cases for
which they are providing support enforcement services under ORS
25.080; the State Board of Tax Practitioners, pursuant to ORS
673.710; and the Oregon Board of Accountancy, pursuant to ORS
673.415.
(k) The Director of the Department of Consumer and Business
Services to determine that a person complies with ORS chapter 656
and the Director of the Employment Department to determine that a
person complies with ORS chapter 657, the following employer
information:
(A) Identification numbers.
(B) Names and addresses.
(C) Inception date as employer.
(D) Nature of business.
(E) Entity changes.
(F) Date of last payroll.
(L) The Director of Human Services to determine that a person
has the ability to pay for care that includes services provided
by the { - state institutions as described in ORS 179.321 - }
{ + Eastern Oregon Training Center + } or the Department of
Human Services { - or - } to collect any unpaid cost of care
as provided by ORS chapter 179.
Enrolled House Bill 2009 (HB 2009-C) Page 138
{ + (m) The Director of the Oregon Health Authority to
determine that a person has the ability to pay for care that
includes services provided by the Blue Mountain Recovery Center
or the Oregon State Hospital or the Oregon Health Authority to
collect any unpaid cost of care as provided by ORS chapter
179. + }
{ - (m) - } { + (n) + } Employees of the Employment
Department to the extent the Department of Revenue deems
disclosure or access to information on a combined tax report
filed under ORS 316.168 is necessary to performance of their
duties in administering the tax imposed by ORS chapter 657.
{ - (n) - } { + (o) + } The State Fire Marshal to assist
the State Fire Marshal in carrying out duties, functions and
powers under ORS 453.307 to 453.414, the employer or agent name,
address, telephone number and standard industrial classification,
if available.
{ - (o) - } { + (p) + } Employees of the Department of
State Lands for the purposes of identifying, locating and
publishing lists of taxpayers entitled to unclaimed refunds as
required by the provisions of chapter 694, Oregon Laws 1993. The
information shall be limited to the taxpayer's name, address and
the refund amount.
{ - (p) - } { + (q) + } In addition to the disclosure
allowed under ORS 305.225, state or local law enforcement
agencies to assist in the investigation or prosecution of the
following criminal activities:
(A) Mail theft of a check, in which case the information that
may be disclosed shall be limited to the stolen document, the
name, address and taxpayer identification number of the payee,
the amount of the check and the date printed on the check.
(B) The counterfeiting, forging or altering of a check
submitted by a taxpayer to the Department of Revenue or issued by
the Department of Revenue to a taxpayer, in which case the
information that may be disclosed shall be limited to the
counterfeit, forged or altered document, the name, address and
taxpayer identification number of the payee, the amount of the
check, the date printed on the check and the altered name and
address.
{ - (q) - } { + (r) + } The United States Postal Inspection
Service or a federal law enforcement agency, including but not
limited to the United States Department of Justice, to assist in
the investigation of the following criminal activities:
(A) Mail theft of a check, in which case the information that
may be disclosed shall be limited to the stolen document, the
name, address and taxpayer identification number of the payee,
the amount of the check and the date printed on the check.
(B) The counterfeiting, forging or altering of a check
submitted by a taxpayer to the Department of Revenue or issued by
the Department of Revenue to a taxpayer, in which case the
information that may be disclosed shall be limited to the
counterfeit, forged or altered document, the name, address and
taxpayer identification number of the payee, the amount of the
check, the date printed on the check and the altered name and
address.
{ - (r) - } { + (s) + } The United States Financial
Management Service, for purposes of facilitating the reciprocal
offsets described in ORS 305.612.
{ - (s) - } { + (t) + } A municipal corporation of this
state for purposes of assisting the municipal corporation in the
administration of a tax of the municipal corporation that is
Enrolled House Bill 2009 (HB 2009-C) Page 139
imposed on or measured by income, wages or net earnings from
self-employment. Any disclosure under this paragraph may be made
only pursuant to a written agreement between the Department of
Revenue and the municipal corporation that ensures the
confidentiality of the information disclosed.
(3)(a) Each officer or employee of the department and each
person described or referred to in subsection (2)(a), (e) to (k)
or { - (m) to (p) - } { + (n) to (q) + } of this section to
whom disclosure or access to the tax information is given under
subsection (2) of this section or any other provision of state
law, prior to beginning employment or the performance of duties
involving such disclosure or access, shall be advised in writing
of the provisions of ORS 314.835 and 314.991, relating to
penalties for the violation of ORS 314.835, and shall as a
condition of employment or performance of duties execute a
certificate for the department, in a form prescribed by the
department, stating in substance that the person has read these
provisions of law, that the person has had them explained and
that the person is aware of the penalties for the violation of
ORS 314.835.
(b) The disclosure authorized in subsection { - (2)(q) - }
{ + (2)(r) + } of this section shall be made only after a
written agreement has been entered into between the Department of
Revenue and the person described in subsection { - (2)(q) - }
{ + (2)(r) + } of this section to whom disclosure or access to
the tax information is given, providing that:
(A) Any information described in ORS 314.835 that is received
by the person pursuant to subsection { - (2)(q) - }
{ + (2)(r) + } of this section is confidential information that
may not be disclosed, except to the extent necessary to
investigate or prosecute the criminal activities described in
subsection { - (2)(q) - } { + (2)(r) + } of this section;
(B) The information shall be protected as confidential under
applicable federal and state laws; and
(C) The United States Postal Inspection Service or the federal
law enforcement agency shall give notice to the Department of
Revenue of any request received under the federal Freedom of
Information Act, 5 U.S.C. 552, or other federal law relating to
the disclosure of information.
(4) The Department of Revenue may recover the costs of
furnishing the information described in subsection { - (2)(k),
(L) and (n) to (p) - } { + (2)(k) to (m) and (o) to (q) + } of
this section from the respective agencies.
SECTION 204. ORS 315.604 is amended to read:
315.604. (1) As used in this section:
(a) 'Bone marrow donor expense' means the sum of the amounts
paid or incurred during the tax year by an employer for the
following:
(A) Development of an employee bone marrow donation program.
(B) Employee education related to bone marrow donation,
including but not limited to the need for donors and an
explanation of the procedures used to determine tissue type and
donate bone marrow.
(C) Payments to a health care provider for determining the
tissue type of an employee who agrees to register or registers as
a bone marrow donor.
(D) Wages paid to an employee for time reasonably related to
tissue typing and bone marrow donation.
(E) Transportation of an employee to the site of a donation or
any other service which is determined by the { - Department of
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Human Services - } { + Oregon Health Authority + } by rule as
essential for a successful bone marrow donation.
(b) 'Employee' means an individual who:
(A) Is regularly employed by the taxpayer for more than 20
hours per week;
(B) Who is not a temporary or seasonal employee; and
(C) Whose wages are subject to withholding under ORS 316.162 to
316.221.
(c) 'Wages' has the meaning given the term for purposes of ORS
316.162 to 316.221.
(2) A business tax credit against the taxes otherwise due under
ORS chapter 316 for the tax year is allowed to a resident
employer, or if the employer is a corporation, to the employer
against the taxes otherwise due under ORS chapter 317. The amount
of the credit is equal to 25 percent of the bone marrow donor
expense paid or incurred during the tax year by an employer to
provide a program for employees who are potential bone marrow
donors or who actually become bone marrow donors.
(3)(a) Except as provided under paragraph (b) of this
subsection, the allowance of a credit under this section shall
not affect the computation of taxable income for purposes of ORS
chapter 316 or 317.
(b) If in determining the amount of the credit for any tax year
an amount allowed as a deduction under section 170 of the
Internal Revenue Code is included in bone marrow donation
expense, the amount allowed as a deduction shall be added to
federal taxable income.
(4) The credit allowed under this section shall be allowed to a
nonresident employer in the same manner as the credit is allowed
to a resident employer.
(5) Any tax credit otherwise allowable under this section which
is not used by the taxpayer in a particular tax year may be
carried forward and offset against the taxpayer's tax liability
for the next succeeding tax year. Any credit remaining unused in
such next succeeding tax year may be carried forward and used in
the second succeeding tax year. Any credit remaining unused in
such second succeeding tax year may be carried forward and used
in the third succeeding tax year. Any credit remaining unused in
such third succeeding tax year may be carried forward and used in
the fourth succeeding tax year. Any credit remaining unused in
such fourth succeeding tax year may be carried forward and used
in the fifth succeeding tax year, but may not be used in any tax
year thereafter.
SECTION 205. ORS 315.613 is amended to read:
315.613. (1) A resident or nonresident individual certified as
eligible under ORS 442.563, licensed under ORS chapter 677, who
is engaged in the practice of medicine, and who has a rural
practice that amounts to 60 percent of the individual's practice,
shall be allowed an annual credit against taxes otherwise due
under this chapter in the sum of $5,000 during the time in which
the individual retains such practice and membership if the
individual is actively practicing in and is a member of the
medical staff of one of the following hospitals:
(a) A type A hospital designated as such by the Office of Rural
Health;
(b) A type B hospital designated as such by the Office of Rural
Health if the hospital is:
(A) Not within the boundaries of a metropolitan statistical
area;
Enrolled House Bill 2009 (HB 2009-C) Page 141
(B) Located 30 or more highway miles from the closest hospital
within the major population center in a metropolitan statistical
area; or
(C) Located in a county with a population of less than 75,000;
(c) A type C rural hospital, if the Office of Rural Health
makes the findings required by ORS 315.619; or
(d) A rural critical access hospital.
(2) A nonresident shall be allowed the credit under this
section in the proportion provided in ORS 316.117. If a change in
the status of a taxpayer from resident to nonresident or from
nonresident to resident occurs, the credit allowed by this
section shall be determined in a manner consistent with ORS
316.117.
(3) For purposes of this section, an 'individual's practice'
shall be determined on the basis of actual time spent in practice
each week in hours or days, whichever is considered by the Office
of Rural Health to be more appropriate. In the case of a
shareholder of a corporation or a member of a partnership, only
the time of the individual shareholder or partner shall be
considered and the full amount of the credit shall be allowed to
each shareholder or partner who qualifies in an individual
capacity.
(4) As used in this section:
(a) 'Type A hospital,' 'type B hospital' and 'type C hospital'
have the meaning for those terms provided in ORS 442.470.
(b) 'Rural critical access hospital' means a facility that
meets the criteria set forth in 42 U.S.C. 1395i-4 (c)(2)(B) and
that has been designated a critical access hospital by the Office
of Rural Health and the { - Department of Human Services - }
{ + Oregon Health Authority + }.
SECTION 206. ORS 320.308 is amended to read:
320.308. The following are exempt from the state transient
lodging tax:
(1) A dwelling unit in a hospital, health care facility, long
term care facility or any other residential facility that is
licensed, registered or certified by the Department of Human
Services { + or the Oregon Health Authority + };
(2) A dwelling unit in a facility providing treatment for drug
or alcohol abuse or providing mental health treatment;
(3) A dwelling unit that is used by members of the general
public for temporary human occupancy for fewer than 30 days per
year;
(4) A dwelling unit, the consideration for which is funded
through a contract with a government agency and the purpose of
which is to provide emergency or temporary shelter;
(5) A dwelling unit at a nonprofit youth or church camp,
nonprofit conference center or other nonprofit facility; or
(6) A dwelling unit that is leased or otherwise occupied by the
same person for a consecutive period of 30 days or more during
the year. The requirements of this subsection are satisfied even
if the physical dwelling unit changes during the consecutive
period, if:
(a) All dwelling units occupied are within the same facility;
and
(b) The person paying consideration for the transient lodging
is the same person throughout the consecutive period.
SECTION 206a. ORS 323.455 is amended to read:
323.455. (1) All moneys received by the Department of Revenue
from the tax imposed by ORS 323.030 (1) shall be paid over to the
State Treasurer to be held in a suspense account established
Enrolled House Bill 2009 (HB 2009-C) Page 142
under ORS 293.445. After the payment of refunds, 89.65 percent
shall be credited to the General Fund, 3.45 percent is
appropriated to the cities of this state, 3.45 percent is
appropriated to the counties of this state and 3.45 percent is
continuously appropriated to the Department of Transportation for
the purpose of financing and improving transportation services
for elderly individuals and individuals with disabilities as
provided in ORS 391.800 to 391.830.
(2) The moneys so appropriated to cities and counties shall be
paid on a monthly basis within 35 days after the end of the month
for which a distribution is made. Each city shall receive such
share of the money appropriated to all cities as its population,
as determined under ORS 190.510 to 190.590 last preceding such
apportionment, bears to the total population of the cities of the
state, and each county shall receive such share of the money as
its population, determined under ORS 190.510 to 190.590 last
preceding such apportionment, bears to the total population of
the state.
(3) The moneys appropriated to the Department of Transportation
under subsection (1) of this section shall be distributed and
transferred to the Elderly and Disabled Special Transportation
Fund established by ORS 391.800 at the same time as the cigarette
tax moneys are distributed to cities and counties under this
section.
(4) Of the moneys credited to the General Fund under this
section 51.92 percent shall be dedicated to funding the
maintenance and expansion of the number of persons eligible for
{ + the + } medical assistance { + program + } under { - the
Oregon Health Plan - } { + ORS chapter 414 + }, or to funding
the maintenance of the benefits available under the { - Oregon
Health Plan - } { + program + }, or both, and 5.77 percent
shall be credited to the Tobacco Use Reduction Account
established under ORS 431.832.
SECTION 206b. ORS 323.625 is amended to read:
323.625. All moneys received by the Department of Revenue under
ORS 323.500 to 323.645 shall be deposited in the State Treasury
and credited to a suspense account established under ORS 293.445.
After payment of refunds or credits arising from erroneous
overpayments, the balance of the money shall be credited to the
General Fund. Of the amount credited to the General Fund under
this section 41.54 percent shall be dedicated to funding the
maintenance and expansion of the number of persons eligible for
{ + the + } medical assistance { + program + } under { - the
Oregon Health Plan - } { + ORS chapter 414 + }, or to funding
the maintenance of the benefits available under the { - Oregon
Health Plan - } { + program + }, or both, and 4.62 percent
shall be credited to the Tobacco Use Reduction Account
established under ORS 431.832.
SECTION 207. ORS 332.111 is amended to read:
332.111. A district school board in a school district may enter
into agreements to provide auxiliary services and facilities to
students, including but not limited to forms of residential care
and medical and dental services. Any facility used for
residential purposes under this section must meet the applicable
standards of the { - Department of Human Services - }
{ + Oregon Health Authority + } and the State Fire Marshal.
SECTION 208. ORS 336.222 is amended to read:
336.222. In accordance with rules adopted by the State Board of
Education in consultation with the { - Department of Human
Services - } { + Oregon Health Authority + }, each district
Enrolled House Bill 2009 (HB 2009-C) Page 143
school board shall adopt a comprehensive alcohol and drug abuse
policy and implementation plan, including but not limited to:
(1) Alcohol and drug abuse prevention curriculum and public
information programs addressing students, parents, teachers,
administrators and school board members;
(2) The nature and extent of the district's expectation of
intervention with students who appear to have drug or alcohol
abuse problems;
(3) The extent of the district's alcohol and other drug
prevention and intervention programs; and
(4) The district's strategy to gain access to federal funds
available for drug abuse prevention programs.
SECTION 209. ORS 336.227 is amended to read:
336.227. To assist school districts to formulate the programs
described in ORS 336.222 (1), the { - Department of Human
Services - } { + Oregon Health Authority + } shall:
(1) Devise a public information program directed toward
students, parents, teachers, administrators and school board
members at the school district level; and
(2) Contact advocacy associations of the target groups
described in subsection (1) of this section to facilitate
outreach programs and disseminate alcohol and drug abuse
prevention information.
SECTION 210. ORS 336.235 is amended to read:
336.235. In order to carry out the duties described in ORS
336.222 and 336.227, the State Board of Education, in
consultation with the { - Department of Human Services - }
{ + Oregon Health Authority + }, shall adopt by rule, as a
minimum, descriptions of the content of what shall be included in
the policy and plan described in ORS 336.222 and 336.227.
SECTION 211. ORS 336.245 is amended to read:
336.245. The Department of Education, the Oregon University
System and the { - Department of Human Services - }
{ + Oregon Health Authority + } shall report to regular sessions
of the Legislative Assembly and to the Governor on the progress
and effectiveness of the policies and plans described in ORS
336.222, 336.227 and 352.008 by submitting a copy of the report
to the offices of the President of the Senate and the Speaker of
the House of Representatives and to the Governor.
SECTION 212. ORS 339.333 is amended to read:
339.333. (1) The Center for School Safety shall be governed by
a board of directors. The board of directors shall consist of:
(a) The Superintendent of Public Instruction or a designee of
the superintendent;
(b) The Director of the Oregon Youth Authority or a designee of
the director;
(c) The Attorney General or a designee of the Attorney General;
(d) The Superintendent of State Police or a designee of the
superintendent;
(e) The Director of Human Services or a designee of the
director;
{ + (f) The Director of the Oregon Health Authority or a
designee of the director; + }
{ - (f) - } { + (g) + } Nine members appointed by the
Governor, as follows:
(A) One member representing the Oregon School Boards
Association;
(B) One member representing the Confederation of Oregon School
Administrators;
(C) One member representing the Oregon Education Association;
Enrolled House Bill 2009 (HB 2009-C) Page 144
(D) One member representing the Oregon School Employees
Association;
(E) One member representing the Oregon State Sheriffs'
Association;
(F) One member representing the Oregon Association Chiefs of
Police;
(G) One member representing the Oregon District Attorneys
Association;
(H) One member representing the National Resource Center for
Safe Schools on the Northwest Regional Educational Laboratory;
and
(I) One member representing the Oregon School Safety Officers
Association; and
{ - (g) - } { + (h) + } Other members that the board may
appoint.
(2) When making appointments to the board of directors, the
Governor shall solicit recommendations from professional
organizations that represent school employees, school district
boards, school administrators and other education providers.
(3) The term of office of each board member appointed by the
Governor is two years, but a member serves at the pleasure of the
Governor. Before the expiration of the term of a board member,
the Governor shall appoint a successor. A board member is
eligible for reappointment but shall not serve for more than two
consecutive terms. If there is a vacancy for any cause, the
Governor shall make an appointment to become immediately
effective for the unexpired term.
(4) A member of the board of directors is entitled to
compensation and expenses as provided in ORS 292.495.
(5) The board of directors shall meet a minimum of four times
per year.
(6) The board of directors shall annually elect a chairperson
and vice chairperson from the membership. The board of directors
may form committees as needed.
SECTION 213. ORS 339.505 is amended to read:
339.505. (1) For purposes of the student accounting system
required by ORS 339.515, the following definitions shall be used:
(a) 'Graduate' means an individual who has:
(A) Not reached 21 years of age or whose 21st birthday occurs
during the current school year;
(B) Met all state requirements and local requirements for
attendance, competence and units of credit for high school; and
(C) Received one of the following:
(i) A high school diploma issued by a school district.
(ii) An adult high school diploma issued by an authorized
community college.
(iii) A modified high school diploma.
(b) 'School dropout' means an individual who:
(A) Has enrolled for the current school year, or was enrolled
in the previous school year and did not attend during the current
school year;
(B) Is not a high school graduate;
(C) Has not received a General Educational Development (GED)
certificate; and
(D) Has withdrawn from school.
(c) 'School dropout' does not include a student described by at
least one of the following:
(A) A student who has transferred to another educational system
or institution that leads to graduation and the school district
Enrolled House Bill 2009 (HB 2009-C) Page 145
has received a written request for the transfer of the student's
records or transcripts.
(B) A student who is deceased.
(C) A student who is participating in home instruction paid for
by the district.
(D) A student who is being taught by a private teacher, parent
or legal guardian pursuant to ORS 339.030 (1)(d) or (e).
(E) A student who is participating in a Department of Education
approved public or private education program, an alternative
education program as defined in ORS 336.615 or a hospital
education program, or is residing in a Department of Human
Services { + or an Oregon Health Authority + } facility.
(F) A student who is temporarily residing in a shelter care
program certified by the Oregon Youth Authority { - or the
Department of Human Services - } or in a juvenile detention
facility.
(G) A student who is enrolled in a foreign exchange program.
(H) A student who is temporarily absent from school because of
suspension, a family emergency, or severe health or medical
problems that prohibit the student from attending school.
(I) A student who has received a General Educational
Development (GED) certificate.
(2) The State Board of Education shall prescribe by rule when
an unexplained absence becomes withdrawal, when a student is
considered enrolled in school, acceptable alternative education
programs under ORS 336.615 to 336.675 and the standards for
excused absences for purposes of ORS 339.065 for family
emergencies and health and medical problems.
SECTION 214. ORS 339.869 is amended to read:
339.869. (1) The State Board of Education, in consultation with
the { - Department of Human Services - } { + Oregon Health
Authority + }, the Oregon State Board of Nursing and the State
Board of Pharmacy, shall adopt rules for the administration of
prescription and nonprescription medication to students by
trained school personnel and for student self-medication. The
rules shall include age appropriate guidelines and training
requirements for school personnel.
(2) School district boards shall adopt policies and procedures
that provide for the administration of prescription and
nonprescription medication to students by trained school
personnel and for student self-medication. Such policies and
procedures shall be consistent with the rules adopted by the
State Board of Education under subsection (1) of this section. A
school district board shall not require school personnel who have
not received appropriate training to administer medication.
SECTION 215. ORS 343.221 is amended to read:
343.221. In order to provide special education for children
with disabilities, the district school board of any school
district in which there are school-age children who require
special education:
(1) Shall submit an annual projected activities and cost
statement to the Superintendent of Public Instruction for a
program of special education for the district's children with
disabilities. The proposed district program shall include
provisions for providing special education and related services
and be designed to meet the unique needs of all resident children
with disabilities.
(2) Shall provide special education for such children
consistent with the projected activities and cost statement.
Enrolled House Bill 2009 (HB 2009-C) Page 146
(3) May, when the board considers a contract to be economically
feasible and in the interests of the learning opportunities of
eligible children, contract for special education for such
children with another school district if the district school
boards jointly agree to provide special education.
(4) May, when the board considers a contract to be economically
feasible and in the interests of the learning opportunities of
eligible children, contract for special education for such
children with an education service district if:
(a) The contract is consistent with the local service plan of
the education service district developed pursuant to ORS 334.175
and the school districts within the education service district
approve the contract by a resolution adopted in the manner
provided in ORS 334.175.
(b) The school district contracts with an education service
district pursuant to ORS 334.185.
(5) May contract with private agencies or organizations
approved by the State Board of Education for special education.
(6) May use the services of public agencies, including
community mental health { + programs + } and { + community + }
developmental disabilities programs, which provide diagnostic,
evaluation and other related services for children.
(7) May contract for the provision of related services by a
person in private practice if that person is registered,
certified or licensed by the State of Oregon as qualified to
provide a particular related service that requires registration,
certification or licensing by the state.
SECTION 216. ORS 343.499 is amended to read:
343.499. (1)(a) There is created the State Interagency
Coordinating Council.
(b) The Governor shall appoint members of the council from a
list of eligible appointees provided by the council and agencies
described in subsection (2) of this section and shall ensure that
the membership of the council reasonably represents the
population of this state.
(c) The Governor shall designate one member of the council to
serve as the chairperson, or if the Governor chooses not to name
a chairperson, the council may elect one of its members to serve
as chairperson. However, any member of the council who represents
the Department of Education may not serve as the chairperson of
the council.
(2) The membership of the council shall be composed as follows:
(a) At least 20 percent of the council members shall be
parents, including minority parents, of preschool children with
disabilities or of children with disabilities who are 12 years of
age or younger who have knowledge of or experience with programs
for infants and toddlers with disabilities. At least one council
member shall be a parent of an infant or toddler with a
disability or of a child with a disability who is six years of
age or younger.
(b) At least 20 percent of the council members shall be public
or private providers of early intervention and early childhood
special education services.
(c) At least one council member shall be a member of the
Legislative Assembly.
(d) At least one council member shall be involved in personnel
preparation.
(e) At least one council member shall represent the Department
of Human Services.
Enrolled House Bill 2009 (HB 2009-C) Page 147
(f) At least one council member shall represent the federal
Head Start program.
(g) At least one council member shall represent the Child Care
Division of the Employment Department.
(h) At least one council member shall represent the Department
of Education.
(i) At least one council member shall represent the Department
of Consumer and Business Services.
(j) At least one council member shall represent the State
Commission on Children and Families.
(k) At least one council member shall represent the Child
Development and Rehabilitation Center of the Oregon Health and
Science University.
(L) At least one council member shall be a member of the State
Advisory Council for Special Education created under ORS 343.287.
(m) At least one council member shall be a representative
designated by the state coordinator for homeless education.
(n) At least one council member shall represent the state child
welfare agency responsible for foster care.
(o) At least one council member shall represent the state
agency responsible for children's mental health.
(p) At least one council member shall be from the { - agency
responsible for the state Medicaid program - } { + Oregon
Health Authority + }.
(q) The council may include other members appointed by the
Governor, including but not limited to one representative from
the United States Bureau of Indian Affairs or, where there is no
school operated or funded by the bureau, from the Indian Health
Service or the tribe or tribal council.
(3) An individual appointed to represent a state agency that is
involved in the provision of or payment for services for
preschool children with disabilities under subsection (2)(e) and
(h) to (k) of this section shall have sufficient authority to
engage in making and implementing policy on behalf of the agency.
(4) The State Interagency Coordinating Council shall:
(a) Advise the Superintendent of Public Instruction and the
State Board of Education on unmet needs in the early childhood
special education and early intervention programs for preschool
children with disabilities, review and comment publicly on any
rules proposed by the State Board of Education and the
distribution of funds for the programs and assist the state in
developing and reporting data on and evaluations of the programs
and services.
(b) Advise and assist the represented public agencies regarding
the services and programs they provide to preschool children with
disabilities and their families, including public comments on any
proposed rules affecting the target population and the
distribution of funds for such services, and assist each agency
in developing services that reflect the overall goals for the
target population as adopted by the council.
(c) Advise and assist the Department of Education and other
state agencies in the development and implementation of the
policies that constitute the statewide system.
(d) Assist all appropriate public agencies in achieving the
full participation, coordination and cooperation for
implementation of a statewide system that includes but is not
limited to:
(A) Seeking information from service providers, service
coordinators, parents and others about any federal, state or
local policies that impede timely service delivery; and
Enrolled House Bill 2009 (HB 2009-C) Page 148
(B) Taking steps to ensure that any policy problems identified
under subparagraph (A) of this paragraph are resolved.
(e) Advise and assist the Department of Education in
identifying the sources of fiscal and other support for preschool
services, assigning financial responsibility to the appropriate
agencies and ensuring that the provisions of interagency
agreements under ORS 343.511 are carried out.
(f) Review and comment on each agency's services and policies
regarding services for preschool children with disabilities, or
preschool children who are at risk of developing disabling
conditions, and their families to the maximum extent possible to
assure cost-effective and efficient use of resources.
(g) To the extent appropriate, assist the Department of
Education in the resolution of disputes.
(h) Advise and assist the Department of Education in the
preparation of applications and amendments thereto.
(i) Advise and assist the Department of Education regarding the
transition of preschool children with disabilities.
(j) Prepare and submit an annual report to the Governor and to
the United States Secretary of Education on the status of early
intervention programs operated within this state.
(5) The council may advise appropriate agencies about
integration of services for preschool children with disabilities
and at-risk preschool children.
(6) Terms of office for council members shall be three years,
except that:
(a) The representative from the State Advisory Council for
Special Education shall serve a one-year term; and
(b) The representatives from other state agencies and the
representative from the Legislative Assembly shall serve
indefinite terms.
(7) Subject to approval by the Governor, the council may use
federal funds appropriated for this purpose and available to the
council to:
(a) Conduct hearings and forums;
(b) Reimburse nonagency council members pursuant to ORS 292.495
for attending council meetings, for performing council duties,
and for necessary expenses, including child care for parent
members;
(c) Pay compensation to a council member if the member is not
employed or if the member must forfeit wages from other
employment when performing official council business;
(d) Hire staff; and
(e) Obtain the services of such professional, technical and
clerical personnel as may be necessary to carry out its
functions.
(8) Except as provided in subsection (7) of this section,
council members shall serve without compensation.
(9) The Department of Education shall provide clerical and
administrative support, including staff, to the council to carry
out the performance of the council's function as described in
this section.
(10) The council shall meet at least quarterly. The meetings
shall be announced publicly and, to the extent appropriate, be
open and accessible to the general public.
(11) No member of the council shall cast a vote on any matter
that would provide direct financial benefit to that member or
otherwise give the appearance of a conflict of interest under
state law.
SECTION 217. ORS 343.961 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 149
343.961. (1) The Department of Education shall be responsible
for payment of the cost of the education in programs with which
the { - Department of Human Services - } { + Oregon Health
Authority + } or Oregon Youth Authority contracts for long-term
care or treatment. Programs eligible for such education shall be
in accordance with criteria adopted by rule by the State Board of
Education.
(2) The Department of Education shall be responsible for
payment of the costs of such education by contract with the
school district, excluding transportation, care, treatment and
medical expenses. The resident district shall provide
transportation to pupils enrolled in programs under ORS 430.715
who live at home but require day treatment. The payments may be
made to the school district or, at the discretion of the school
district, to the district providing the education, as set forth
in subsection (3) of this section, from the funds appropriated
for the purpose.
(3) The school district in which the agency is located is
responsible for providing the education directly or through an
adjacent school district or through the education service
district in which the program is located or one contiguous
thereto. The instruction may be given in facilities of such
districts or in facilities provided by such agency.
(4) The school district may request the Department of Education
to combine several private agency school programs into one
contract with a school district, an adjacent school district or
an education service district.
(5) The { - Department of Human Services - } { + Oregon
Youth Authority + } shall give the school district providing the
education at a treatment program 14 days' notice before a student
is dismissed from the treatment program.
(6) The Department of Education may make advances to such
school district from funds appropriated therefor based on the
estimated agreed cost of educating the pupils per school year.
Advances equal to 25 percent of such estimated cost may be made
on September 1, December 1 and March 1 of the current year. The
balance may be paid whenever the full determination of cost is
made.
(7) School districts which provide the education described in
this section on a year-round plan may apply for 25 percent of the
funds appropriated therefor on July 1, October 1, January 1, and
15 percent on April 1. The balance may be paid whenever the full
determination of cost is made.
(8) In addition to the payment methods described in this
section, the Department of Education may:
(a) Negotiate interagency agreements to pay for the cost of
education in treatment programs operated under the auspices of
the State Board of Higher Education; and
(b) Negotiate intergovernmental agreements to pay for the cost
of education in treatment programs operated under the auspices of
the Oregon Health and Science University Board of Directors.
SECTION 218. ORS 345.535 is amended to read:
345.535. (1) In adopting criteria for the registration of
private schools, the State Board of Education shall take into
consideration the unique qualities of private education while
seeking to further the educational opportunities of students
enrolled in such schools.
(2) After consultation with the advisory committee appointed
under ORS 345.575, the State Board of Education shall establish
by rule minimum criteria for the registration of private schools.
Enrolled House Bill 2009 (HB 2009-C) Page 150
(3) In establishing standards, the State Board of Education
shall comply with the rules of the State Fire Marshal and the
{ - Department of Human Services - } { + Oregon Health
Authority + } relating to fire protection, health and sanitation.
SECTION 219. ORS 346.015 is amended to read:
346.015. (1) Prior to convening a meeting to prepare an
individual education plan for a child with mental retardation or
a developmental disability for whom placement at a school under
ORS 346.010 may be considered, the agency that is providing the
education for the child shall notify the local community
{ - mental health and - } developmental disabilities program.
The case manager responsible for programs for children with
mental retardation or developmental disabilities, in consultation
with the Department of Human Services, shall evaluate whether the
child also has needs for alternative residential care or other
support services. If the evaluation determines this to be the
case, but documents that community resources are not available to
meet these needs, the school district may proceed with the
meeting to prepare the individual education plan in which
placement at a school under ORS 346.010 may be considered.
(2) An agency providing education under subsection (1) of this
section may initiate the procedure in subsection (1) of this
section for any child who does not have mental retardation or a
developmental disability when in the agency's judgment a
treatment or residential issue is prompting proposed placement
under ORS 346.010.
(3) A child may not be placed in a school operated under ORS
346.010 unless the district superintendent or the
superintendent's designee has signed a statement declaring that
the district cannot provide a free appropriate public education
for the child commensurate with the needs of the child as
identified by the individual education plan of the child and that
the school is the least restrictive environment in which the
child can be educated.
(4) By rule, the State Board of Education shall determine
procedures to be followed by local education agencies in carrying
out this section.
SECTION 220. ORS 346.035 is amended to read:
346.035. For a child who is enrolled under ORS 346.010 and who
has mental retardation or a developmental disability, the
Department of Education shall notify the community { - mental
health and - } developmental disabilities program of the date of
the annual review of the individual education plan of the child
for the purpose of including in the review the assigned case
manager's assessment of community resources that are available
for treatment or residential needs the child might have.
SECTION 221. ORS 348.320 is amended to read:
348.320. (1) A person shall be eligible for a loan under ORS
348.310 to 348.390 if the person is:
(a) A bona fide resident of this state;
(b) Accepted for enrollment, or is a student in good standing
in the professional medical program at an accredited medical
school located in the United States or in an accredited school of
osteopathic medicine;
(c) As a result of personal financial resources, unable to
pursue a program of study in the absence of a loan or would be
unable to do so without great hardship; and
(d) Desirous of practicing medicine in a rural community in
this state, and in an area which meets the qualifications of a
medical shortage area.
Enrolled House Bill 2009 (HB 2009-C) Page 151
(2) The person desiring consideration for a loan under ORS
348.310 to 348.390 shall apply to the Oregon Student Assistance
Commission.
(3) The person desiring consideration for a loan under ORS
348.310 to 348.390 shall agree in writing to practice medicine in
a medical shortage area as defined by the { - Director of Human
Services - } { + Oregon Health Authority + }, for a period
equal to the period covered by the loan, but no less than two
years.
SECTION 222. ORS 351.105 is amended to read:
351.105. In order to carry out the duties described in ORS
352.008, the State Board of Higher Education, in consultation
with the { - Department of Human Services - } { + Oregon
Health Authority + }, shall adopt by rule, as a minimum,
descriptions of the content of what shall be included in the
policy and plan described in ORS 352.008.
SECTION 223. ORS 352.008 is amended to read:
352.008. In consultation with the { - Department of Human
Services - } { + Oregon Health Authority + }, each state
institution of higher education shall adopt a comprehensive
alcohol and drug abuse policy and implementation plan.
SECTION 224. ORS 401.259 is amended to read:
401.259. (1) The following { - departments - } { + state
agencies + } shall designate a person within each
{ - department - } { + agency + } to act as a liaison with the
Office of Emergency Management:
(a) The Department of Transportation;
(b) The State Department of Agriculture;
(c) The Department of Environmental Quality;
(d) The Department of Human Services;
(e) The State Department of Energy;
(f) The Oregon Department of Administrative Services;
(g) The Department of State Police;
(h) The State Department of Geology and Mineral Industries;
{ - and - }
{ + (i) The Oregon Health Authority; and + }
{ - (i) - } { + (j) + } The Oregon Military Department.
(2) Each person designated as a liaison under subsection (1) of
this section shall assist in the coordination of the functions of
the person's { - department - } { + agency + } that relate to
emergency preparedness and response with similar functions of the
Office of Emergency Management.
SECTION 225. ORS 401.300 is amended to read:
401.300. (1) The Director of the Office of Emergency
Management, pursuant to the authority to administer grant
programs for seismic rehabilitation provided in ORS 401.270,
shall develop a grant program for the disbursement of funds for
the seismic rehabilitation of critical public buildings,
including hospital buildings with acute inpatient care
facilities, fire stations, police stations, sheriffs' offices,
other facilities used by state, county, district or municipal law
enforcement agencies and buildings with a capacity of 250 or more
persons that are routinely used for student activities by
kindergarten through grade 12 public schools, community colleges,
education service districts and institutions of higher education.
The funds for the seismic rehabilitation of critical public
buildings under the grant program are to be provided from the
issuance of bonds pursuant to the authority provided in Articles
XI-M and XI-N of the Oregon Constitution.
Enrolled House Bill 2009 (HB 2009-C) Page 152
(2) The grant program shall include the appointment of a grant
committee. The grant committee may be composed of any number of
persons with qualifications that the director determines
necessary. However, the director shall include persons with
experience in administering state grant programs and
representatives of entities with responsibility over critical
public buildings. The director shall also include as permanent
members representatives of:
(a) The Department of Human Services;
(b) The State Department of Geology and Mineral Industries;
(c) The Seismic Safety Policy Advisory Commission;
(d) The Oregon Department of Administrative Services;
(e) The Department of Education;
{ + (f) The Oregon Health Authority; + }
{ - (f) - } { + (g) + } The Oregon Fire Chiefs'
Association;
{ - (g) - } { + (h) + } The Oregon Association Chiefs of
Police; and
{ - (h) - } { + (i) + } The Oregon Association of Hospitals
and Health Systems.
(3) The director shall determine the form and method of
applying for grants from the grant program, the eligibility
requirements for grant applicants, and general terms and
conditions of the grants. The director shall also provide that
the grant committee review grant applications and make a
determination of funding based on a scoring system that is
directly related to the statewide needs assessment performed by
the State Department of Geology and Mineral Industries.
Additionally, the grant process may:
(a) Require that the grant applicant provide matching funds for
completion of any seismic rehabilitation project.
(b) Provide authority to the grant committee to waive
requirements of the grant program based on special circumstances
such as proximity to fault hazards, community value of the
structure, emergency functions provided by the structure and
storage of hazardous materials.
(c) Allow an applicant to appeal any determination of grant
funding to the director for reevaluation.
(d) Provide that applicants release the state, the director and
the grant committee from any claims of liability for providing
funding for seismic rehabilitation.
(e) Provide separate rules for funding rehabilitation of
structural and nonstructural building elements.
(4) Subject to the grant rules established by the director and
subject to reevaluation by the director, the grant committee has
the responsibility to review and make determinations on grant
applications under the grant program established pursuant to this
section.
SECTION 226. ORS 401.347 is amended to read:
401.347. The Office of Emergency Management shall provide
technical, clerical and other necessary support services to the
Seismic Safety Policy Advisory Commission. The Department of
Consumer and Business Services, { - the Department of Human
Services, - } the State Department of Geology and Mineral
Industries, the Department of Land Conservation and Development,
the Department of Transportation, { + the Oregon Health
Authority, + } the Water Resources Department and the Oregon
University System shall provide assistance, as required, to the
commission to enable it to meet its objectives.
SECTION 227. ORS 401.654 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 153
401.654. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may establish a registry of
emergency health care providers who are available to provide
health care services during an emergency or crisis. The
{ - department - } { + authority + } may require training
related to the provision of health care services in an emergency
or crisis as a condition of registration.
(2) The { - department - } { + authority + } shall issue
identification cards to health care providers included in the
registry established under this section that:
(a) Identify the health care provider;
(b) Indicate that the health care provider is registered as an
Oregon emergency health care provider;
(c) Identify the license or certification held by the health
care provider; and
(d) Identify the health care provider's usual area of practice
if that information is available and the { - department - }
{ + authority + } determines that it is appropriate to provide
that information.
(3) The { - department - } { + authority + } by rule shall
establish a form for identification cards issued under subsection
(2) of this section.
(4) The { - department - } { + authority + } shall support
and provide assistance to the Office of Emergency Management in
emergencies or crises involving the public health or requiring
emergency medical response.
SECTION 228. ORS 401.657 is amended to read:
401.657. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may designate all or part of a
health care facility or other location as an emergency health
care center. Upon the Governor declaring a state of emergency
under ORS 401.055, or proclaiming a state of public health
emergency after determining that a threat to the public health is
imminent and likely to be widespread, life-threatening and of a
scope that requires immediate medical action to protect the
public health, emergency health care centers may be used for:
(a) Evaluation and referral of individuals affected by the
emergency;
(b) Provision of health care services; and
(c) Preparation of patients for transportation.
(2) The { - department - } { + Oregon Health Authority + }
may enter into cooperative agreements with local public health
authorities that allow local public health authorities to
designate emergency health care centers under this section.
(3) An emergency health care center designated under this
section must have an emergency operations plan and a
credentialing plan that governs the use of emergency health care
providers registered under ORS 401.654 and other health care
providers who volunteer to perform health care services at the
center under ORS 401.651 to 401.670. The emergency operations
plan and credentialing plan must comply with rules governing
those plans adopted by the { - department - } { + Oregon
Health Authority + }.
SECTION 229. ORS 401.661 is amended to read:
401.661. Upon the Governor declaring a state of emergency under
ORS 401.055, or proclaiming a state of public health emergency
after determining that a threat to the public health is imminent
and likely to be widespread, life-threatening and of a scope that
requires immediate medical action to protect the public health:
Enrolled House Bill 2009 (HB 2009-C) Page 154
(1) The { - Department of Human Services - } { + Oregon
Health Authority, in conjunction with the Department of Human
Services for facilities licensed by the department, + } may
direct emergency health care providers registered under ORS
401.654 who are willing to provide health care services on a
voluntary basis to proceed to any place in this state where
health care services are required by reason of the emergency or
crisis; and
(2) Any emergency health care provider registered under ORS
401.654 or other health care provider may volunteer to perform
health care services described in ORS 401.657 at any emergency
health care center or health care facility in the manner provided
by ORS 401.664.
SECTION 230. ORS 401.667 is amended to read:
401.667. (1) Emergency health care providers registered under
ORS 401.654 and other health care providers who volunteer to
perform health care services without compensation under ORS
401.651 to 401.670 are agents of the state under ORS 30.260 to
30.300 for the purposes of any claims arising out of those
services.
(2) Health care facilities and other persons operating
emergency health care centers designated under ORS 401.657 are
agents of the state under ORS 30.260 to 30.300 for the purposes
of any claims arising out of services provided without
compensation through those centers or facilities under ORS
401.651 to 401.670.
(3) An emergency health care provider registered under ORS
401.654 participating in training authorized by the
{ - Department of Human Services - } { + Oregon Health
Authority + } under ORS 401.651 to 401.670 is an agent of the
state under ORS 30.260 to 30.300 for the purposes of any claims
arising out of that training.
(4) The provisions of subsections (1) and (2) of this section
apply only to emergency health care centers or health care
facilities that have adopted emergency operations plans and
credentialing plans that govern the use of emergency health care
providers registered under ORS 401.654 and other health care
providers who volunteer to perform health care services under ORS
401.651 to 401.670. An emergency operations plan and a
credentialing plan must comply with rules governing those plans
adopted by the { - Department of Human Services - }
{ + authority + }.
SECTION 231. ORS 401.670 is amended to read:
401.670. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt all rules necessary
for the implementation of ORS 401.651 to 401.670.
SECTION 232. ORS 401.871 is amended to read:
401.871. (1) The State Interoperability Executive Council is
created within the Department of State Police. The membership of
the council shall consist of:
(a) Two members from the Legislative Assembly, as follows:
(A) The President of the Senate shall appoint one member from
the Senate with an interest in public safety communications
infrastructure; and
(B) The Speaker of the House of Representatives shall appoint
one member from the House of Representatives with an interest in
public safety and wireless communications infrastructure.
(b) The following members appointed by the Governor:
(A) One member from the Department of State Police;
(B) One member from the Office of Emergency Management;
Enrolled House Bill 2009 (HB 2009-C) Page 155
(C) One member from the State Forestry Department;
(D) One member from the Department of Corrections;
(E) One member from the Department of Transportation;
(F) One member from the Oregon Department of Administrative
Services;
(G) One member from the Department of Human Services;
{ + (H) One member from the Oregon Health Authority; + }
{ - (H) - } { + (I) + } One member from the Oregon Military
Department;
{ - (I) - } { + (J) + } One member from the Department of
Public Safety Standards and Training;
{ - (J) - } { + (K) + } One member of an Indian tribe as
defined in ORS 97.740;
{ - (K) - } { + (L) + } One member from a nonprofit
professional organization devoted to the enhancement of public
safety communications systems; and
{ - (L) - } { + (M) + } One member from the public.
(c) The following members appointed by the Governor with the
concurrence of the President of the Senate and the Speaker of the
House of Representatives:
(A) One member from the Oregon Fire Chiefs' Association;
(B) One member from the Oregon Association Chiefs of Police;
(C) One member from the Oregon State Sheriffs' Association;
(D) One member from the Association of Oregon Counties;
(E) One member from the League of Oregon Cities; and
(F) One member from the Special Districts Association of
Oregon.
(2) Each agency or organization identified in subsection
(1)(b)(A) to { - (I) - } { + (J) + } and (1)(c) of this
section shall recommend a person from the agency or organization
for membership on the council.
(3) Members of the council are not entitled to compensation,
but in the discretion of the Superintendent of State Police may
be reimbursed from funds available to the Department of State
Police for actual and necessary travel and other expenses
incurred by them in the performance of their official duties in
the manner and amount provided in ORS 292.495.
(4) Members of the Legislative Assembly appointed to the
council are nonvoting members and may act in an advisory capacity
only.
SECTION 233. ORS 408.305 is amended to read:
408.305. As used in ORS 408.305 to 408.340, unless the context
requires otherwise:
(1) 'Agent Blue' means the herbicide composed primarily of
cacodylic acid (organic arsenic) and inorganic arsenic.
(2) 'Agent Orange' means the herbicide composed primarily of
trichlorophenoxyacetic acid and dichlorophenoxyacetic acid.
(3) 'Agent White' means any herbicide composed primarily of 2,
4, D and picloram.
(4) 'Causative agent' includes Agent Blue, Agent Orange, Agent
White and any other combination of chemicals consisting primarily
of 2, 4, D or 2, 4, 5, T or any other chemical or biological
agent used by any government involved in the Vietnam Conflict, or
diseases endemic to Southeast Asia, including, but not limited
to, the disease known as melioidosis.
{ - (5) 'Department' means the Department of Human
Services. - }
{ - (6) - } { + (5) + } 'Veteran' means any individual who
resides in this state, who served on active duty in the Armed
Forces of the United States for a period of not less than 180
Enrolled House Bill 2009 (HB 2009-C) Page 156
days any part of which occurred between January 1, 1962, and May
7, 1975, within the borders of Vietnam, Cambodia, Laos or
Thailand, and who was either a resident of this state at the time
of enlistment, induction or other entry into the Armed Forces or
became a bona fide resident of Oregon prior to April 1, 1981.
SECTION 234. ORS 408.310 is amended to read:
408.310. (1) A physician who has primary responsibility for the
treatment of a veteran who may have been exposed to causative
agents while serving in the Armed Forces of the United States or
for the treatment of a veteran's spouse, surviving spouse or
minor child who may be exhibiting symptoms or conditions that may
be attributable to the veteran's exposure to causative agents
shall, at the request and direction of the veteran, veteran's
spouse or surviving spouse or the parent or guardian of such
minor child, submit a report to the { - Department of Human
Services - } { + Oregon Health Authority + }. The report shall
be made on a form adopted by the { - department - }
{ + authority + } and made available to physicians and hospitals
in this state.
(2) If there is no physician having primary responsibility for
the treatment of a veteran, veteran's spouse, surviving spouse or
minor child, then the senior medical supervisor of the hospital
or clinic treating the veteran, veteran's spouse, surviving
spouse or minor child shall submit the report described in this
section to the { - department - } { + authority + } at the
request and direction of the veteran, veteran's spouse or
surviving spouse or the parent or legal guardian of a veteran's
minor child.
(3) The form adopted by the { - department - } { +
authority + } under this section shall list the symptoms commonly
attributed to exposure to causative agents, and shall require the
following information:
(a) Symptoms of the patient which may be related to exposure to
causative agents.
(b) A diagnosis of the patient's condition.
(c) Methods of treatment prescribed.
(d) Any other information required by the { - department - }
{ + authority + }.
(4) The { - department - } { + authority + }, after
receiving a report from a physician, hospital or clinic under
this section, may require the veteran, veteran's spouse,
surviving spouse or minor child to provide such other information
as may be required by the
{ - department - } { + authority + }.
SECTION 235. ORS 408.320 is amended to read:
408.320. The Oregon Public Health Advisory Board created under
ORS 431.195 shall:
(1) Order the compilation of statistical data from information
obtained under ORS 408.310 and determine the use and
dissemination of that data.
(2) Make recommendations to the Director of { - Human
Services - } { + the Oregon Health Authority + } or the Director
of Veterans' Affairs concerning the implementation and operation
of programs authorized by ORS 408.300 to 408.340.
(3) Assess programs of federal agencies operating for the
benefit of veterans exposed to causative agents and their
families, and make recommendations to the appropriate agencies
for the improvement of those programs.
(4) Suspend or terminate specific programs or duties required
under ORS 408.300 to 408.340 when necessary to prevent
Enrolled House Bill 2009 (HB 2009-C) Page 157
duplication of those programs or duties by other governmental
agencies.
(5) Apply for, receive and accept any grants or contributions
available from the United States or any of its agencies for the
purpose of carrying out ORS 408.300 to 408.340.
(6) When the advisory board considers it necessary for the
health and welfare of veterans and the spouses, surviving spouses
and minor children of veterans, ask the Attorney General to
initiate proceedings as provided under ORS 408.335.
(7) Report biennially to the Legislative Assembly or to the
Emergency Board, as appropriate, as necessary to accomplish the
objectives of ORS 408.300 to 408.340 concerning the programs
instituted under ORS 408.300 to 408.340.
SECTION 236. ORS 408.325 is amended to read:
408.325. (1) The { - Department of Human Services - } { +
Oregon Health Authority + } and the Oregon Public Health Advisory
Board shall institute a cooperative program to refer veterans to
appropriate state and federal agencies for the purpose of filing
claims to remedy medical and financial problems caused by
exposure to causative agents.
(2) The Director of { - Human Services - } { + the Oregon
Health Authority + }, after receiving the recommendations of the
advisory board, shall adopt rules to provide for the
administration and operation of programs authorized by ORS
408.300 to 408.340. The director { - of Human Services - }
shall cooperate with appropriate state and federal agencies in
providing services under ORS 408.300 to 408.340.
SECTION 237. ORS 408.380 is amended to read:
408.380. (1) The Oregon Veterans' Home authorized by section 1,
chapter 591, Oregon Laws 1995, is subject to all state laws and
administrative rules and all federal laws and administrative
regulations to which long term care facilities operated by
nongovernmental entities are subject, except for the requirement
to obtain a certificate of need under ORS 442.315 from the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(2) As used in this section, 'long term care facility' has the
meaning given that term in ORS 442.015.
SECTION 238. ORS 408.570 is amended to read:
408.570. When a veteran who has been adjudged mentally ill is
eligible for treatment in a United States veterans facility and
commitment is necessary for the proper care and treatment of such
veteran, the { - Department of Human Services - } { + Oregon
Health Authority + } or community mental health { - and
developmental disabilities - } program director, as provided
under ORS 426.060, may, upon receipt of a certificate of
eligibility from the United States Department of Veterans
Affairs, assign the person to the United States Department of
Veterans Affairs for care, custody and treatment in a United
States veterans facility. Upon admission to any such facility,
the veteran shall be subject to the rules and regulations of the
United States Department of Veterans Affairs and provisions of
ORS 426.060 to 426.395 and related rules and regulations of the
{ - Department of Human Services - } { + Oregon Health
Authority + }. The chief officer of such facility shall be vested
with the same powers exercised by superintendents of state
hospitals for persons with mental illness within this state with
reference to the retention, transfer, trial visit or discharge of
the veteran so assigned. The commitment of a veteran to a
veterans facility within this state by a court of another state
Enrolled House Bill 2009 (HB 2009-C) Page 158
under a similar provision of law has the same force and effect as
if the veteran was committed to a veterans facility within that
other state.
SECTION 239. ORS 408.580 is amended to read:
408.580. Upon receipt of a certificate of eligibility and
available facilities, the { - Department of Human Services - }
{ + Oregon Health Authority + } may cause to be transferred any
veteran from any facility to which the veteran has been assigned
to a United States veterans facility. No veteran under sentence
by any court, or committed by any court after having been charged
with any crime and acquitted on the ground of mental disease or
defect, may be transferred without an order of such court
authorizing the transfer. Whenever any veteran, not a convict,
has been committed by order of a court and is transferred as
provided in this section, the order of commitment shall be held
to apply to the facility to which the veteran is transferred as
to any other facility to which the veteran could be assigned or
transferred under ORS 426.060.
SECTION 240. ORS 409.010 is amended to read:
409.010. (1) The Department of Human Services is created.
(2) The department is responsible for the delivery and
administration of programs and services relating to:
(a) Children and families, including but not limited to child
protective services, foster care, residential care for children
and adoption services;
(b) Elderly persons and persons with disabilities, including
but not limited to social, health and protective services and
promotion of hiring of otherwise qualified persons who are
certifiably disabled;
(c) Persons who, as a result of the person's or the person's
family's economic, social or health condition, require financial
assistance { - , institutional care, rehabilitation or other
social and health - } { + or other social + } services;
{ - (d) Health and health-related affairs, including but not
limited to medical assistance and services, public health
services, migrant health services, licensing of health facilities
and coordination of the activities of professional and
occupational licensing boards; - }
{ - (e) - } { + (d) + } { - Mental health and - }
Developmental disabilities;
{ - (f) - } { + (e) + } Vocational rehabilitation for
individuals with disabilities;
{ - (g) Alcohol abuse, drug abuse, addiction and chemical
dependency problems; - }
{ - (h) - } { + (f) + } Licensing and regulation of
individuals, facilities { + , institutions + } and programs
providing health and human services { + and long term care
services + }, in accordance with the provisions of state and
federal law; and
{ - (i) - } { + (g) + } { - Any - } { + All + } other
{ - health and - } human service programs and functions
delegated to the department by or in accordance with the
provisions of state and federal law.
(3) The department shall be the recipient of all federal funds
paid or to be paid to the state to enable the state to provide
the programs and services assigned to the department.
(4)(a) All personnel of the department, including those engaged
in the administration of vocational rehabilitation programs,
public assistance programs and services to families or children
in compliance with the federal Social Security laws, shall be
Enrolled House Bill 2009 (HB 2009-C) Page 159
subject to the merit system prescribed in the State Personnel
Relations Law. For purposes of the State Personnel Relations Law,
the department is the appointing authority of all employees in
the department.
(b) The Director of Human Services, in conformity with the
State Personnel Relations Law, may appoint and employ such
personnel as may be necessary for the department, and may appoint
and fix the compensation of all assistants and employees of the
department.
(c) The director may authorize reimbursement of such expenses
as are approved by the department and incurred by assistants and
employees of the department, and by volunteers or other persons
not employed by the department, in carrying out duties assigned
or authorized by the department.
(5) The director may designate employees to be custodians of
records within any of the organizational units of the department,
and persons so designated shall have the duties and powers of
custodians of public records as prescribed by law. Such
designation shall be in writing and notice thereof shall be filed
in the office of the Secretary of State, with the director and in
the organizational unit to which the authorization applies.
SECTION 241. ORS 409.320 is amended to read:
409.320. The Director of { - Human Services - } { + the
Oregon Health Authority + } shall require each { + health + }
licensing board in the
{ - Department of Human Services - } { + Oregon Health
Authority + } to maintain a register of the names and current
addresses of all persons holding valid licenses, certificates of
registration or other evidence of authority required to practice
the occupation or profession, or operate the facility within the
jurisdiction of such board and periodically, as the director may
require, to file a copy of the register at the office of the
{ - department - } { + authority + }. Any board that is
authorized or required to distribute a register described in this
section may collect a fee to cover the costs of publication, such
fee to be handled as other receipts of the board are handled.
SECTION 242. ORS 409.330 is amended to read:
409.330. The Director of { - Human Services - } { + the
Oregon Health Authority + }, or the designee of the director,
shall serve as an ex officio member of all health-related
licensing boards in the
{ - department - } { + Oregon Health Authority + }, but
without the right to vote. However, nothing in this section is
intended to authorize the director to intervene in the internal
functions and administration of the boards.
SECTION 243. ORS 409.410 is amended to read:
409.410. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall administer all alcohol and drug
abuse programs, including but not limited to programs or
components of programs described in ORS 430.397 to 430.401,
475.225, 743.557 and 743.558 and ORS chapters 430 and 801 to 822.
(2) Subject to ORS 417.300 and 417.305, the director shall:
(a) Report to the Legislative Assembly on accomplishments and
issues occurring during each biennium, and report on a new
biennial plan describing resources, needs and priorities for all
alcohol and drug abuse programs.
(b) Develop within the { - Department of Human Services - }
{ + Oregon Health Authority + } priorities for alcohol and drug
abuse programs and activities.
Enrolled House Bill 2009 (HB 2009-C) Page 160
(c) Monitor the priorities of approved alcohol and drug abuse
related programs in all other state agencies.
(d) Conduct statewide and special planning processes which
provide for participation from state and local agencies, groups
and individuals.
(e) Identify the needs of special populations including
minorities, elderly, youth, women and individuals with
disabilities.
(f) Subject to ORS chapter 183, adopt such rules as are
necessary for the performance of the duties and functions
specified by this section, ORS { - 409.010 and - } 430.255 to
430.630, or otherwise lawfully delegated.
(3) The director may apply for, receive and administer funds,
including federal funds and grants, from sources other than the
state. Subject to expenditure limitation set by the Legislative
Assembly, funds received under this subsection may be expended by
the director:
(a) For the study, prevention or treatment of alcohol and drug
abuse and dependence in this state.
(b) To provide training, both within this state and in other
states, in the prevention and treatment of alcohol and drug abuse
and dependence.
SECTION 244. ORS 409.420 is amended to read:
409.420. In addition to the Director of { - Human
Services' - } { + the Oregon Health Authority's + } other
responsibilities, the director shall place special emphasis on
all of the following:
(1) Establishing standards for both public and private alcohol
and drug abuse prevention, intervention and treatment programs.
It is the policy of the Legislative Assembly that all programs
providing alcohol and drug abuse related prevention, intervention
and treatment services in this state, with public funds, meet the
standards established under this subsection.
(2) Providing training for state employees dealing directly
with appropriate client groups to insure better recognition and
understanding of alcohol and drug abuse problems. Training is
also to be directed at increasing knowledge of appropriate and
available resources for assisting clients with alcohol and drug
abuse problems.
(3) Conducting continuing long-term evaluation of clients and
other recipients of services from all { - Department of Human
Services - } { + Oregon Health Authority + } funded programs,
for periods of up to 24 months following completion of service,
to assess service effectiveness and enable appropriate corrective
actions.
(4) Ensuring financial audits and program reviews of alcohol
and drug abuse related programs and services that receive funds,
including beer and wine tax revenues distributed under ORS
430.380 and 471.810, from any state agency.
SECTION 245. ORS 409.425 is amended to read:
409.425. (1) For purposes of this section, 'inhalant' has the
meaning given that term in ORS 167.808.
(2) The Director of { - Human Services - } { + the Oregon
Health Authority + } shall develop education resources focusing
on the problem of inhalant abuse by minors. The director shall
ensure that special emphasis is placed on the education of
parents about the risks of inhalant use. The director shall
develop tools to help parents talk to their children about the
extraordinary risks associated with even a single use of
inhalants, as well as those risks that arise from repeated use.
Enrolled House Bill 2009 (HB 2009-C) Page 161
(3) The director shall develop education resources focusing on
merchants that sell products that contain inhalants. The director
shall encourage merchants that sell products containing inhalants
to post signs that inform the public that using inhalants for the
purpose of intoxication is illegal and potentially deadly.
(4) The director shall develop and print a standard sign for
the purposes of subsection (3) of this section, and shall make
the sign available to merchants that elect to display the sign.
The sign shall:
(a) Contain the message, 'Illegal to inhale fumes for purpose
of intoxication. Fumes may cause serious injury or death! '
(b) Be at least five by seven inches in size with lettering
that is at least three-eighths of an inch in height.
(c) Contain a graphic depiction of the message to convey the
message to a person who cannot read the message. If the depiction
includes a picture of a person, the depiction of the person shall
be of a minor and shall not reflect any specific race or culture.
(5) The sign developed under subsection (4) of this section
shall be in English and in such other languages as may be
commonly used in this state. Merchants shall be encouraged to
post signs in languages other than English if English is not the
primary language of a significant number of the patrons of the
business.
SECTION 246. ORS 409.430 is amended to read:
409.430. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + }, in collaboration with county
representatives, prior to January 1, 2000, shall develop a plan
for the administration of the statewide gambling addiction
programs and delivery of program services.
(2) The { - Department of Human Services - }
{ + authority + } may appoint an advisory committee or designate
an existing advisory committee to make recommendations to the
{ - department - } { + authority + } concerning:
(a) Performance standards and evaluation methodology;
(b) Fiscal reporting and accountability;
(c) Delivery of services; and
(d) A distribution plan for use of available funds.
(3) The distribution plan for the moneys available in the
Problem Gambling Treatment Fund shall be based on performance
standards.
(4) The { - Department of Human Services - }
{ + authority + } may enter into an intergovernmental agreement
or other contract for the delivery of services related to
programs for the prevention and treatment of gambling addiction
and other emotional and behavioral problems related to gambling.
(5) Before entering into an agreement or contract under
subsection (4) of this section, the { - Department of Human
Services - } { + authority + } must consider the experience,
performance and program capacity of those organizations currently
providing services.
SECTION 247. ORS 409.435 is amended to read:
409.435. (1) There is established in the State Treasury,
separate and distinct from the General Fund, the Problem Gambling
Treatment Fund. All moneys in the Problem Gambling Treatment Fund
are continuously appropriated to the { - Department of Human
Services - } { + Oregon Health Authority + } to be expended for
programs for the prevention and treatment of gambling addiction
and other emotional and behavioral problems related to gambling
and for the administration of the programs.
(2) The Problem Gambling Treatment Fund shall consist of:
Enrolled House Bill 2009 (HB 2009-C) Page 162
(a) The net proceeds from the Oregon State Lottery allocated to
the fund under ORS 461.549;
(b) Moneys appropriated to the fund by the Legislative
Assembly; and
(c) Interest earnings on moneys in the fund.
SECTION 248. ORS 409.500 is amended to read:
409.500. (1) The Pain Management Commission is established
within the { - Department of Human Services - } { + Oregon
Health Authority + }. The commission shall:
(a) Develop pain management recommendations;
(b) Develop ways to improve pain management services through
research, policy analysis and model projects; and
(c) Represent the concerns of patients in Oregon on issues of
pain management to the Governor and the Legislative Assembly.
(2) The pain management coordinator of the { - Department of
Human Services - } { + authority + } shall serve as staff to
the commission.
SECTION 249. ORS 409.520 is amended to read:
409.520. (1) The Pain Management Commission shall consist of 19
members as follows:
(a) Seventeen members shall be appointed by the Director of
{ - Human Services - } { + the Oregon Health Authority + }.
Prior to making appointments, the director shall request and
consider recommendations from individuals and public and private
agencies and organizations with experience or a demonstrated
interest in pain management issues, including but not limited to:
(A) Physicians licensed under ORS chapter 677 or organizations
representing physicians;
(B) Nurses licensed under ORS chapter 678 or organizations
representing nurses;
(C) Psychologists licensed under ORS 675.010 to 675.150 or
organizations representing psychologists;
(D) Physician assistants licensed under ORS chapter 677 or
organizations representing physician assistants;
(E) Chiropractic physicians licensed under ORS chapter 684 or
organizations representing chiropractic physicians;
(F) Naturopaths licensed under ORS chapter 685 or organizations
representing naturopaths;
(G) Clinical social workers licensed under ORS 675.510 to
675.600 or organizations representing clinical social workers;
(H) Acupuncturists licensed under ORS 677.759;
(I) Pharmacists licensed under ORS chapter 689;
(J) Palliative care professionals or organizations representing
palliative care professionals;
(K) Mental health professionals or organizations representing
mental health professionals;
(L) Health care consumers or organizations representing health
care consumers;
(M) Hospitals and health plans or organizations representing
hospitals and health plans;
(N) Patients or advocacy groups representing patients;
(O) Dentists licensed under ORS chapter 679;
(P) Occupational therapists licensed under ORS 675.210 to
675.340;
(Q) Physical therapists licensed under ORS 688.010 to 688.201;
and
(R) Members of the public.
(b) Two members shall be members of a legislative committee
with jurisdiction over human services issues, one appointed by
the President of the Senate and one appointed by the Speaker of
Enrolled House Bill 2009 (HB 2009-C) Page 163
the House of Representatives. Both members shall be nonvoting, ex
officio members of the commission.
(2) The term of office of each member is four years, but a
member serves at the pleasure of the appointing authority. Before
the expiration of the term of a member, the appointing authority
shall appoint a successor whose term begins on July 1 next
following. A member is eligible for reappointment. If there is a
vacancy for any cause, the appointing authority shall make an
appointment to become immediately effective for the unexpired
term.
SECTION 250. ORS 409.530 is amended to read:
409.530. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall select one member of the Pain
Management Commission as chairperson and another as vice
chairperson, for such terms and with duties and powers necessary
for the performance of the functions of such offices as the
director determines.
(2) A majority of the voting members of the commission
constitutes a quorum for the transaction of business.
(3) The commission shall meet at least once every six months at
a place, day and hour determined by the director. The commission
also shall meet at other times and places specified by the call
of the chairperson or of a majority of the members of the
commission.
SECTION 251. ORS 409.540 is amended to read:
409.540. There is established the Pain Management Fund in the
{ - Department of Human Services Account established under ORS
409.060 - } { + Oregon Health Authority Fund established under
section 19 of this 2009 Act + }. All moneys credited to the Pain
Management Fund are continuously appropriated for the purposes of
ORS 409.500 to 409.570 to be expended by the Pain Management
Commission established under ORS 409.500.
SECTION 252. ORS 409.600 is amended to read:
409.600. (1) The Women, Infants and Children Program is
established in the { - Department of Human Services - }
{ + Oregon Health Authority + }. The purpose of the program is
to serve as an adjunct to health care by providing nutritious
food, nutrition education and counseling, health screening and
referral services to pregnant and breast-feeding women and to
infants and children in certain high-risk categories.
(2) The { - department - } { + authority + } shall adopt:
(a) Standards and procedures to guide administration of the
program by the state in conformity with federal requirements and
to define the rights, responsibilities and legal procedures of
program vendors; and
(b) Rules necessary to implement and carry out the provisions
of this section.
(3)(a) In addition to any other penalty provided by law, the
{ - department - } { + authority + } may assess a civil
penalty against any person for violation of any rule of the
{ - department - } { + authority + } relating to the Women,
Infants and Children Program. The
{ - department - } { + authority + } shall adopt by rule
criteria for the amount of civil penalties to be assessed under
this section.
(b) All penalties recovered under this section shall be
deposited into the { - General Fund of the State Treasury and
credited to a subaccount of the Department of Human Services
Account designated by the department - } { + Oregon Health
Authority Fund and credited to an account designated by the
Enrolled House Bill 2009 (HB 2009-C) Page 164
authority + }. Moneys deposited are appropriated continuously to
the { - department - } { + authority + } and shall be used
only for the administration and enforcement of this section.
SECTION 253. ORS 409.619 is amended to read:
409.619. (1) The Oregon Council on Health Care Interpreters is
created in the { - Department of Human Services - }
{ + Oregon Health Authority + }. The council shall consist of 25
members appointed as follows:
(a) The Governor shall appoint two members from each of the
following groups:
(A) Consumers of medical services who are persons with limited
English proficiency and who use health care interpreters;
(B) Educators who either teach interpreters or persons in
related educational fields, or who train recent immigrants and
persons with limited English proficiency;
(C) Persons with expertise and experience in administration or
policymaking related to the development and operation of
policies, programs or services related to interpreters, and who
have familiarity with the rulings of the federal Office for Civil
Rights concerning interpreter services for various institutions;
(D) Health care providers, consisting of one physician and one
registered nurse, who utilize interpreter services regularly in
their practice;
(E) Representatives of safety net clinics that predominantly
serve persons with limited English proficiency; and
(F) Representatives of hospitals, health systems and health
plans predominantly serving persons with limited English
proficiency.
(b) The Governor shall appoint one representative from each of
the following agencies and organizations after consideration of
nominations by the executive authority of each:
(A) The Commission on Asian Affairs;
(B) The Commission on Black Affairs;
(C) The Commission on Hispanic Affairs;
(D) The Commission on Indian Services;
(E) The International Refugee Center of Oregon;
(F) The Oregon Judicial Department's Certified Court
Interpreter program;
(G) The Commission for Women; and
(H) The Institute for Health Professionals of Portland
Community College.
{ - (c) The Director of Human Services shall appoint one
member from each of the following: - }
{ - (A) The Department of Human Services; - }
{ - (B) The Office of Medical Assistance Programs; - }
{ - (C) The Mental Health and Developmental Disability
Services Division; - }
{ - (D) The Senior and Disabled Services Division; and - }
{ - (E) The Health Division. - }
{ + (c) The Director of the Oregon Health Authority shall
appoint three members including:
(A) One member with responsibility for administering mental
health programs;
(B) One member with responsibility for administering medical
assistance programs; and
(C) One member with responsibility for administering public
health programs.
(d) The Director of Human Services shall appoint:
(A) One member with responsibility for administering
developmental disabilities programs; and
Enrolled House Bill 2009 (HB 2009-C) Page 165
(B) One member with responsibility for administering programs
for seniors and persons with disabilities. + }
{ - (d) - } { + (e) + } The membership of the council shall
be appointed so as to be representative of the racial, ethnic,
cultural, social and economic diversity of the people of this
state.
(2) The term of a member shall be three years. A member may be
reappointed.
(3) If there is a vacancy for any cause, the appointing
authority shall make an appointment to become immediately
effective for the unexpired term. The appointing authority may
appoint a replacement for any member of the council who misses
more than two consecutive meetings of the council. The newly
appointed member shall represent the same group as the vacating
member.
(4) The council shall select one member as chairperson and one
member as vice chairperson, for such terms and with duties and
powers as the council determines necessary for the performance of
the functions of such offices.
(5) The council may establish such advisory and technical
committees as it considers necessary to aid and advise the
council in the performance of its functions. The committees may
be continuing or temporary committees. The council shall
determine the representation, membership, terms and organization
of the committees and shall appoint committee members.
(6) A majority of the members of the council shall constitute a
quorum for the transaction of business.
(7) Members of the council are not entitled to compensation,
but at the discretion of the Director of { - Human Services - }
{ + the Oregon Health Authority + } may be reimbursed for actual
and necessary travel and other expenses incurred by them in the
performance of their official duties, subject to ORS 292.495.
(8) The council may accept contributions of funds and
assistance from the United States Government or its agencies or
from any other source, public or private, for purposes consistent
with the purposes of the council.
(9) The { - Department of Human Services - } { + Oregon
Health Authority + } shall provide the council with such services
and employees as the council requires to carry out its duties.
SECTION 254. ORS 409.621 is amended to read:
409.621. The Oregon Council on Health Care Interpreters shall
work in cooperation with the { - Department of Human
Services - } { + Oregon Health Authority + } to:
(1) Develop testing, qualification and certification standards
for health care interpreters for persons with limited English
proficiency.
(2) Coordinate with other states to develop and implement
educational and testing programs for health care interpreters.
(3) Examine operational and funding issues, including but not
limited to the feasibility of developing a central registry and
annual subscription mechanism for health care interpreters.
(4) Do all other acts as shall be necessary or appropriate
under the provisions of ORS 409.615 to 409.623.
SECTION 255. ORS 409.623 is amended to read:
409.623. (1) In consultation with the Oregon Council on Health
Care Interpreters, the { - Department of Human Services - }
{ + Oregon Health Authority + } shall by rule establish
procedures for testing, qualification and certification of health
care interpreters for persons with limited English proficiency,
including but not limited to:
Enrolled House Bill 2009 (HB 2009-C) Page 166
(a) Minimum standards for qualification and certification as a
health care interpreter, including:
(A) Oral and written language skills in English and in the
language for which health care interpreter qualification or
certification is granted; and
(B) Formal education or training in medical terminology,
anatomy and physiology, and medical ethics;
(b) Categories of expertise of health care interpreters based
on the English and non-English skills and the medical terminology
skills of the person seeking qualification or certification;
(c) Procedures for receiving applications and for examining
applicants for qualification or certification;
(d) The content and administration of required examinations;
(e) The requirements and procedures for reciprocity of
qualification and certification for health care interpreters
qualified or certified in another state or territory of the
United States; and
(f) Fees for application, examination, initial issuance,
renewal and reciprocal acceptance of qualification or
certification as a health care interpreter and for other fees
deemed necessary by the { - department - } { + authority + }.
(2) Any person seeking qualification or certification as a
health care interpreter must submit an application to the
{ - department - } { + authority + }. If the applicant meets
the requirements for qualification or certification established
by the { - department - } { + authority + } under this
section, the { - department - } { + authority + } shall issue
an annual certificate of qualification or a certification to the
health care interpreter. The { - department - }
{ + authority + } shall collect a fee for the issuance of the
certificate of qualification or the certification and for any
required examinations in the amount established pursuant to
subsection (1) of this section.
(3) The { - department - } { + authority + } shall work
with other states to develop educational and testing programs and
procedures for the qualification and certification of health care
interpreters.
(4) In addition to the requirements for qualification
established under subsection (1) of this section, a person may be
qualified as a health care interpreter only if the person:
(a) Is able to fluently interpret or translate the dialect,
slang or specialized vocabulary of the non-English language for
which qualification is sought;
(b) Has had at least 60 hours of health care interpreter
training that includes anatomy and physiology and concepts of
medical interpretation; and
(c) Has had practical experience as an intern with a practicing
health care interpreter.
(5) A person may not use the title of 'qualified health care
interpreter' unless the person has met the requirements for
qualification established under subsections (1) and (4) of this
section and has been issued a valid certificate of qualification
by the { - department - } { + authority + }.
(6) In addition to the requirements for certification
established under subsection (1) of this section, a person may be
certified as a health care interpreter only if:
(a) The person has met all the requirements established under
subsection (4) of this section; and
(b) The person has passed written and oral examinations
required by the { - department - } { + authority + } in
Enrolled House Bill 2009 (HB 2009-C) Page 167
English, in the non-English language the person wishes to
translate and in medical terminology.
(7) A person may not use the title of 'certified health care
interpreter' unless the person has met the requirements for
certification established under subsections (1) and (6) of this
section and has been issued a valid certification by the
{ - department - } { + authority + }.
SECTION 256. ORS 409.625 is amended to read:
409.625. All moneys received by the Oregon Council on Health
Care Interpreters under ORS 409.615 to 409.625 shall be paid into
the { - General Fund in the State Treasury and placed to the
credit of the Department of Human Services Account - }
{ + Oregon Health Authority Fund and credited to an account
designated by the authority + }. Such moneys { - are
appropriated continuously to the department and - } shall be
used only for the administration and enforcement of the
provisions of ORS 409.615 to 409.625.
SECTION 257. ORS 409.720 is amended to read:
409.720. (1) As used in this section:
(a) 'Adult foster home' has the meaning given that term in ORS
443.705 (1).
(b) 'Health care facility' has the meaning given that term in
ORS 442.015 { - (16) - } .
(c) 'Residential facility' has the meaning given that term in
ORS 443.400 (6).
(2) Every adult foster home, health care facility and
residential facility licensed or registered by the Department of
Human Services shall:
(a) Adopt a plan to provide for the safety of persons who are
receiving care at or are residents of the home or facility in the
event of an emergency that requires immediate action by the staff
of the home or facility due to conditions of imminent danger that
pose a threat to the life, health or safety of persons who are
receiving care at or are residents of the home or facility; and
(b) Provide training to all employees of the home or facility
about the responsibilities of the employees to implement the plan
required by this section.
(3) The department shall adopt by rule the requirements for the
plan and training required by this section. The rules adopted
shall include, but are not limited to, procedures for the
evacuation of the persons who are receiving care at or are
residents of the adult foster home, health care facility or
residential facility to a place of safety when the conditions of
imminent danger require relocation of those persons.
SECTION 258. ORS 409.740 is amended to read:
409.740. The { - Department of Human Services - }
{ + Oregon Health Authority + }, in consultation with the
appropriate professional and trade associations and licensing
boards, shall inform retired physicians and health care providers
regarding ORS 30.302 and 30.792.
SECTION 259. ORS 409.745 is amended to read:
409.745. (1) The Physician Visa Waiver Program is established
in the { - Department of Human Services - } { + Oregon Health
Authority + }. The purpose of the program is to make
recommendations to the United States Department of State for a
waiver of the foreign country residency requirement on behalf of
foreign physicians holding visas who seek employment in federally
designated shortage areas.
(2) A foreign physician who has completed a residency in the
United States may apply to the { - Department of Human
Enrolled House Bill 2009 (HB 2009-C) Page 168
Services - } { + authority + } for a recommendation for a waiver
of the foreign country residency requirement in order to obtain
employment in a federally designated shortage area in the state.
Applications shall be on the forms of and contain the information
requested by the
{ - department - } { + authority + }. Each application shall
be accompanied by the application fee.
(3) The { - department - } { + authority + } reserves the
right to recommend or decline to recommend any request for a
waiver.
(4) The { - department - } { + authority + } shall adopt
rules necessary to implement and administer the program,
including but not limited to adopting an application fee not to
exceed the cost of administering the program.
SECTION 260. ORS 409.747 is amended to read:
409.747. Notwithstanding ORS 411.760 { - and 414.095 - } ,
liquidated and delinquent debts owed to the Department of Human
Services may be set off against amounts owed by the department to
the debtors.
{ + NOTE: + } Section 261 was deleted by amendment.
Subsequent sections were not renumbered.
SECTION 262. ORS 411.620 is amended to read:
411.620. (1) The Department of Human Services may prosecute a
civil suit or action against any person who has obtained, for
personal benefit or for the benefit of any other person, any
amount or type of general assistance or public assistance, as
defined in ORS 411.010, or has aided any other person to obtain
such general assistance or public assistance, in violation of any
provision of ORS 411.630, or in violation of ORS 411.640. In such
suit or action the department may recover the amount or value of
such general assistance or public assistance so obtained in
violation of ORS 411.630, or in violation of ORS 411.640, with
interest thereon, together with costs and disbursements incurred
therein.
(2) Excepting as to bona fide purchasers for value, the
department, { + the Oregon Health Authority, + } the conservator
for the recipient or the personal representative of the estate of
a deceased recipient may prosecute a civil suit or action to set
aside the transfer, gift or other disposition of any money or
property made in violation of any provisions of ORS 411.630,
411.708 and 414.105 and the department { + or the authority + }
may recover out of such money or property, or otherwise, the
amount or value of any general assistance or public assistance
obtained as a result of such violation, with interest thereon,
together with costs and disbursements incurred therein.
SECTION 263. ORS 411.708 is amended to read:
411.708. (1) The amount of any assistance paid under ORS
411.706 is a claim against the property or interest in the
property belonging to and a part of the estate of any deceased
recipient. If the deceased recipient has no estate, the estate of
the surviving spouse of the deceased recipient, if any, shall be
charged for assistance granted under ORS 411.706 to the deceased
recipient or the surviving spouse. There shall be no adjustment
or recovery of assistance correctly paid on behalf of any
deceased recipient under ORS 411.706 except after the death of
the surviving spouse of the deceased recipient, if any, and only
at a time when the deceased recipient has no surviving child who
is under 21 years of age or who is blind or has a disability.
Transfers of real or personal property by recipients of
Enrolled House Bill 2009 (HB 2009-C) Page 169
assistance without adequate consideration are voidable and may be
set aside under ORS 411.620 (2).
(2) Except when there is a surviving spouse, or a surviving
child who is under 21 years of age or who is blind or has a
disability, the amount of any assistance paid under ORS 411.706
is a claim against the estate in any conservatorship proceedings
and may be paid pursuant to ORS 125.495.
(3) A claim under this section shall exclude benefits paid to
or on behalf of a beneficiary under a policy of qualified long
term care insurance, as defined in ORS 414.025 { - (2)(s) - }
{ + (2)(t) + }.
(4) Nothing in this section authorizes the recovery of the
amount of any assistance from the estate or surviving spouse of a
recipient to the extent that the need for assistance resulted
from a crime committed against the recipient.
SECTION 264. ORS 414.025, as amended by section 18a, chapter
861, Oregon Laws 2007, is amended to read:
414.025. As used in this chapter, unless the context or a
specially applicable statutory definition requires otherwise:
(1) 'Category of aid' means assistance provided by the Oregon
Supplemental Income Program, aid granted under ORS 412.001 to
412.069 and 418.647 or federal Supplemental Security Income
payments.
(2) 'Categorically needy' means, insofar as funds are available
for the category, a person who is a resident of this state and
who:
(a) Is receiving a category of aid.
(b) Would be eligible for { - , - } { + a category of
aid + } but is not receiving a category of aid.
(c) Is in a medical facility and, if the person left such
facility, would be eligible for a category of aid.
(d) Is under the age of 21 years and would be a dependent child
as defined in ORS 412.001 except for age and regular attendance
in school or in a course of professional or technical training.
(e)(A) Is a caretaker relative, as defined in ORS 412.001, who
cares for a child who would be a dependent child except for age
and regular attendance in school or in a course of professional
or technical training; or
(B) Is the spouse of the caretaker relative.
(f) Is under the age of 21 years, is in a foster family home or
licensed child-caring agency or institution under a purchase of
care agreement and is one for whom a public agency of this state
is assuming financial responsibility, in whole or in part.
(g) Is a spouse of an individual receiving a category of aid
and who is living with the recipient of a category of aid, whose
needs and income are taken into account in determining the cash
needs of the recipient of a category of aid, and who is
determined by the Department of Human Services to be essential to
the well-being of the recipient of a category of aid.
(h) Is a caretaker relative as defined in ORS 412.001 who cares
for a dependent child receiving aid granted under ORS 412.001 to
412.069 and 418.647 or is the spouse of the caretaker relative.
(i) Is under the age of 21 years, is in a youth care center and
is one for whom a public agency of this state is assuming
financial responsibility, in whole or in part.
(j) Is under the age of 21 years and is in an intermediate care
facility which includes institutions for persons with mental
retardation { - ; or - } { + .
(k) + } Is under the age of 22 years and is in a psychiatric
hospital.
Enrolled House Bill 2009 (HB 2009-C) Page 170
{ - (k) - } { + (L) + } Is under the age of 21 years and is
in an independent living situation with all or part of the
maintenance cost paid by the Department of Human Services.
{ - (L) - } { + (m) + } Is a member of a family that
received aid in the preceding month under ORS 412.006 or 412.014
and became ineligible for aid due to increased hours of or
increased income from employment. As long as the member of the
family is employed, such families will continue to be eligible
for medical assistance for a period of at least six calendar
months beginning with the month in which such family became
ineligible for assistance due to increased hours of employment or
increased earnings.
{ - (m) - } { + (n) + } Is an adopted person under 21 years
of age for whom a public agency is assuming financial
responsibility in whole or in part.
{ - (n) - } { + (o) + } Is an individual or is a member of
a group who is required by federal law to be included in the
state's medical assistance program in order for that program to
qualify for federal funds.
{ - (o) - } { + (p) + } Is an individual or member of a
group who, subject to the rules of the department { - and
within available funds - } , may optionally be included in the
state's medical assistance program under federal law and
regulations concerning the availability of federal funds for the
expenses of that individual or group.
{ - (p) - } { + (q) + } Is a pregnant woman who would be
eligible for aid granted under ORS 412.001 to 412.069 and
418.647, whether or not the woman is eligible for cash
assistance.
{ - (q) - } { + (r) + } Except as otherwise provided in
this section { - and to the extent of available funds - } , is
a pregnant woman or child for whom federal financial
participation is available under { - Title XIX - } { + Title
XIX or XXI + } of the federal Social Security Act.
{ - (r) - } { + (s) + } Is not otherwise categorically
needy and is not eligible for care under Title XVIII of the
federal Social Security Act or is not a full-time student in a
post-secondary education program as defined by the Department of
Human Services by rule, but whose family income is less than the
federal poverty level and whose family investments and savings
equal less than the investments and savings limit established by
the department by rule.
{ - (s) - } { + (t) + } Would be eligible for a category of
aid but for the receipt of qualified long term care insurance
benefits under a policy or certificate issued on or after January
1, 2008. As used in this paragraph, 'qualified long term care
insurance' means a policy or certificate of insurance as defined
in ORS 743.652 (6).
(3) 'Income' has the meaning given that term in ORS 411.704.
(4) 'Investments and savings' means cash, securities as defined
in ORS 59.015, negotiable instruments as defined in ORS 73.0104
and such similar investments or savings as the Department of
Human Services may establish by rule that are available to the
applicant or recipient to contribute toward meeting the needs of
the applicant or recipient.
(5) 'Medical assistance' means so much of the following medical
and remedial care and services as may be prescribed by the
{ - Department of Human Services - } { + Oregon Health
Authority + } according to the standards established pursuant to
{ - ORS 414.065 - } { + section 10 of this 2009 Act + },
Enrolled House Bill 2009 (HB 2009-C) Page 171
including payments made for services provided under an insurance
or other contractual arrangement and money paid directly to the
recipient for the purchase of medical care:
(a) Inpatient hospital services, other than services in an
institution for mental diseases;
(b) Outpatient hospital services;
(c) Other laboratory and X-ray services;
(d) Skilled nursing facility services, other than services in
an institution for mental diseases;
(e) Physicians' services, whether furnished in the office, the
patient's home, a hospital, a skilled nursing facility or
elsewhere;
(f) Medical care, or any other type of remedial care recognized
under state law, furnished by licensed practitioners within the
scope of their practice as defined by state law;
(g) Home health care services;
(h) Private duty nursing services;
(i) Clinic services;
(j) Dental services;
(k) Physical therapy and related services;
(L) Prescribed drugs, including those dispensed and
administered as provided under ORS chapter 689;
(m) Dentures and prosthetic devices; and eyeglasses prescribed
by a physician skilled in diseases of the eye or by an
optometrist, whichever the individual may select;
(n) Other diagnostic, screening, preventive and rehabilitative
services;
(o) Inpatient hospital services, skilled nursing facility
services and intermediate care facility services for individuals
65 years of age or over in an institution for mental diseases;
(p) Any other medical care, and any other type of remedial care
recognized under state law;
(q) Periodic screening and diagnosis of individuals under the
age of 21 years to ascertain their physical or mental
impairments, and such health care, treatment and other measures
to correct or ameliorate impairments and chronic conditions
discovered thereby;
(r) Inpatient hospital services for individuals under 22 years
of age in an institution for mental diseases; and
(s) Hospice services.
(6) 'Medical assistance' includes any care or services for any
individual who is a patient in a medical institution or any care
or services for any individual who has attained 65 years of age
or is under 22 years of age, and who is a patient in a private or
public institution for mental diseases. 'Medical assistance '
includes 'health services' as defined in ORS 414.705. 'Medical
assistance' does not include care or services for an inmate in a
nonmedical public institution.
(7) 'Medically needy' means a person who is a resident of this
state and who is considered eligible under federal law for
medically needy assistance.
(8) 'Resources' has the meaning given that term in ORS 411.704.
For eligibility purposes, 'resources' does not include charitable
contributions raised by a community to assist with medical
expenses.
SECTION 265. ORS 414.033 is amended to read:
414.033. The { - Department of Human Services - }
{ + Oregon Health Authority + } may:
(1) Subject to the allotment system provided for in ORS 291.234
to 291.260, expend such sums as are required to be expended in
Enrolled House Bill 2009 (HB 2009-C) Page 172
this state to provide medical assistance. Expenditures for
medical assistance include, but are not limited to, expenditures
for deductions, cost sharing, enrollment fees, premiums or
similar charges imposed with respect to hospital insurance
benefits or supplementary health insurance benefits, as
established by federal law.
(2) Enter into agreements with, join with or accept grants
from, the federal government for cooperative research and
demonstration projects for public welfare purposes, including,
but not limited to, any project which determines the cost of
providing medical assistance to the medically needy and evaluates
service delivery systems.
SECTION 266. ORS 414.034 is amended to read:
414.034. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall accept federal Centers for
Medicare and Medicaid Services billing, reimbursement and
reporting forms instead of department billing, reimbursement and
reporting forms if the federal forms contain substantially the
same information as required by the department forms.
SECTION 267. { + ORS 414.105 and 414.106 are added to and made
a part of ORS chapter 416. + }
SECTION 268. { + ORS 414.042 is added to and made a part of
ORS chapter 411. + }
SECTION 269. ORS 414.042 is amended to read:
414.042. { - (1) The need for and the amount of medical
assistance to be made available for each eligible group of
recipients of medical assistance shall be determined, in
accordance with the rules of the Department of Human Services,
taking into account: - }
{ - (a) The requirements and needs of the person, the spouse
and other dependents; - }
{ - (b) The income, resources and maintenance available to
the person but, except as provided in ORS 414.025 (2)(r),
resources shall be disregarded for those eligible by reason of
having income below the federal poverty level and who are
eligible for medical assistance only because of the enactment of
chapter 836, Oregon Laws 1989; - }
{ - (c) The responsibility of the spouse and, with respect to
a person who is blind or is permanently and totally disabled or
is under 21 years of age, the responsibility of the parents;
and - }
{ - (d) The report of the Health Services Commission as
funded by the Legislative Assembly and such other programs as the
Legislative Assembly may authorize. However, medical assistance,
including health services, shall not be provided to persons
described in ORS 414.025 (2)(r) unless the Legislative Assembly
specifically appropriates funds to provide such assistance. - }
{ - (2) Such amounts of income and resources may be
disregarded as the department may prescribe by rules, except that
the department may not require any needy person over 65 years of
age, as a condition of entering or remaining in a hospital,
nursing home or other congregate care facility, to sell any real
property normally used as such person's home. Any rule of the
department inconsistent with this section is to that extent
invalid. The amounts to be disregarded shall be within the limits
required or permitted by federal law, rules or orders applicable
thereto. - }
{ - (3) In the determination of the amount of medical
assistance available to a medically needy person, all income and
resources available to the person in excess of the amounts
Enrolled House Bill 2009 (HB 2009-C) Page 173
prescribed in ORS 414.038, within limits prescribed by the
department, shall be applied first to costs of needed medical and
remedial care and services not available under the medical
assistance program and then to the costs of benefits under the
medical assistance program. - }
{ + (1) The Department of Human Services shall determine
eligibility for medical assistance according to criteria
prescribed by rule, taking into account:
(a) The requirements and needs of the applicant and of the
spouse and dependents of the applicant;
(b) The income, resources and maintenance available to the
applicant; and
(c) The responsibility of the spouse of the applicant and, with
respect to an applicant who is blind or is permanently and
totally disabled or is under 21 years of age, the responsibility
of the parents.
(2) Rules adopted by the department under subsection (1) of
this section:
(a) Shall disregard resources for those who are eligible for
medical assistance only by reason of ORS 414.025 (2)(s), except
for the resources described in ORS 414.025 (2)(s).
(b) May disregard income and resources within the limits
required or permitted by federal law, regulations or orders.
(3) The department may not require any needy person over 65
years of age, as a condition of entering or remaining in a
hospital, nursing home or other congregate care facility, to sell
any real property normally used as such person's home. Any rule
of the department inconsistent with this section is to that
extent invalid. + }
SECTION 270. { + ORS 414.047, 414.049, 414.051, 414.055,
414.057, 414.073, 414.151, 414.420, 414.422 and 414.424 are added
to and made a part of ORS chapter 411. + }
{ + NOTE: + } Section 271 was deleted by amendment.
Subsequent sections were not renumbered.
SECTION 272. ORS 414.049 is amended to read:
414.049. For each person applying for { - health services
under ORS 414.705 to 414.750 - } { + medical assistance + },
the Department of Human Services shall fully document:
(1) The category of aid as defined in ORS 414.025 that makes
the person eligible for medical assistance or the way in which
the person qualifies as categorically needy as defined in ORS
414.025;
(2) The status of the person as a resident of this state; and
(3) The financial income and resources of the person.
SECTION 273. ORS 414.051 is amended to read:
414.051. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall approve or deny prior
authorization requests for dental services not later than 30 days
after submission thereof by the provider, and shall make payments
to providers of prior authorized dental services not later than
30 days after receipt of the invoice of the provider.
{ + NOTE: + } Sections 274 and 275 were deleted by amendment.
Subsequent sections were not renumbered.
SECTION 276. ORS 414.065 is amended to read:
414.065. (1)(a) With respect to medical and remedial care and
services to be provided in medical assistance during any period,
and within the limits of funds available therefor, the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall determine, subject to such revisions as it
may make from time to time and with respect to the 'health
Enrolled House Bill 2009 (HB 2009-C) Page 174
services' defined in ORS 414.705, subject to legislative funding
in response to the report of the Health Services Commission and
paragraph (b) of this subsection:
(A) The types and extent of medical and remedial care and
services to be provided to each eligible group of recipients of
medical assistance.
(B) Standards to be observed in the provision of medical and
remedial care and services.
(C) The number of days of medical and remedial care and
services toward the cost of which public assistance funds will be
expended in the care of any person.
(D) Reasonable fees, charges and daily rates to which public
assistance funds will be applied toward meeting the costs of
providing medical and remedial care and services to an applicant
or recipient.
(E) Reasonable fees for professional medical and dental
services which may be based on usual and customary fees in the
locality for similar services.
(F) The amount and application of any copayment or other
similar cost-sharing payment that the { - department - }
{ + authority + } may require a recipient to pay toward the cost
of medical and remedial care or services.
(b) Notwithstanding ORS 414.720 (8), the { - department - }
{ + authority + } shall adopt rules establishing timelines for
payment of health services under paragraph (a) of this
subsection.
(2) The types and extent of medical and remedial care and
services and the amounts to be paid in meeting the costs thereof,
as determined and fixed by the { - department - }
{ + authority + } and within the limits of funds available
therefor, shall be the total available for medical assistance and
payments for such medical assistance shall be the total amounts
from public assistance funds available to providers of medical
and remedial care and services in meeting the costs thereof.
(3) Except for payments under a cost-sharing plan, payments
made by the { - department - } { + authority + } for medical
assistance shall constitute payment in full for all medical and
remedial care and services for which such payments of medical
assistance were made.
(4) Medical benefits, standards and limits established pursuant
to subsection (1)(a)(A), (B) and (C) of this section for the
eligible medically needy, except for persons receiving assistance
under ORS 411.706, may be less than but may not exceed medical
benefits, standards and limits established for the eligible
categorically needy, except that, in the case of a research and
demonstration project entered into under ORS 411.135, medical
benefits, standards and limits for the eligible medically needy
may exceed those established for specific eligible groups of the
categorically needy.
SECTION 277. ORS 414.073 is amended to read:
414.073. When giving information concerning medical assistance,
the { - Department of Human Services - } { + Oregon Health
Authority + } shall make available to applicants or recipients
materials which include at least a listing of all the healing
arts licensed in this state.
SECTION 278. ORS 414.105 is amended to read:
414.105. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may recover from any person the
amounts of medical assistance incorrectly paid on behalf of such
person.
Enrolled House Bill 2009 (HB 2009-C) Page 175
(2) Medical assistance pursuant to this chapter paid on behalf
of an individual who was 55 years of age or older when the
individual received such assistance, or paid on behalf of a
person of any age who was a permanently institutionalized
inpatient in a nursing facility, intermediate care facility for
persons with mental retardation or other medical institution, may
be recovered from the estate of the individual or from any
recipient of property or other assets held by the individual at
the time of death including the estate of the surviving spouse.
Claim for such medical assistance correctly paid to the
individual may be established against the estate, but there shall
be no adjustment or recovery thereof until after the death of the
surviving spouse, if any, and only at a time when the individual
has no surviving child who is under 21 years of age or who is
blind or permanently and totally disabled. Transfers of real or
personal property by recipients of such aid without adequate
consideration are voidable and may be set aside under ORS 411.620
(2).
(3) Nothing in this section authorizes the recovery of the
amount of any aid from the estate or surviving spouse of a
recipient to the extent that the need for aid resulted from a
crime committed against the recipient.
(4) In any action or proceeding under this section to recover
medical assistance paid, it shall be the legal burden of the
person who receives the property or other assets from a Medicaid
recipient to establish the extent and value of the Medicaid
recipient's legal title or interest in the property or assets in
accordance with rules established by the { - department - }
{ + authority + }.
(5) As used in this section, 'estate' includes all real and
personal property and other assets in which the deceased
individual had any legal title or interest at the time of death
including assets conveyed to a survivor, heir or assign of the
deceased individual through joint tenancy, tenancy in common,
survivorship, life estate, living trust or other similar
arrangement.
SECTION 279. ORS 414.106 is amended to read:
414.106. (1) Subject to the requirements of subsection (2) of
this section, if 42 U.S.C. 1396p (b)(1)(B) as in effect on
January 1, 1995, is repealed without replacement or is declared
unconstitutional, the Director of { - Human Services - }
{ + the Oregon Health Authority + } shall limit the recovery of
medical assistance paid pursuant to ORS chapter 414 from the
estate of an individual or a recipient of property or other
assets held by an individual at the time of death, including a
surviving spouse of the individual, to the recovery of medical
assistance payments paid on behalf of the individual on or after
the date that the individual attained 65 years of age.
(2) The director shall limit the recovery of medical assistance
as described under subsection (1) of this section only if the
director determines, after receiving the written opinion of the
Attorney General, that the recovery limitation will not violate
any federal law in effect on the operative date of the recovery
limitation. The director may condition, limit, modify or
terminate any recovery limitation as the director considers
necessary to avoid a violation of federal law.
SECTION 280. ORS 414.109 is amended to read:
414.109. (1) The Oregon Health Plan Fund is established,
separate and distinct from the General Fund. Interest earned by
Enrolled House Bill 2009 (HB 2009-C) Page 176
the Oregon Health Plan Fund shall be retained by the Oregon
Health Plan Fund.
(2) Moneys in the Oregon Health Plan Fund are continuously
appropriated to the Department of Human Services for the purposes
of funding the maintenance and expansion of the number of persons
eligible for medical assistance under the Oregon Health Plan and
funding the maintenance of the benefits available under the
Oregon Health Plan.
{ + (3) On the effective date of this 2009 Act, all moneys in
the Oregon Health Plan Fund shall be transferred to the Oregon
Health Authority Fund established in section 19 of this 2009
Act. + }
SECTION 281. ORS 414.115 is amended to read:
414.115. (1) In lieu of providing one or more of the medical
and remedial care and services available under medical assistance
by direct payments to providers thereof and in lieu of providing
such medical and remedial care and services made available
pursuant to ORS 414.065, the { - Department of Human
Services - } { + Oregon Health Authority + } shall use
available medical assistance funds to purchase and pay premiums
on policies of insurance, or enter into and pay the expenses on
health care service contracts, or medical or hospital service
contracts that provide one or more of the medical and remedial
care and services available under medical assistance for the
benefit of the categorically needy { - or the medically needy,
or both - } . Notwithstanding other specific provisions, the use
of available medical assistance funds to purchase medical or
remedial care and services may provide the following insurance or
contract options:
(a) Differing services or levels of service among groups of
eligibles as defined by rules of the { - department - }
{ + authority + }; and
(b) Services and reimbursement for these services may vary
among contracts and need not be uniform.
(2) The policy of insurance or the contract by its terms, or
the insurer or contractor by written acknowledgment to the
{ - department - } { + authority + } must guarantee:
(a) To provide medical and remedial care and services of the
type, within the extent and according to standards prescribed
under ORS 414.065;
(b) To pay providers of medical and remedial care and services
the amount due, based on the number of days of care and the fees,
charges and costs established under ORS 414.065, except as to
medical or hospital service contracts which employ a method of
accounting or payment on other than a fee-for-service basis;
(c) To provide medical and remedial care and services under
policies of insurance or contracts in compliance with all laws,
rules and regulations applicable thereto; and
(d) To provide such statistical data, records and reports
relating to the provision, administration and costs of providing
medical and remedial care and services to the
{ - department - } { + authority + } as may be required by the
{ - department - } { + authority + } for its records, reports
and audits.
SECTION 282. ORS 414.125 is amended to read:
414.125. (1) Any payment of available medical assistance funds
for policies of insurance or service contracts shall be according
to such uniform area-wide rates as the { - Department of Human
Services - } { + Oregon Health Authority + } shall have
established and which it may revise from time to time as may be
Enrolled House Bill 2009 (HB 2009-C) Page 177
necessary or practical, except that, in the case of a research
and demonstration project entered into under ORS 411.135 special
rates may be established.
(2) No premium or other periodic charge on any policy of
insurance, health care service contract, or medical or hospital
service contract shall be paid from available medical assistance
funds unless the insurer or contractor issuing such policy or
contract is by law authorized to transact business as an
insurance company, health care service contractor or hospital
association in this state.
SECTION 283. ORS 414.135 is amended to read:
414.135. The { - Department of Human Services - }
{ + Oregon Health Authority + } may enter into nonexclusive
contracts under which funds available for medical assistance may
be administered and disbursed by the contractor to direct
providers of medical and remedial care and services available
under medical assistance in consideration of services rendered
and supplies furnished by them in accordance with the provisions
of this chapter. Payment shall be made according to the rules of
the { - department - } { + authority + } pursuant to the
number of days and the fees, charges and costs established under
ORS 414.065. The contractor must guarantee the
{ - department - } { + authority + } by written acknowledgment:
(1) To make all payments under this chapter promptly but not
later than 30 days after receipt of the proper evidence
establishing the validity of the provider's claim.
(2) To provide such data, records and reports to the
{ - department - } { + authority + } as may be required by
the { - department - } { + authority + }.
SECTION 284. ORS 414.145 is amended to read:
414.145. (1) The provisions of ORS 414.115, 414.125 or 414.135
shall be implemented whenever it appears to the
{ - Department of Human Services - } { + Oregon Health
Authority + } that such implementation will provide comparable
benefits at equal or less cost than provision thereof by direct
payments by the { - department - } { + authority + } to the
providers of medical assistance, but in no case greater than the
legislatively approved budgeted cost per eligible recipient at
the time of contracting.
(2) When determining comparable benefits at equal or less cost
as provided in subsection (1) of this section, the
{ - department - } { + authority + } must take into
consideration the recipients' need for reasonable access to
preventive and remedial care, and the contractor's ability to
assure continuous quality delivery of both routine and emergency
services.
SECTION 285. ORS 414.151 is amended to read:
414.151. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall endeavor to develop
agreements with local governments to facilitate the enrollment of
poverty level medical assistance program clients. Subject to the
availability of funds therefor, the agreement shall be structured
to allow flexibility by the state and local governments and may
allow any of the following options for enrolling clients in
poverty level medical assistance programs:
(1) Initial processing shall be done at the county health
department by employees of the county, with eligibility
determination completed at the local office of the
{ - Department of Human Services - } { + authority + };
Enrolled House Bill 2009 (HB 2009-C) Page 178
(2) Initial processing and eligibility determination shall be
done at the county health department by employees of the local
health department; or
(3) Application forms shall be made available at the county
health department with initial processing and eligibility
determination shall be done at the local office of the
{ - Department of Human Services - } { + authority + }.
SECTION 286. ORS 414.153 is amended to read:
414.153. In order to make advantageous use of the system of
public health services available through county health
departments and other publicly supported programs and to insure
access to public health services through contract under ORS
chapter 414, the state shall:
(1) Unless cause can be shown why such an agreement is not
feasible, require and approve agreements between prepaid health
plans and publicly funded providers for authorization of payment
for point of contact services in the following categories:
(a) Immunizations;
(b) Sexually transmitted diseases; and
(c) Other communicable diseases;
(2) Allow enrollees in prepaid health plans to receive from
fee-for-service providers:
(a) Family planning services;
(b) Human immunodeficiency virus and acquired immune deficiency
syndrome prevention services; and
(c) Maternity case management if the { - Department of Human
Services - } { + Oregon Health Authority + } determines that a
prepaid plan cannot adequately provide the services;
(3) Encourage and approve agreements between prepaid health
plans and publicly funded providers for authorization of and
payment for services in the following categories:
(a) Maternity case management;
(b) Well-child care;
(c) Prenatal care;
(d) School-based clinics;
(e) Health services for children provided through schools and
Head Start programs; and
(f) Screening services to provide early detection of health
care problems among low income women and children, migrant
workers and other special population groups; and
(4) Recognize the social value of partnerships between county
health departments and other publicly supported programs and
other health providers, and take appropriate measures to involve
publicly supported health care and service programs in the
development and implementation of managed health care programs in
their areas of responsibility.
SECTION 287. ORS 414.211 is amended to read:
414.211. (1) There is established a Medicaid Advisory Committee
consisting of not more than 15 members appointed by the Governor.
(2) The committee shall be composed of:
(a) A physician licensed under ORS chapter 677;
(b) Two members of health care consumer groups that include
Medicaid recipients;
(c) Two Medicaid recipients, one of whom shall be a person with
a disability;
(d) The Director of { - Human Services - } { + the Oregon
Health Authority + } or designee;
(e) Health care providers;
Enrolled House Bill 2009 (HB 2009-C) Page 179
(f) Persons associated with health care organizations,
including but not limited to managed care plans under contract to
the Medicaid program; and
(g) Members of the general public.
(3) In making appointments, the Governor shall consult with
appropriate professional and other interested organizations. All
members appointed to the committee shall be familiar with the
medical needs of low income persons.
(4) The term of office for each member shall be two years, but
each member shall serve at the pleasure of the Governor.
(5) Members of the committee shall receive no compensation for
their services but, subject to any applicable state law, shall be
allowed actual and necessary travel expenses incurred in the
performance of their duties from the { - Public Welfare
Account - } { + Oregon Health Authority Fund + }.
SECTION 288. ORS 414.221 is amended to read:
414.221. The Medicaid Advisory Committee shall advise the
Administrator of the Office for Oregon Health Policy and Research
and the Director of { - Human Services - } { + the Oregon
Health Authority + } on:
(1) Medical care, including mental health and alcohol and drug
treatment and remedial care to be provided under ORS chapter 414;
and
(2) The operation and administration of programs provided under
ORS chapter 414.
SECTION 289. ORS 414.225 is amended to read:
414.225. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall consult with the Medicaid
Advisory Committee concerning the determinations required under
ORS 414.065.
SECTION 290. ORS 414.227 is amended to read:
414.227. (1) ORS 192.610 to 192.690 apply to any meeting of an
advisory committee with the authority to make decisions for,
conduct policy research for or make recommendations to the
{ - Department of Human Services - } { + Oregon Health
Authority or the Oregon Health Policy Board + } on administration
or policy related to the medical assistance program operated
under this chapter.
(2) Subsection (1) of this section applies only to advisory
committee meetings attended by two or more advisory committee
members who are not employed by a public body.
SECTION 291. ORS 414.312 is amended to read:
414.312. (1) As used in ORS 414.312 to 414.318:
(a) 'Pharmacy benefit manager' means an entity that, in
addition to being a prescription drug claims processor,
negotiates and executes contracts with pharmacies, manages
preferred drug lists, negotiates rebates with prescription drug
manufacturers and serves as an intermediary between the Oregon
Prescription Drug Program, prescription drug manufacturers and
pharmacies.
(b) 'Prescription drug claims processor' means an entity that
processes and pays prescription drug claims, adjudicates pharmacy
claims, transmits prescription drug prices and claims data
between pharmacies and the Oregon Prescription Drug Program and
processes related payments to pharmacies.
(c) 'Program price' means the reimbursement rates and
prescription drug prices established by the administrator of the
Oregon Prescription Drug Program.
Enrolled House Bill 2009 (HB 2009-C) Page 180
(2) The Oregon Prescription Drug Program is established in the
{ - Department of Human Services - } { + Oregon Health
Authority + }. The purpose of the program is to:
(a) Purchase prescription drugs or reimburse pharmacies for
prescription drugs in order to receive discounted prices and
rebates;
(b) Make prescription drugs available at the lowest possible
cost to participants in the program; and
(c) Maintain a list of prescription drugs recommended as the
most effective prescription drugs available at the best possible
prices.
(3) The Director of { - Human Services - } { + the Oregon
Health Authority + } shall appoint an administrator of the Oregon
Prescription Drug Program. The administrator shall:
(a) Negotiate price discounts and rebates on prescription drugs
with prescription drug manufacturers;
(b) Purchase prescription drugs on behalf of individuals and
entities that participate in the program;
(c) Contract with a prescription drug claims processor to
adjudicate pharmacy claims and transmit program prices to
pharmacies;
(d) Determine program prices and reimburse pharmacies for
prescription drugs;
(e) Adopt and implement a preferred drug list for the program;
(f) Develop a system for allocating and distributing the
operational costs of the program and any rebates obtained to
participants of the program; and
(g) Cooperate with other states or regional consortia in the
bulk purchase of prescription drugs.
(4) The following individuals or entities may participate in
the program:
(a) Public Employees' Benefit Board;
(b) Local governments as defined in ORS 174.116 and special
government bodies as defined in ORS 174.117 that directly or
indirectly purchase prescription drugs;
{ - (c) Enrollees in the Senior Prescription Drug Assistance
Program created under ORS 414.342; - }
{ - (d) - } { + (c) + } Oregon Health and Science
University established under ORS 353.020;
{ - (e) - } { + (d) + } State agencies that directly or
indirectly purchase prescription drugs, including agencies that
dispense prescription drugs directly to persons in state-operated
facilities;
{ - (f) - } { + (e) + } Residents of this state who lack or
are underinsured for prescription drug coverage;
{ - (g) - } { + (f) + } Private entities; and
{ - (h) - } { + (g) + } Labor organizations.
(5) The state agency that receives federal Medicaid funds and
is responsible for implementing the state's medical assistance
program may not participate in the program.
(6) The administrator may establish different reimbursement
rates or prescription drug prices for pharmacies in rural areas
to maintain statewide access to the program.
(7) The administrator shall establish the terms and conditions
for a pharmacy to enroll in the program. A licensed pharmacy that
is willing to accept the terms and conditions established by the
administrator may apply to enroll in the program.
(8) Except as provided in subsection { - (9) - }
{ + (10) + } of this section, the administrator may not:
(a) Contract with a pharmacy benefit manager;
Enrolled House Bill 2009 (HB 2009-C) Page 181
(b) Establish a state-managed wholesale or retail drug
distribution or dispensing system; or
(c) Require pharmacies to maintain or allocate separate
inventories for prescription drugs dispensed through the program.
(9) The administrator shall contract with one or more entities
to provide the functions of a prescription drug claims processor.
The administrator may also contract with a pharmacy benefit
manager to negotiate with prescription drug manufacturers on
behalf of the administrator.
(10) Notwithstanding subsection { - (4)(f) - }
{ + (4)(e) + } of this section, individuals who are eligible for
Medicare Part D prescription drug coverage may participate in the
program.
SECTION 292. ORS 414.314 is amended to read:
414.314. (1) An individual or entity described in ORS 414.312
(4) may apply to participate in the Oregon Prescription Drug
Program. Participants shall apply on an application provided by
the { - Department of Human Services - } { + Oregon Health
Authority + }. The
{ - department - } { + authority + } may charge participants
a nominal fee to participate in the program. The
{ - department - } { + authority + } shall issue a
prescription drug identification card to participants of the
program.
(2) The { - department - } { + authority + } shall provide
a mechanism to calculate and transmit the program prices for
prescription drugs to a pharmacy. The pharmacy shall charge the
participant the program price for a prescription drug.
(3) A pharmacy may charge the participant the professional
dispensing fee set by the { - department - } { +
authority + }.
(4) Prescription drug identification cards issued under this
section must contain the information necessary for proper claims
adjudication or transmission of price data.
SECTION 293. ORS 414.316 is amended to read:
414.316. The Office for Oregon Health Policy and Research shall
develop and recommend to the { - Department of Human
Services - } { + Oregon Health Authority + } a preferred drug
list that identifies preferred choices of prescription drugs
within therapeutic classes for particular diseases and
conditions, including generic alternatives, for use in the Oregon
Prescription Drug Program. The office shall conduct public
hearings and use evidence-based evaluations on the effectiveness
of similar prescription drugs to develop the preferred drug list.
SECTION 294. ORS 414.318 is amended to read:
414.318. The Prescription Drug Purchasing Fund is established
separate and distinct from the General Fund. The Prescription
Drug Purchasing Fund shall consist of moneys appropriated to the
fund by the Legislative Assembly and moneys received by the
{ - Department of Human Services - } { + Oregon Health
Authority + } for the purposes established in this section in the
form of gifts, grants, bequests, endowments or donations. The
moneys in the Prescription Drug Purchasing Fund are continuously
appropriated to the
{ - department - } { + authority + } and shall be used to
purchase prescription drugs, reimburse pharmacies for
prescription drugs and reimburse the { - department - }
{ + authority + } for the costs of administering the Oregon
Prescription Drug Program, including contracted services costs,
computer costs, professional dispensing fees paid to retail
Enrolled House Bill 2009 (HB 2009-C) Page 182
pharmacies and other reasonable program costs. Interest earned on
the fund shall be credited to the fund.
SECTION 295. ORS 414.320 is amended to read:
414.320. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules to implement
and administer ORS 414.312 to 414.318. The rules shall include
but are not limited to establishing procedures for:
(1) Issuing prescription drug identification cards to
individuals and entities that participate in the Oregon
Prescription Drug Program; and
(2) Enrolling pharmacies in the program.
SECTION 296. ORS 414.325 is amended to read:
414.325. (1) As used in this section, 'legend drug' means any
drug requiring a prescription by a practitioner, as defined in
ORS 689.005.
(2) A licensed practitioner may prescribe such drugs under this
chapter as the practitioner in the exercise of professional
judgment considers appropriate for the diagnosis or treatment of
the patient in the practitioner's care and within the scope of
practice. Prescriptions shall be dispensed in the generic form
pursuant to ORS 689.515 and pursuant to rules of the
{ - Department of Human Services - } { + Oregon Health
Authority + } unless the practitioner prescribes otherwise and an
exception is granted by the
{ - department - } { + authority + }.
(3) Except as provided in subsections (4) and (5) of this
section, the { - department - } { + authority + } shall place
no limit on the type of legend drug that may be prescribed by a
practitioner, but the { - department - } { + authority + }
shall pay only for drugs in the generic form unless an exception
has been granted by the { - department - } { + authority + }.
(4) Notwithstanding subsection (3) of this section, an
exception must be applied for and granted before the
{ - department - } { + authority + } is required to pay for
minor tranquilizers and amphetamines and amphetamine derivatives,
as defined by rule of the { - department - } { +
authority + }.
(5)(a) Notwithstanding subsections (1) to (4) of this section
and except as provided in paragraph (b) of this subsection, the
{ - department - } { + authority + } is authorized to:
(A) Withhold payment for a legend drug when federal financial
participation is not available; and
(B) Require prior authorization of payment for drugs that the
{ - department - } { + authority + } has determined should be
limited to those conditions generally recognized as appropriate
by the medical profession.
(b) The { - department - } { + authority + } may not
require prior authorization for therapeutic classes of
nonsedating antihistamines and nasal inhalers, as defined by rule
by the
{ - department - } { + authority + }, when prescribed by an
allergist for treatment of any of the following conditions, as
described by the Health Services Commission on the funded portion
of its prioritized list of services:
(A) Asthma;
(B) Sinusitis;
(C) Rhinitis; or
(D) Allergies.
(6)(a) The { - department - } { + authority + } shall pay a
rural health clinic for a legend drug prescribed and dispensed
Enrolled House Bill 2009 (HB 2009-C) Page 183
under this chapter by a licensed practitioner at the rural health
clinic for an urgent medical condition if:
(A) There is not a pharmacy within 15 miles of the clinic;
(B) The prescription is dispensed for a patient outside of the
normal business hours of any pharmacy within 15 miles of the
clinic; or
(C) No pharmacy within 15 miles of the clinic dispenses legend
drugs under this chapter.
(b) As used in this subsection, 'urgent medical condition '
means a medical condition that arises suddenly, is not
life-threatening and requires prompt treatment to avoid the
development of more serious medical problems.
(7) Notwithstanding ORS 414.334, the { - department - }
{ + authority + } may conduct prospective drug utilization
review prior to payment for drugs for a patient whose
prescription drug use exceeded 15 drugs in the preceding
six-month period.
(8) Notwithstanding subsection (3) of this section, the
{ - department - } { + authority + } may pay a pharmacy for a
particular brand name drug rather than the generic version of the
drug after notifying the pharmacy that the cost of the particular
brand name drug, after receiving discounted prices and rebates,
is equal to or less than the cost of the generic version of the
drug.
SECTION 297. ORS 414.327 is amended to read:
414.327. { - (1) The Department of Human Services shall seek
a waiver from the federal Centers for Medicare and Medicaid
Services to allow the department to communicate prescription drug
orders by electronic means from a practitioner authorized to
prescribe drugs directly to the dispensing pharmacist. - }
{ - (2) - } The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules permitting
{ - the department - } { + a practitioner + } to communicate
prescription drug orders by electronic means { - from a
practitioner authorized to prescribe drugs - } directly to the
dispensing pharmacist.
SECTION 298. ORS 414.329 is amended to read:
414.329. (1) Notwithstanding ORS 414.705 to 414.750, the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall adopt rules modifying the prescription drug
benefits for persons who are eligible for Medicare Part D
prescription drug coverage and who receive prescription drug
benefits under the state medical assistance program or Title XIX
of the Social Security Act. The rules shall include but need not
be limited to:
(a) Identification of the Part D classes of drugs for which
federal financial participation is not available and that are not
covered classes of drugs;
(b) Identification of the Part D classes of drugs for which
federal financial participation is not available and that are
covered classes of drugs;
(c) Identification of the classes of drugs not covered under
Medicare Part D prescription drug coverage for which federal
financial participation is available and that are covered classes
of drugs; and
(d) Cost-sharing obligations related to the provision of Part D
classes of drugs for which federal financial participation is not
available.
(2) As used in this section, 'covered classes of drugs ' means
classes of prescription drugs provided to persons eligible for
Enrolled House Bill 2009 (HB 2009-C) Page 184
prescription drug coverage under the state medical assistance
program or Title XIX of the Social Security Act.
SECTION 298a. ORS 414.330 is amended to read:
414.330. The Legislative Assembly finds that:
(1) The cost of prescription drugs in the { - Oregon Health
Plan - } { + medical assistance program + } is growing and will
soon be unsustainable;
(2) The benefit of prescription drugs when appropriately used
decreases the need for other expensive treatments and improves
the health of Oregonians; and
(3) Providing the most effective drugs in the most
cost-effective manner will benefit both patients and taxpayers.
SECTION 298b. ORS 414.332 is amended to read:
414.332. It is the policy of the State of Oregon that a
Practitioner-Managed Prescription Drug Plan will ensure that:
(1) Oregonians have access to the most effective prescription
drugs appropriate for their clinical conditions;
(2) Decisions concerning the clinical effectiveness of
prescription drugs are made by licensed health practitioners, are
informed by the latest peer-reviewed research and consider the
health condition of a patient or characteristics of a patient,
including the patient's gender, race or ethnicity; and
(3) The cost of prescription drugs in the { - Oregon Health
Plan - } { + medical assistance program + } is managed through
market competition among pharmaceutical manufacturers by publicly
considering, first, the effectiveness of a given drug and,
second, its relative cost.
SECTION 299. ORS 414.334 is amended to read:
414.334. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt a
Practitioner-Managed Prescription Drug Plan for the { - Oregon
Health Plan - } { + medical assistance program + }. The purpose
of the plan is to ensure that enrollees of the { - Oregon
Health Plan - } { + medical assistance program + } receive the
most effective prescription drug available at the best possible
price.
(2) Before adopting the plan, the { - department - }
{ + authority + } shall conduct public meetings and consult with
the Health Resources Commission.
(3) The { - department - } { + authority + } shall consult
with representatives of the regulatory boards and associations
representing practitioners who are prescribers under the
{ - Oregon Health Plan - } { + medical assistance program + }
and ensure that practitioners receive educational materials and
have access to training on the Practitioner-Managed Prescription
Drug Plan.
(4) Notwithstanding the Practitioner-Managed Prescription Drug
Plan adopted by the { - department - } { + authority + }, a
practitioner may prescribe any drug that the practitioner
indicates is medically necessary for an enrollee as being the
most effective available.
(5) An enrollee may appeal to the { - department - }
{ + authority + } a decision of a practitioner or the
{ - department - } { + authority + } to not provide a
prescription drug requested by the enrollee.
(6) This section does not limit the decision of a practitioner
as to the scope and duration of treatment of chronic conditions,
including but not limited to arthritis, diabetes and asthma.
SECTION 300. ORS 414.336 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 185
414.336. The { - Department of Human Services - }
{ + Oregon Health Authority + } may not adopt or amend any rule
that requires a prescribing practitioner to contact the
{ - department - } { + authority + } to request an exception
for a medically appropriate or medically necessary drug that is
not listed on the Practitioner-Managed Prescription Drug Plan
drug list for that class of drugs adopted under ORS 414.334,
unless otherwise authorized by enabling legislation setting forth
the requirement for prior authorization.
SECTION 301. ORS 414.338 is amended to read:
414.338. (1) The Patient Prescription Drug Assistance Program
is established. The purpose of the program is to match low-income
Oregonians who lack prescription drug benefit coverage with
prescription drug assistance programs offered by pharmaceutical
companies.
(2) The program shall:
(a) Provide information on:
(A) Eligibility requirements and coverage provided by publicly
funded prescription drug benefit programs administered by the
{ - Department of Human Services - } { + Oregon Health
Authority + }; and
(B) The process for applying to receive publicly funded
prescription drug benefits;
(b) Assist a patient in applying to pharmaceutical companies
for free or discounted prescription drug medications if the
patient is not eligible for any publicly funded prescription drug
benefit program;
(c) Provide information, in an organized and easily understood
manner, to patients, physicians, pharmacists and pharmacies
regarding patient qualifications for prescription drug assistance
programs;
(d) Increase awareness of the various prescription drug
assistance programs offered by pharmaceutical companies; and
(e) Establish a toll-free hotline and Internet website to
increase public awareness of the Patient Prescription Drug
Assistance Program and to provide public access to the
information and services provided through the program.
(3)(a) The College of Pharmacy at Oregon State University shall
operate the Patient Prescription Drug Assistance Program until
June 30, 2003, and may operate the program thereafter unless the
{ - Department of Human Services - } { + authority + } enters
into a contract described in paragraph (b) of this subsection.
(b) For periods on or after July 1, 2003, the { - Department
of Human Services - } { + authority + } may contract with any
pharmacy provider to operate the Patient Prescription Drug
Assistance Program.
SECTION 302. ORS 414.350 is amended to read:
414.350. As used in ORS 414.350 to 414.415:
(1) 'Appropriate and medically necessary use' means drug
prescribing, drug dispensing and patient medication usage in
conformity with the criteria and standards developed under ORS
414.350 to 414.415.
(2) 'Board' means the Drug Use Review Board created under ORS
414.355.
(3) 'Compendia' means those resources widely accepted by the
medical profession in the efficacious use of drugs, including the
following sources:
(a) The American Hospital Formulary Services drug information.
(b) The United States Pharmacopeia drug information.
(c) The American Medical Association drug evaluations.
Enrolled House Bill 2009 (HB 2009-C) Page 186
(d) The peer-reviewed medical literature.
(e) Drug therapy information provided by manufacturers of drug
products consistent with the federal Food and Drug Administration
requirements.
(4) 'Counseling' means the effective communication of
information by a pharmacist, as defined by rules of the State
Board of Pharmacy.
(5) 'Criteria' means the predetermined and explicitly accepted
elements based on the compendia that are used to measure drug use
on an ongoing basis to determine if the use is appropriate,
medically necessary and not likely to result in adverse medical
outcomes.
(6) 'Drug-disease contraindication' means the potential for, or
the occurrence of, an undesirable alteration of the therapeutic
effect of a given prescription because of the presence, in the
patient for whom it is prescribed, of a disease condition or the
potential for, or the occurrence of, a clinically significant
adverse effect of the drug on the patient's disease condition.
(7) 'Drug-drug interaction' means the pharmacological or
clinical response to the administration of at least two drugs
different from that response anticipated from the known effects
of the two drugs when given alone, which may manifest clinically
as antagonism, synergism or idiosyncrasy. Such interactions have
the potential to have an adverse effect on the individual or lead
to a clinically significant adverse reaction, or both, that:
(a) Is characteristic of one or any of the drugs present; or
(b) Leads to interference with the absorption, distribution,
metabolizing, excretion or therapeutic efficacy of one or any of
the drugs.
(8) 'Drug use review' means the programs designed to measure
and assess on a retrospective and a prospective basis, through an
evaluation of claims data, the proper utilization, quantity,
appropriateness as therapy and medical necessity of prescribed
medication in the medical assistance program.
(9) 'Intervention' means an action taken by the
{ - Department of Human Services - } { + Oregon Health
Authority + } with a prescriber or pharmacist to inform about or
to influence prescribing or dispensing practices or utilization
of drugs.
(10) 'Overutilization' means the use of a drug in quantities or
for durations that put the recipient at risk of an adverse
medical result.
(11) 'Pharmacist' means an individual who is licensed as a
pharmacist under ORS chapter 689.
(12) 'Prescriber' means any person authorized by law to
prescribe drugs.
(13) 'Prospective program' means the prospective drug use
review program described in ORS 414.375.
(14) 'Retrospective program' means the retrospective drug use
review program described in ORS 414.380.
(15) 'Standards' means the acceptable prescribing and
dispensing methods determined by the compendia, in accordance
with local standards of medical practice for health care
providers.
(16) 'Therapeutic appropriateness' means drug prescribing based
on scientifically based and clinically relevant drug therapy that
is consistent with the criteria and standards developed under ORS
414.350 to 414.415.
(17) 'Therapeutic duplication' means the prescribing and
dispensing of two or more drugs from the same therapeutic class
Enrolled House Bill 2009 (HB 2009-C) Page 187
such that the combined daily dose puts the recipient at risk of
an adverse medical result or incurs additional program costs
without additional therapeutic benefits.
(18) 'Underutilization' means that a drug is used by a
recipient in insufficient quantity to achieve a desired
therapeutic goal.
SECTION 303. ORS 414.355 is amended to read:
414.355. (1) There is created a 12-member Drug Use Review Board
responsible for advising the { - Department of Human
Services - } { + Oregon Health Policy Board + } on the
implementation of the retrospective and prospective drug
utilization review programs.
(2) The members of the { + Drug Use Review + } Board shall be
appointed by the Director of { - Human Services - } { + the
Oregon Health Authority + } and shall serve a term of two years.
An individual appointed to the board may be reappointed upon
completion of the individual's term. The membership of the board
shall be composed of the following:
(a) Four persons licensed as physicians and actively engaged in
the practice of medicine or osteopathic medicine in Oregon, who
may be from among persons recommended by the Oregon Medical
Association, the Osteopathic Physicians and Surgeons of Oregon or
other organization representing physicians;
(b) One person licensed as a physician in Oregon who is
actively engaged in academic medicine;
(c) Three persons licensed and actively practicing pharmacy in
Oregon who may be from among persons recommended by the Oregon
State Pharmacists Association, the National Association of Chain
Drug Stores, the Oregon Society of Hospital Pharmacists, the
Oregon Society of Consultant Pharmacists or other organizations
representing pharmacists whether affiliated or unaffiliated with
any association;
(d) One person licensed as a pharmacist in Oregon who is
actively engaged in academic pharmacy;
(e) Two persons who shall represent persons receiving medical
assistance; and
(f) One person licensed and actively practicing dentistry in
Oregon who may be from among persons recommended by the Oregon
Dental Association or other organizations representing dentists.
(3) Board members must have expertise in one or more of the
following:
(a) Clinically appropriate prescribing of outpatient drugs
covered by the medical assistance program.
(b) Clinically appropriate dispensing and monitoring of
outpatient drugs covered by the medical assistance program.
(c) Drug use review, evaluation and intervention.
(d) Medical quality assurance.
(4) The director shall fill a vacancy on the board by
appointing a new member to serve the remainder of the unexpired
term based upon qualifications described in subsections (2) and
(3) of this section.
(5) A board member may be removed only by a vote of eight
members of the board and the removal must be approved by the
director. The director may remove a member, without board action,
if a member fails to attend two consecutive meetings unless such
member is prevented from attending by serious illness of the
member or in the member's family.
SECTION 304. ORS 414.360 is amended to read:
414.360. (1) The Drug Use Review Board shall advise the
Enrolled House Bill 2009 (HB 2009-C) Page 188
{ - Department of Human Services - } { + Oregon Health Policy
Board + } on:
(a) Adoption of rules to implement ORS 414.350 to 414.415 in
accordance with the provisions of ORS 183.710 to 183.725, 183.745
and 183.750 and ORS chapter 183.
(b) Implementation of the medical assistance program
retrospective and prospective programs as described in ORS
414.350 to 414.415, including the type of software programs to be
used by the pharmacist for prospective drug use review and the
provisions of the contractual agreement between the state and any
entity involved in the retrospective drug use review program.
(c) Development of and application of the criteria and
standards to be used in retrospective and prospective drug
utilization review in a manner that insures that such criteria
and standards are based on the compendia, relevant guidelines
obtained from professional groups through consensus-driven
processes, the experience of practitioners with expertise in drug
therapy, data and experience obtained from drug utilization
review program operations. The { + Drug Use Review + } Board
shall have an open professional consensus process for
establishing and revising criteria and standards. Criteria and
standards shall be available to the public. In developing
recommendations for criteria and standards, the board shall
establish an explicit ongoing process for soliciting and
considering input from interested parties. The board shall make
timely revisions to the criteria and standards based upon this
input in addition to revisions based upon scheduled review of the
criteria and standards. Further, the drug utilization review
standards shall reflect the local practices of prescribers in
order to monitor:
(A) Therapeutic appropriateness.
(B) Overutilization or underutilization.
(C) Therapeutic duplication.
(D) Drug-disease contraindications.
(E) Drug-drug interactions.
(F) Incorrect drug dosage or drug treatment duration.
(G) Clinical abuse or misuse.
(H) Drug allergies.
(d) Development, selection and application of and assessment
for interventions for medical assistance program prescribers,
dispensers and patients that are educational and not punitive in
nature.
(2) In reviewing retrospective and prospective drug use, the
{ + Drug Use Review + } Board may consider only drugs that have
received final approval from the federal Food and Drug
Administration.
SECTION 305. ORS 414.365 is amended to read:
414.365. In addition to advising the { - Department of Human
Services - } { + Oregon Health Policy Board + }, the Drug Use
Review Board shall do the following subject to the approval of
the { - Director of Human Services - } { + Oregon Health
Policy Board + }:
(1) Publish an annual report, as described in ORS 414.415.
(2) Publish and disseminate educational information to
prescribers and pharmacists regarding the { + Drug Use
Review + } Board and the drug use review programs, including
information on the following:
(a) Identifying and reducing the frequency of patterns of
fraud, abuse or inappropriate or medically unnecessary care among
prescribers, pharmacists and recipients.
Enrolled House Bill 2009 (HB 2009-C) Page 189
(b) Potential or actual severe or adverse reactions to drugs.
(c) Therapeutic appropriateness.
(d) Overutilization or underutilization.
(e) Appropriate use of generic products.
(f) Therapeutic duplication.
(g) Drug-disease contraindications.
(h) Drug-drug interactions.
(i) Drug allergy interactions.
(j) Clinical abuse and misuse.
(3) Adopt and implement procedures designed to insure the
confidentiality of any information collected, stored, retrieved,
assessed or analyzed by the { + Drug Use Review + } Board, staff
of the board or contractors to the drug use review programs that
identifies individual prescribers, pharmacists or recipients.
SECTION 306. ORS 414.375 is amended to read:
414.375. The prospective drug use review program must be based
on the guidelines established by the { - Department of Human
Services - } { + Oregon Health Policy Board + } in consultation
with the Drug Use Review Board. The program must provide that
prior to the prescription being filled or delivered a review will
be conducted by the pharmacist at the point of sale to screen for
potential drug therapy problems resulting from the following:
(1) Therapeutic duplication.
(2) Drug-drug interactions, including serious interactions with
nonprescription or over-the-counter drugs.
(3) Incorrect dosage and duration of treatment.
(4) Drug-allergy interactions.
(5) Clinical abuse and misuse.
(6) Drug-disease contraindications.
SECTION 307. ORS 414.380 is amended to read:
414.380. The retrospective drug use review program must:
(1) Be based on the guidelines established by the
{ - Department of Human Services in consultation with - }
{ + Oregon Health Policy Board based upon recommendations
from + } the Drug Use Review Board; and
(2) Use the mechanized drug claims processing and information
retrieval system to analyze claims data on drug use against
explicit predetermined standards that are based on the compendia
and other sources to monitor the following:
(a) Therapeutic appropriateness.
(b) Overutilization or underutilization.
(c) Fraud and abuse.
(d) Therapeutic duplication.
(e) Drug-disease contraindications.
(f) Drug-drug interactions.
(g) Incorrect drug dosage or duration of drug treatment.
(h) Clinical abuse and misuse.
SECTION 308. ORS 414.390 is amended to read:
414.390. (1) Information collected under ORS 414.350 to 414.415
that identifies an individual is confidential and shall not be
disclosed by the Drug Use Review Board, the retrospective drug
use review program, { - or the Department of Human Services - }
{ + the Oregon Health Policy Board or the Oregon Health
Authority + } to any person other than a health care provider
appearing on a recipient's medication profile.
(2) The staff of the { + Drug Use Review + } Board may have
access to identifying information for purposes of carrying out
intervention activities. The identifying information shall not be
released to anyone other than a staff member of the board,
retrospective drug use review program, { - Department of Human
Enrolled House Bill 2009 (HB 2009-C) Page 190
Services - } { + Oregon Health Policy Board, Oregon Health
Authority + } { - , - } or to any health care provider
appearing on a recipient's medication profile or, for purposes of
investigating potential fraud in programs administered by the
{ - Department of Human Services - } { + Oregon Health
Authority + }, to the Department of Justice.
(3) The { + Drug Use Review + } Board may release cumulative,
nonidentifying information for the purposes of legitimate
research and for educational purposes.
SECTION 309. ORS 414.410 is amended to read:
414.410. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall provide staff to the Drug
Use Review Board.
SECTION 309a. ORS 414.420 is amended to read:
414.420. (1) When a woman who is enrolled in { - the Oregon
Health Plan - } { + medical assistance + } as a pregnant woman
becomes an inmate residing in a public institution, the
Department of Human Services shall suspend medical assistance
{ - under the plan - } .
(2) The department shall continue to determine the eligibility
of the pregnant woman as categorically needy as defined in ORS
414.025.
(3) Upon notification that a pregnant woman described under
subsection (1) of this section is no longer an inmate residing in
a public institution, the department shall reinstate medical
assistance { - under the plan - } if the woman is otherwise
eligible for medical assistance.
SECTION 310. ORS 414.426 is amended to read:
414.426. The { - Department of Human Services - }
{ + Oregon Health Authority + } is hereby authorized to pay the
cost of care for patients in institutions operated under ORS
179.321 under the medical assistance program established by ORS
chapter 414.
SECTION 311. ORS 414.428 is amended to read:
414.428. (1) An individual described in ORS 414.025
{ - (2)(r) - } { + (2)(s) + } who is eligible for or receiving
medical assistance and who is an American Indian and Alaskan
Native beneficiary shall receive the benefit package of health
care services described in ORS
{ - 414.835 - } { + 414.707 (1) + } if:
(a) The { - Department of Human Services - } { + Oregon
Health Authority + } receives 100 percent federal medical
assistance percentage for payments made by the
{ - department - } { + authority + } for the health care
services provided as part of the benefit package described in ORS
{ - 414.835 that are not included in the benefit package
described in ORS 414.834 - } { + 414.707 (1) + }; or
(b) The { - department - } { + authority + } receives
funding from the Indian tribes for which federal financial
participation is available.
(2) As used in this section, 'American Indian and Alaskan
Native beneficiary' means:
(a) A member of a federally recognized Indian tribe, band or
group;
(b) An Eskimo or Aleut or other Alaskan native enrolled by the
United States Secretary of the Interior pursuant to the Alaska
Native Claims Settlement Act, 43 U.S.C. 1601; or
(c) A person who is considered by the United States Secretary
of the Interior to be an Indian for any purpose.
Enrolled House Bill 2009 (HB 2009-C) Page 191
SECTION 312. Section 2, chapter 76, Oregon Laws 2003, is
amended to read:
{ + Sec. 2. + } (1) Section 1 { + , chapter 76, Oregon Laws
2003, + } { - of this 2003 Act - } becomes operative on the
day after the date the
{ - Department of Human Services - } { + Oregon Health
Authority + } receives approval from the federal Centers for
Medicare and Medicaid Services to amend Oregon's Medicaid waiver.
(2) The { - Department of Human Services - }
{ + authority + } shall notify the Legislative Counsel upon
receipt of approval or disapproval to amend Oregon's Medicaid
waiver.
SECTION 313. ORS 414.534 is amended to read:
414.534. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall provide medical assistance
to a woman who:
(a) Is screened for breast or cervical cancer through the
Oregon Breast and Cervical Cancer Program operated by the
{ - department - } { + authority + };
(b) As a result of a screening in accordance with paragraph (a)
of this subsection, is found by a provider to be in need of
treatment for breast or cervical cancer;
(c) Does not otherwise have creditable coverage, as defined in
42 U.S.C. 300gg(c); and
(d) Is 64 years of age or younger.
(2) The period of time a woman can receive medical assistance
based on the eligibility criteria of subsection (1) of this
section:
(a) Begins:
(A) On the date the Department { + of Human Services + } makes
a formal determination that the woman is eligible for medical
assistance in accordance with subsection (1) of this section; or
(B) Up to three months prior to the month in which the woman
applied for medical assistance if on the earlier date the woman
met the eligibility criteria of subsection (1) of this section.
(b) Ends when:
(A) The woman is no longer in need of treatment; or
(B) The department determines the woman no longer meets the
eligibility criteria of subsection (1) of this section.
SECTION 314. ORS 414.536 is amended to read:
414.536. (1) { + If + } the Department of Human Services
{ - shall provide medical assistance to a woman whom the
department determines is presumptively eligible for medical
assistance. As used in this section, a woman is 'presumptively
eligible for medical assistance' if the department determines
that the - } { + determines that a + } woman likely is eligible
for medical assistance under ORS 414.534 { + , the department
shall determine her to be presumptively eligible for medical
assistance until a formal determination on eligibility is
made + }.
(2) The period of time a woman may receive medical assistance
based on presumptive eligibility is limited. The period of time:
(a) Begins on the date that the department determines the woman
likely meets the eligibility criteria under ORS 414.534; and
(b) Ends on the earlier of the following dates:
(A) If the woman applies for medical assistance following the
determination by the department that the woman is presumptively
eligible for medical assistance, the date on which a formal
determination on eligibility is made by the department in
accordance with ORS 414.534; or
Enrolled House Bill 2009 (HB 2009-C) Page 192
(B) If the woman does not apply for medical assistance
following the determination by the department that the woman is
presumptively eligible for medical assistance, the last day of
the month following the month in which presumptive eligibility
begins.
SECTION 315. ORS 414.538 is amended to read:
414.538. (1) The Department of Human Services { - shall
provide medical assistance under ORS 414.534 or 414.536 to a
woman who meets general coverage requirements applicable to
recipients of medical assistance. The department - } may not
impose income or resource limitations or a prior period of
uninsurance on a woman who otherwise qualifies for medical
assistance under ORS 414.534 or 414.536.
(2) In { - providing - } { + determining eligibility
for + } medical assistance under ORS 414.534 or 414.536, the
department { - of Human Services - } shall give priority to
low-income women.
SECTION 316. ORS 414.540 is amended to read:
414.540. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules necessary for
the implementation and administration of ORS 414.534 to 414.538.
SECTION 317. ORS 414.630 is amended to read:
414.630. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall execute prepaid capitated
health service contracts for at least hospital or physician
medical care, or both, with hospital and medical organizations,
health maintenance organizations and any other appropriate public
or private persons.
(2) For purposes of ORS 279A.025, 279A.140, 414.145 and 414.610
to 414.640, instrumentalities and political subdivisions of the
state are authorized to enter into prepaid capitated health
service contracts with the { - Department of Human Services - }
{ + Oregon Health Authority or the Oregon Health Policy
Board + } and shall not thereby be considered to be transacting
insurance.
(3) In the event that there is an insufficient number of
qualified bids for prepaid capitated health services contracts
for hospital or physician medical care, or both, in some areas of
the state, the { - department - } { + Oregon Health
Authority + } may continue a fee for service payment system.
(4) Payments to providers may be subject to contract provisions
requiring the retention of a specified percentage in an incentive
fund or to other contract provisions by which adjustments to the
payments are made based on utilization efficiency.
SECTION 318. ORS 414.640 is amended to read:
414.640. (1) Eligible persons shall select, to the extent
practicable as determined by the { - Department of Human
Services - } { + Oregon Health Authority + }, from among
available providers participating in the program.
(2) The { - department - } { + authority + } by rule shall
define the circumstances under which it may choose to reimburse
for any medical services not covered under the prepaid capitation
or costs of related services provided by or under referral from
any physician participating in the program in which the eligible
person is enrolled.
(3) The { - department - } { + authority + } shall
establish requirements as to the minimum time period that an
eligible person is assigned to specific providers in the system.
(4) Actions taken by providers, potential providers,
contractors and bidders in specific accordance with this chapter
Enrolled House Bill 2009 (HB 2009-C) Page 193
in forming consortiums or in otherwise entering into contracts to
provide medical care shall be considered to be conducted at the
direction of this state, shall be considered to be lawful trade
practices and shall not be considered to be the transaction of
insurance for purposes of ORS 279A.025, 279A.140, 414.145 and
414.610 to 414.640.
SECTION 319. ORS 414.707 is amended to read:
414.707. { - (1) Subject to funds available: - }
{ - (a) - } { + (1) + } Persons { - who are categorically
needy as described in ORS 414.025 (2)(n) and (o), and persons
under 19 years of age and pregnant women who are eligible to
receive health services under ORS 414.706, - } { + described in
ORS 414.706 (1), (2), (3) and (5) + } are eligible to receive all
the health services approved and funded by the Legislative
Assembly.
{ - (b) - } { + (2) + } Persons described in ORS 414.708
are eligible to receive the health services described in ORS
414.705 (1)(c), (f) and (g).
{ - (c) Persons 19 years of age and older who are eligible to
receive health services under ORS 414.706 are eligible to receive
the health services described in ORS 414.705 (1)(b) to (m). - }
{ - (2) Persons who are categorically needy as described in
ORS 414.025 (2)(n) and (o), and persons under 19 years of age and
pregnant women who are eligible to receive health services under
ORS 414.706, must be provided, at a minimum, the health services
described in ORS 414.705 (1)(a) to (g). - }
{ - (3) Persons 19 years of age and older who are eligible to
receive health services under ORS 414.706 must be provided, at a
minimum, health services described in ORS 414.705 (1)(b) to
(h). - }
{ - (4) Persons described in ORS 414.708 must be provided, at
a minimum, the health services described in ORS 414.705
(1)(c). - }
{ - (5) The Department of Human Services shall: - }
{ - (a) Develop at least three benefit packages of provider
services to be offered under ORS 414.705 (1)(j); and - }
{ - (b) Define by rule the services to be offered under ORS
414.705 (1)(k). - }
{ - (6) Notwithstanding ORS 414.735, the Legislative Assembly
shall adjust health services funded under ORS 414.705 (1) by
increasing or reducing benefit packages or health services and,
subject to ORS 414.709, by increasing or reducing the population
of eligible persons. - }
SECTION 320. ORS 414.708 is amended to read:
414.708. (1) A person is eligible to receive the health
services described in ORS 414.707 { - (1)(b) - } { + (2) + }
when the person is a resident of this state who:
(a) Is 65 years of age or older, or is blind or has a
disability as those terms are defined in ORS 411.704;
(b) Has a gross annual income that does not exceed the standard
established by the { - Department of Human Services - }
{ + Oregon Health Policy Board + }; and
(c) Is not covered under any public or private prescription
drug benefit program.
(2) A person receiving prescription drug services under ORS
414.707 { - (1)(b) - } { + (2) + } shall pay up to a
percentage of the Medicaid price of the prescription drug
established by the { - department - } { + authority + } by
rule and the dispensing fee.
SECTION 321. ORS 414.709 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 194
414.709. (1) Except as provided in subsection (2) of this
section, if insufficient resources are available during a
biennium, the population of eligible persons receiving health
services may not be reduced below the population of eligible
persons approved and funded in the legislatively adopted budget
for the { - Department of Human Services - } { + Oregon
Health Authority + } for the biennium.
(2) The { - Department of Human Services - } { + Oregon
Health Authority + } may periodically limit enrollment of persons
described in ORS 414.708 in order to stay within the
legislatively adopted budget for the { - department - } { +
authority + }.
SECTION 322. ORS 414.710 is amended to read:
414.710. The following services { - are available to persons
eligible for services under ORS 414.025, 414.036, 414.042,
414.065 and 414.705 to 414.750 but such services - } are not
subject to ORS 414.720:
(1) Nursing facilities { + , institutional + } and home- and
community-based waivered services funded through the Department
of Human Services; { + and + }
{ - (2) Medical assistance to eligible persons who receive
assistance under ORS 411.706 or 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.460; - }
{ - (3) Institutional, home- and community-based waivered
services or community mental health program care for persons with
mental retardation, developmental disabilities or severe mental
illness and for the treatment of alcohol and drug dependent
persons; and - }
{ - (4) - } { + (2) + } Services to children who are wards
of the Department of Human Services by order of the juvenile
court and services to children and families for health care or
mental health care through the department.
SECTION 323. ORS 414.712 is amended to read:
414.712. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall provide medical assistance
under ORS 414.705 to 414.750 to eligible persons who
{ - receive assistance under - } { + are determined eligible
for medical assistance by the Department of Human Services
according to + } ORS 411.706 { + . + } { - 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.460 and those
mental health and chemical dependency services recommended
according to standards of medical assistance 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
735.712, the Department of Human Services - } { + The Oregon
Health Authority + } shall also provide the following:
(1) Ombudsman services for eligible persons who receive
assistance under ORS 411.706. With the concurrence of the
Governor { + and the Oregon Health Policy Board + }, the
Director of { - Human Services - } { + the Oregon Health
Authority + }shall appoint ombudsmen and may terminate an
ombudsman. Ombudsmen are under the supervision and control of the
director. An 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
Enrolled House Bill 2009 (HB 2009-C) Page 195
an ombudsman. Ombudsmen shall report to the Governor { + and the
Oregon Health Policy Board + } in writing at least once each
quarter. A report shall include a summary of the services that
the ombudsman provided during the quarter and the ombudsman's
recommendations for improving ombudsman services and access to or
quality of care provided to eligible persons by health care
providers.
(2) Case management services in each health care provider
organization for those eligible persons who receive assistance
under ORS 411.706. Case managers shall be trained in and shall
exhibit skills in communication with and sensitivity to the
unique health care needs of people who receive assistance under
ORS 411.706. 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 324. ORS 414.720 is amended to read:
414.720. (1) The Health Services Commission shall conduct
public hearings prior to making the report described in
subsection (3) of this section. The commission shall solicit
testimony and information from advocates representing seniors,
persons with disabilities, mental health services consumers and
low-income Oregonians, representatives of commercial carriers,
representatives of small and large Oregon employers and providers
of health care, including but not limited to physicians licensed
to practice medicine, dentists, oral surgeons, chiropractors,
naturopaths, hospitals, clinics, pharmacists, nurses and allied
health professionals.
(2) The commission shall actively solicit public involvement in
a community meeting process to build a consensus on the values to
be used to guide health resource allocation decisions.
(3) The commission shall report to the Governor a list of
health services ranked by priority, from the most important to
the least important, representing the comparative benefits of
each service to the entire population to be served. The list
submitted by the commission pursuant to this subsection is not
subject to alteration by any other state agency. The
recommendation may include practice guidelines reviewed and
adopted by the commission pursuant to subsection (4) of this
section.
(4) In order to encourage effective and efficient medical
evaluation and treatment, the commission:
(a) May include clinical practice guidelines in its prioritized
list of services. The commission shall actively solicit testimony
and information from the medical community and the public to
build a consensus on clinical practice guidelines developed by
the commission.
Enrolled House Bill 2009 (HB 2009-C) Page 196
(b) Shall consider both the clinical effectiveness and
cost-effectiveness of health services in determining their
relative importance using peer-reviewed medical literature as
defined in ORS 743A.060.
(5) The commission shall make its report by July 1 of the year
preceding each regular session of the Legislative Assembly and
shall submit a copy of its report to the Governor, the Speaker of
the House of Representatives and the President of the Senate.
(6) The commission may alter the list during interim only under
the following conditions:
(a) Technical changes due to errors and omissions; and
(b) Changes due to advancements in medical technology or new
data regarding health outcomes.
(7) If a service is deleted or added and no new funding is
required, the commission shall report to the Speaker of the House
of Representatives and the President of the Senate. However, if a
service to be added requires increased funding to avoid
discontinuing another service, the commission must report to the
Emergency Board to request the funding.
(8) The report listing services to be provided pursuant to ORS
{ - 414.036, - } 414.042, 414.065, { - 414.107, - } 414.705
to 414.725 and 414.735 to 414.750 shall remain in effect from
October 1 of the odd-numbered year through September 30 of the
next odd-numbered year.
SECTION 325. ORS 414.725 is amended to read:
414.725. (1)(a) Pursuant to rules adopted by the
{ - Department of Human Services - } { + Oregon Health
Authority + }, the { - department - } { + authority + } shall
execute prepaid managed care health services contracts for health
services funded by the Legislative Assembly. The contract must
require that all services are provided to the extent and scope of
the Health Services Commission's report for each service provided
under the contract. The contracts are not subject to ORS chapters
279A and 279B, except ORS 279A.250 to 279A.290 and 279B.235.
Notwithstanding ORS 414.720 (8), the rules adopted by the
{ - department - } { + authority + } shall establish timelines
for executing the contracts described in this paragraph.
(b) It is the intent of ORS 414.705 to 414.750 that the state
use, to the greatest extent possible, prepaid managed care health
services organizations to provide physical health, dental, mental
health and chemical dependency services under ORS 414.705 to
414.750.
(c) The { - department - } { + authority + } shall solicit
qualified providers or plans to be reimbursed for providing the
covered services. The contracts may be with hospitals and medical
organizations, health maintenance organizations, managed health
care plans and any other qualified public or private prepaid
managed care health services organization. The
{ - department - } { + authority + } may not discriminate
against any contractors that offer services within their
providers' lawful scopes of practice.
(d) The { - department - } { + authority + } shall
establish annual financial reporting requirements for prepaid
managed care health services organizations. The
{ - department - } { + authority + } shall prescribe a
reporting procedure that elicits sufficiently detailed
information for the { - department - } { + authority + } to
assess the financial condition of each prepaid managed care
health services organization and that includes information on the
Enrolled House Bill 2009 (HB 2009-C) Page 197
three highest executive salary and benefit packages of each
prepaid managed care health services organization.
(e) The { - department - } { + authority + } shall require
compliance with the provisions of paragraph (d) of this
subsection as a condition of entering into a contract with a
prepaid managed care health services organization.
(2) The { - department - } { + authority + } may institute
a fee-for-service case management system or a fee-for-service
payment system for the same physical health, dental, mental
health or chemical dependency services provided under the health
services contracts for persons eligible for health services under
ORS 414.705 to 414.750 in designated areas of the state in which
a prepaid managed care health services organization is not able
to assign an enrollee to a person or entity that is primarily
responsible for coordinating the physical health, dental, mental
health or chemical dependency services provided to the enrollee.
In addition, the { - department - } { + authority + } may
make other special arrangements as necessary to increase the
interest of providers in participation in the state's managed
care system, including but not limited to the provision of
stop-loss insurance for providers wishing to limit the amount of
risk they wish to underwrite.
(3) As provided in subsections (1) and (2) of this section, the
aggregate expenditures by the { - department - }
{ + authority + } for health services provided pursuant to ORS
414.705 to 414.750 may not exceed the total dollars appropriated
for health services under ORS 414.705 to 414.750.
(4) Actions taken by providers, potential providers,
contractors and bidders in specific accordance with ORS 414.705
to 414.750 in forming consortiums or in otherwise entering into
contracts to provide health care services shall be performed
pursuant to state supervision and shall be considered to be
conducted at the direction of this state, shall be considered to
be lawful trade practices and may not be considered to be the
transaction of insurance for purposes of the Insurance Code.
(5) Health care providers contracting to provide services under
ORS 414.705 to 414.750 shall advise a patient of any service,
treatment or test that is medically necessary but not covered
under the contract if an ordinarily careful practitioner in the
same or similar community would do so under the same or similar
circumstances.
(6) A prepaid managed care health services organization shall
provide information on contacting available providers to an
enrollee in writing within 30 days of assignment to the health
services organization.
(7) Each prepaid managed care health services organization
shall provide upon the request of an enrollee or prospective
enrollee annual summaries of the organization's aggregate data
regarding:
(a) Grievances and appeals; and
(b) Availability and accessibility of services provided to
enrollees.
(8) A prepaid managed care health services organization may not
limit enrollment in a designated area based on the zip code of an
enrollee or prospective enrollee.
SECTION 326. ORS 414.727 is amended to read:
414.727. (1) A prepaid managed care health services
organization, as defined in ORS 414.736, that contracts with the
{ - Department of Human Services - } { + Oregon Health
Authority + } under ORS 414.725 (1) to provide prepaid managed
Enrolled House Bill 2009 (HB 2009-C) Page 198
care health services, including hospital services, shall
reimburse Type A and Type B hospitals and rural critical access
hospitals, as described in ORS 442.470 and identified by the
Office of Rural Health as rural hospitals, fully for the cost of
covered services based on the cost-to-charge ratio used for each
hospital in setting the capitation rates paid to the prepaid
managed care health services organization for the contract
period.
(2) The { - department - } { + authority + } shall base the
capitation rates described in subsection (1) of this section on
the most recent audited Medicare cost report for Oregon hospitals
adjusted to reflect the Medicaid mix of services.
(3) This section may not be construed to prohibit a prepaid
managed care health services organization and a hospital from
mutually agreeing to reimbursement other than the reimbursement
specified in subsection (1) of this section.
(4) Hospitals reimbursed under subsection (1) of this section
are not entitled to any additional reimbursement for services
provided.
SECTION 327. ORS 414.728 is amended to read:
414.728. For services provided to persons who are entitled to
receive medical assistance and whose medical assistance benefits
are not administered by a prepaid managed care health services
organization, as defined in ORS 414.736, the { - Department of
Human Services - } { + Oregon Health Authority + } shall
reimburse Type A and Type B hospitals and rural critical access
hospitals, as described in ORS 442.470 and identified by the
Office of Rural Health as rural hospitals, fully for the cost of
covered services based on the most recent audited Medicare cost
report for Oregon hospitals adjusted to reflect the Medicaid mix
of services.
SECTION 328. ORS 414.735 is amended to read:
414.735. (1) If insufficient resources are available during a
contract period:
(a) The population of eligible persons determined by law shall
not be reduced.
(b) The reimbursement rate for providers and plans established
under the contractual agreement shall not be reduced.
(2) In the circumstances described in subsection (1) of this
section, reimbursement shall be adjusted by reducing the health
services for the eligible population by eliminating services in
the order of priority recommended by the Health Services
Commission, starting with the least important and progressing
toward the most important.
(3) The { - Department of Human Services - } { + Oregon
Health Policy Board + } shall obtain the approval of the
Legislative Assembly or Emergency Board, if the Legislative
Assembly is not in session, before instituting the reductions. In
addition, providers contracting to provide health services under
ORS 414.705 to 414.750 must be notified at least two weeks prior
to any legislative consideration of such reductions. Any
reductions made under this section shall take effect no sooner
than 60 days following final legislative action approving the
reductions.
SECTION 329. ORS 414.736 is amended to read:
414.736. As used in this section and ORS 414.725, 414.737,
414.738, 414.739, 414.740, 414.741, 414.742 { - , - }
{ + and + } 414.743 { - and 414.744 - } :
(1) 'Designated area' means a geographic area of the state
defined by the { - Department of Human Services - }
Enrolled House Bill 2009 (HB 2009-C) Page 199
{ + Oregon Health Authority + } by rule that is served by a
prepaid managed care health services organization.
(2) 'Fully capitated health plan' means an organization that
contracts with the { - Department of Human Services - }
{ + Oregon Health Authority or the Oregon Health Policy
Board + } on a prepaid capitated basis under ORS 414.725 to
provide an adequate network of providers to ensure that the
health services provided under the contract are reasonably
accessible to enrollees.
(3) 'Physician care organization' means an organization that
contracts with the { - Department of Human Services - }
{ + Oregon Health Authority or the Oregon Health Policy
Board + } on a prepaid capitated basis under ORS 414.725 to
provide an adequate network of providers to ensure that the
health services described in ORS 414.705 (1)(b), (c), (d), (e),
(g) and (j) are reasonably accessible to enrollees. A physician
care organization may also contract with the { - department - }
{ + authority or the board + } on a prepaid capitated basis to
provide the health services described in ORS 414.705 (1)(k) and
(L).
(4) 'Prepaid managed care health services organization ' means
a managed physical health, dental, mental health or chemical
dependency organization that contracts with the { - Department
of Human Services - } { + authority or the board + } on a
prepaid capitated basis under ORS 414.725. A prepaid managed care
health services organization may be a dental care organization,
fully capitated health plan, physician care organization, mental
health organization or chemical dependency organization.
SECTION 330. ORS 414.737 is amended to read:
414.737. (1) Except as provided in subsections (2) and (3) of
this section, a person who is eligible for or receiving physical
health, dental, mental health or chemical dependency services
under ORS 414.705 to 414.750 must be enrolled in the prepaid
managed care health services organizations to receive the health
services for which the person is eligible.
(2) Subsection (1) of this section does not apply to:
(a) A person who is a noncitizen and who is eligible only for
labor and delivery services and emergency treatment services;
(b) A person who is an American Indian and Alaskan Native
beneficiary; and
(c) A person whom the { - department - } { + Oregon Health
Authority + } may by rule exempt from the mandatory enrollment
requirement of subsection (1) of this section, including but not
limited to:
(A) A person who is also eligible for Medicare;
(B) A woman in her third trimester of pregnancy at the time of
enrollment;
(C) A person under 19 years of age who has been placed in
adoptive or foster care out of state;
(D) A person under 18 years of age who is medically fragile and
who has special health care needs; and
(E) A person with major medical coverage.
(3) Subsection (1) of this section does not apply to a person
who resides in a designated area in which a prepaid managed care
health services organization providing physical health, dental,
mental health or chemical dependency services is not able to
assign an enrollee to a person or entity that is primarily
responsible for coordinating the physical health, dental, mental
health or chemical dependency services provided to the enrollee.
Enrolled House Bill 2009 (HB 2009-C) Page 200
(4) As used in this section, 'American Indian and Alaskan
Native beneficiary' means:
(a) A member of a federally recognized Indian tribe, band or
group;
(b) An Eskimo or Aleut or other Alaskan Native enrolled by the
United States Secretary of the Interior pursuant to the Alaska
Native Claims Settlement Act, 43 U.S.C. 1601; or
(c) A person who is considered by the United States Secretary
of the Interior to be an Indian for any purpose.
SECTION 331. ORS 414.737, as amended by section 8, chapter 751,
Oregon Laws 2007, is amended to read:
414.737. (1) Except as provided in subsections (2) and (3) of
this section, a person who is eligible for or receiving physical
health, dental, mental health or chemical dependency services
under ORS 414.705 to 414.750 must be enrolled in the prepaid
managed care health services organizations to receive the health
services for which the person is eligible.
(2) Subsection (1) of this section does not apply to:
(a) A person who is a noncitizen and who is eligible only for
labor and delivery services and emergency treatment services;
(b) A person who is an American Indian and Alaskan Native
beneficiary; and
(c) A person whom the { - department - } { + Oregon Health
Authority + } may by rule exempt from the mandatory enrollment
requirement of subsection (1) of this section, including but not
limited to:
(A) A person who is also eligible for Medicare;
(B) A woman in her third trimester of pregnancy at the time of
enrollment;
(C) A person under 19 years of age who has been placed in
adoptive or foster care out of state;
(D) A person under 18 years of age who is medically fragile and
who has special health care needs;
(E) A person receiving services under the Medically Involved
Home-Care Program created by ORS 417.345 (1); and
(F) A person with major medical coverage.
(3) Subsection (1) of this section does not apply to a person
who resides in a designated area in which a prepaid managed care
health services organization providing physical health, dental,
mental health or chemical dependency services is not able to
assign an enrollee to a person or entity that is primarily
responsible for coordinating the physical health, dental, mental
health or chemical dependency services provided to the enrollee.
(4) As used in this section, 'American Indian and Alaskan
Native beneficiary' means:
(a) A member of a federally recognized Indian tribe, band or
group;
(b) An Eskimo or Aleut or other Alaskan Native enrolled by the
United States Secretary of the Interior pursuant to the Alaska
Native Claims Settlement Act, 43 U.S.C. 1601; or
(c) A person who is considered by the United States Secretary
of the Interior to be an Indian for any purpose.
SECTION 332. ORS 414.738 is amended to read:
414.738. (1) If the { - Department of Human Services - }
{ + Oregon Health Authority + } has not been able to contract
with the fully capitated health plan or plans in a designated
area, the
{ - department - } { + authority + } may contract with a
physician care organization in the designated area.
Enrolled House Bill 2009 (HB 2009-C) Page 201
(2) The Office for Oregon Health Policy and Research shall
develop criteria that the { - department - }
{ + authority + } shall consider when determining the
circumstances under which the { - department - }
{ + authority + } may contract with a physician care
organization. The criteria developed by the office shall include
but not be limited to the following:
(a) The physician care organization must be able to assign an
enrollee to a person or entity that is primarily responsible for
coordinating the physical health services provided to the
enrollee;
(b) The contract with a physician care organization does not
threaten the financial viability of other fully capitated health
plans in the designated area; and
(c) The contract with a physician care organization must be
consistent with the legislative intent of using prepaid managed
care health services organizations to provide services under ORS
414.705 to 414.750.
SECTION 333. ORS 414.739 is amended to read:
414.739. (1) A fully capitated health plan may apply to the
{ - Department of Human Services - } { + Oregon Health
Authority + } to contract with the { - department - }
{ + authority + } as a physician care organization rather than
as a fully capitated health plan to provide services under ORS
414.705 to 414.750.
(2) The Office for Oregon Health Policy and Research shall
develop the criteria that the { - department - }
{ + authority + } must use to determine the circumstances under
which the { - department - } { + authority + } may accept an
application by a fully capitated health plan to contract as a
physician care organization. The criteria developed by the office
shall include but not be limited to the following:
(a) The fully capitated health plan must show documented losses
due to hospital risk and must show due diligence in managing
those risks; and
(b) Contracting as a physician care organization is financially
viable for the fully capitated health plan.
SECTION 334. ORS 414.740 is amended to read:
414.740. (1) Notwithstanding ORS 414.738 (1), the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall contract under ORS 414.725 with a prepaid
group practice health plan that serves at least 200,000 members
in this state and that has been issued a certificate of authority
by the Department of Consumer and Business Services as a health
care service contractor to provide health services as described
in ORS 414.705 (1)(b), (c), (d), (e), (g) and (j). A health plan
may also contract with the { - Department of Human Services - }
{ + authority + } on a prepaid capitated basis to provide the
health services described in ORS 414.705 (1)(k) and (L). The
{ - Department of Human Services - } { + authority + } may
accept financial contributions from any public or private entity
to help implement and administer the contract. The
{ - Department of Human Services - } { + authority + } shall
seek federal matching funds for any financial contributions
received under this section.
(2) In a designated area, in addition to the contract described
in subsection (1) of this section, the { - Department of Human
Services - } { + authority + } shall contract with prepaid
managed care health services organizations to provide health
services under ORS 414.705 to 414.750.
Enrolled House Bill 2009 (HB 2009-C) Page 202
SECTION 335. ORS 414.741 is amended to read:
414.741. (1) The Health Services Commission shall retain an
actuary to determine the benchmark for setting per capita rates
necessary to reimburse prepaid managed care health services
organizations and fee-for-service providers for the cost of
providing health services under ORS 414.705 to 414.750.
(2) The actuary retained by the commission shall use the
following information to determine the benchmark for setting per
capita rates:
(a) For hospital services, the most recently available Medicare
cost reports for Oregon hospitals;
(b) For services of physicians licensed under ORS chapter 677
and other health professionals using procedure codes, the
Medicare Resource Based Relative Value system conversion rates
for Oregon;
(c) For prescription drugs, the most recent payment
methodologies in the fee-for-service payment system for the
{ - Oregon Health Plan - } { + medical assistance
program + };
(d) For durable medical equipment and supplies, 80 percent of
the Medicare allowable charge for purchases and rentals;
(e) For dental services, the most recent payment rates obtained
from dental care organization encounter data; and
(f) For all other services not listed in paragraphs (a) to (e)
of this subsection:
(A) The Medicare maximum allowable charge, if available; or
(B) The most recent payment rates obtained from the data
available under subsection (3) of this section.
(3) The actuary shall use the most current encounter data and
the most current fee-for-service data that is available,
reasonable trends for utilization and cost changes to the
midpoint of the next biennium, appropriate differences in
utilization and cost based on geography, state and federal
mandates and other factors that, in the professional judgment of
the actuary, are relevant to the fair and reasonable estimation
of costs. The Department of Human Services shall provide the
actuary with the data and information in the possession of the
department or contractors of the department reasonably necessary
to develop a benchmark for setting per capita rates.
(4) The commission shall report the benchmark per capita rates
developed under this section to the Director of the Oregon
Department of Administrative Services, the Director of
{ - Human Services - } { + the Oregon Health Authority + } and
the Legislative Fiscal Officer no later than August 1 of every
even-numbered year.
(5) The { - Department of Human Services - } { + Oregon
Health Authority + } shall retain an actuary to determine:
(a) Per capita rates for health services that the
{ - department - } { + authority + } shall use to develop the
{ - department's - } { + authority's + } proposed biennial
budget; and
(b) Capitation rates to reimburse physician care organizations
for the cost of providing health services under ORS 414.705 to
414.750 using the same methodologies used to develop capitation
rates for fully capitated health plans. The rates may not
advantage or disadvantage fully capitated health plans for
similar services.
(6) The { - Department of Human Services - } { + Oregon
Health Authority + } shall submit to the Legislative Assembly no
later than February 1 of every odd-numbered year a report
Enrolled House Bill 2009 (HB 2009-C) Page 203
comparing the per capita rates for health services on which the
proposed budget of the { - department - } { + authority + }
is based with the rates developed by the actuary retained by the
Health Services Commission. If the rates differ, the
{ - department - } { + authority + } shall disclose, by
provider categories described in subsection (2) of this section,
the amount of and reason for each variance.
SECTION 336. ORS 414.742 is amended to read:
414.742. The { - Department of Human Services - }
{ + Oregon Health Authority + } may not establish capitation
rates that include payment for mental health drugs. The
{ - department - } { + authority + } shall reimburse pharmacy
providers for mental health drugs only on a fee-for-service
payment basis.
SECTION 337. ORS 414.743 is amended to read:
414.743. (1) As used in this section, 'fully capitated health
plan' means an organization that contracts with the
{ - Department of Human Services - } { + Oregon Health
Authority + } on a prepaid capitated basis under ORS 414.725 to
provide an adequate network of providers to ensure that all
health services described in ORS 414.705 are reasonably
accessible to enrollees.
(2) A fully capitated health plan that does not have a contract
with a hospital to provide inpatient or outpatient hospital
services under ORS 414.705 to 414.750 must pay for hospital
services at 80 percent of the Medicare rate for the
noncontracting hospital.
(3) A hospital that does not have a contract with a fully
capitated health plan to provide inpatient or outpatient hospital
services under ORS 414.705 to 414.750 must accept as payment in
full the rates described in subsection (2) of this section.
(4) This section does not apply to type A and type B hospitals,
as described in ORS 442.470, and rural critical access hospitals,
as defined in ORS 315.613.
(5) The { - Department of Human Services - } { + Oregon
Health Authority + } shall adopt rules to implement and
administer this section.
SECTION 338. ORS 414.743, as amended by section 2, chapter 886,
Oregon Laws 2007, is amended to read:
414.743. (1) As used in this section, 'fully capitated health
plan' means an organization that contracts with the
{ - Department of Human Services - } { + Oregon Health
Authority + } on a prepaid capitated basis under ORS 414.725 to
provide an adequate network of providers to ensure that all
health services described in ORS 414.705 are reasonably
accessible to enrollees.
(2) A fully capitated health plan that does not have a contract
with a hospital to provide inpatient or outpatient hospital
services under ORS 414.705 to 414.750 must pay for hospital
services as follows:
(a) For inpatient hospital services, based on the capitation
rates developed for the budget period, at the level of the
statewide average unit cost, multiplied by the geographic factor,
the payment discount factor and an adjustment factor of 0.925.
(b) For outpatient hospital services, based on the capitation
rates developed for the budget period, at the level of charges
multiplied by the statewide average cost-to-charge ratio, the
geographic factor, the payment discount factor and an adjustment
factor of 0.925.
Enrolled House Bill 2009 (HB 2009-C) Page 204
(3) A hospital that does not have a contract with a fully
capitated health plan to provide inpatient or outpatient hospital
services under ORS 414.705 to 414.750 must accept as payment in
full for hospital services, rates:
(a) For inpatient hospital services, based on the capitation
rates developed for the budget period, at the level of the
statewide average unit cost, multiplied by the geographic factor,
the payment discount factor and an adjustment factor of 0.925.
(b) For outpatient hospital services, based on the capitation
rates developed for the budget period, at the level of charges
multiplied by the statewide average cost-to-charge ratio, the
geographic factor, the payment discount factor and an adjustment
factor of 0.925.
(4) This section does not apply to type A and type B hospitals,
as described in ORS 442.470, and rural critical access hospitals,
as defined in ORS 315.613.
(5) The { - Department of Human Services - } { + Oregon
Health Authority + } shall adopt rules to implement and
administer this section.
SECTION 339. Section 18, chapter 810, Oregon Laws 2003, is
amended to read:
{ + Sec. 18. + } { - (1) - } Except as provided in section
19 { - of this 2003 Act - } , { + chapter 810, Oregon Laws
2003, + } sections 2, 3, 5, 5a, 11, 12, 12a, 14 and 15 { - of
this 2003 Act - } , { + chapter 810, Oregon Laws 2003, + } and
the amendments to ORS 414.705 and 414.725 by sections 4 and 7
{ - of this 2003 Act - } { + , chapter 810, Oregon Laws
2003, + } become operative on October 1, 2003.
{ - (2) Sections 10 and 13 of this 2003 Act become operative
on the day after the date the Department of Human Services
receives the necessary waivers from the Centers for Medicare and
Medicaid Services. - }
{ - (3) The Director of Human Services shall notify the
Legislative Counsel upon receipt of the waivers or denial of the
waiver request. - }
SECTION 340. ORS 414.750 is amended to read:
414.750. Nothing in ORS { - 414.036 and - } 414.705 to
414.750 is intended to limit the authority of the Legislative
Assembly to authorize services for persons whose income exceeds
100 percent of the federal poverty level for whom federal medical
assistance matching funds are available if state funds are
available therefor.
SECTION 341. ORS 414.751 is amended to read:
414.751. (1) There is established in the { - Office for
Oregon Health Policy and Research - } { + Oregon Health
Authority + } the Office for Oregon Health Policy and Research
Advisory Committee composed of members appointed by the Governor.
Members shall include:
(a) Representatives of managed care health services
organizations under contract with the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
414.725 and serving primarily rural areas of the state;
(b) Representatives of managed care health services
organizations under contract with the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
414.725 and serving primarily urban areas of the state;
(c) Representatives of medical organizations representing
health care providers under contract with managed care health
services organizations pursuant to ORS 414.725 who serve patients
in both rural and urban areas of the state; { + and + }
Enrolled House Bill 2009 (HB 2009-C) Page 205
(d) One representative from Type A hospitals and one
representative from Type B hospitals { + . + } { - ; and - }
{ - (e) Representatives of the Department of Human
Services. - }
(2) Members of the advisory committee shall not be entitled to
compensation or per diem.
SECTION 342. ORS 414.805 is amended to read:
414.805. (1) An individual who receives medical services while
in the custody of a law enforcement officer is liable:
(a) To the provider of the medical services for the charges and
expenses therefor; and
(b) To the { - Department of Human Services - } { + Oregon
Health Authority + } for any charges or expenses paid by the
{ - Department of Human Services - } { + authority + } out of
the Law Enforcement Medical Liability Account for the medical
services.
(2) A person providing medical services to an individual
described in subsection (1)(a) of this section shall first make
reasonable efforts to collect the charges and expenses thereof
from the individual before seeking to collect them from the
{ - Department of Human Services - } { + authority + } out of
the Law Enforcement Medical Liability Account.
(3)(a) If the provider has not been paid within 45 days of the
date of the billing, the provider may bill the { - Department
of Human Services - } { + authority + } who shall pay the
account out of the Law Enforcement Medical Liability Account.
(b) A bill submitted to the { - Department of Human
Services - } { + authority + } under this subsection must be
accompanied by evidence documenting that:
(A) The provider has billed the individual or the individual's
insurer or health care service contractor for the charges or
expenses owed to the provider; and
(B) The provider has made a reasonable effort to collect from
the individual or the individual's insurer or health care service
contractor the charges and expenses owed to the provider.
(c) If the provider receives payment from the individual or the
insurer or health care service contractor after receiving payment
from the { - Department of Human Services - }
{ + authority + }, the provider shall repay the
{ - department - } { + authority + } the amount received from
the public agency less any difference between payment received
from the individual, insurer or contractor and the amount of the
billing.
(4) As used in this section:
(a) 'Law enforcement officer' means an officer who is
commissioned and employed by a public agency as a peace officer
to enforce the criminal laws of this state or laws or ordinances
of a public agency.
(b) 'Public agency' means the state, a city, port, school
district, mass transit district or county.
SECTION 343. ORS 414.807 is amended to read:
414.807. (1)(a) When charges and expenses are incurred for
medical services provided to an individual for injuries related
to law enforcement activity and subject to the availability of
funds in the account, the cost of such services shall be paid by
the
{ - Department of Human Services - } { + Oregon Health
Authority + } out of the Law Enforcement Medical Liability
Account established in ORS 414.815 if the provider of the medical
services has made all reasonable efforts to collect the amount,
Enrolled House Bill 2009 (HB 2009-C) Page 206
or any part thereof, from the individual who received the
services.
(b) When a law enforcement agency involved with an injury
certifies that the injury is related to law enforcement activity,
the { - Department of Human Services - } { + Oregon Health
Authority + } shall pay the provider:
(A) If the provider is a hospital, in accordance with current
fee schedules established by the Director of the Department of
Consumer and Business Services for purposes of workers'
compensation under ORS 656.248; or
(B) If the provider is other than a hospital, 75 percent of the
customary and usual rates for the services.
(2) After the injured person is incarcerated and throughout the
period of incarceration, the { - Department of Human
Services - } { + Oregon Health Authority + } shall continue to
pay, out of the Law Enforcement Medical Liability Account,
charges and expenses for injuries related to law enforcement
activities as provided in subsection (1) of this section. Upon
release of the injured person from actual physical custody, the
Law Enforcement Medical Liability Account is no longer liable for
the payment of medical expenses of the injured person.
(3) If the provider of medical services has filed a medical
services lien as provided in ORS 87.555, the { - Department of
Human Services - } { + Oregon Health Authority + } shall be
subrogated to the rights of the provider to the extent of
payments made by the
{ - Department of Human Services - } { + authority + } to the
provider for the medical services. The { - Department of Human
Services - } { + authority + } may foreclose the lien as
provided in ORS 87.585.
(4) The { - Department of Human Services - }
{ + authority + } shall deposit in the Law Enforcement Medical
Liability Account all moneys received by the { - department - }
{ + authority + } from:
(a) Providers of medical services as repayment;
(b) Individuals whose medical expenses were paid by the
{ - department - } { + authority + } under this section; and
(c) Foreclosure of a lien as provided in subsection (3) of this
section.
(5) As used in this section:
(a) 'Injuries related to law enforcement activity' means
injuries sustained prior to booking, citation in lieu of arrest
or release instead of booking that occur during and as a result
of efforts by a law enforcement officer to restrain or detain, or
to take or retain custody of, the individual.
(b) 'Law enforcement officer' has the meaning given that term
in ORS 414.805.
SECTION 344. ORS 414.815 is amended to read:
414.815. (1) The Law Enforcement Medical Liability Account is
established separate and distinct from the General Fund. Interest
earned, if any, shall inure to the benefit of the account. The
moneys in the Law Enforcement Medical Liability Account are
appropriated continuously to the { - Department of Human
Services - } { + Oregon Health Authority + } to pay expenses in
administering the account and paying claims out of the account as
provided in ORS 414.807.
(2) The liability of the Law Enforcement Medical Liability
Account is limited to funds accrued to the account from
assessments collected under ORS 137.309 (6), (8) or (9), or
collected from individuals under ORS 414.805.
Enrolled House Bill 2009 (HB 2009-C) Page 207
(3) The { - Department of Human Services - }
{ + authority + } may contract with persons experienced in
medical claims processing to provide claims processing for the
account.
(4) The { - Department of Human Services - }
{ + authority + } shall adopt rules to implement administration
of the Law Enforcement Medical Liability Account including, but
not limited to, rules that establish reasonable deadlines for
submission of claims.
(5) Each biennium, the { - Department of Human Services - }
{ + Oregon Health Authority + } shall submit a report to the
Legislative Assembly regarding the status of the Law Enforcement
Medical Liability Account. Within 30 days of the convening of
each regular legislative session, the { - department - }
{ + authority + } shall submit the report to the chair of the
Senate Judiciary Committee and the chair of the House Judiciary
Committee. The report shall include, but is not limited to, the
number of claims submitted and paid during the biennium and the
amount of money in the fund at the time of the report.
SECTION 344a. ORS 414.839 is amended to read:
414.839. (1) Subject to funds available, the { - Department
of Human Services - } { + Oregon Health Authority + } may
provide public subsidies for the purchase of health insurance
coverage provided by public programs or private insurance,
including but not limited to the Family Health Insurance
Assistance Program, for currently uninsured individuals based on
incomes up to 200 percent of the federal poverty level. The
objective is to create a transition from dependence on public
programs to privately financed health insurance.
(2) Public subsidies shall apply only to health benefit plans
that meet or exceed the basic benchmark health benefit plan or
plans established under ORS 735.733.
(3) Cost sharing shall be permitted and structured in such a
manner to encourage appropriate use of preventive care and
avoidance of unnecessary services.
(4) Cost sharing shall be based on an individual's ability to
pay and may not exceed the cost of purchasing a plan.
(5) The state may pay a portion of the cost of the subsidy,
based on the individual's income and other resources.
SECTION 344b. Section 27, chapter 697, Oregon Laws 2007 is
amended to read:
{ + Sec. 27. + } Sections 1 to 13, chapter 697, Oregon Laws
2007, { - of this 2007 Act - } are repealed { - on January
2, 2010 - } .
SECTION 344c. { + The balance of moneys remaining in the
Oregon Health Fund on the effective date of this 2009 Act shall
be transferred to the Oregon Health Authority Fund established in
section 18 of this 2009 Act. + }
SECTION 345. ORS 416.430 is amended to read:
416.430. (1) The administrator may establish paternity of a
child in the course of a support proceeding under ORS 416.400 to
416.465 when both parents sign statements that paternity has not
been legally established and that the male parent is the father
of the child. The administrator may enter an order which
establishes paternity.
(2) If the parent fails to file a response denying paternity
and requesting a hearing within the time period allowed in ORS
416.415 (2), then the administrator, without further notice to
the parent, may enter an order, in accordance with ORS 416.415
Enrolled House Bill 2009 (HB 2009-C) Page 208
(7), which declares and establishes the parent as the legal
father of the child.
(3) Any order entered pursuant to subsection (1) or (2) of this
section establishes legal paternity for all purposes. The Center
for Health Statistics of the { - Department of Human
Services - } { + Oregon Health Authority + } shall prepare a new
birth certificate in the new name, if any, of the child. The
original birth certificate shall be sealed and filed and may be
opened only upon order of a court of competent jurisdiction.
(4)(a) If paternity is alleged under ORS 416.415 (3) and a
written response denying paternity and requesting a hearing is
received within the time period allowed in ORS 416.415 (2), or if
the administrator determines that there is a valid issue with
respect to paternity of the child, the administrator, subject to
the provisions of subsections (5) and (6) of this section, shall
certify the matter to the circuit court for a determination based
upon the contents of the file and any evidence which may be
produced at trial. The proceedings in court shall for all
purposes be deemed suits in equity. The provisions of ORS 109.145
to 109.230 apply to proceedings certified to court by the
administrator pursuant to this section.
(b) Any response denying paternity and requesting a hearing
shall be sent by the enforcement office to the obligee by regular
mail.
(5) An action to establish paternity initiated under ORS
416.400 to 416.465 shall not be certified to court for trial
unless all of the following have occurred:
(a) Blood tests have been conducted;
(b) The results of the blood tests have been served upon the
parties and notice has been given that an order establishing
paternity will be entered unless a written objection is received
within 30 days; and
(c) A written objection to the entry of an order has been
timely received from a party.
(6) Notwithstanding the provisions of subsection (5) of this
section, the administrator:
(a) Shall certify the matter to court:
(A) Within 30 days of receipt by the administrator of a timely
written objection to the entry of an order by a party under
subsection (5)(c) of this section;
(B) When a party requests certification in writing after the
administrator has received a party's written denial of paternity
if at least 120 days have elapsed from receipt of the denial; or
(C) Upon receipt of blood test results with a cumulative
paternity index of less than 99; and
(b) May certify the matter to court at any time under any other
circumstances.
(7) If the blood tests conducted under ORS 109.250 to 109.262
result in a cumulative paternity index of 99 or greater, evidence
of the tests, together with the testimony of the parent, shall be
a sufficient basis upon which to establish paternity and the
administrator may enter an order declaring the alleged father as
the legal father of the child unless a party objects in writing
to the entry of the order. The testimony of the parent may be
presented by affidavit.
(8) Prior to certification to court, the administrator may
attempt to resolve the issue of paternity by discovery conducted
under the Oregon Rules of Civil Procedure. Unless otherwise
specifically provided by statute, the proceedings shall be
conducted under the Oregon Rules of Civil Procedure.
Enrolled House Bill 2009 (HB 2009-C) Page 209
(9) When, in accordance with subsection (6)(a)(A) of this
section, a party objects to the entry of an order and the blood
tests conducted under ORS 109.250 to 109.262 result in a
cumulative paternity index of 99 or greater, notwithstanding the
party's objection, evidence of the tests, together with the
testimony of a parent, is a sufficient basis upon which to
presume paternity for purposes of establishing temporary support
under this section. The court shall, upon motion of any party,
enter a temporary order requiring the alleged father to provide
support pending the determination of parentage by the court. In
determining the amount of support, the court shall use the
formula established under ORS 25.275.
SECTION 346. ORS 416.510 is amended to read:
416.510. As used in ORS 416.510 to 416.610, unless the context
requires otherwise:
(1) 'Action' means an action, suit or proceeding.
(2) 'Applicant' means an applicant for assistance.
(3) 'Assistance' means moneys paid by the Department of Human
Services to persons directly and moneys paid by the
{ - department - } { + Oregon Health Authority + } or by a
prepaid managed care health services organization for services
provided under contract pursuant to ORS 414.725 to others for the
benefit of such persons.
{ + (4) 'Authority' means the Oregon Health Authority. + }
{ - (4) - } { + (5) + } 'Claim' means a claim of a
recipient of assistance for damages for personal injuries against
any person or public body, agency or commission other than the
State Accident Insurance Fund Corporation or Workers'
Compensation Board.
{ - (5) - } { + (6) + } 'Compromise' means a compromise
between a recipient and any person or public body, agency or
commission against whom the recipient has a claim.
{ - (6) 'Department' means the Department of Human
Services. - }
(7) 'Judgment' means a judgment in any action or proceeding
brought by a recipient to enforce the claim of the recipient.
(8) 'Prepaid managed care health services organization ' means
a managed health, dental or mental health care organization that
contracts with the { - Department of Human Services - }
{ + authority + } on a prepaid capitated basis { - under the
Oregon Health Plan - } pursuant to ORS 414.725. Prepaid managed
care health services organizations may be dental care
organizations, fully capitated health plans, mental health
organizations or chemical dependency organizations.
(9) 'Recipient' means a recipient of assistance.
(10) 'Settlement' means a settlement between a recipient and
any person or public body, agency or commission against whom the
recipient has a claim.
SECTION 347. ORS 416.530 is amended to read:
416.530. { - When - } { + (1) If + } any applicant or
recipient makes a claim or, without making a claim, begins an
action to enforce such claim, the applicant or recipient, or the
attorney for the applicant or the recipient, shall immediately
notify the Department of Human Services { + or the Oregon Health
Authority + } and the recipient's prepaid managed care health
services organization, if the recipient is receiving services
from the organization. If an applicant or recipient, or the
attorney for the applicant or the recipient, has given notice
that the applicant or recipient has made a claim, it shall not be
necessary for the applicant or recipient, or the attorney for the
Enrolled House Bill 2009 (HB 2009-C) Page 210
applicant or the recipient, to give notice that the applicant or
recipient has begun an action to enforce such claim. The
notification shall include the name and address of each person or
public body, agency or commission against whom claim is made or
action is brought. If claim is made or action is brought against
a corporation, the address given in such notification shall be
that of its principal place of business. If the applicant or
recipient is a minor, the parents, legal guardian or foster
parents of the minor shall give the notification required by this
section.
{ + (2) The notification required by subsection (1) of this
section shall be provided to:
(a) The Oregon Health Authority by applicants for or recipients
of assistance provided by the authority; and
(b) The Department of Human Services for assistance provided by
the department. + }
SECTION 348. ORS 416.540 is amended to read:
416.540. (1) Except as provided in subsection (2) of this
section and in ORS 416.590, the Department of Human Services
{ + and the Oregon Health Authority + } shall have a lien upon
the amount of any judgment in favor of a recipient or amount
payable to the recipient under a settlement or compromise for all
assistance received by such recipient from the date of the injury
of the recipient to the date of satisfaction of such judgment or
payment under such settlement or compromise.
(2) The lien does not attach to the amount of any judgment,
settlement or compromise to the extent of attorney's fees, costs
and expenses incurred by a recipient in securing such judgment,
settlement or compromise and to the extent of medical, surgical
and hospital expenses incurred by the recipient on account of the
personal injuries for which the recipient had a claim.
(3) The { - department - } { + authority + } may assign the
lien described in subsection (1) of this section to a prepaid
managed care health services organization for medical costs
incurred by a recipient:
(a) During a period for which the { - department - }
{ + authority + } paid a capitation or enrollment fee; and
(b) On account of the personal injury for which the recipient
had a claim.
(4) A prepaid managed care health services organization to
which the { - department - } { + authority + } has assigned a
lien shall notify the { - department - } { + authority + } no
later than 10 days after filing notice of a lien.
(5) For the purposes of ORS 416.510 to 416.610, the
{ - department - } { + authority + } may designate the
prepaid managed care health services organization to which a lien
is assigned as its designee.
(6) If the { - department - } { + authority + } and a
prepaid managed care health services organization both have filed
a lien, the
{ - department's - } { + authority's + } lien shall be
satisfied first.
SECTION 349. ORS 416.550 is amended to read:
416.550. (1) Upon receiving notice under ORS 416.530, to
perfect its lien the Department of Human Services { + or the
Oregon Health Authority + } shall:
(a) File a notice of lien, substantially in the form prescribed
in ORS 416.560, with the recording officer of the county in which
the person against whom claim is made or action is brought
resides. If the claim or action is against a corporation, the
Enrolled House Bill 2009 (HB 2009-C) Page 211
notice of lien shall be filed with the recording officer of the
county within the state in which such corporation has its
principal place of business. If the claim or action is against a
public body, agency or commission, the notice of lien shall be
filed with the recording officer of the county in which the
public body, agency or commission has its main offices; and
(b) Prior to the date of satisfaction of the judgment or
payment under the settlement or compromise, send a certified copy
of the notice of lien by registered mail or by certified mail
with return receipt to each person or public body, agency or
commission against whom claim is made or action is brought by the
recipient.
(2) Upon the filing of a notice of lien by the department
{ + or the authority + }, the recording officer shall enter the
name of the injured person, the approximate date of the injury
and the name of the department { + or the authority + } as
lienor in the hospital lien docket provided for in ORS 87.575 and
shall make an index thereto in the names of the injured persons
and the department { + or the authority + }.
SECTION 350. ORS 416.560 is amended to read:
416.560. The form of the notice required by ORS 416.550 (1)
shall be substantially as follows:
_________________________________________________________________
Notice is hereby given that the { - Department of Human
Services - } { + _____ + } has rendered assistance to
________, a person who was injured on or about the __ day of ____
in the city of ____ and State of ____, and the { - Department
of Human Services - } { + _____ + } hereby asserts a lien to
the extent provided in ORS 416.510 to 416.610, for the amount of
such assistance upon any amount due and owing _____ (name of
injured person) under a judgment, settlement or compromise from
____ alleged to have caused such injuries and from any other
person or public body, agency or commission liable for the injury
or obligated to compensate the injured person on account of such
injuries.
Department of Human Services { + /Oregon Health Authority + }
by ________,
Director of { - Human Services - } { + _____ + } or
designee.
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
State of Oreg)n,
) ss.
County of ____
)
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
I, ________, being first duly sworn on oath say: That I am the
Director of { - Human Services - } { + _____ + } or
designee; that I have read the foregoing notice of lien and know
the contents thereof and believe the same to be true.
________
Subscribed and sworn to before me this __ day of ____, ____.
Enrolled House Bill 2009 (HB 2009-C) Page 212
________, Notary Public.
_________________________________________________________________
SECTION 351. ORS 416.570 is amended to read:
416.570. Immediately after a judgment has been rendered in
favor of a recipient or a settlement or compromise has been
agreed upon, the person or public body, agency or commission
bound by such judgment, settlement or compromise shall notify the
Department of Human Services { + or the Oregon Health
Authority + }. After such notification the department { + or the
authority + } shall send a statement of the amount of its lien to
such person or public body, agency or commission by registered
mail or by certified mail with return receipt.
SECTION 352. ORS 416.580 is amended to read:
416.580. (1) After a notice of lien is filed in the manner
provided in ORS 416.550 (2), any person or public body, agency or
commission who makes any payment to the injured recipient, the
heirs, personal representatives or assigns of the recipient, or
their attorneys, under a judgment, settlement or compromise
without previously having paid to the Department of Human
Services { + or the Oregon Health Authority + } the amount of
its lien, shall be liable to the State of Oregon, for the use and
benefit of the department { + or the authority + } for a period
of 180 days after the date of such payment for the amount of such
payment to the extent that the lien attached thereto under ORS
416.540.
(2) Any amount paid to the department { + or the authority + }
in satisfaction of its lien shall be distributed by the
department { + or the authority + } to the United States
Government and the Public Welfare Account, as their interests may
appear.
(3) If the recipient is a minor, no payments to the department
{ + or the authority + } in satisfaction of its lien and, except
to the extent of the fees, costs and expenses specified in ORS
416.540 (2), no payments to the recipient under a judgment,
settlement or compromise shall be made until a hearing has taken
place and the court has issued its order under ORS 416.590.
SECTION 353. ORS 416.590 is amended to read:
416.590. (1) If the recipient is a minor, after the date on
which a judgment in favor of the recipient is rendered or
settlement or compromise is agreed upon, the guardian of the
minor or the conservator of the estate of the minor shall
petition the court having probate jurisdiction in the county in
which the guardian or conservator was appointed to determine the
sum that will be needed for the minor's complete physical
rehabilitation. If the guardian or the conservator of the
minor's estate fails to petition the court, any other interested
person or public body, agency or commission may file the
petition. The lien of the Department of Human Services { + or
the Oregon Health Authority + } provided for in ORS 416.510 to
416.610 shall not attach to the amount of the judgment,
settlement or compromise to the extent of the sum needed for the
rehabilitation. Among other data, the petition shall contain the
name and address of each person or public body, agency or
commission liable to the minor under the judgment, settlement or
compromise.
(2) The court shall conduct a hearing to determine the sum that
will be needed by the minor and at least 10 days prior to the
date of the hearing, the clerk of the court shall notify the
conservator of the minor's estate, the department { + or the
Enrolled House Bill 2009 (HB 2009-C) Page 213
authority + } and the person who filed the petition, if the
person is someone other than the guardian or the conservator of
the minor's estate, of the date on which the hearing will be
held. At the hearing any interested person as well as witnesses
for the minor and for the department { + or the authority + }
may testify on the question before the court. Upon reaching a
decision, the court shall issue an order setting forth the
decision and the clerk of the court shall enter the order in an
appropriate record book. The clerk shall also send a copy of the
order to the guardian or the conservator of the minor's estate,
the person who filed the petition if the person is someone other
than the guardian or the conservator of the minor's estate, the
department { + or the authority + } and to each person or public
body, agency or commission liable to the minor under the
judgment, settlement or compromise.
SECTION 354. ORS 416.600 is amended to read:
416.600. When the Department of Human Services { + or the
Oregon Health Authority + } determines that a recipient will
incur additional medical, surgical or hospital expenses or that
additional assistance will have to be given to the recipient
after the date of satisfaction of judgment or payment under a
settlement or compromise, the department { + or the
authority + } may release any portion of its lien to the extent
of such anticipated expenses and assistance.
SECTION 355. ORS 416.610 is amended to read:
416.610. The { - Department of Human Services - }
{ + Oregon Health Authority + } or the recipient's prepaid
managed care health services organization, if the recipient is
receiving services from the organization, shall have a cause of
action against any recipient who fails to give the notification
required by ORS 416.530 for amounts received by the recipient
pursuant to a judgment, settlement or compromise to the extent
that the department { + or the authority + } or the prepaid
managed care health services organization could have had a lien
against such amounts had such notice been given.
SECTION 356. ORS 416.990 is amended to read:
416.990. Any person who makes, renders, signs or verifies any
false or fraudulent statement, or supplies any false or
fraudulent information with intent to evade any lawful
requirement of the Department of Human Services { + or the
Oregon Health Authority + } is guilty of a misdemeanor.
{ + NOTE: + } Section 357 was deleted by amendment.
Subsequent sections were not renumbered.
SECTION 358. ORS 417.346 is amended to read:
417.346. Subject to the availability of funds therefor, the
Director of Human Services { + , in consultation with the
Director of the Oregon Health Authority, + } shall:
(1) Identify current programs and potential resources available
to families providing care for a family member with a disability
or chronic illness.
(2) Develop a biennial plan for adequate funding and recommend
budgetary priorities for family support services.
(3) Develop a biennial cooperative plan for assuring a
statewide interagency system of family support services.
(4) Adopt rules for family support services that are guided by
the goals and principles set forth in ORS 417.340 to 417.348.
These rules shall contain a grievance procedure.
(5) Make a biennial report to the Legislative Assembly on the
state of the family support system, including strengths,
deficiencies, cost savings and recommendations. This report shall
Enrolled House Bill 2009 (HB 2009-C) Page 214
include a comprehensive statement of the efforts of the
Department of Human Services to carry out the policies and
principles set forth in this legislation. The report shall
include but not be limited to a list of family support services,
a summary of costs and the number of clients served.
(6) Establish a Family Support Advisory Council whose purpose
is to review and comment on plans and services provided or
contracted for family support by state agencies and advise the
director on the state plans for coordinated family support
services.
(a) The council shall meet a minimum of four times per year.
(b) The membership of the council shall be 51 percent consumers
of family support services.
(c) The remaining membership shall be composed of
representatives of agencies providing family support services and
representatives of advocacy groups. One member shall be a
representative of the Department of Education.
SECTION 359. ORS 417.728 is amended to read:
417.728. (1) The State Commission on Children and Families, the
Department of Education, the Employment Department { + , + }
{ - and - } the Department of Human Services { + and the
Oregon Health Authority + } shall lead a joint effort with other
state and local early childhood partners to establish the
policies necessary for a voluntary statewide early childhood
system that shall be incorporated into the local coordinated
comprehensive plan.
(2) The voluntary statewide early childhood system shall be
designed to achieve:
(a) The appropriate early childhood benchmarks jointly
identified by the State Commission on Children and Families, the
Department of Education, the Employment Department { + , + }
{ - and - } the Department of Human Services { + and the
Oregon Health Authority + }, with input from early childhood
partners, as the appropriate benchmarks; and
(b) Any other early childhood benchmark or intermediate outcome
jointly identified by the State Commission on Children and
Families, the Department of Education, the Employment
Department { + , + }
{ - and - } the Department of Human Services { + and the
Oregon Health Authority + }, with input from early childhood
partners, as an appropriate benchmark or outcome.
(3) The voluntary statewide early childhood system shall
include the following components:
(a) A process to identify as early as possible children and
families who would benefit from early childhood services;
(b) A plan to support the identified needs of the child and
family that coordinates case management personnel and the
delivery of services to the child and family; and
(c) Services to support children who are zero through eight
years of age and their families who give their express written
consent, including:
(A) Screening, assessment and home visiting services pursuant
to ORS 417.795;
(B) Specialized or targeted home visiting services;
(C) Community-based services such as relief nurseries, family
support programs and parent education programs;
(D) High quality child care, as defined by the Commission for
Child Care;
(E) Preschool and other early education services;
(F) Health services for children and pregnant women;
Enrolled House Bill 2009 (HB 2009-C) Page 215
(G) Mental health services;
(H) Alcohol and drug treatment programs that meet the standards
promulgated by the { - Department of Human Services - }
{ + Oregon Health Authority + } pursuant to ORS 430.357;
(I) Developmental disability services; and
(J) Other state and local services.
(4) The State Commission on Children and Families, the
Department of Education, the Employment Department { + , + }
{ - and - } the Department of Human Services { + and the
Oregon Health Authority + } shall jointly:
(a) Consolidate administrative functions relating to the
voluntary statewide early childhood system, to the extent
practicable, including but not limited to training and technical
assistance, planning and budgeting. This paragraph does not apply
to the administrative functions of the Department of Education
relating to education programs;
(b) Adopt policies to establish training and technical
assistance programs to ensure that personnel have skills in
appropriate areas, including screening, family assessment,
competency-based home visiting skills, cultural and gender
differences and other areas as needed;
(c) Identify research-based age-appropriate and culturally and
gender appropriate screening and assessment tools that would be
used as appropriate in programs and services of the voluntary
statewide early childhood system;
(d) Develop a plan for the implementation of a common data
system for voluntary early childhood programs as provided in
section 7, chapter 831, Oregon Laws 2001;
(e) Coordinate existing and new early childhood programs to
provide a range of community-based supports;
(f) Establish a common set of quality assurance standards to
guide local implementation of all elements of the voluntary
statewide early childhood system, including voluntary universal
screening and assessment, home visiting, staffing, evaluation and
community-based services;
(g) Ensure that all plans for voluntary early childhood
services are coordinated and consistent with federal and state
law, including but not limited to plans for Oregon
prekindergarten programs, federal Head Start programs, early
childhood special education services, early intervention services
and public health services;
(h) Identify how the voluntary statewide early childhood system
for children who are zero through eight years of age will link
with systems of support for older children and their families;
(i) Contract for an evaluation of the outcomes of the voluntary
statewide early childhood system; and
(j) During January of each odd-numbered year, report to the
Governor and the Legislative Assembly on the voluntary statewide
early childhood system. The report shall include the evaluation
described in paragraph (i) of this subsection.
(5) The State Commission on Children and Families, the State
Board of Education, the Employment Department { + , + }
{ - and - } the Department of Human Services { + and the
Oregon Health Authority + } when adopting rules to administer
voluntary early childhood programs under their individual
authority shall adopt rules that are consistent with the
requirements of the voluntary statewide early childhood system
created under this section.
Enrolled House Bill 2009 (HB 2009-C) Page 216
(6) Information gathered in conjunction with the voluntary
comprehensive screening and assessment of children and their
families may be used only for the following purposes:
(a) Providing services to children and families who give their
express written consent;
(b) Providing statistical data that are not personally
identifiable;
(c) Accomplishing other purposes for which the family has given
express written consent; and
(d) Meeting the requirements of mandatory state and federal
disclosure laws.
SECTION 360. ORS 417.730 is amended to read:
417.730. (1) There is established a State Commission on
Children and Families consisting of:
(a) The Director of Human Services;
(b) The Superintendent of Public Instruction;
(c) The Director of the Employment Department or, at the
Governor's direction, the chairperson of the Commission for Child
Care;
{ + (d) The Director of the Oregon Health Authority; + }
{ - (d) - } { + (e) + } One member appointed by the
President of the Senate, who shall be a member of the Senate and
who shall be a nonvoting, advisory member;
{ - (e) - } { + (f) + } One member appointed by the Speaker
of the House of Representatives, who shall be a member of the
House of Representatives and who shall be a nonvoting, advisory
member; and
{ - (f) - } { + (g) + } Twelve members appointed by the
Governor.
(2) The appointments made by the Governor shall reflect the
state's diverse populations and regions and shall include
representatives with expertise along the full developmental
continuum of a child from the prenatal stage through 18 years of
age. The members appointed by the Governor shall include:
(a) One representative from the Oregon Juvenile Department
Directors' Association, from which the Governor may solicit
suggestions for appointment;
(b) Six public members who have demonstrated interest in
children, with consideration given to a youth member and persons
from the education community;
(c) Two members from local commissions on children and
families, one from a rural area and one from an urban area;
(d) One social service professional; and
(e) Two members from the business community who have
demonstrated interest in children.
(3) The term of office of each member appointed by the Governor
is four years. Before the expiration of the term of an appointed
member, the Governor shall appoint a successor whose term begins
on October 1. An appointed member is eligible for reappointment.
If there is a vacancy in an appointed position for any cause, the
Governor shall make an appointment to become immediately
effective for the unexpired term.
(4) The appointments by the Governor to the state commission
are subject to confirmation by the Senate in the manner
prescribed in ORS 171.562 and 171.565.
(5) An appointed member of the state commission who is not a
member of the Legislative Assembly is entitled to compensation
and expenses as provided in ORS 292.495. Members who are members
of the Legislative Assembly shall be paid compensation and
Enrolled House Bill 2009 (HB 2009-C) Page 217
expense reimbursement as provided in ORS 171.072, payable from
funds appropriated to the Legislative Assembly.
(6)(a) The majority of the members of the state commission
shall be laypersons.
(b) As used in this subsection, 'layperson' means a person
whose primary income is not derived from either offering direct
service to children and youth or being an administrator for a
program for children and youth.
SECTION 361. ORS 417.735 is amended to read:
417.735. (1) The State Commission on Children and Families
shall promote the wellness of children and families at the state
level and shall act in accordance with the principles,
characteristics and values identified in ORS 417.708 to 417.725.
The state commission shall provide no direct services.
(2)(a) Funds for local commissions shall consist of payments
from moneys appropriated for local commissions to the State
Commission on Children and Families by the Legislative Assembly.
The state commission shall develop an equitable formula for the
distribution of funds to counties or regions for services for
children and families, and a minimum annual grant shall be
provided to each county or region.
(b) The state commission shall provide technical assistance and
research-based information to local commissions to support the
development of county goals, performance measures and outcomes
for services and programs.
(c) The state commission may withhold funds from a local
commission if services and programs funded through the local
commission do not meet appropriate performance measures and
outcomes.
(3) The state commission shall:
(a) Set guidelines for the planning, coordination and delivery
of services by local commissions in partnership with other
planning bodies and agencies providing services for children and
families. The guidelines shall be consistent with the key
elements of the service system developed and implemented under
ORS 417.705 to 417.801. In conjunction with other planning bodies
and agencies providing social supports, the state commission
shall use the local coordinated comprehensive plans to advise
agencies, the Legislative Assembly and the Governor;
(b) Advise the Legislative Assembly and the Governor concerning
possible solutions to problems facing children and families;
(c) In consultation with other agencies, identify high-level
and intermediate outcomes relating to children and families and
monitor the progress of local coordinated comprehensive plans in
meeting intermediate outcome targets;
(d) Encourage the development of innovative projects, based on
proven practices of effectiveness, that benefit children and
families;
(e) Ensure that all services for children and families are
integrated and evaluated according to their outcomes;
(f) Compile, analyze and distribute information that informs
and supports statewide coordinated planning;
(g) Establish a uniform system of reporting and collecting
statistical data from counties and other agencies serving
children and families;
(h) Provide a process whereby the Department of Human Services,
{ + Oregon Health Authority, + } Juvenile Crime Prevention
Advisory Committee, Oregon Youth Authority, Department of
Education, Department of Community Colleges and Workforce
Development, Employment Department, Housing and Community
Enrolled House Bill 2009 (HB 2009-C) Page 218
Services Department and Economic and Community Development
Department review all findings from data collected by the local
commissions through the local coordinated comprehensive plans.
The information gathered in this review shall be considered by
those agencies in designing future economic resources and
services and in the coordination of services;
(i) Make recommendations to the Commission for Child Care for
the development of the state's biennial child care plan; and
(j) Communicate information and policy advice on current
research and proven practices of effectiveness, from both inside
and outside the state, including successful local strategies, to
local commissions, the Governor, the Legislative Assembly, state
agencies and the public. The information shall include progress
in meeting intermediate outcome targets identified in the local
coordinated comprehensive plans.
(4)(a) The state commission shall develop a review and approval
process for local coordinated comprehensive plans that includes:
(A) A requirement that the local plan has been approved by the
board or boards of county commissioners;
(B) Assurance that the local plan meets essential criteria and
approval required by appropriate entities and meets appropriate
systems and planning connections; and
(C) Review of state expenditures of resources allocated to the
local commissions on children and families.
(b) The state commission shall develop the process under this
subsection in consultation with other entities involved in the
review and approval process.
(c) The state commission shall act on any waiver request from a
local commission within 90 days after receipt of the request.
(d) The state commission may disapprove a local plan for
failure to address the elements described in paragraph (a) of
this subsection within 90 days after receipt of the request.
(5) The state commission, in coordination with the local
commissions on children and families, shall:
(a) Assist the local commissions in the development and
implementation of performance measures and outcomes for
evaluating services at the local level;
(b) Monitor the progress in meeting intermediate outcome
targets in the local coordinated comprehensive plans;
(c) In conjunction with the Department of Human Services and
using the staff resources and other resources of the state
commission, educate, inform and provide technical assistance to
local commissions, including but not limited to technical
assistance with:
(A) Federal and state laws, regulations and rules, and changes
therein, governing the use of federal and state funds;
(B) Facilitation;
(C) Planning;
(D) Policy development;
(E) Proven practices of effectiveness;
(F) Local systems development;
(G) Community problem solving and mobilization; and
(H) Other services, as appropriate;
(d) Conduct research and disseminate information to local
commissions on children and families;
(e) Negotiate federal waivers in consultation with the
Department of Human Services; and
(f) Develop a process for reviewing requests for waivers from
requirements of the state commission. Requests for waivers shall
be granted or denied as a part of the approval process for a
Enrolled House Bill 2009 (HB 2009-C) Page 219
local coordinated comprehensive plan. The state commission shall
not grant a request for waiver that allows funds to be used for
any purpose other than early childhood prevention, intervention
and treatment programs.
(6) The state commission shall employ a staff director who
shall be responsible for hiring and supervising any additional
personnel necessary to assist the state commission in performing
its duties. The staff director shall be responsible for
management functions of the state commission subject to policy
direction by the state commission.
(7) To the extent that federal funding is not jeopardized, the
State Commission on Children and Families shall enter into an
interagency agreement with the Department of Human Services in
which they agree on a system to:
(a) Distribute all Title XX Social Services Block Grant funds;
(b) Ensure that federal and state requirements are met for
federal funds administered by the state commission; and
(c) Carry out the necessary auditing, monitoring and
information requirements for federal funds distributed by the
state commission.
(8) In addition to the authority under subsection (5)(e) of
this section, the state commission may direct the Department of
Human Services or the appropriate state department providing
services for children and families to negotiate federal waivers.
If the Department of Human Services or any other state agency
does not pursue a federal waiver recommended by the state
commission, the state commission may ask the Governor to direct
the Department of Human Services or other state agency to apply
for and negotiate the waiver.
(9) If the Department of Human Services or any other state
agency refuses to distribute state or federal funds as requested
by the state commission, the state commission may ask the
Governor to direct the Department of Human Services or other
state agency to distribute the funds.
(10) The programs shall be funded as fully as possible by Title
XX of the federal Social Security Act, consistent with the terms
and conditions of the block grant program and the local
coordinated comprehensive plans that reflect community priorities
established by the local planning process.
(11) In conjunction with the Department of Human Services, the
state commission, as soon as possible, shall develop a plan to
re-engineer and integrate the data processing systems related to
children's programs with the objective of making management
information more accessible. The state commission shall make
regular presentations to the Joint Legislative Committee on
Information Management and Technology on its progress in
developing and implementing the plan.
(12) Before each regular session of the Legislative Assembly,
the state commission shall report, to the Governor and to the
appropriate joint interim committee as determined by the Speaker
of the House of Representatives and the President of the Senate,
the following:
(a) Any additional proposals contained in 'A Positive Future
for Oregon's Children and Families' by the 1991-1992 Oregon
Children's Care Team Interim Task Force that should be
undertaken;
(b) The status in all counties of local service systems related
to the health and wellness of children and the adequacy of
financial resources to deliver services;
Enrolled House Bill 2009 (HB 2009-C) Page 220
(c) The progress in achieving desired outcomes, including but
not limited to the statewide guidelines set by the state
commission under ORS 417.710 (1);
(d) Barriers to achieving intermediate and high-level outcome
targets as identified in local coordinated comprehensive plans;
(e) Proposed solutions to barriers identified under paragraph
(d) of this subsection, including proven, effective and
innovative strategies; and
(f) County and community mobilization to increase public
awareness and involvement and funding of community determined
priorities.
(13)(a) The state commission may solicit, accept and receive
federal moneys or moneys or other property from persons or
corporations, public or private, for the purpose of carrying out
the provisions of ORS 417.705 to 417.801 and 419A.170.
(b) All federal moneys collected or received under paragraph
(a) of this subsection shall be accepted and transferred or
expended by the state commission upon such terms and conditions
as are prescribed by the federal government.
(c) All moneys and other property accepted by the state
commission under this subsection shall be transferred, expended
or used upon such terms and conditions as are prescribed by the
donor in a manner consistent with applicable law.
(14) The state commission shall:
(a) Implement the recommendations of the Juvenile Crime
Prevention Advisory Committee, as approved by the Governor; and
(b) In cooperation with other state and federal agencies,
coordinate technical assistance efforts on a statewide and
county-specific basis relating to juvenile crime prevention
programs and services.
(15) The state commission may contract with local governments
or other entities to administer juvenile crime prevention
programs and services. In accordance with the applicable
provisions of ORS chapter 183, the state commission may adopt
rules necessary for the administration of juvenile crime
prevention programs and services.
SECTION 362. ORS 417.795 is amended to read:
417.795. (1) The State Commission on Children and Families
established under ORS 417.730 shall establish Healthy Start
Family Support Services programs through contracts entered into
by local commissions on children and families in all counties of
this state as funding becomes available.
(2) These programs shall be nonstigmatizing, voluntary and
designed to achieve the appropriate early childhood benchmarks
and shall:
(a) Ensure that express written consent is obtained from the
family prior to any release of information that is protected by
federal or state law and before the family receives any services;
(b) Ensure that services are voluntary and that, if a family
chooses not to accept services or ends services, there are no
adverse consequences for those decisions;
(c) Offer a voluntary comprehensive screening and risk
assessment of all newly born children and their families;
(d) Ensure that the disclosure of information gathered in
conjunction with the voluntary comprehensive screening and risk
assessment of children and their families is limited pursuant to
ORS 417.728 (6) to the following purposes:
(A) Providing services under the programs to children and
families who give their express written consent;
Enrolled House Bill 2009 (HB 2009-C) Page 221
(B) Providing statistical data that are not personally
identifiable;
(C) Accomplishing other purposes for which the family has given
express written consent; and
(D) Meeting the requirements of mandatory state and federal
disclosure laws;
(e) Ensure that risk factors used in the risk assessment are
limited to those risk factors that have been shown by research to
be associated with poor outcomes for children and families;
(f) Identify, as early as possible, families that would benefit
most from the programs;
(g) Provide parenting education and support services, including
but not limited to community-based home visiting services and
primary health care services;
(h) Provide other supports, including but not limited to
referral to and linking of community and public services for
children and families such as mental health services, alcohol and
drug treatment programs that meet the standards promulgated by
the
{ - Department of Human Services - } { + Oregon Health
Authority + } pursuant to ORS 430.357, child care, food, housing
and transportation;
(i) Coordinate services for children consistent with the
voluntary local early childhood system plan developed pursuant to
ORS 417.777;
(j) Provide follow-up services and supports from birth through
five years of age;
(k) Integrate data with any common data system for early
childhood programs implemented pursuant to section 7, chapter
831, Oregon Laws 2001;
(L) Be included in a statewide independent evaluation to
document:
(A) Level of screening and assessment;
(B) Incidence of child abuse and neglect;
(C) Change in parenting skills; and
(D) Rate of child development;
(m) Be included in a statewide training program in the dynamics
of the skills needed to provide early childhood services, such as
assessment and home visiting; and
(n) Meet voluntary statewide and local early childhood system
quality assurance and quality improvement standards.
(3) The Healthy Start Family Support Services programs, local
health departments and other providers of prenatal and perinatal
services in counties, as part of the voluntary local early
childhood system, shall:
(a) Identify existing services and describe and prioritize
additional services necessary for a voluntary home visit system;
(b) Build on existing programs;
(c) Maximize the use of volunteers and other community
resources that support all families;
(d) Target, at a minimum, all first birth families in the
county; and
(e) Ensure that home visiting services provided by local health
departments for children and pregnant women support and are
coordinated with local Healthy Start Family Support Services
programs.
(4) Through a Healthy Start Family Support Services program, a
trained family support worker or nurse shall be assigned to each
family assessed as at risk that consents to receive services
through the worker or nurse. The worker or nurse shall conduct
Enrolled House Bill 2009 (HB 2009-C) Page 222
home visits and assist the family in gaining access to needed
services.
(5) The services required by this section shall be provided by
hospitals, public or private entities or organizations, or any
combination thereof, capable of providing all or part of the
family risk assessment and the follow-up services. In granting a
contract, a local commission may utilize collaborative
contracting or requests for proposals and shall take into
consideration the most effective and consistent service delivery
system.
(6) The family risk assessment and follow-up services for
families at risk shall be provided by trained family support
workers or nurses organized in teams supervised by a manager and
including a family services coordinator who is available to
consult.
(7) Each Healthy Start Family Support Services program shall
adopt disciplinary procedures for family support workers, nurses
and other employees of the program. The procedures shall provide
appropriate disciplinary actions for family support workers,
nurses and other employees who violate federal or state law or
the policies of the program.
SECTION 363. ORS 417.845 is amended to read:
417.845. (1) The Juvenile Crime Prevention Advisory Committee
is created within the State Commission on Children and Families.
(2) The committee shall have the following members:
(a) The Director of the Oregon Youth Authority or a designee of
the director;
(b) The staff director of the State Commission on Children and
Families or a designee of the staff director;
(c) The Director of { - Human Services - } { + the Oregon
Health Authority + } or one or more designees of the director,
one of whom has expertise in treatment and prevention of
substance abuse;
(d) The executive director of the Oregon Criminal Justice
Commission or a designee of the executive director;
(e) The Superintendent of Public Instruction or a designee of
the superintendent;
(f) The Superintendent of State Police or a designee of the
superintendent;
(g) The Director of the Department of Corrections or a designee
of the director;
(h) One designee of the Governor;
(i) One member appointed by the President of the Senate, who
shall be a member of the Senate and who shall be a nonvoting,
advisory member;
(j) One member appointed by the Speaker of the House of
Representatives, who shall be a member of the House of
Representatives and who shall be a nonvoting, advisory member;
and
(k) One designee of the Chief Justice of the Supreme Court from
the Judicial Department who serves as a nonvoting member to
provide information and support the partnership role of the
courts in an effective comprehensive statewide approach to
high-risk youth and their families.
(3) In addition to the members listed in subsection (2) of this
section, the Governor shall appoint the following members who
shall be representative of the geographic and cultural diversity
of the state:
(a) To represent local public and private entities:
(A) A county commissioner;
Enrolled House Bill 2009 (HB 2009-C) Page 223
(B) A local juvenile director;
(C) A director of a local commission on children and families;
(D) Two law enforcement officials;
(E) A county mental health director;
(F) An alcohol and drug abuse professional;
(G) A school superintendent;
(H) A private youth service provider; and
(I) An elected city official;
(b) A researcher;
(c) A citizen member; and
(d) Other members as determined by the Governor.
(4) Each member of the committee appointed by the Governor
under subsection (3) of this section shall serve a term of four
years. Members appointed by the Governor shall serve at the
pleasure of the Governor. A vacancy in the office of any member
appointed by the Governor under subsection (3) of this section
shall be filled by the Governor by appointment for the unexpired
term.
(5) The Governor shall select one of the members of the
committee as chairperson and one of its members as vice
chairperson.
(6) The committee shall meet at times, places and intervals
deemed advisable by a majority of the members.
(7) The State Commission on Children and Families shall provide
staff support to the committee.
SECTION 363a. ORS 418.704 is amended to read:
418.704. There is established a Youth Suicide Prevention
Coordinator within the { - Department of Human Services - }
{ + Oregon Health Authority + }. The coordinator shall:
(1) Facilitate the development of a statewide strategic plan to
address youth suicide;
(2) Improve outreach to special populations of youth that are
at risk for suicide; and
(3) Provide technical assistance to state and local partners
and coordinate interagency efforts to establish prevention and
intervention strategies.
SECTION 363b. ORS 418.706 is amended to read:
418.706. The State Technical Assistance Team for child
fatalities is established in the { - Department of Human
Services - } { + Oregon Health Authority + }. The purpose of
the State Technical Assistance Team is to provide staff support
for the statewide interdisciplinary team, as described in ORS
418.748, and, upon request, to provide technical assistance to
the child fatality review teams established under ORS 418.785.
The duties of the State Technical Assistance Team shall include
but are not limited to:
(1) Designing, implementing and maintaining an information
management system for child fatalities;
(2) Providing training assistance and support for identified
individuals on county multidisciplinary child abuse teams in
accurate data collection and input;
(3) Compiling and analyzing data on child fatalities;
(4) Using data concerning child deaths to identify strategies
for the prevention of child fatalities and serving as a resource
center to promote the use of the strategies at the county level;
and
(5) Upon request of a county multidisciplinary child abuse
team, providing technical assistance and consultation services on
a variety of issues related to child fatalities including
Enrolled House Bill 2009 (HB 2009-C) Page 224
interagency agreements, team building, case review and prevention
strategies.
SECTION 364. ORS 419B.005 is amended to read:
419B.005. As used in ORS 419B.005 to 419B.050, unless the
context requires otherwise:
(1)(a) 'Abuse' means:
(A) Any assault, as defined in ORS chapter 163, of a child and
any physical injury to a child which has been caused by other
than accidental means, including any injury which appears to be
at variance with the explanation given of the injury.
(B) Any mental injury to a child, which shall include only
observable and substantial impairment of the child's mental or
psychological ability to function caused by cruelty to the child,
with due regard to the culture of the child.
(C) Rape of a child, which includes but is not limited to rape,
sodomy, unlawful sexual penetration and incest, as those acts are
defined in ORS chapter 163.
(D) Sexual abuse, as defined in ORS chapter 163.
(E) Sexual exploitation, including but not limited to:
(i) Contributing to the sexual delinquency of a minor, as
defined in ORS chapter 163, and any other conduct which allows,
employs, authorizes, permits, induces or encourages a child to
engage in the performing for people to observe or the
photographing, filming, tape recording or other exhibition which,
in whole or in part, depicts sexual conduct or contact, as
defined in ORS 167.002 or described in ORS 163.665 and 163.670,
sexual abuse involving a child or rape of a child, but not
including any conduct which is part of any investigation
conducted pursuant to ORS 419B.020 or which is designed to serve
educational or other legitimate purposes; and
(ii) Allowing, permitting, encouraging or hiring a child to
engage in prostitution, as defined in ORS chapter 167.
(F) Negligent treatment or maltreatment of a child, including
but not limited to the failure to provide adequate food,
clothing, shelter or medical care that is likely to endanger the
health or welfare of the child.
(G) Threatened harm to a child, which means subjecting a child
to a substantial risk of harm to the child's health or welfare.
(H) Buying or selling a person under 18 years of age as
described in ORS 163.537.
(I) Permitting a person under 18 years of age to enter or
remain in or upon premises where methamphetamines are being
manufactured.
(J) Unlawful exposure to a controlled substance, as defined in
ORS 475.005, that subjects a child to a substantial risk of harm
to the child's health or safety.
(b) 'Abuse' does not include reasonable discipline unless the
discipline results in one of the conditions described in
paragraph (a) of this subsection.
(2) 'Child' means an unmarried person who is under 18 years of
age.
(3) 'Public or private official' means:
(a) Physician, including any intern or resident.
(b) Dentist.
(c) School employee.
(d) Licensed practical nurse or registered nurse.
(e) Employee of the Department of Human Services, { + Oregon
Health Authority, + } State Commission on Children and Families,
Child Care Division of the Employment Department, the Oregon
Enrolled House Bill 2009 (HB 2009-C) Page 225
Youth Authority, a county health department, a community mental
health
{ - and - } { + program, a community + } developmental
disabilities program, a county juvenile department, a licensed
child-caring agency or an alcohol and drug treatment program.
(f) Peace officer.
(g) Psychologist.
(h) Member of the clergy.
(i) Licensed clinical social worker.
(j) Optometrist.
(k) Chiropractor.
(L) Certified provider of foster care, or an employee thereof.
(m) Attorney.
(n) Naturopathic physician.
(o) Licensed professional counselor.
(p) Licensed marriage and family therapist.
(q) Firefighter or emergency medical technician.
(r) A court appointed special advocate, as defined in ORS
419A.004.
(s) A child care provider registered or certified under ORS
657A.030 and 657A.250 to 657A.450.
(t) Member of the Legislative Assembly.
(4) 'Law enforcement agency' means:
(a) Any city or municipal police department.
(b) Any county sheriff's office.
(c) The Oregon State Police.
(d) A county juvenile department.
SECTION 365. ORS 419B.839 is amended to read:
419B.839. (1) Summons in proceedings to establish jurisdiction
under ORS 419B.100 must be served on:
(a) The parents of the child without regard to who has legal or
physical custody of the child;
(b) The legal guardian of the child;
(c) A putative father of the child who satisfies the criteria
set out in ORS 419B.875 (1)(a)(C), except as provided in
subsection (4) of this section;
(d) A putative father of the child if notice of the initiation
of filiation or paternity proceedings was on file with the Center
for Health Statistics of the { - Department of Human
Services - } { + Oregon Health Authority + } prior to the
initiation of the juvenile court proceedings, except as provided
in subsection (4) of this section;
(e) The person who has physical custody of the child, if the
child is not in the physical custody of a parent; and
(f) The child, if the child is 12 years of age or older.
(2) If it appears to the court that the welfare of the child or
of the public requires that the child immediately be taken into
custody, the court may indorse an order on the summons directing
the officer serving it to take the child into custody.
(3) Summons may be issued requiring the appearance of any
person whose presence the court deems necessary.
(4) Summons under subsection (1) of this section is not
required to be given to a putative father whom a court of
competent jurisdiction has found not to be the child's legal
father or who has filed a petition for filiation that was
dismissed if no appeal from the judgment or order is pending.
(5) If a guardian ad litem has been appointed for a parent
under ORS 419B.231, a copy of a summons served on the parent
under this section must be provided to the guardian ad litem.
SECTION 366. ORS 419C.239 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 226
419C.239. (1) A formal accountability agreement shall:
(a) Be completed within a period of time not to exceed one
year;
(b) Be voluntarily entered into by all parties;
(c) Be revocable by the youth at any time by a written
revocation;
(d) Be revocable by the juvenile department in the event the
department has reasonable cause to believe the youth has failed
to carry out the terms of the formal accountability agreement or
has committed a subsequent offense;
(e) Not be used as evidence against the youth at any
adjudicatory hearing;
(f) Be executed in writing and expressed in language
understandable to the persons involved;
(g) Be signed by the juvenile department, the youth, the
youth's parent or parents or legal guardian, and the youth's
counsel, if any;
(h) Become part of the youth's juvenile department record; and
(i) When the youth has been charged with having committed the
youth's first violation of a provision under ORS 475.860 (3)(b)
or 475.864 (3) and unless the juvenile department determines that
it would be inappropriate in the particular case:
(A) Require the youth to participate in a diagnostic assessment
and an information or treatment program as recommended by the
assessment. The agencies or organizations providing assessment or
programs of information or treatment must be the same as those
designated by the court under ORS 419C.443 (1) and must meet the
standards set by the Director of { - Human Services - }
{ + the Oregon Health Authority + }. The parent of the youth
shall pay the cost of the youth's participation in the program
based upon the ability of the parent to pay.
(B) Monitor the youth's progress in the program which shall be
the responsibility of the diagnostic assessment agency or
organization. It shall make a report to the juvenile department
stating the youth's successful completion or failure to complete
all or any part of the program specified by the diagnostic
assessment. The form of the report shall be determined by
agreement between the juvenile department and the diagnostic
assessment agency or organization. The juvenile department shall
make the report a part of the record of the case.
(2) Notwithstanding any other provision of law, the following
information contained in a formal accountability agreement under
ORS 419C.230 is not confidential and is not exempt from
disclosure:
(a) The name and date of birth of the youth;
(b) The act alleged; and
(c) The portion of the agreement providing for the disposition
of the youth.
SECTION 367. ORS 419C.443 is amended to read:
419C.443. (1) Except when otherwise provided in subsection (3)
of this section, when a youth offender has been found to be
within the jurisdiction of the court under ORS 419C.005 for a
first violation of the provisions under ORS 475.860 (3)(b) or
475.864 (3), the court shall order an evaluation and designate
agencies or organizations to perform diagnostic assessment and
provide programs of information and treatment. The designated
agencies or organizations must meet the standards set by the
Director of { - Human Services - } { + the Oregon Health
Authority + }. Whenever possible, the court shall designate
agencies or organizations to perform the diagnostic assessment
Enrolled House Bill 2009 (HB 2009-C) Page 227
that are separate from those that may be designated to carry out
a program of information or treatment. The parent of the youth
offender shall pay the cost of the youth offender's participation
in the program based upon the ability of the parent to pay. The
petition shall be dismissed by the court upon written
certification of the youth offender's successful completion of
the program from the designated agency or organization providing
the information and treatment.
(2) Monitoring the youth offender's progress in the program
shall be the responsibility of the diagnostic assessment agency
or organization. The agency or organization shall make a report
to the court stating the youth offender's successful completion
or failure to complete all or any part of the program specified
by the diagnostic assessment. The form of the report shall be
determined by agreement between the court and the diagnostic
assessment agency or organization. The court shall make the
report a part of the record of the case.
(3) The court is not required to make the disposition required
by subsection (1) of this section if the court determines that
the disposition is inappropriate in the case or if the court
finds that the youth offender has previously entered into a
formal accountability agreement under ORS 419C.239 (1)(i).
SECTION 368. ORS 419C.507 is amended to read:
419C.507. The court may, in lieu of or in addition to any
disposition under this chapter, direct that a youth offender be
examined or treated by a physician, psychiatrist or psychologist,
or receive other special care or treatment in a hospital or other
suitable facility. If the court determines that mental health
examination and treatment should be provided by services
delivered through the { - Department of Human Services, the
department - } { + Oregon Health Authority, the Department of
Human Services + } shall determine the appropriate placement or
services in consultation with the court, the Oregon Youth
Authority and other affected agencies. If the youth authority or
another affected agency objects to the type of placement or
services, the court shall determine the appropriate type of
placement or service. During the examination or treatment of the
youth offender, the department may, if appropriate, be appointed
guardian of the youth offender.
SECTION 369. ORS 419C.529 is amended to read:
419C.529. (1) After the entry of a jurisdictional order under
ORS 419C.411 (2), if the court finds by a preponderance of the
evidence that the young person, at the time of disposition, has a
serious mental condition or has a mental disease or defect other
than a serious mental condition and presents a substantial danger
to others, requiring conditional release or commitment to a
hospital or facility designated on an individual case basis by
the Department of Human Services { + or the Oregon Health
Authority + } as provided in subsection (6) of this section, the
court shall order the young person placed under the jurisdiction
of the Psychiatric Security Review Board.
(2) The court shall determine whether the young person should
be committed to a hospital or facility designated on an
individual case basis by the department { + or the
authority + }, as provided in subsection (6) of this section, or
conditionally released pending a hearing before the juvenile
panel of the Psychiatric Security Review Board as follows:
(a) If the court finds that the young person is not a proper
subject for conditional release, the court shall order the young
person committed to a secure hospital or a secure intensive
Enrolled House Bill 2009 (HB 2009-C) Page 228
community inpatient facility designated on an individual case
basis by the department { + or the authority + }, as provided in
subsection (6) of this section, for custody, supervision and
treatment pending a hearing before the juvenile panel in
accordance with ORS 419C.532, 419C.535, 419C.538, 419C.540 and
419C.542 and shall order the young person placed under the
jurisdiction of the board.
(b) If the court finds that the young person can be adequately
controlled with supervision and treatment services if
conditionally released and that necessary supervision and
treatment services are available, the court may order the young
person conditionally released, subject to those supervisory
orders of the court that are in the best interests of justice and
the young person. The court shall designate a qualified mental
health or developmental disabilities treatment provider or state,
county or local agency to supervise the young person on release,
subject to those conditions as the court directs in the order for
conditional release. Prior to the designation, the court shall
notify the qualified mental health or developmental disabilities
treatment provider or agency to whom conditional release is
contemplated and provide the qualified mental health or
developmental disabilities treatment provider or agency an
opportunity to be heard before the court. After receiving an
order entered under this paragraph, the qualified mental health
or developmental disabilities treatment provider or agency
designated shall assume supervision of the young person subject
to the direction of the juvenile panel. The qualified mental
health or developmental disabilities treatment provider or agency
designated as supervisor shall report in writing no less than
once per month to the juvenile panel concerning the supervised
young person's compliance with the conditions of release.
(c) For purposes of determining whether to order commitment to
a hospital or facility or conditional release, the primary
concern of the court is the protection of society.
(3) In determining whether a young person should be
conditionally released, the court may order examinations or
evaluations deemed necessary.
(4) Upon placing a young person on conditional release and
ordering the young person placed under the jurisdiction of the
board, the court shall notify the juvenile panel in writing of
the court's conditional release order, the supervisor designated
and all other conditions of release pending a hearing before the
juvenile panel in accordance with ORS 419C.532, 419C.535,
419C.538, 419C.540 and 419C.542.
(5) When making an order under this section, the court shall:
(a) Determine whether the parent or guardian of the young
person is able and willing to assist the young person in
obtaining necessary mental health or developmental disabilities
services and is willing to acquiesce in the decisions of the
juvenile panel. If the court finds that the parent or guardian:
(A) Is able and willing to do so, the court shall order the
parent or guardian to sign an irrevocable consent form in which
the parent agrees to any placement decision made by the juvenile
panel.
(B) Is unable or unwilling to do so, the court shall order that
the young person be placed in the legal custody of the Department
of Human Services for the purpose of obtaining necessary
{ - mental health or - } developmental disabilities services
{ + or the Oregon Health Authority for the purpose of obtaining
necessary mental health services + }.
Enrolled House Bill 2009 (HB 2009-C) Page 229
(b) Make specific findings on whether there is a victim and, if
so, whether the victim wishes to be notified of any board
hearings concerning the young person and of any conditional
release, discharge or escape of the young person.
(c) Include in the order a list of the persons who wish to be
notified of any board hearing concerning the young person.
(d) Determine on the record the act committed by the young
person for which the young person was found responsible except
for insanity.
(e) State on the record the mental disease or defect on which
the young person relied for the responsible except for insanity
defense.
(6) When the department designates { + a facility for the
commitment of a developmentally disabled young person under this
section, or the authority designates + } a hospital or facility
for commitment of a { + mentally ill + } young person under this
section, the department { + and the authority + } shall take
into account the care and treatment needs of the young person,
the resources { - of the department - } { + available to the
department or the authority + } and the safety of the public.
SECTION 370. ORS 419C.530 is amended to read:
419C.530. The juvenile panel of the Psychiatric Security Review
Board exercises continuing jurisdiction over a young person
committed to, or retained in, a hospital or facility designated
by the Department of Human Services { + or the Oregon Health
Authority + } under ORS 419C.529. If the board determines after
review that the placement of a young person in the particular
hospital or facility is so inappropriate as to create a
substantial danger to others, the board may direct the department
{ + or the authority + } to place the young person in a specific
type of facility or direct specific care or supervision, but the
actual placement of the young person is the responsibility of the
department { + or the authority + }.
SECTION 371. ORS 419C.532 is amended to read:
419C.532. (1) The juvenile panel of the Psychiatric Security
Review Board shall conduct hearings on an application for
discharge, conditional release, commitment or modification filed
under or required by ORS 419C.538, 419C.540 and 419C.542, and
shall make findings on the issues before the juvenile panel.
(2) In every hearing before the juvenile panel, the juvenile
panel shall determine whether the young person:
(a) Has a serious mental condition; or
(b) Has a mental disease or defect other than a serious mental
condition and presents a substantial danger to others.
(3) The juvenile panel shall order a young person discharged
from commitment or conditional release if the juvenile panel
finds that the young person:
(a) No longer has a mental disease or defect; or
(b) Has a mental disease or defect other than a serious mental
condition but no longer presents a substantial danger to others.
(4) The juvenile panel shall order a young person conditionally
released subject to ORS 419C.538 if the juvenile panel finds
that:
(a) The young person:
(A) Has a serious mental condition; or
(B) Has a mental disease or defect other than a serious mental
condition and presents a substantial danger to others;
(b) The young person can be adequately controlled with
treatment services as a condition of release; and
(c) Necessary supervision and treatment services are available.
Enrolled House Bill 2009 (HB 2009-C) Page 230
(5) The juvenile panel shall order a young person committed to,
or retained in, a hospital or facility designated by the
Department of Human Services { + or the Oregon Health
Authority + } for custody, supervision and treatment subject to
ORS 419C.540 if the juvenile panel finds that the young person:
(a)(A) Has a serious mental condition; or
(B) Has a mental disease or defect other than a serious mental
condition and presents a substantial danger to others; and
(b) Cannot be adequately controlled if conditionally released.
(6) In determining whether a young person should be committed
to or retained in a hospital or facility, conditionally released
or discharged, the primary concern of the juvenile panel is the
protection of society.
(7) In a hearing before the juvenile panel, a young person who
has a mental disease or defect in a state of remission is
considered to have a mental disease or defect if the mental
disease or defect may, with reasonable medical probability,
occasionally become active.
(8) At any time, the juvenile panel may appoint a psychiatrist
certified, or eligible to be certified, by the Oregon Medical
Board in child psychiatry or a licensed psychologist with
expertise in child psychology to examine the young person and
submit a written report to the juvenile panel. Reports filed with
the juvenile panel pursuant to the examination must include, but
need not be limited to, an opinion as to whether the young
person:
(a)(A) Has a serious mental condition; or
(B) Has a mental disease or defect other than a serious mental
condition and presents a substantial danger to others; and
(b) Could be adequately controlled with treatment services as a
condition of release.
(9) The juvenile panel may make a determination regarding
discharge or conditional release based upon the written report
submitted under subsection (8) of this section or ORS 419C.540
(3). If a member of the juvenile panel desires further
information from the examining psychiatrist or licensed
psychologist who submitted the report, the juvenile panel shall
summon the psychiatrist or psychologist to give testimony.
(10) The juvenile panel shall consider all available evidence
that is material, relevant and reliable regarding the issues
before the juvenile panel. Evidence may include, but is not
limited to, the record of the juvenile court adjudication,
information supplied by the attorney representing the state or by
any other interested person, including the young person,
information concerning the young person's mental condition and
the entire psychiatric and juvenile court history of the young
person. All evidence of a type commonly relied upon by
reasonably prudent persons in the conduct of their serious
affairs is admissible at the hearings. Testimony must be taken
upon oath or affirmation of the witness from whom received. The
officer presiding at the hearing shall administer oaths and
affirmations to witnesses.
(11) The standard of proof on all issues at a hearing of the
juvenile panel is by a preponderance of the evidence.
(12)(a) The juvenile panel shall furnish written notice of any
hearing pending under this section within a reasonable time prior
to the hearing to:
(A) The young person about whom the hearing is being conducted;
(B) The attorney representing the young person;
(C) The young person's parents or guardians, if known;
Enrolled House Bill 2009 (HB 2009-C) Page 231
(D) The person having legal custody of the young person;
(E) The Attorney General or other attorney representing the
state, if any; and
(F) The district attorney and the court or juvenile department
of the county in which the young person was adjudicated.
(b) The juvenile panel shall include in the notice required by
paragraph (a) of this subsection:
(A) The time, place and location of the hearing;
(B) The nature of the hearing, the specific action for which
the hearing has been requested, the issues to be considered at
the hearing and a reference to the particular sections of the
statutes and rules involved;
(C) A statement of the authority and jurisdiction under which
the hearing is to be held; and
(D) A statement of all rights under subsection (13) of this
section.
(13) A young person about whom a hearing is being held has the
right:
(a) To appear at all proceedings held under this section,
except juvenile panel deliberations.
(b) To cross-examine all witnesses appearing to testify at the
hearing.
(c) To subpoena witnesses and documents as provided in ORS
161.395.
(d) To be represented by suitable legal counsel possessing
skills and experience commensurate with the nature and complexity
of the case, to consult with counsel prior to the hearing and, if
financially eligible, to have suitable counsel appointed at state
expense.
(e) To examine all information, documents and reports that the
juvenile panel considers and, if the information, documents and
reports are available to the juvenile panel before the hearing,
to examine them prior to the hearing.
(14) Except for deliberations of the juvenile panel, the
juvenile panel shall keep a record of all hearings before the
juvenile panel.
(15) Upon request of a person listed in subsection (12)(a) of
this section or on its own motion, the juvenile panel may
continue a hearing for a reasonable period not to exceed 60 days
to obtain additional information or testimony or for other good
cause shown.
(16) Within 15 days after the conclusion of the hearing, the
juvenile panel shall provide written notice of the juvenile
panel's decision to the young person, the attorney representing
the young person, the young person's parents or guardians, if
known, the person having legal custody of the young person, the
district attorney of the county in which the young person was
adjudicated and the Attorney General or other attorney
representing the state, if any.
(17) The juvenile panel shall maintain and keep current the
medical, social and delinquency history of all young persons. The
juvenile panel shall determine the confidentiality of records
maintained by the juvenile panel pursuant to ORS 192.501 to
192.505.
SECTION 372. ORS 419C.533 is amended to read:
419C.533. (1) The juvenile panel of the Psychiatric Security
Review Board, by rule pursuant to ORS 183.325 to 183.410 and not
inconsistent with law, may implement its policies and set out its
procedure and practice requirements and may promulgate such
Enrolled House Bill 2009 (HB 2009-C) Page 232
interpretive rules as the panel deems necessary or appropriate to
carry out its statutory responsibilities.
(2) The juvenile panel of the Psychiatric Security Review Board
shall adopt rules defining the type of dangerous behavior that
requires the temporary placement of a young person with mental
retardation in a secure hospital or facility.
(3) The juvenile panel of the Psychiatric Security Review Board
shall consult with the Department of Human Services { + about
proposed rules relating to developmental disabilities and the
Oregon Health Authority about proposed rules relating to mental
illness + } before issuing proposed rules for public comment and
before adopting rules under this section.
SECTION 373. ORS 419C.538 is amended to read:
419C.538. (1) When the juvenile panel of the Psychiatric
Security Review Board orders a young person conditionally
released under ORS 419C.532 (4), the juvenile panel may designate
a qualified mental health or developmental disabilities treatment
provider or state, county or local agency to supervise the young
person on release subject to those conditions as the juvenile
panel directs in the order for conditional release. Prior to the
designation, the juvenile panel shall notify the qualified mental
health or developmental disabilities treatment provider or agency
to whom conditional release is contemplated and provide the
qualified mental health or developmental disabilities treatment
provider or agency an opportunity to be heard before the juvenile
panel. After receiving an order entered under ORS 419C.532 (4),
the qualified mental health or developmental disabilities
treatment provider or agency designated shall assume supervision
of the young person pursuant to the direction of the juvenile
panel.
(2) Conditions of release contained in orders entered under ORS
419C.532 (4) may be modified from time to time and conditional
release may be terminated by order of the juvenile panel as
provided in ORS 419C.532 and 419C.542.
(3)(a) As a condition of release, the juvenile panel may
require the young person to report to any state, county or local
mental health or developmental disabilities facility for
evaluation. Whenever medical, psychiatric or psychological
treatment is recommended, the juvenile panel may order the young
person, as a condition of release, to cooperate with and accept
the treatment of the facility.
(b) The facility to which the young person has been referred
for evaluation shall perform the evaluation and submit a written
report of its findings to the juvenile panel. If the facility
finds that treatment of the young person is appropriate, the
facility shall include its recommendations for treatment in the
report to the juvenile panel.
(c) Whenever treatment is provided by the facility, the
facility shall furnish reports to the juvenile panel on a regular
basis concerning the progress of the young person.
(d) The facility shall comply with any other conditions of
release prescribed by order of the juvenile panel.
(4) If at any time it appears to the juvenile panel or the
chairperson of the juvenile panel that a young person has
violated the terms of conditional release or that the mental
health of the young person has changed, the juvenile panel or the
chairperson of the juvenile panel may order the young person
returned to a hospital or facility designated by the Department
of Human Services { + or the Oregon Health Authority + } for
evaluation and treatment. A written order of the juvenile panel,
Enrolled House Bill 2009 (HB 2009-C) Page 233
or the chairperson of the juvenile panel on behalf of the
juvenile panel, is sufficient warrant for any peace officer to
take the young person into custody and transport the young person
accordingly. A peace officer shall execute the order, and the
young person shall be returned as soon as practicable to a
facility designated by the department { + or the authority + }.
Within 20 days following the return of the young person to the
facility designated by the department { + or the authority + },
the juvenile panel shall conduct a hearing. At a hearing required
by this subsection, the state has the burden of proving the young
person's lack of fitness for conditional release.
(5) The community mental health { - and - } { + program
director, the community + } developmental disabilities program
director, the director of the facility providing treatment for
the young person on conditional release, a peace officer or a
person responsible for the supervision of a young person on
conditional release may take a young person into custody or
request that the young person be taken into custody if there is
reasonable cause to believe the young person presents a
substantial danger to others and that the young person is in need
of immediate custody, supervision and treatment. A young person
taken into custody under this subsection must immediately be
transported to a hospital or facility designated by the
department { + or the authority + }. Within 20 days following
the return of the young person to the facility designated by the
department { + or the authority + }, the juvenile panel shall
conduct a hearing. At a hearing required by this subsection, the
state has the burden of proving the young person's lack of
fitness for conditional release.
(6)(a) A young person conditionally released under ORS 419C.532
(4) may apply to the juvenile panel for discharge from or
modification of an order of conditional release on the ground
that the young person no longer has a mental disease or defect
or, if affected by a mental disease or defect other than a
serious mental condition, no longer presents a substantial danger
to others and no longer requires supervision or treatment
services. Within 60 days after receiving an application under
this paragraph, the juvenile panel shall conduct a hearing. At a
hearing required by this paragraph, the young person has the
burden of proving the young person's fitness for discharge or
modification of the order of conditional release. A young person
may not apply for discharge or modification of conditional
release more often than once every six months.
(b) Upon application by any qualified mental health or
developmental disabilities treatment provider or state, county or
local agency responsible for supervision or treatment services
pursuant to an order of conditional release, the juvenile panel
shall conduct a hearing to determine if the conditions of release
should be continued, modified or terminated. The application must
be accompanied by a report setting forth the facts supporting the
application. At a hearing required by this paragraph, the state
has the burden of proving the young person's lack of fitness for
discharge or modification of the order of conditional release.
SECTION 374. ORS 419C.542 is amended to read:
419C.542. (1) A young person committed by the court under ORS
419C.529 to a hospital or facility designated by the Department
of Human Services { + or the Oregon Health Authority + } may not
be held in the hospital or facility for more than 90 days from
the date of the court's commitment order without an initial
hearing before the juvenile panel of the Psychiatric Security
Enrolled House Bill 2009 (HB 2009-C) Page 234
Review Board to determine whether the young person should be
discharged or conditionally released.
(2) A young person may not be held pursuant to an order under
ORS 419C.532 (5) for a period of time exceeding one year without
a hearing before the juvenile panel to determine whether the
young person should be discharged or conditionally released.
(3) When a young person has spent three years on conditional
release, the juvenile panel shall bring the young person before
the juvenile panel no later than 30 days after the expiration of
the three-year period. The juvenile panel shall review the young
person's status and determine whether the young person should be
discharged from the jurisdiction of the board.
(4) Notwithstanding the fact that a young person who is brought
before the juvenile panel under subsection (3) of this section
continues to have a serious mental condition, the juvenile panel
may discharge the young person if the young person did not
exhibit behaviors that presented a substantial danger to others
during the period of conditional release and no longer requires
supervision by the juvenile panel.
SECTION 375. ORS 420.505 is amended to read:
420.505. (1) A youth offender at a youth correction facility
may apply for admission to a hospital or facility designated by
the Department of Human Services { + or the Oregon Health
Authority + }. 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 facility and shall request the examination of the
youth offender by one or more qualified persons employed or
designated by the department { + or the Oregon Health
Authority + }. The examination conducted or authorized by the
department { + or the Oregon Health Authority + } 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 has a mental illness and that
it would be in the best interests of the youth offender to be
admitted to a hospital or facility designated by the
department { + or the Oregon Health Authority + }, the
superintendent shall notify the department { + or the Oregon
Health Authority + } and shall order the youth offender
transferred pursuant to ORS 179.473.
(4) No youth offender at a youth correction facility
voluntarily admitted to a hospital or facility designated by the
department { + or the Oregon Health Authority + } 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
Enrolled House Bill 2009 (HB 2009-C) Page 235
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 hospital
or facility designated by the department { + or the Oregon
Health Authority + }.
SECTION 376. ORS 420.870 is amended to read:
420.870. Approval of the youth care center by the Oregon Youth
Authority, required by ORS 420.865, shall be based on reasonable
and satisfactory assurance that:
(1) Adequate physical facilities exist which comply with
applicable rules of the Department of Human Services { + , the
Oregon Health Authority + } and the State Fire Marshal.
(2) There is employment of capable and trained or experienced
personnel.
(3) The youth care programs include educational, vocational,
recreational and counseling opportunities that will be in the
best interests of the youth.
(4) A county must demonstrate that an adequate probation system
for youths exists in the county in order to be eligible for state
support for a youth care center.
SECTION 377. ORS 420A.135 is amended to read:
420A.135. (1) The Oregon Youth Authority may establish up to
five secure regional youth facilities.
(2) A secure regional youth facility shall:
(a) Provide secure incarceration;
(b) Provide education and job and life skills training
including, but not limited to, anger management and self-control;
and
(c) Include a drug and alcohol treatment component that meets
the standards promulgated by the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
430.357.
(3) The Director of the Oregon Youth Authority is solely
responsible for determining which persons committed to, or placed
in the custody of, the youth authority are eligible to
participate in, and are accepted for placement in, a secure
regional youth facility. The juvenile court may recommend to the
Oregon Youth Authority that a youth offender be placed in a
secure regional youth facility, but the recommendation is not
binding on the youth authority.
SECTION 378. ORS 420A.145 is amended to read:
420A.145. (1) The Oregon Youth Authority may establish up to
eight regional youth accountability camps.
(2) A regional youth accountability camp shall:
(a) Be based on a military basic training model that includes
discipline, physical work, physical exercise and military drill;
(b) Provide for cognitive restructuring in conformance with
generally accepted rehabilitative standards; and
(c) Include a drug and alcohol treatment component that meets
the standards promulgated by the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
430.357.
(3) The youth authority may contract with all of the governing
bodies of the counties in a region to administer cooperatively a
regional youth accountability camp subject to the provisions of
ORS 420.011, 420.014, 420A.108 and 420A.111 (5).
(4) The youth authority may contract with any private agency to
administer a regional youth accountability camp subject to the
provisions of ORS 420A.108 and 420A.111 (5).
SECTION 379. ORS 420A.155 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 236
420A.155. (1) The Oregon Youth Authority may establish up to
four regional residential academies.
(2) A regional residential academy shall:
(a) Provide a secure, closed residential campus;
(b) Provide year-round education, job and life skills training,
vocational training and apprenticeship programs; and
(c) Include a drug and alcohol treatment component that meets
the standards promulgated by the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
430.357.
(3) The youth authority may contract with all of the governing
bodies of the counties in a region to administer cooperatively a
regional residential academy subject to the provisions of ORS
420.011, 420.014, 420A.108 and 420A.111 (5).
(4) The youth authority may contract with any private agency to
administer a regional residential academy subject to the
provisions of ORS 420A.108 and 420A.111 (5).
(5) The Director of the Oregon Youth Authority is solely
responsible for determining which persons committed to, or placed
in the physical custody of, the youth authority are eligible to
participate in, and are accepted for, a regional residential
academy. The juvenile court may recommend to the Oregon Youth
Authority that a youth offender be placed in a regional
residential academy, but the recommendation is not binding on the
youth authority.
SECTION 380. ORS 421.504 is amended to read:
421.504. (1) The Department of Corrections, in consultation
with the Oregon Criminal Justice Commission, shall establish a
special alternative incarceration program stressing a highly
structured and regimented routine. The program:
(a) Shall reflect evidence-based practices;
(b) Shall include a component of intensive self-discipline,
physical work and physical exercise;
(c) Shall provide for cognitive restructuring in conformance
with generally accepted rehabilitative standards;
(d) May include a drug and alcohol treatment component that
meets the standards promulgated by the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
430.357; and
(e) Shall be at least 270 days' duration.
(2) The department shall provide capital improvements and
capital construction necessary for the implementation of the
program.
(3) Notwithstanding subsection (1) of this section, the
department may convert the special alternative incarceration
program required by this section into an intensive alternative
incarceration addiction program as described in ORS 421.506 if
the department determines that the needs of offenders in the
department's custody would be better served by an intensive
alternative incarceration addiction program than by the special
alternative incarceration program.
SECTION 381. ORS 426.005 is amended to read:
426.005. (1) As used in ORS 426.005 to 426.390, unless the
context requires otherwise:
(a) { - ' Department' means the Department of Human
Services - } { + ' Authority' means the Oregon Health
Authority + }.
(b) 'Director of the facility' means a superintendent of a
state mental hospital, the chief of psychiatric services in a
Enrolled House Bill 2009 (HB 2009-C) Page 237
community hospital or the person in charge of treatment and
rehabilitation programs at other treatment facilities.
(c) 'Facility' means a state mental hospital, community
hospital, residential facility, detoxification center, day
treatment facility or such other facility as the
{ - department - } { + authority + } determines suitable, any
of which may provide diagnosis and evaluation, medical care,
detoxification, social services or rehabilitation for committed
mentally ill persons.
(d) 'Mentally ill person' means a person who, because of a
mental disorder, is one or more of the following:
(A) Dangerous to self or others.
(B) Unable to provide for basic personal needs and is not
receiving such care as is necessary for health or safety.
(C) A person:
(i) With a chronic mental illness, as defined in ORS 426.495;
(ii) Who, within the previous three years, has twice been
placed in a hospital or approved inpatient facility by the
{ - department - } { + authority + } under ORS 426.060;
(iii) Who is exhibiting symptoms or behavior substantially
similar to those that preceded and led to one or more of the
hospitalizations or inpatient placements referred to in
sub-subparagraph (ii) of this subparagraph; and
(iv) Who, unless treated, will continue, to a reasonable
medical probability, to physically or mentally deteriorate so
that the person will become a person described under either
subparagraph (A) or (B) of this paragraph or both.
(e) 'Nonhospital facility' means any facility, other than a
hospital, that is approved by the { - department - } { +
authority + } to provide adequate security, psychiatric, nursing
and other services to persons under ORS 426.232 or 426.233.
(f) 'Prehearing period of detention' means a period of time
calculated from the initiation of custody during which a person
may be detained under ORS 426.228, 426.231, 426.232 or 426.233.
(2) Whenever a community mental health { - and developmental
disabilities program - } director, director of the facility,
superintendent of a state hospital or administrator of a facility
is referred to, the reference includes any designee such person
has designated to act on the person's behalf in the exercise of
duties.
SECTION 382. ORS 426.010 is amended to read:
426.010. Except as otherwise ordered by the { - Department of
Human Services - } { + Oregon Health Authority + } pursuant to
ORS 179.325, the Oregon State Hospital in Salem, Marion County,
and the Blue Mountain Recovery Center in Pendleton, Umatilla
County, shall be used as state hospitals for the care and
treatment of mentally ill persons who are assigned to the care of
such institutions by the
{ - department - } { + authority + } or who have previously
been committed to such institutions.
SECTION 383. ORS 426.020 is amended to read:
426.020. The superintendent of a hospital referred to in ORS
426.010 shall be a person the { - Department of Human
Services - } { + Oregon Health Authority + } considers
qualified to administer the hospital. If the superintendent of
any hospital is a physician licensed by the Oregon Medical Board,
the superintendent shall serve as chief medical officer. If the
superintendent is not a physician, the Director of { - Human
Services - } { + the Oregon Health Authority + } or the
Enrolled House Bill 2009 (HB 2009-C) Page 238
designee of the director shall appoint a physician to serve as
chief medical officer who shall be in the unclassified service.
SECTION 384. ORS 426.060 is amended to read:
426.060. (1) Commitments to the { - Department of Human
Services - } { + Oregon Health Authority + } shall be made only
by the judge of a circuit court in a county of this state.
(2) The following is a nonexclusive list of powers the
{ - department - } { + authority + } may exercise concerning
the placement of persons committed or persons receiving emergency
care and treatment under ORS 426.070, 426.228 to 426.235 or
426.237:
(a) In its discretion and for reasons which are satisfactory to
the { - department - } { + authority + }, the
{ - department - } { + authority + } may direct any
court-committed person to the facility best able to treat the
person. The { - authority of the department - } { + decision
of the authority + } on such matters shall be final.
(b) At any time, for good cause and in the best interest of the
mentally ill person, the { - department - } { + authority + }
may transfer a committed person from one facility to another.
When transferring a person under this paragraph, the
{ - department - } { + authority + } shall make the transfer:
(A) If the transfer is from a facility in one class to a
facility of the same class, as provided by rule of the
{ - department - } { + authority + };
(B) If the transfer is from a facility in one class to a
facility in a less restrictive class, by following the procedures
for trial visits under ORS 426.273; and
(C) If the transfer is from a facility in one class to a
facility in a more restrictive class, by following the procedures
under ORS 426.275.
(c) At any time, for good cause and in the best interest of the
mentally ill person, the { - department - } { + authority + }
may transfer a person receiving emergency care and treatment
under ORS 426.070 or 426.228 to 426.235, or intensive treatment
under ORS 426.237, between hospitals and nonhospital facilities
approved by the
{ - department - } { + authority + } to provide emergency
care or treatment as defined by rule of the { - department - }
{ + authority + }.
(d) Pursuant to its rules, the { - department - } { +
authority + } may delegate to a community mental health { - and
developmental disabilities - } program director the
responsibility for assignment of mentally ill persons to suitable
facilities or transfer between such facilities under conditions
which the { - department - } { + authority + } may define.
SECTION 385. ORS 426.070 is amended to read:
426.070. (1) Any of the following may initiate commitment
procedures under this section by giving the notice described
under subsection (2) of this section:
(a) Two persons;
(b) The county health officer; or
(c) Any magistrate.
(2) For purposes of subsection (1) of this section, the notice
must comply with the following:
(a) It must be in writing under oath;
(b) It must be given to the community mental health { - and
developmental disabilities - } program director or a designee of
the director in the county where the allegedly mentally ill
person resides;
Enrolled House Bill 2009 (HB 2009-C) Page 239
(c) It must state that a person within the county other than
the person giving the notice is a mentally ill person and is in
need of treatment, care or custody;
(d) If the commitment proceeding is initiated by two persons
under subsection (1)(a) of this section, it may include a request
that the court notify the two persons:
(A) Of the issuance or nonissuance of a warrant under this
section; or
(B) Of the court's determination under ORS 426.130 (1); and
(e) If the notice contains a request under paragraph (d) of
this subsection, it must also include the addresses of the two
persons making the request.
(3) Upon receipt of a notice under subsections (1) and (2) of
this section or when notified by a circuit court that the court
received notice under ORS 426.234, the community mental health
{ - and developmental disabilities - } program director, or
designee of the director, shall:
(a) Immediately notify the judge of the court having
jurisdiction for that county under ORS 426.060 of the
notification described in subsections (1) and (2) of this
section.
(b) Immediately notify the { - Department of Human
Services - } { + Oregon Health Authority + } if commitment is
proposed because the person appears to be a mentally ill person,
as defined in ORS 426.005 (1)(d)(C). When such notice is
received, the { - department - } { + authority + } may verify,
to the extent known by the { - department - }
{ + authority + }, whether or not the person meets the criteria
described in ORS 426.005 (1)(d)(C)(i) and (ii) and so inform the
community mental health { - and developmental disabilities - }
program director or designee of the director.
(c) Initiate an investigation under ORS 426.074 to determine
whether there is probable cause to believe that the person is in
fact a mentally ill person.
(4) Upon completion, a recommendation based upon the
investigation report under ORS 426.074 shall be promptly
submitted to the court. If the community mental health { - and
developmental disabilities - } program director determines that
probable cause does not exist to believe that a person released
from detention under ORS 426.234 (2)(c) or (3)(b) is a mentally
ill person, the community mental health { - and developmental
disabilities - } program director shall not submit a
recommendation to the court.
(5) When the court receives notice under subsection (3) of this
section:
(a) If the court, following the investigation, concludes that
there is probable cause to believe that the person investigated
is a mentally ill person, it shall, through the issuance of a
citation as provided in ORS 426.090, cause the person to be
brought before it at a time and place as it may direct, for a
hearing under ORS 426.095 to determine whether the person is
mentally ill. The person shall be given the opportunity to appear
voluntarily at the hearing unless the person fails to appear or
unless the person is detained pursuant to paragraph (b) of this
subsection.
(b)(A) The judge may cause the allegedly mentally ill person to
be taken into custody pending the investigation or hearing by
issuing a warrant of detention under this subsection. A judge may
only issue a warrant under this subsection if the court finds
that there is probable cause to believe that failure to take the
Enrolled House Bill 2009 (HB 2009-C) Page 240
person into custody would pose serious harm or danger to the
person or to others.
(B) To cause the custody of a person under this paragraph, the
judge must issue a warrant of detention to the community mental
health { - and developmental disabilities - } program director
or designee, the sheriff of the county or designee, directing
that person to take the allegedly mentally ill person into
custody and produce the person at the time and place stated in
the warrant.
(C) At the time the person is taken into custody, the person
shall be informed by the community mental health { - and
developmental disabilities - } program director, the sheriff or
a designee of the following:
(i) The person's rights with regard to representation by or
appointment of counsel as described in ORS 426.100;
(ii) The warning under ORS 426.123; and
(iii) The person's right, if the community mental health
{ - and developmental disabilities - } program director,
sheriff or designee reasonably suspects that the person is a
foreign national, to communicate with an official from the
consulate of the person's country. A community mental health
{ - and developmental disabilities - } program director,
sheriff or designee is not civilly or criminally liable for
failure to provide the information required by this
sub-subparagraph. Failure to provide the information required by
this sub-subparagraph does not in itself constitute grounds for
the exclusion of evidence that would otherwise be admissible in a
proceeding.
(D) The court may make any orders for the care and custody of
the person prior to the hearing as it considers necessary.
(c) If the notice includes a request under subsection (2)(d)(A)
of this section, the court shall notify the two persons of the
issuance or nonissuance of a warrant under this subsection.
SECTION 386. ORS 426.072 is amended to read:
426.072. (1) A hospital or nonhospital facility and a treating
physician must comply with the following when an allegedly
mentally ill person is placed in custody at the hospital or
nonhospital facility:
(a) By a warrant of detention under ORS 426.070;
(b) By a peace officer under ORS 426.228 or other person
authorized under ORS 426.233; or
(c) By a physician under ORS 426.232.
(2) In circumstances described under subsection (1) of this
section, the hospital or nonhospital facility and treating
physician must comply with the following:
(a) The person shall receive the care, custody and treatment
required for mental and physical health and safety;
(b) The treating physician shall report any care, custody and
treatment to the court as required in ORS 426.075;
(c) All methods of treatment, including the prescription and
administration of drugs, shall be the sole responsibility of the
treating physician. However, the person shall not be subject to
electroshock therapy or unduly hazardous treatment and shall
receive usual and customary treatment in accordance with medical
standards in the community;
(d) The treating physician shall be notified immediately of any
use of mechanical restraints on the person. Every use of a
mechanical restraint and the reasons therefor shall be made a
part of the clinical record of the person over the signature of
the treating physician; and
Enrolled House Bill 2009 (HB 2009-C) Page 241
(e) The treating physician shall give the person the warning
under ORS 426.123 at times the treating physician determines the
person will reasonably understand the notice. This paragraph only
requires the notice to be given as often as the physician
determines is necessary to assure that the person is given an
opportunity to be aware of the notice.
(3) The { - Department of Human Services - } { + Oregon
Health Authority + } shall adopt rules necessary to carry out
this section, including rules regarding the content of the
medical record compiled during the current period of custody.
SECTION 387. ORS 426.074 is amended to read:
426.074. The following is applicable to an investigation
initiated by a community mental health { - and developmental
disabilities - } program director, or a designee of the
director, as part of commitment procedures under ORS 426.070 and
426.228 to 426.235:
(1) If the allegedly mentally ill person is held in custody
before the hearing the investigation shall be completed at least
24 hours before the hearing under ORS 426.095, otherwise the
investigation shall comply with the following time schedule:
(a) If the allegedly mentally ill person can be located, the
investigator shall contact the person within three judicial days
from the date the community mental health { - and developmental
disabilities - } program director or a designee receives a
notice under ORS 426.070 alleging that the person is mentally
ill.
(b) Within 15 days from the date the community mental health
{ - and developmental disabilities - } program director or a
designee receives a notice under ORS 426.070 alleging that a
person is mentally ill, one of the following shall occur:
(A) The investigation shall be completed and submitted to the
court.
(B) An application for extension shall be made to the court
under paragraph (c) of this subsection.
(c) The community mental health { - and developmental
disabilities - } program director, a designee or the
investigator may file for an extension of the time under
paragraph (b) of this subsection only if one of the following
occurs:
(A) A treatment option less restrictive than involuntary
in-patient commitment is actively being pursued.
(B) The allegedly mentally ill person cannot be located.
(d) A court may grant an extension under paragraph (c) of this
subsection for a time and upon the terms and conditions the court
considers appropriate.
(2) This subsection establishes a nonexclusive list of
provisions applicable to the content of the investigation, as
follows:
(a) The investigation conducted should, where appropriate,
include an interview or examination of the allegedly mentally ill
person in the home of the person or other place familiar to the
person.
(b) Whether or not the allegedly mentally ill person consents,
the investigation should include interviews with any persons that
the investigator has probable cause to believe have pertinent
information regarding the investigation. If the allegedly
mentally ill person objects to the contact with any person, the
objection shall be noted in the investigator's report.
(c) The investigator shall be allowed access to physicians,
nurses or social workers and to medical records compiled during
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the current involuntary prehearing period of detention to
determine probable cause and to develop alternatives to
commitment. If commitment is proposed because the person appears
to be a mentally ill person as defined in ORS 426.005 (1)(d)(C),
the investigator shall be allowed access to medical records
necessary to verify the existence of criteria described in ORS
426.005 (1)(d)(C). The investigator shall include pertinent parts
of the medical record in the investigation report. Records and
communications described in this paragraph and communications
related thereto are not privileged under ORS 40.230, 40.235,
40.240 or 40.250.
(3) A copy of the investigation report shall be provided as
soon as possible, but in no event later than 24 hours prior to
the hearing, to the allegedly mentally ill person and to that
person's counsel. Copies shall likewise be provided to counsel
assisting the court, to the examiners and to the court for use in
questioning witnesses.
SECTION 388. ORS 426.075 is amended to read:
426.075. This section establishes procedures that are required
to be followed before the hearing if a court, under ORS 426.070,
orders a hearing under ORS 426.095. The following apply as
described:
(1) The court shall be fully advised of all drugs and other
treatment known to have been administered to the allegedly
mentally ill person that may substantially affect the ability of
the person to prepare for or function effectively at the hearing.
The following shall advise the court as required by this
subsection:
(a) When not otherwise provided by paragraph (b) of this
subsection, the community mental health { - and developmental
disabilities - } program director or designee.
(b) When the person has been detained by a warrant of detention
under ORS 426.070, 426.180, 426.228, 426.232 or 426.233, the
treating physician.
(2) The court shall appoint examiners under ORS 426.110
sufficiently long before the hearing so that they may begin their
preparation for the hearing. The records established by the
{ - Department of Human Services - } { + Oregon Health
Authority + } by rule and the investigation report shall be made
available to the examiners at least 24 hours before the hearing
in order that the examiners may review the medical record and
have an opportunity to inquire of the medical personnel
concerning the treatment of the allegedly mentally ill person
relating to the detention period prior to the hearing.
(3) The medical record described in subsection (2) of this
section shall be made available to counsel for the allegedly
mentally ill person at least 24 hours prior to the hearing.
(4) When requested by a party to the action, the party's
attorney shall subpoena physicians who are or have been treating
the allegedly mentally ill person. Any treating physician
subpoenaed under this subsection shall be subpoenaed as an expert
witness.
SECTION 389. ORS 426.095 is amended to read:
426.095. The following is applicable to a commitment hearing
held by a court under ORS 426.070:
(1) The hearing may be held in a hospital, the person's home or
in some other place convenient to the court and the allegedly
mentally ill person.
(2) The court shall hold the hearing at the time established
according to the following:
Enrolled House Bill 2009 (HB 2009-C) Page 243
(a) Except as provided by paragraph (b) or (c) of this
subsection, a hearing shall be held five judicial days from the
day a court under ORS 426.070 issues a citation provided under
ORS 426.090.
(b) Except as provided by paragraph (c) of this subsection, if
a person is detained by a warrant of detention under ORS 426.070,
a hearing shall be held within five judicial days of the
commencement of detention.
(c) If requested under this paragraph, the court, for good
cause, may postpone the hearing for not more than five judicial
days in order to allow preparation for the hearing. The court may
make orders for the care and custody of the person during a
postponement as it deems necessary. If a person is detained
before a hearing under ORS 426.070, 426.180, 426.228, 426.232 or
426.233 and the hearing is postponed under this paragraph, the
court, for good cause, may allow the person to be detained during
the postponement if the postponement is requested by the person
or the legal counsel of the person. Any of the following may
request a postponement under this paragraph:
(A) The allegedly mentally ill person.
(B) The legal counsel or guardian of the allegedly mentally ill
person.
(C) The person representing the state's interest.
(3) The allegedly mentally ill person and the person
representing the state's interest shall have the right to
cross-examine all the following:
(a) Witnesses.
(b) The person conducting the investigation.
(c) The examining physicians or other qualified persons
recommended by the { - Department of Human Services - } { +
Oregon Health Authority + } who have examined the person.
(4) The provisions of ORS 40.230, 40.235, 40.240 and 40.250
shall not apply to and the court may consider as evidence any of
the following:
(a) Medical records for the current involuntary prehearing
period of detention.
(b) Statements attributed by the maker of the medical records
or the investigation report to witnesses concerning their own
observations in the absence of objection or if such persons are
produced as witnesses at the hearing available for
cross-examination.
(c) The testimony of any treating physicians, nurses or social
workers for the prehearing period of detention. Any treating
physician, nurse or social worker who is subpoenaed as a witness
for the proceeding shall testify as an expert witness under the
provisions of ORS 40.410, 40.415, 40.420 and 40.425 and is
subject to treatment as an expert witness in the payment of
witness fees and costs.
(d) The investigation report prepared under ORS 426.074.
Subject to the following, the investigation report shall be
introduced in evidence:
(A) Introduction of the report under this paragraph does not
require the consent of the allegedly mentally ill person.
(B) Upon objection by any party to the action, the court shall
exclude any part of the investigation report that may be excluded
under the Oregon Evidence Code on grounds other than those set
forth in ORS 40.230, 40.235, 40.240 or 40.250.
(C) Neither the investigation report nor any part thereof shall
be introduced into evidence under this paragraph unless the
investigator is present during the proceeding to be
Enrolled House Bill 2009 (HB 2009-C) Page 244
cross-examined or unless the presence of the investigator is
waived by the allegedly mentally ill person or counsel for the
allegedly mentally ill person.
SECTION 390. ORS 426.110 is amended to read:
426.110. The following requirements relating to the appointment
of examiners for purposes of a hearing under ORS 426.095 apply as
described:
(1) The judge shall appoint one qualified examiner. If
requested, the judge shall appoint one additional qualified
examiner. A request for an additional examiner under this
subsection must be made in writing and must be made by the
allegedly mentally ill person or the attorney for the allegedly
mentally ill person.
(2) To be qualified for purposes of this section, an examiner
must meet all of the following qualifications:
(a) The person must agree to be an examiner.
(b) The person must be one of the following:
(A) A physician licensed by the Oregon Medical Board who is
competent to practice psychiatry as provided by the
{ - Department of Human Services - } { + Oregon Health
Authority + } by rule.
(B) Certified as a mental health examiner qualified to make
examinations for involuntary commitment proceedings by the
{ - department - } { + authority + }. The { - department
has authority to - } { + authority may + }establish, by rule,
requirements for certification as a mental health examiner for
purposes of this subparagraph.
(3) The cost of examiners under this section shall be paid as
provided under ORS 426.250.
SECTION 391. ORS 426.120 is amended to read:
426.120. (1) Persons appointed under ORS 426.110 to conduct the
examination shall do the following:
(a) Examine the person as to mental condition;
(b) Initiate the examination process prior to the hearing. Any
failure to comply with this paragraph shall not, in itself,
constitute sufficient grounds to challenge the examination
conducted by an examiner;
(c) Make their separate reports in writing, under oath, to the
court; and
(d) Upon completion of the hearing, file the reports with the
clerk of the court.
(2) The following is a nonexclusive list of requirements
relating to the content of examination reports prepared under
subsection (1) of this section:
(a) If the examining persons find, and show by their reports,
that the person examined is a mentally ill person, the reports
shall include a recommendation as to the type of treatment
facility best calculated to help the person recover from mental
illness.
(b) Each report shall also advise the court whether in the
opinion of the examiner the mentally ill person would cooperate
with and benefit from a program of voluntary treatment.
(c) Reports shall contain the information required by the
{ - Department of Human Services - } { + Oregon Health
Authority + } by rule. The { - department - } { +
authority + } shall adopt rules necessary to carry out this
paragraph.
(3) The examiner shall be allowed access to physicians, nurses
or social workers and to medical records compiled during the
current involuntary prehearing period of detention and the
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investigation report. Records and communications described in
this subsection and communications related thereto are not
privileged under ORS 40.230, 40.235, 40.240 or 40.250.
SECTION 392. ORS 426.127 is amended to read:
426.127. The following provisions are applicable to outpatient
commitment under ORS 426.130 as described:
(1) The { - Department of Human Services - } { + Oregon
Health Authority + } may only place a person in an outpatient
commitment if an adequate treatment facility is available.
(2) Conditions for the outpatient commitment shall be set at
the time of the hearing under ORS 426.095 by the community mental
health { - and developmental disabilities - } program
director, or a designee for the director, for the county in which
the hearing takes place. The conditions shall include, but not be
limited to, the following:
(a) Provision for outpatient care.
(b) A designation of a facility, service or other provider to
provide care or treatment.
(3) A copy of the conditions shall be given to all of the
persons described in ORS 426.278.
(4) Any outpatient commitment ordered under this section is
subject to the provisions under ORS 426.275.
(5) The community mental health { - and developmental
disabilities - } program director or designee, for the county
where a person is on outpatient commitment, may modify the
conditions for outpatient commitment when a modification is in
the best interest of the person. The community mental health
{ - and developmental disabilities - } program director or
designee shall send notification of such changes and the reasons
for the changes to all those who received a copy of the original
conditions under ORS 426.278.
SECTION 393. ORS 426.130 is amended to read:
426.130. (1) After hearing all of the evidence, and reviewing
the findings of the examining persons, the court shall determine
whether the person is mentally ill. If, in the opinion of the
court, the person is:
(a) Not mentally ill, the person shall be discharged forthwith.
(b) Mentally ill based upon clear and convincing evidence, the
court:
(A) Shall order the release of the individual and dismiss the
case if:
(i) The mentally ill person is willing and able to participate
in treatment on a voluntary basis; and
(ii) The court finds that the person will probably do so.
(B) May order conditional release under this subparagraph
subject to the qualifications and requirements under ORS 426.125.
If the court orders conditional release under this subparagraph,
the court shall establish a period of commitment for the
conditional release.
(C) May order commitment of the individual to the
{ - Department of Human Services - } { + Oregon Health
Authority + } for treatment if, in the opinion of the court,
subparagraph (A) or (B) of this paragraph is not in the best
interest of the mentally ill person. If the court orders
commitment under this subparagraph:
(i) The court shall establish a period of commitment.
(ii) The { - department - } { + authority + } may place the
committed person in outpatient commitment under ORS 426.127.
(D) Shall order that the person be prohibited from purchasing
or possessing a firearm if, in the opinion of the court, there is
Enrolled House Bill 2009 (HB 2009-C) Page 246
a reasonable likelihood the person would constitute a danger to
self or others or to the community at large as a result of the
person's mental or psychological state as demonstrated by past
behavior or participation in incidents involving unlawful
violence or threats of unlawful violence, or by reason of a
single incident of extreme, violent, unlawful conduct. When a
court makes an order under this subparagraph, the court shall
cause a copy of the order to be delivered to the sheriff of the
county who will enter the information into the Law Enforcement
Data System.
(2) A court that orders a conditional release or a commitment
under this section shall establish a period of commitment for the
person subject to the order. Any period of commitment ordered for
commitment or conditional release under this section shall be for
a period of time not to exceed 180 days.
(3) If the commitment proceeding was initiated under ORS
426.070 (1)(a) and if the notice included a request under ORS
426.070 (2)(d)(B), the court shall notify the two persons of the
court's determination under subsection (1) of this section.
SECTION 394. ORS 426.140 is amended to read:
426.140. (1) No person, not incarcerated upon a criminal
charge, who has been adjudged a mentally ill person or one
against whom commitment proceedings have been instituted shall be
confined in any prison, jail or other enclosure where those
charged with a crime or a violation of a municipal ordinance are
incarcerated, unless the person represents an immediate and
serious danger to staff or physical facilities of a hospital or
other facility approved by the { - Department of Human
Services - } { + Oregon Health Authority + } for the care,
custody and treatment of the person.
(2) No allegedly mentally ill person who has been taken into
custody shall be confined, either before or after the commitment
hearing, without an attendant in direct charge of the person;
and, if not confined in a community hospital, the sheriff or
community mental health { - and developmental disabilities - }
program director having the person in custody shall select some
suitable person to act as attendant in quarters suitable for the
comfortable, safe and humane confinement of the person and
approved by the
{ - department - } { + authority + }.
SECTION 395. ORS 426.150 is amended to read:
426.150. (1) Upon receipt of the order of commitment, the
{ - Department of Human Services - } { + Oregon Health
Authority + } or its designee shall take the mentally ill person
into its custody, and insure the safekeeping and proper care of
the person until delivery is made to an assigned treatment
facility or its representative. The representative of the
treating facility to which the person has been assigned,
accompanied by any assistants the { - department - } { +
authority + } or its designee may deem necessary, shall proceed
to the place where the person is to be delivered into custody,
and upon demand shall be given custody of the mentally ill
person, together with the certified record required by ORS
426.170. The representative shall issue appropriate receipts
therefor and immediately proceed to transport the committed
mentally ill person safely to the facility to which the person
has been assigned by the { - department - } { + authority + }
and there make delivery of the person and the record to the
director or a designated employee of the facility. In taking
custody of the person, the { - department - } { +
Enrolled House Bill 2009 (HB 2009-C) Page 247
authority + }, its designee, or the representative of the
facility has all the powers provided by ORS 133.225 and 161.255
and may require the assistance of any peace officer or other
person.
(2) The committing judge, upon approval of the examining
physicians or other qualified persons as recommended by the
{ - department - } { + authority + } and upon request of a
guardian, friend or relative of the mentally ill person, may
authorize the guardian, friend or relative to transport the
person to the designated facility when the committing judge
determines that means of transportation would not be detrimental
to the welfare of the mentally ill person or to the public.
SECTION 396. ORS 426.170 is amended to read:
426.170. If any person is adjudged mentally ill and ordered
committed to the { - Department of Human Services - } { +
Oregon Health Authority + }, a copy of the complete record in the
case, certified to by the court clerk or court administrator,
shall be given to the health officer of the county, or to the
sheriff, for delivery to the director of the facility to which
such mentally ill person is assigned. The record shall include
the name, residence, nativity, sex and age of such mentally ill
person and all other information that may be required by the
rules and regulations promulgated by the { - department - }
{ + authority + }.
SECTION 397. ORS 426.180 is amended to read:
426.180. (1) This section applies to commitments of a person
from a reservation for land-based tribes of Native Americans
when, under federal law, the state does not have jurisdiction of
commitments on the reservation.
(2) When this section is applicable as provided under
subsection (1) of this section, a person alleged to be mentally
ill by affidavit of two other persons may be admitted to a state
hospital for persons with mental illness for emergency treatment,
care and custody, provided such affidavit includes or is
accompanied by all of the following:
(a) The circumstances constituting the emergency.
(b) Written application for admission to the hospital, executed
in duplicate.
(c) A certificate to the effect that the person is so mentally
ill as to be in need of immediate hospitalization.
(d) A medical history, including the name, condition, sex and
age of the person.
(e) The name and address of the nearest relative or legal
guardian, if any, of the person.
(3) The certificates, applications and medical histories shall
be made upon forms prescribed by the { - Department of Human
Services - } { + Oregon Health Authority + } and shall be
executed by the county health officer or by two physicians
licensed by the Oregon Medical Board, none of whom shall be
related to the person by blood or marriage.
(4) When a person is admitted to a state hospital under this
section, any physician treating the person shall give the person
the warning under ORS 426.123.
(5) This section may be applied as provided by agreement with
the ruling body of the reservation. Payment of costs for a
commitment made under this section shall be as provided under ORS
426.250.
SECTION 398. ORS 426.217 is amended to read:
426.217. At any time after commitment by the court, the person,
with the approval of the { - Department of Human Services - }
Enrolled House Bill 2009 (HB 2009-C) Page 248
{ + Oregon Health Authority + } or its designee, may change the
status of the person to that of a voluntary
patient. Notwithstanding ORS 426.220, any person who alters
status to that of a voluntary patient under this section shall be
released from the treating facility within 72 hours of the
request of the person for release.
SECTION 399. ORS 426.220 is amended to read:
426.220. (1) Pursuant to rules and regulations promulgated by
the { - Department of Human Services - } { + Oregon Health
Authority + }, the superintendent of any state hospital for the
treatment and care of persons with mental illness may admit and
hospitalize therein as a patient, any person who may have a
nervous disorder or a mental illness, and who voluntarily has
made written application for such admission. No person under the
age of 18 years shall be admitted as a patient to any such state
hospital unless an application therefor in behalf of the person
has been executed by the parent, adult next of kin or legal
guardian of the person. Except when a period of longer
hospitalization has been imposed as a condition of admission,
pursuant to rules and regulations of the
{ - department - } { + authority + }, no person voluntarily
admitted to any state hospital shall be detained therein more
than 72 hours after the person, if at least 18 years of age, has
given notice in writing of a desire to be discharged therefrom,
or, if the patient is under the age of 18 years, after notice in
writing has been given by the parent, adult next of kin or legal
guardian of the person that such parent, adult next of kin or
legal guardian desires that such person be discharged therefrom.
(2) Any person voluntarily admitted to a state hospital
pursuant to this section may upon application and notice to the
superintendent of the hospital concerned, be granted a temporary
leave of absence from the hospital if such leave, in the opinion
of the superintendent, will not interfere with the successful
treatment or examination of the applicant for leave.
(3) Upon admission or discharge of a minor to or from a state
hospital the superintendent shall immediately notify the parent
or guardian.
SECTION 400. ORS 426.223 is amended to read:
426.223. In retaking custody of a mentally ill person who has
been committed to the { - Department of Human Services - }
{ + Oregon Health Authority + } under ORS 426.130 and who has,
without lawful authority, left the custody of the facility to
which the person has been assigned under ORS 426.060, or in the
case of an allegedly mentally ill person who is in custody under
ORS 426.070, 426.095, 426.228 to 426.235 or 426.237 at a hospital
or nonhospital facility and who has, without lawful authority,
left the hospital or nonhospital facility, the facility director
or designee has all the powers provided by ORS 133.225 and
161.255 and may require the assistance of any peace officer or
other person.
SECTION 401. ORS 426.225 is amended to read:
426.225. (1) If any person who has been committed to the
{ - Department of Human Services - } { + Oregon Health
Authority + } under ORS 426.127 or 426.130 (1)(b)(B) or (C)
requests, during this period of commitment, voluntary admission
to a state hospital, the superintendent shall cause the person to
be examined immediately by a physician. If the physician finds
the person to be in need of immediate care or treatment for
mental illness, the person shall be voluntarily admitted upon
request of the person.
Enrolled House Bill 2009 (HB 2009-C) Page 249
(2) If any person who has been committed to the
{ - department - } { + authority + } under ORS 426.127 or
426.130 (1)(b)(B) or (C) requests, during this period of
commitment, voluntary admission to a facility approved by the
{ - department - } { + authority + }, the administrator of the
facility shall cause the person to be examined immediately by a
physician. If the physician finds the person to be in need of
immediate care or treatment for mental illness, and the
{ - department - } { + authority + } grants approval, the
person shall be voluntarily admitted upon request of the person.
SECTION 402. ORS 426.228 is amended to read:
426.228. (1) A peace officer may take into custody a person who
the officer has probable cause to believe is dangerous to self or
to any other person and is in need of immediate care, custody or
treatment for mental illness. As directed by the community mental
health { - and developmental disabilities - } program
director, a peace officer shall remove a person taken into
custody under this section to the nearest hospital or nonhospital
facility approved by the { - Department of Human Services - }
{ + Oregon Health Authority + }. The officer shall prepare a
written report and deliver it to the treating physician. The
report shall state:
(a) The reason for custody;
(b) The date, time and place the person was taken into custody;
and
(c) The name of the community mental health { - and
developmental disabilities - } program director and a telephone
number where the director may be reached at all times.
(2) A peace officer shall take a person into custody when the
community mental health { - and developmental disabilities - }
program director, pursuant to ORS 426.233, notifies the peace
officer that the director has probable cause to believe that the
person is imminently dangerous to self or to any other person. As
directed by the community mental health { - and developmental
disabilities - } program director, the peace officer shall remove
the person to a hospital or nonhospital facility approved by the
{ - department - } { + authority + }. The community mental
health { - and developmental disabilities - } program director
shall prepare a written report that the peace officer shall
deliver to the treating physician. The report shall state:
(a) The reason for custody;
(b) The date, time and place the person was taken into custody;
and
(c) The name of the community mental health { - and
developmental disabilities - } program director and a telephone
number where the director may be reached at all times.
(3) If more than one hour will be required to transport the
person to the hospital or nonhospital facility from the location
where the person was taken into custody, the peace officer shall
obtain, if possible, a certificate from a physician licensed by
the Oregon Medical Board stating that the travel will not be
detrimental to the person's physical health and that the person
is dangerous to self or to any other person and is in need of
immediate care or treatment for mental illness. The physician
shall have personally examined the allegedly mentally ill person
within 24 hours prior to signing the certificate.
(4) When a peace officer or other authorized person, acting
under this section, delivers a person to a hospital or
nonhospital facility, a physician licensed by the Oregon Medical
Board shall examine the person immediately. If the physician
Enrolled House Bill 2009 (HB 2009-C) Page 250
finds the person to be in need of emergency care or treatment for
mental illness, the physician shall proceed under ORS 426.232,
otherwise the person shall not be retained in custody. If the
person is to be released from custody, the peace officer or the
community mental health { - and developmental disabilities - }
program director shall return the person to the place where the
person was taken into custody unless the person declines that
service.
(5) A peace officer may transfer a person in custody under this
section to the custody of a person authorized by the county
governing body under ORS 426.233 (3). The peace officer may meet
the authorized person at any location that is in accordance with
ORS 426.140 to effect the transfer. When transferring a person in
custody to an authorized person, the peace officer shall deliver
the report required under subsections (1) and (2) of this section
to the authorized person.
(6) A person authorized under ORS 426.233 (3) shall take a
person into custody when directed to do so by a peace officer or
by a community mental health { - and developmental
disabilities - } program director under ORS 426.233.
(7) A person authorized under ORS 426.233 (3) shall perform the
duties of the peace officer or the community mental health
{ - and developmental disabilities - } program director
required by this section and ORS 426.233 if the peace officer or
the director has not already done so.
(8) A person authorized under ORS 426.233 (3) may transfer a
person in custody under this section to the custody of another
person authorized under ORS 426.233 (3) or a peace officer. The
authorized person transferring custody may meet another
authorized person or a peace officer at any location that is in
accordance with ORS 426.140 to effect the transfer.
(9)(a) When a peace officer takes a person into custody under
this section, and the peace officer reasonably suspects that the
person is a foreign national, the peace officer shall inform the
person of the person's right to communicate with an official from
the consulate of the person's country.
(b) A peace officer is not civilly or criminally liable for
failure to provide the information required by this subsection.
Failure to provide the information required by this subsection
does not in itself constitute grounds for the exclusion of
evidence that would otherwise be admissible in a proceeding.
SECTION 403. ORS 426.231 is amended to read:
426.231. (1) A physician licensed by the Oregon Medical Board
may hold a person for transportation to a treatment facility for
up to 12 hours in a health care facility licensed under ORS
chapter 431 and approved by the { - Department of Human
Services - } { + Oregon Health Authority + } if:
(a) The physician believes the person is dangerous to self or
to any other person and is in need of emergency care or treatment
for mental illness;
(b) The physician is not related to the person by blood or
marriage; and
(c) An admitting physician at the receiving facility consents
to the transporting.
(2) Before transporting the person, the physician shall prepare
a written statement that:
(a) The physician has examined the person within the preceding
12 hours;
Enrolled House Bill 2009 (HB 2009-C) Page 251
(b) An admitting physician at the receiving facility has
consented to the transporting of the person for examination and
admission if appropriate; and
(c) The physician believes the person is dangerous to self or
to any other person and is in need of emergency care or treatment
for mental illness.
(3) The written statement required by subsection (2) of this
section authorizes a peace officer, a person authorized under ORS
426.233 or the designee of a community mental health { - and
developmental disabilities - } program director to transport a
person to the treatment facility indicated on the statement.
SECTION 404. ORS 426.232 is amended to read:
426.232. (1) When a physician licensed to practice medicine by
the Oregon Medical Board believes a person who is brought to a
hospital or nonhospital facility by a peace officer under ORS
426.228, a person authorized under ORS 426.233 or a person who is
at a hospital or nonhospital facility is dangerous to self or to
any other person and is in need of emergency care or treatment
for mental illness, the physician may do one of the following:
(a) After consulting with a physician or a qualified mental
health professional, as defined by rule of the { - Department
of Human Services - } { + Oregon Health Authority + }, detain
the person and cause the person to be admitted or, if the person
is already admitted, cause the person to be retained in a
hospital where the physician has admitting privileges or is on
staff. Neither the physician nor the qualified mental health
professional may be related by blood or marriage to the person.
(b) Approve the person for emergency care or treatment at a
nonhospital facility approved by the { - department - }
{ + authority + }.
(2) When approving a person for emergency care or treatment at
a nonhospital facility under this section, the physician shall
notify immediately the community mental health { - and
developmental disabilities - } program director in the county
where the person was taken into custody and maintain the person,
if the person is being held at a hospital, for as long as is
feasible given the needs of the person for mental or physical
health or safety. However, under no circumstances may the person
be held for longer than five judicial days.
SECTION 405. ORS 426.233 is amended to read:
426.233. (1)(a) A community mental health { - and
developmental disabilities - } program director operating under
ORS 430.610 to 430.695 or a designee thereof, under authorization
of a county governing body, may take one of the actions listed in
paragraph (b) of this subsection when the community mental health
{ - and developmental disabilities - } program director or
designee has probable cause to believe a person:
(A) Is dangerous to self or to any other person and is in need
of immediate care, custody or treatment for mental illness; or
(B)(i) Is a mentally ill person placed on conditional release
under ORS 426.125, outpatient commitment under ORS 426.127 or
trial visit under ORS 426.273; and
(ii) Is dangerous to self or to any other person or is unable
to provide for basic personal needs and is not receiving the care
that is necessary for health and safety and is in need of
immediate care, custody or treatment for mental illness.
(b) The community mental health { - and developmental
disabilities - } program director or designee under the
circumstances set out in paragraph (a) of this subsection may:
Enrolled House Bill 2009 (HB 2009-C) Page 252
(A) Notify a peace officer to take the person into custody and
direct the officer to remove the person to a hospital or
nonhospital facility approved by the { - Department of Human
Services - } { + Oregon Health Authority + };
(B) Authorize involuntary admission of, or, if already
admitted, cause to be involuntarily retained in a nonhospital
facility approved by the { - department - }
{ + authority + }, a person approved for care or treatment at a
nonhospital facility by a physician under ORS 426.232;
(C) Notify a person authorized under subsection (3) of this
section to take the person into custody and direct the authorized
person to remove the person in custody to a hospital or
nonhospital facility approved by the { - department - }
{ + authority + };
(D) Direct a person authorized under subsection (3) of this
section to transport a person in custody from a hospital or a
nonhospital facility approved by the { - department - }
{ + authority + } to another hospital or nonhospital facility
approved by the
{ - department - } { + authority + } as provided under ORS
426.235; or
(E) Direct a person authorized under subsection (3) of this
section to transport a person in custody from a facility approved
by the { - department - } { + authority + } to another
facility approved by the
{ - department - } { + authority + } as provided under ORS
426.060.
(2) A designee under subsection (1) of this section must be
recommended by the community mental health { - and
developmental disabilities - } program director, meet the
standards established by rule of the { - department - }
{ + authority + } and be approved by the county governing body
before assuming the authority permitted under subsection (1) of
this section.
(3) The county governing body may, upon recommendation by the
community mental health { - and developmental disabilities - }
program director, authorize any person to provide custody and
secure transportation services for a person in custody under ORS
426.228. In authorizing a person under this subsection, the
county governing body shall grant the person the authority to do
the following:
(a) Accept custody from a peace officer of a person in custody
under ORS 426.228;
(b) Take custody of a person upon notification by the community
mental health { - and developmental disabilities - } program
director under the provisions of this section;
(c) Remove a person in custody to an approved hospital or
nonhospital facility as directed by the community mental health
{ - and developmental disabilities - } program director;
(d) Transfer a person in custody to another person authorized
under this subsection or a peace officer;
(e) Transfer a person in custody from a hospital or nonhospital
facility to another hospital facility or nonhospital facility
when directed to do so by the community mental health
{ - and developmental disabilities - } program director; and
(f) Retain a person in custody at the approved hospital or
nonhospital facility until a physician makes a determination
under ORS 426.232.
(4) A person authorized under subsection (3) of this section
must be recommended by the community mental health { - and
Enrolled House Bill 2009 (HB 2009-C) Page 253
developmental disabilities - } program director, meet the
standards established by rule of the { - department - }
{ + authority + } and be approved by the governing body before
assuming the authority granted under this section.
(5) The costs of transporting a person as authorized under ORS
426.060, 426.228 or 426.235 by a person authorized under
subsection (3) of this section shall be the responsibility of the
county whose peace officer or community mental health { - and
developmental disabilities - } program director directs the
authorized person to take custody of a person and to transport
the person to a facility approved by the { - department - }
{ + authority + }, but the county shall not be responsible for
costs that exceed the amount provided by the state for that
transportation. A person authorized to act under subsection (3)
of this section shall charge the cost of emergency medical
transportation to, and collect that cost from, the person, third
party payers or otherwise legally responsible persons or agencies
in the same manner that costs for the transportation of other
persons are charged and collected.
SECTION 406. ORS 426.234 is amended to read:
426.234. (1) At the time a person is admitted to or retained in
a hospital or nonhospital facility under ORS 426.232 or 426.233,
a physician, nurse or qualified mental health professional at the
hospital or nonhospital facility shall:
(a) Inform the person of the person's right to representation
by or appointment of counsel as described in ORS 426.100;
(b) Give the person the warning under ORS 426.123;
(c) Immediately examine the allegedly mentally ill person;
(d) Set forth, in writing, the condition of the person and the
need for emergency care or treatment; and
(e) If the physician, nurse or qualified mental health
professional reasonably suspects that the person is a foreign
national, inform the person of the person's right to communicate
with an official from the consulate of the person's country. A
physician, nurse or qualified mental health professional is not
civilly or criminally liable for failure to provide the
information required by this paragraph. Failure to provide the
information required by this paragraph does not in itself
constitute grounds for the exclusion of evidence that would
otherwise be admissible in a proceeding.
(2)(a) At the time the person is admitted to or retained in a
hospital under ORS 426.232, the physician shall contact the
community mental health { - and developmental disabilities - }
program director of the county in which the person resides, if
the county of residence is different from the county in which the
hospital is located. The community mental health { - and
developmental disabilities - } program director may request that
the physician notify the circuit court in the county in which the
person resides. If the community mental health { - and
developmental disabilities - } program director does not make
the request authorized by this paragraph, the physician shall
notify, immediately and in writing, the circuit court in the
county in which the person is hospitalized.
(b) At the time the person is admitted to a hospital under ORS
426.232 after being brought to the hospital by a peace officer
under ORS 426.228, the physician shall contact the community
mental health { - and developmental disabilities - } program
director of the county in which the person is hospitalized. The
community mental health { - and developmental disabilities - }
program director of the county in which the person is
Enrolled House Bill 2009 (HB 2009-C) Page 254
hospitalized may request that the physician notify the circuit
court in the county in which the person is hospitalized. If the
community mental health { - and developmental disabilities - }
program director does not make the request authorized by this
paragraph, the physician shall notify, immediately and in
writing, the circuit court in the county in which the person was
taken into custody.
(c) If, at any time prior to the hearing under ORS 426.070 to
426.130, the physician responsible for a person admitted or
retained under ORS 426.232 determines that the person is not
dangerous to self or others and is not in need of emergency care
or treatment for mental illness, the physician may release the
person from the detention authorized by ORS 426.232. The
physician shall immediately notify the circuit court notified
under this subsection and the community mental health { - and
developmental disabilities - } program director of the person's
release from detention.
(3)(a) At the time the person is admitted to or retained in a
nonhospital facility under ORS 426.233, the community mental
health { - and developmental disabilities - } program director
in the county where the person was taken into custody shall
contact the community mental health { - and developmental
disabilities - } program director of the county in which the
person resides, if the county of residence is different from the
county in which the person was taken into custody. The community
mental health { - and developmental disabilities - } program
director of the county in which the person resides may request
that the community mental health { - and developmental
disabilities - } program director of the county in which the
person was taken into custody notify the circuit court in the
county where the person resides. Otherwise, the community mental
health { - and developmental disabilities - } program director
of the county in which the person was taken into custody shall
notify, immediately and in writing, the circuit court in the
county in which the person was taken into custody.
(b) If, at any time prior to the hearing under ORS 426.070 to
426.130, a community mental health { - and developmental
disabilities - } program director, after consultation with a
physician, determines that a person admitted or retained under
ORS 426.233 is not dangerous to self or others and is not in need
of immediate care, custody or treatment for mental illness, the
community mental health { - and developmental disabilities - }
program director may release the person from detention. The
community mental health { - and developmental disabilities - }
program director shall immediately notify the circuit court
originally notified under paragraph (a) of this subsection of the
person's release from detention.
(4) When the judge of the circuit court receives notice under
subsection (2) or (3) of this section, the judge immediately
shall commence proceedings under ORS 426.070 to 426.130. In a
county having a population of 100,000 or more, and when feasible
in a county with a lesser population, the community mental health
{ - and developmental disabilities - } program director or
designee who directs the peace officer or other authorized person
to take a person into custody under ORS 426.233 shall not also
conduct the investigation as provided for under ORS 426.074.
Except when a person is being held under ORS 426.237 (1)(b), a
person shall not be held under ORS 426.232 or 426.233 for more
than five judicial days without a hearing being held under ORS
426.070 to 426.130.
Enrolled House Bill 2009 (HB 2009-C) Page 255
(5) When the judge of the circuit court receives notice under
subsection (2)(c) or (3)(b) of this section that a person has
been released, and unless the court receives the recommendation
required by ORS 426.070 (4), the judge shall dismiss the case no
later than 14 days after the date the person was initially
detained.
SECTION 407. ORS 426.235 is amended to read:
426.235. (1) The community mental health { - and
developmental disabilities - } program director may transfer a
person in custody under ORS 426.232, 426.233 or 426.237 (1)(b) to
a hospital or nonhospital facility approved by the
{ - Department of Human Services - } { + Oregon Health
Authority + } at any time during the period of detention.
(2) A person in custody at a hospital may be transferred from
the hospital only with the consent of the treating physician and
when the director of a nonhospital facility approved by the
{ - department - } { + authority + } agrees to admit the
person.
(3) A person in custody at a nonhospital facility approved by
the { - department - } { + authority + } may be transferred
to a hospital approved by the { - department - }
{ + authority + } only when a physician with admitting
privileges agrees to admit the person.
(4) In transporting a person between a hospital and nonhospital
facility under this section, the community mental health
{ - and developmental disabilities - } program director has all
the powers provided in ORS 133.225 and 161.255 and may compel the
assistance of any peace officer or other person.
(5) When a person is transferred under this section, the
community mental health { - and developmental disabilities - }
program director shall notify immediately the court notified
under ORS 426.234 (2) or (3) of the fact of the transfer and of
the location of the person.
SECTION 408. ORS 426.236 is amended to read:
426.236. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules necessary to
carry out the provisions of ORS 426.155 and 426.228 to 426.238.
SECTION 409. ORS 426.237 is amended to read:
426.237. (1) During a prehearing period of detention as
provided in ORS 426.070, 426.140, 426.232 or 426.233, the
community mental health { - and developmental disabilities - }
program director shall do one of the following:
(a) Recommend, in an investigation report as provided in ORS
426.074, that the circuit court not proceed further in the matter
if the community mental health { - and developmental
disabilities - } program director does not believe the person is
a mentally ill person.
(b) No later than three judicial days after initiation of a
prehearing period of detention as provided in ORS 426.070,
426.140, 426.232 or 426.233, certify the detained person for a
14-day period of intensive treatment if:
(A) The community mental health { - and developmental
disabilities - } program director and a psychiatrist, as defined
by rule by the { - Department of Human Services - }
{ + Oregon Health Authority + }, have probable cause to believe
the person is a mentally ill person;
(B) The community mental health { - and developmental
disabilities - } program director in the county where the person
resides verbally approves the arrangements for payment for the
services at the hospital or nonhospital facility; and
Enrolled House Bill 2009 (HB 2009-C) Page 256
(C) The community mental health { - and developmental
disabilities - } program director locates a hospital or
nonhospital facility that:
(i) Is approved by the { - department - } { + authority + }
and the community mental health { - and developmental
disabilities - } program director in the county where the person
resides; and
(ii) Can, in the opinion of the community mental health
{ - and developmental disabilities - } program director and the
psychiatrist, provide intensive care or treatment for mental
illness necessary and sufficient to meet the emergency
psychiatric needs of the person.
(c) Recommend, in an investigation report as provided in ORS
426.074, that the circuit court hold a hearing under ORS 426.070
to 426.130 if the community mental health { - and developmental
disabilities - } program director has probable cause to believe
the person is a mentally ill person.
(2)(a) If the circuit court adopts the recommendation of the
community mental health { - and developmental disabilities - }
program director under subsection (1)(a) of this section, the
circuit court shall enter an order releasing the person and
dismissing the case. Unless the person agrees to voluntary
treatment, if the person is being detained in a:
(A) Nonhospital facility, the community mental health { - and
developmental disabilities - } program director shall make
discharge plans and insure the discharge of the person.
(B) Hospital, the treating physician shall make discharge plans
and discharge the person.
(b) Upon release of the person, the community mental health
{ - and developmental disabilities - } program director shall
attempt to notify the person's next of kin if the person consents
to the notification.
(3)(a) If the detained person is certified for treatment under
subsection (1)(b) of this section, the community mental health
{ - and developmental disabilities - } program director shall:
(A) Deliver immediately a certificate to the court having
jurisdiction under ORS 426.060; and
(B) Orally inform the person of the certification and deliver a
copy of the certificate to the person.
(b) The certificate required by paragraph (a) of this
subsection shall include:
(A) A written statement under oath by the community mental
health { - and developmental disabilities - } program director
and the psychiatrist that they have probable cause to believe the
person is a mentally ill person in need of care or treatment for
mental illness;
(B) A treatment plan that describes, in general terms, the
types of treatment and medication to be provided to the person
during the 14-day period of intensive treatment;
(C) A notice of the person's right to an attorney and that an
attorney will be appointed by the court or as otherwise obtained
under ORS 426.100 (3);
(D) A notice that the person has a right to request and be
provided a hearing under ORS 426.070 to 426.130 at any time
during the 14-day period; and
(E) The date and time the copy of the certificate was delivered
to the person.
(c) Immediately upon receipt of a certificate under paragraph
(a) of this subsection, the court shall notify the person's
attorney or appoint an attorney for the person if the person
Enrolled House Bill 2009 (HB 2009-C) Page 257
cannot afford one. Within 24 hours of the time the certificate is
delivered to the court, the person's attorney shall review the
certificate with the person. If the person and the person's
attorney consent to the certification within one judicial day of
the time the certificate is delivered to the circuit court and,
except as provided in subsection (4) of this section, the court
shall postpone the hearing required by ORS 426.070 to 426.130 for
14 days.
(d) When a person is certified for treatment under subsection
(1)(b) of this section and accepts the certification:
(A) Except as otherwise provided in this paragraph, all methods
of treatment, including the prescription and administration of
drugs, shall be the sole responsibility of the treating
physician. However, the person shall not be subject to
electroshock therapy or unduly hazardous treatment and shall
receive usual and customary treatment in accordance with medical
standards in the community.
(B) Except when the person expressly refuses treatment, the
treating physician shall treat the person within the scope of the
treatment plan provided the person under paragraph (b) of this
subsection. The person's refusal of treatment constitutes
sufficient grounds for the community mental health { - and
developmental disabilities - } program director to request a
hearing as provided in subsection (4)(a) of this section.
(C) If the person is in a hospital and the community mental
health { - and developmental disabilities - } program director
locates a nonhospital facility, approved by the
{ - department - } { + authority + }, that, in the opinion of
the community mental health { - and developmental
disabilities - } program director and the treating physician,
can provide care or treatment for mental illness necessary and
sufficient to meet the emergency psychiatric needs of the person,
the treating physician shall discharge the person from the
hospital and the community mental health { - and developmental
disabilities - } program director shall remove the person to the
nonhospital facility for the remainder of the 14-day intensive
treatment period. If, however, in the opinion of the treating
physician, the person's condition requires the person to receive
medical care or treatment, the physician shall retain the person
in the hospital.
(D) If the person is in a nonhospital facility, the community
mental health { - and developmental disabilities - } program
director shall transfer the person to a hospital approved by the
{ - department - } { + authority + } under the following
conditions:
(i) If, in the opinion of a physician, the person's condition
requires the person to receive medical care or treatment in a
hospital; and
(ii) The physician agrees to admit the person to a hospital,
approved by the { - department - } { + authority + }, where
the physician has admitting privileges.
(E) If the person is transferred as provided in subparagraph
(C) or (D) of this paragraph, the community mental health
{ - and developmental disabilities - } program director shall
notify the circuit court, in the county where the certificate was
filed, of the location of the person. The person may appeal the
transfer as provided by rules of the { - department - }
{ + authority + }.
Enrolled House Bill 2009 (HB 2009-C) Page 258
(e) If the person is in a hospital, the treating physician may
discharge the person at any time during the 14-day period. The
treating physician shall confer with the community mental health
{ - and developmental disabilities - } program director and
the person's next of kin, if the person consents to the
consultation, prior to discharging the person. Immediately upon
discharge of the person, the treating physician shall notify the
court in the county in which the certificate was filed initially.
(f) If the person is in a nonhospital facility, the community
mental health { - and developmental disabilities - } program
director may discharge the person at any time during the 14-day
period. The community mental health { - and developmental
disabilities - } program director shall consult with the
treating physician and the person's next of kin, if the person
consents to the consultation, prior to discharging the person.
Immediately upon discharge of the person, the community mental
health { - and developmental disabilities - } program director
shall notify the court in the county in which the certificate was
filed initially.
(g) The person may agree to voluntary treatment at any time
during the 14-day period. When a person agrees to voluntary
treatment under this paragraph, the community mental health
{ - and developmental disabilities - } program director
immediately shall notify the court in the county in which the
certificate was filed initially.
(h) A person consenting to 14 days of treatment under
subsection (3)(c) of this section shall not be held longer than
14 days from the time of consenting without a hearing as provided
in ORS 426.070 to 426.130.
(i) When the court receives notification under paragraph (e),
(f) or (g) of this subsection, the court shall dismiss the case.
(4) The judge of the circuit court shall immediately commence
proceedings under ORS 426.070 to 426.130 when:
(a) The person consenting to 14 days of treatment or the
community mental health { - and developmental disabilities - }
program director requests a hearing. The hearing shall be held
without unreasonable delay. In no case shall the person be held
in a hospital or nonhospital facility longer than five judicial
days after the request for a hearing is made without a hearing
being held under ORS 426.070 to 426.130.
(b) The community mental health { - and developmental
disabilities - } program director acts under subsection (1)(c)
of this section. In no case shall the person be held longer than
five judicial days without a hearing under this subsection.
SECTION 410. ORS 426.238 is amended to read:
426.238. The { - Department of Human Services - }
{ + Oregon Health Authority + } may assign classifications, as
defined by rule of the
{ - department - } { + authority + }, to facilities that
provide care and treatment for persons committed to the
{ - department - } { + authority + } under ORS 426.130 or
provide emergency care or treatment for persons pursuant to ORS
426.070, 426.228 to 426.235 or 426.237. The { - department - }
{ + authority + } may authorize a facility to retake custody of
a person who unlawfully leaves a facility as provided in ORS
426.223.
SECTION 411. ORS 426.241 is amended to read:
426.241. (1) The cost of emergency psychiatric care, custody
and treatment related to or resulting from such psychiatric
condition, provided by a hospital or other facility approved by
Enrolled House Bill 2009 (HB 2009-C) Page 259
the { - Department of Human Services - } { + Oregon Health
Authority + } and the community mental health { - and
developmental disabilities - } program director of the county in
which the facility is located, except a state mental hospital,
for an allegedly mentally ill person admitted or detained under
ORS 426.070, 426.140, 426.228, 426.232 or 426.233, or for a
mentally ill person admitted or detained under ORS 426.150,
426.223, 426.273, 426.275 or 426.292, shall be paid by the county
of which the person is a resident from state funds provided it
for this purpose. The county is responsible for the cost when
state funds available therefor are exhausted. The hospital or
other facility shall charge to and collect from the person, third
party payers or other persons or agencies otherwise legally
responsible therefor, the costs of the emergency care, custody
and treatment, as it would for any other patient, and any funds
received shall be applied as an offset to the cost of the
services provided under this section.
(2) If any person is admitted to or detained in a state mental
hospital under ORS 426.070, 426.140, 426.180 to 426.210, 426.228,
426.232 or 426.233 for emergency care, custody or treatment, the
{ - department - } { + authority + } shall charge to and
collect from the person, third party payers or other persons or
agencies otherwise legally responsible therefor, the costs as it
would for other patients of the state mental hospitals under the
provisions of ORS 179.610 to 179.770.
(3) If any person is adjudged mentally ill under the provisions
of ORS 426.130, and the person receives care and treatment in a
state mental hospital, the person, third party payers or other
persons or agencies otherwise legally responsible therefor, shall
be required to pay for the costs of the hospitalization at the
state hospital, as provided by ORS 179.610 to 179.770, if
financially able to do so.
(4) For purposes of this section and ORS 426.310 'resident '
means resident of the county in which the person maintains a
current mailing address or, if the person does not maintain a
current mailing address within the state, the county in which the
person is found, or the county in which a court-committed
mentally ill person has been conditionally released.
(5)(a) The { - department - } { + authority + } may deny
payment for part or all of the emergency psychiatric services
provided by a hospital or nonhospital facility under ORS 426.232,
426.233 or 426.237 when the { - department - }
{ + authority + } finds, upon review, that the allegedly
mentally ill person's condition did not meet the admission
criteria in ORS 426.232 (1), 426.233 (1) or 426.237 (1)(b)(A).
The payer responsible under this section shall make a request for
denial of payment for emergency psychiatric services provided
under ORS 426.232, 426.233 or 426.237 in writing to the
{ - department - } { + authority + }.
(b) The { - department - } { + authority + } may require
the following to provide { - the department with any
information the department determines - } { + the authority
with any information that the authority determines is + }
necessary to review a request for denial of payment made under
this subsection { - and to make a finding, - } or to conduct
{ + a + } review of emergency psychiatric services for the
purpose of planning or defining { - standards in department
rule - } { + authority rules + }:
(A) A hospital or nonhospital facility approved under ORS
426.228 to 426.235 or 426.237.
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(B) A physician or a person providing emergency psychiatric
services under ORS 426.228 to 426.235 or 426.237.
(c) The { - department - } { + authority + } shall adopt
rules necessary to carry out the purposes of this subsection.
SECTION 412. ORS 426.250 is amended to read:
426.250. The following is a nonexclusive list of
responsibilities for payment of various costs related to
commitment proceedings under this chapter and ORS 430.397 to
430.401 as described:
(1) Any physician or qualified person recommended by the
{ - Department of Human Services - } { + Oregon Health
Authority + } who is employed under ORS 426.110 to make an
examination as to the mental condition of a person alleged to be
mentally ill shall be allowed a fee as the court in its
discretion determines reasonable for the examination.
(2) Witnesses subpoenaed to give testimony shall receive the
same fees as are paid in criminal cases, and are subject to
compulsory attendance in the same manner as provided in ORS
136.567 to 136.603. The attendance of out-of-state witnesses may
be secured in the same manner as provided in ORS 136.623 to
136.637. The party who subpoenas the witness or requests the
court to subpoena the witness is responsible for payment of the
cost of the subpoena and payment for the attendance of the
witness at a hearing. When the witness has been subpoenaed on
behalf of an allegedly mentally ill person who is represented by
appointed counsel, the fees and costs allowed for that witness
shall be paid pursuant to ORS 135.055. If the costs of witnesses
subpoenaed by the allegedly mentally ill person are paid as
provided under this subsection, the procedure for subpoenaing
witnesses shall comply with ORS 136.570.
(3) If a person with a right to a counsel under ORS 426.100 is
determined to be financially eligible for appointed counsel at
state expense, the public defense services executive director
shall determine and pay, as provided in ORS 135.055, the
reasonable expenses related to the representation of the person
and compensation for legal counsel. The expenses and compensation
so allowed shall be paid by the public defense services executive
director from funds available for the purpose.
(4) The { - department - } { + authority + } shall pay the
costs of expenses incurred under ORS 426.100 by the Attorney
General's office. Any costs for district attorneys or other
counsel appointed to assume responsibility for presenting the
state's case shall be paid by the county where the commitment
hearing is held, subject to reimbursement under ORS 426.310.
(5) All costs incurred in connection with a proceeding under
ORS 426.200, including the costs of transportation, commitment
and delivery of the person, shall be paid by the county of which
the person is a resident; or, if the person is not a resident of
this state, then by the county from which the emergency admission
was made.
(6) All costs incurred in connection with a proceeding under
ORS 426.180 for the commitment of a person from a reservation for
land-based tribes of Native Americans, including the cost of
transportation, commitment and delivery of the person, shall be
paid by the ruling body of the reservation of which the person is
a resident.
SECTION 413. ORS 426.273 is amended to read:
426.273. (1) During a period of commitment of a patient under
ORS 426.130, the { - Department of Human Services - }
{ + Oregon Health Authority + } may grant a trial visit to the
Enrolled House Bill 2009 (HB 2009-C) Page 261
patient for a period of time and under any conditions the
{ - department - } { + authority + } shall establish. The
{ - department - } { + authority + } shall only grant a trial
visit under this section if the trial visit is agreed to by the
community mental health { - and developmental disabilities - }
program director, or the designee of the director, for the county
in which the person would reside.
(2) When in the opinion of the { - department - }
{ + authority + }, the committed person can be appropriately
served by outpatient care during the period of commitment, the
outpatient care may be required as a condition for trial visit
for a period which, when added to the inpatient treatment period,
shall not exceed the period of commitment. If outpatient care is
required as a condition for a trial visit, the conditions shall
include a designation of a facility, service or other provider to
provide care or treatment.
(3) A copy of the conditions for trial visit shall be given to
all of the persons listed in ORS 426.278.
(4) Any trial visit granted under this section is subject to
the provisions under ORS 426.275.
(5) The director of the community mental health { - and
developmental disabilities - } program, or designee, of the
county in which a person who is on trial visit lives while on
trial visit may modify the conditions for continued trial visit
when such modification is in the best interest of the person. The
director shall send notification of such changes and the reasons
for the changes to all those who received a copy of the original
conditions under ORS 426.278.
SECTION 414. ORS 426.275 is amended to read:
426.275. The following are applicable to placements of mentally
ill persons that are made as conditional release under ORS
426.125, outpatient commitments under ORS 426.127 or trial visits
under ORS 426.273 as described:
(1) If the person responsible under this subsection determines
that the mentally ill person is failing to adhere to the terms
and conditions of the placement, the responsible person shall
notify the court having jurisdiction that the mentally ill person
is not adhering to the terms and conditions of the placement. If
the placement is an outpatient commitment under ORS 426.127 or a
trial visit under ORS 426.273, the notifications shall include a
copy of the conditions for the placement. The person responsible
for notifying the court under this subsection is as follows:
(a) For conditional releases under ORS 426.125, the guardian,
relative or friend in whose care the mentally ill person is
conditionally released.
(b) For outpatient commitments under ORS 426.127, the community
mental health { - and developmental disabilities - } program
director, or designee of the director, of the county in which the
person on outpatient commitment lives.
(c) For trial visits under ORS 426.273, the community mental
health { - and developmental disabilities - } program
director, or designee of the director, of the county in which the
person on trial visit is to receive outpatient treatment.
(2) On its own motion, the court with jurisdiction of a
mentally ill person on such placement may cause the person to be
brought before it for a hearing to determine whether the person
is or is not adhering to the terms and conditions of the
placement. The person shall have the same rights with respect to
notice, detention stay, hearing and counsel as for a hearing held
under ORS 426.095. The court shall hold the hearing within five
Enrolled House Bill 2009 (HB 2009-C) Page 262
judicial days of the date the mentally ill person receives notice
under this section. The court may allow postponement and
detention during postponement as provided under ORS 426.095.
(3) Pursuant to the determination of the court upon hearing
under this section, a person on placement shall either continue
the placement on the same or modified conditions or shall be
returned to the { - Department of Human Services - }
{ + Oregon Health Authority + } for involuntary care and
treatment on an inpatient basis subject to discharge at the end
of the commitment period or as otherwise provided under this
chapter and ORS 430.397 to 430.401.
(4) If the person on placement is living in a county other than
the county of the court that established the current period of
commitment under ORS 426.130 during which the trial visit,
conditional release or outpatient commitment takes place, the
court establishing the current period of commitment shall
transfer jurisdiction to the appropriate court of the county in
which the person is living while on the placement and the court
receiving the transfer shall accept jurisdiction.
(5) The court may proceed as provided in ORS 426.307 or this
section when the court:
(a) Receives notice under ORS 426.070 or 426.228 to 426.235;
and
(b) Determines that the person is a mentally ill person on
conditional release under ORS 426.125, outpatient commitment
under ORS 426.127 or trial visit under ORS 426.273.
SECTION 415. ORS 426.278 is amended to read:
426.278. The following persons shall be given a copy of the
conditions of a placement of a mentally ill person that is made
as an outpatient commitment under ORS 426.127 or as a trial visit
under ORS 426.273:
(1) The committed person;
(2) The community mental health { - and developmental
disabilities - } program director, or designee of the director,
of the county in which the committed person is to receive
outpatient treatment;
(3) The director of any facility, service or other provider
designated to provide care or treatment;
(4) The court of current commitment; and
(5) The appropriate court of the county in which the committed
person lives during the commitment period if the person is living
in a different county than the county of the court that made the
current commitment.
SECTION 416. ORS 426.292 is amended to read:
426.292. Nothing in this chapter and ORS 430.397 to 430.401
prohibits the { - Department of Human Services - } { + Oregon
Health Authority + } from releasing a person from a hospital or
other facility in which the person is being treated prior to the
expiration of the period of commitment under ORS 426.130 when, in
the opinion of the director of the facility or treating
physician, the person is no longer mentally ill.
SECTION 417. ORS 426.300 is amended to read:
426.300. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall, by filing a written
certificate with the last committing court and the court of
residence, discharge any patient from court commitment, except
one held upon an order of a court or judge having criminal
jurisdiction in an action or proceeding arising out of criminal
offense when in its opinion the individual is no longer a
mentally ill person or when in its opinion the transfer of the
Enrolled House Bill 2009 (HB 2009-C) Page 263
individual to a voluntary status is in the best interest of the
treatment of the patient.
(2) The { - department - } { + authority + } may sign
applications for public assistance on behalf of those patients
who may be eligible for public assistance.
SECTION 418. ORS 426.301 is amended to read:
426.301. (1) At the end of the 180-day period of commitment,
any person whose status has not been changed to voluntary shall
be released unless the { - Department of Human Services - }
{ + Oregon Health Authority + } certifies to the court in the
county where the treating facility is located that the person is
still mentally ill and in need of further treatment. The
{ - department - } { + authority + }, pursuant to its rules,
may delegate to the director of the treating facility the
responsibility for making the certification. The director of the
treating facility shall consult with the community mental health
{ - and developmental disabilities - } program director of the
county of residence prior to making the certification. If the
certification is made, the person will not be released, but the
director of the treating facility shall immediately issue a copy
of the certification to the person and to the community mental
health { - and developmental disabilities - } program director
of the county of residence.
(2) The certification shall be served upon the person by the
director of the facility wherein the person is confined or the
designee of the director. The director of the facility shall
inform the court in writing that service has been made and the
date thereof.
(3) The certification shall advise the person of all the
following:
(a) That the { - department - } { + authority + } or
facility has requested that commitment be continued for an
additional period of time.
(b) That the person may consult with legal counsel and that
legal counsel will be provided for the person without cost if the
person is unable to afford legal counsel.
(c) That the person may protest this further commitment within
14 days, and if the person does not commitment will be continued
for an indefinite period of time up to 180 days.
(d) That if the person does protest a further period of
commitment, the person is entitled to a hearing before the court
on whether commitment should be continued.
(e) That the person may protest either orally or in writing by
signing the form accompanying the certification; that the person
is entitled to have a physician or other qualified person as
recommended by the { - department - } { + authority + },
other than a member of the staff at the facility where the person
is confined, examine the person and report to the court the
results of the examination.
(f) That the person may subpoena witnesses and offer evidence
on behalf of the person at the hearing.
(g) That if the person is without funds to retain legal counsel
or an examining physician or qualified person as recommended by
the { - department - } { + authority + }, the court will
appoint legal counsel, a physician or other qualified person.
(4) Nothing in subsection (3) of this section requires the
giving of the warning under ORS 426.123.
(5) The person serving the certification shall read and deliver
the certification to the person and ask whether the person
protests a further period of commitment. The person may protest
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further commitment either orally or by signing a simple protest
form to be given to the person with the certification. If the
person does not protest a further period of commitment within 14
days of service of the certification, the { - department - }
{ + authority + } or facility shall so notify the court and the
court shall, without further hearing, order the commitment of the
person for an additional indefinite period of time up to 180
days.
SECTION 419. ORS 426.303 is amended to read:
426.303. When the person protests a further period of
commitment the { - Department of Human Services - }
{ + Oregon Health Authority + } or facility designated in
accordance with ORS 426.301 shall immediately notify the court
and the court shall have the person brought before it and shall
again advise the person that the { - department - }
{ + authority + } or facility has requested that commitment be
continued for an additional period of time and that if the person
does not protest this commitment the commitment will be continued
for an indefinite period of time up to 180 days. The person shall
also be informed of the rights set forth in ORS 426.301.
SECTION 420. ORS 426.307 is amended to read:
426.307. If the person requests a hearing under ORS 426.301 or
if the court proceeds under ORS 426.275 (5), the following
provisions apply as described:
(1) The hearing shall be conducted as promptly as possible and
at a time and place as the court may direct.
(2) If the person requests a continuance in order to prepare
for the hearing or to obtain legal counsel to represent the
person, the court may grant postponement and detention during
postponement as provided under ORS 426.095.
(3) The person has the right to representation by or
appointment of counsel as provided under ORS 426.100 subject to
ORS 135.055, 151.216 and 151.219.
(4) If the person requests an examination by a physician or
other qualified person as recommended by the { - Department of
Human Services - } { + Oregon Health Authority + } and is
without funds to retain a physician or other qualified person for
purposes of the examination, the court shall appoint a physician
or other qualified person, other than a member of the staff from
the facility where the person is confined, to examine the person
at no expense to the person and to report to the court the
results of the examination.
(5) The provisions of ORS 40.230, 40.235, 40.240 and 40.250 do
not apply to the use of medical records from the current period
of commitment or to testimony related to such records or period
of commitment in connection with hearings under this section. The
court may consider as evidence such reports and testimony.
(6) The court shall then conduct a hearing and after hearing
the evidence and reviewing the recommendations of the treating
and examining physicians or other qualified persons, the court
shall determine whether the person is still a mentally ill person
and in need of further treatment. If in the opinion of the court
the individual is still a mentally ill person by clear and
convincing evidence and in need of further treatment, the court
may order commitment to the { - department - }
{ + authority + } for an additional indefinite period of time up
to 180 days.
(7) At the end of the 180-day period, the person shall be
released unless the { - department - } { + authority + } or
facility again certifies to the committing court that the person
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is still a mentally ill person and in need of further treatment,
in which event the procedures set forth in ORS 426.301 to 426.307
shall be followed.
SECTION 421. ORS 426.330 is amended to read:
426.330. { + (1) + } The special funds authorized for the use
of the superintendents of the Oregon State Hospital, the Blue
Mountain Recovery Center and the Eastern Oregon Training Center
to better enable them promptly to meet the advances and expenses
necessary in the matter of transferring patients to the state
hospitals are continued in existence. The superintendents shall
present their claims monthly with { - proper vouchers attached,
showing - } { + vouchers that show + } the expenditures from
the special funds during the preceding month { - , which
claims, when approved by the Department of Human Services, shall
be paid by warrant upon the State Treasurer against the fund
appropriated to cover the cost of transporting these
patients. - } { + to:
(a) The Oregon Health Authority for the transfer of patients to
the Oregon State Hospital or the Blue Mountain Recovery Center;
and
(b) The Department of Human Services for the transfer of
patients to the Eastern Oregon Training Center.
(2) Against the fund appropriated to cover the cost of
transporting patients, the State Treasurer shall pay:
(a) The claims of the superintendents of the Oregon State
Hospital and the Blue Mountain Recovery Center that have been
approved by the Oregon Health Authority; and
(b) The claims of the superintendent of the Eastern Oregon
Training Center that have been approved by the Department of
Human Services. + }
SECTION 422. ORS 426.335 is amended to read:
426.335. The following limitations on liability and
circumstances are applicable to situations within this chapter
and ORS 430.397 to 430.401:
(1) None of the following shall in any way be held criminally
or civilly liable for the making of the notification under ORS
426.070, provided the person acts in good faith, on probable
cause and without malice:
(a) The community mental health { - and developmental
disabilities - } program director or designee of the director.
(b) The two petitioning persons.
(c) The county health officer.
(d) Any magistrate.
(e) Any peace officer or parole and probation officer.
(f) Any physician attending the allegedly mentally ill person.
(g) The physician attached to a hospital or institution wherein
the allegedly mentally ill person is a patient.
(2) The person conducting the investigation under ORS 426.070
and 426.074 shall not be held criminally or civilly liable for
conducting the investigation, provided the investigator acts in
good faith, on probable cause and without malice.
(3) The person representing the state's interest under ORS
426.100 shall not be held criminally or civilly liable for
performing responsibilities under ORS 426.100 as long as the
person acts in good faith and without malice.
(4) No person appointed under ORS 426.110 to conduct an
examination under ORS 426.120 shall be held criminally or civilly
liable for actions pursuant to ORS 426.120 if the examiner acts
in good faith and without malice.
Enrolled House Bill 2009 (HB 2009-C) Page 266
(5) No physician, hospital or judge shall be held criminally or
civilly liable for actions pursuant to ORS 426.228, 426.231,
426.232, 426.234 or 426.235 if the physician, hospital or judge
acts in good faith, on probable cause and without malice.
(6) No peace officer, person authorized under ORS 426.233,
community mental health director or designee, hospital or other
facility, physician or judge shall in any way be held criminally
or civilly liable for actions pursuant to ORS 426.228 to 426.235
if the individual or facility acts in good faith, on probable
cause and without malice.
(7) Any guardian, relative or friend of a mentally ill person
who assumes responsibility for the mentally ill person under a
conditional release under ORS 426.125 shall not be liable for any
damages that are sustained by any person on account of the
misconduct of the mentally ill person while on conditional
release if the guardian, relative or friend acts in good faith
and without malice.
(8) The persons designated in this subsection shall not be
liable for damages that are sustained by any person or property
on account of the misconduct of a mentally ill person while the
mentally ill person is on outpatient commitment under ORS 426.127
if the designated person acts without willful and wanton neglect
of duty. This subsection is applicable to all of the following:
(a) The community mental health { - and developmental
disabilities - } program director and the designee of the
director for the county in which the committed person resides.
(b) The superintendent or director of any staff of any facility
where the mentally ill person receives treatment during the
outpatient commitment.
(c) The Director of { - Human Services - } { + the Oregon
Health Authority + }.
(d) The physician and the facility granting an outpatient
commitment to a patient.
(9) For trial visits granted under ORS 426.273 and 426.275:
(a) None of the following shall be liable for a patient's
expenses while on trial visit:
(A) The physician and the facility granting a trial visit to a
patient;
(B) The superintendent or director of the facility granting a
trial visit;
(C) The Director of { - Human Services - } { + the Oregon
Health Authority + }; and
(D) The chief medical officer of the facility.
(b) The following persons shall not be liable for damages that
are sustained by any person on account of the misconduct of such
patient while on trial visit if the person acts without willful
and wanton neglect of duty:
(A) The community mental health { - and developmental
disabilities - } program director for the county in which the
person resides;
(B) The superintendent, director or chief medical officer of
any facility granting a trial visit to a patient;
(C) The physician responsible for the patient's trial visit;
(D) The Director of { - Human Services - } { + the Oregon
Health Authority + }; or
(E) The employees and agents of persons listed in this
paragraph.
SECTION 423. ORS 426.370 is amended to read:
426.370. A community mental health { - and developmental
disabilities - } program director or designee may withhold
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information obtained during an investigation under ORS 426.070,
426.228, 426.232, 426.233 or 426.234 if the community mental
health { - and developmental disabilities - } program director
determines:
(1) That information was not included in its investigation
report or otherwise used in a material way to support a
determination by the community mental health { - and
developmental disabilities - } program director that there was
probable cause to believe a person was a mentally ill person; and
(2) Release of the information would constitute a clear and
immediate danger to any person.
SECTION 424. ORS 426.385 is amended to read:
426.385. (1) Every mentally ill person committed to the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall have the right to:
(a) Communicate freely in person and by reasonable access to
telephones;
(b) Send and receive sealed mail, except that this right may be
limited for security reasons in state institutions as described
in ORS 426.010;
(c) Wear the clothing of the person;
(d) Keep personal possessions, including toilet articles;
(e) Religious freedom;
(f) A private storage area with free access thereto;
(g) Be furnished with a reasonable supply of writing materials
and stamps;
(h) A written treatment plan, kept current with the progress of
the person;
(i) Be represented by counsel whenever the substantial rights
of the person may be affected;
(j) Petition for a writ of habeas corpus;
(k) Not be required to perform routine labor tasks of the
facility except those essential for treatment;
(L) Be given reasonable compensation for all work performed
other than personal housekeeping duties;
(m) Daily access to fresh air and the outdoors, except that
this right may be limited when it would create significant risk
of harm to the person or others;
(n) Such other rights as may be specified by rule; and
(o) Exercise all civil rights in the same manner and with the
same effect as one not admitted to the facility, including, but
not limited to, the right to dispose of real property, execute
instruments, make purchases, enter contractual relationships, and
vote, unless the person has been adjudicated incompetent and has
not been restored to legal capacity. Disposal of personal
property in possession of the person in a state institution
described in ORS 426.010 is subject to limitation for security
reasons.
(2)(a) A person must be immediately informed, verbally and in
writing, of any limitation:
(A) Of the right to send or receive sealed mail under
subsection (1)(b) of this section;
(B) Regarding the disposal of personal property under
subsection (1)(o) of this section; and
(C) Of the right to daily access to fresh air and the outdoors
under subsection (1)(m) of this section.
(b) Any limitation under this subsection and the reasons for
the limitation must be stated in the person's written treatment
plan.
Enrolled House Bill 2009 (HB 2009-C) Page 268
(c) The person has the right to challenge any limitation under
this subsection pursuant to rules adopted by the
{ - department - } { + authority + }. The person must be
informed, verbally and in writing, of this right.
(3) Mentally ill persons committed to the { - department - }
{ + authority + } shall have the right to be free from
potentially unusual or hazardous treatment procedures, including
convulsive therapy, unless they have given their express and
informed consent or authorized the treatment pursuant to ORS
127.700 to 127.737. This right may be denied to such persons for
good cause as defined in administrative rule only by the director
of the facility in which the person is confined, but only after
consultation with and approval of an independent examining
physician. Any denial shall be entered into the patient's
treatment record and shall include the reasons for the denial. No
patient shall be subjected to psychosurgery, as defined in ORS
677.190 (22)(b).
(4) Mechanical restraints shall not be applied to a person
admitted to a facility unless it is determined by the chief
medical officer of the facility or designee to be required by the
medical needs of the person. Every use of a mechanical restraint
and the reasons therefor shall be made a part of the clinical
record of the person over the signature of the chief medical
officer of the facility or designee.
(5) Nothing in this section prevents the { - department - }
{ + authority + } from acting to exclude contraband from its
facilities and to prevent possession or use of contraband in its
facilities.
(6) As used in this section:
(a) 'Contraband' has the meaning given that term in ORS
162.135.
(b) 'Security reasons' means the protection of the mentally ill
person from serious and immediate harm and the protection of
others from threats or harassment as defined by rule of the
{ - department - } { + authority + }.
SECTION 425. ORS 426.395 is amended to read:
426.395. A simple and clear statement of rights guaranteed to
patients committed to the { - Department of Human Services - }
{ + Oregon Health Authority + } shall be prominently posted in
each room frequented by patients in all facilities housing such
patients. A copy of the statement shall be given to each patient
upon admission and sent, upon request, to the legal counsel,
guardian, relative or friend of the patient. The statement shall
include the name, address and telephone number of the system
described in ORS 192.517 (1).
SECTION 426. ORS 426.415 is amended to read:
426.415. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } may adopt rules establishing
requirements and procedures for licensing persons who may order,
monitor and evaluate the use of restraint and seclusion in
facilities providing intensive mental health treatment services
to individuals under 21 years of age.
(2) A license may not be issued or renewed under rules adopted
under this section unless the person applying for the license or
renewal:
(a) Is employed by or providing services under contract with a
provider that is certified by the { - Department of Human
Services - } { + Oregon Health Authority + } to provide
intensive mental health treatment services for individuals under
21 years of age;
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(b) Has successfully completed an emergency safety intervention
training program approved by the director;
(c) Provides documented evidence of the person's ability to
assess the psychological and physical well-being of individuals
under 21 years of age;
(d) Meets other qualifications established by the director by
rule for qualified mental health professionals; and
(e) Demonstrates knowledge of federal and state rules governing
the use of restraint and seclusion in intensive mental health
treatment programs for individuals under 21 years of age.
(3) The rules described in subsection (1) of this section
shall:
(a) Specify procedures for issuing and renewing licenses;
(b) Establish a term of licensure;
(c) Require a person issued a license to satisfy annual
training requirements relating to emergency safety intervention
procedures;
(d) Specify grounds for denial, suspension or revocation of a
license;
(e) Set any license or renewal fees the director determines are
necessary; and
(f) Specify any other licensing provisions the director
determines are necessary to comply with federal law or
regulations or to operate a licensing system described in this
section.
SECTION 427. ORS 426.495 is amended to read:
426.495. (1) As used in ORS 426.490 to 426.500, unless the
context requires otherwise:
(a) 'Case manager' means a person who works on a continuing
basis with a person with a chronic mental illness and is
responsible for assuring the continuity of the various services
called for in the discharge plan of the person with a chronic
mental illness including services for basic personal maintenance,
mental and personal treatment, and appropriate education and
employment.
(b) 'Discharge plan' means a written plan prepared jointly with
the person with a chronic mental illness, mental health staff and
case manager prior to discharge, prescribing for the basic and
special needs of the person upon release from the hospital.
(c) 'Person with a chronic mental illness' means an individual
who is:
(A) Eighteen years of age or older; and
(B) Diagnosed by a psychiatrist, a licensed clinical
psychologist or a nonmedical examiner certified by the
{ - Department of Human Services - } { + Oregon Health
Authority + } as having chronic schizophrenia, a chronic major
affective disorder, a chronic paranoid disorder or another
chronic psychotic mental disorder other than those caused by
substance abuse.
(2) For purposes of providing services in the community, the
{ - department - } { + authority + } may adopt rules
consistent with accepted professional practices in the fields of
psychology and psychiatry to specify other criteria for
determining who is a person with a chronic mental illness.
SECTION 428. ORS 426.500 is amended to read:
426.500. For the purpose of carrying out the policy and intent
of ORS 426.490 to 426.500, the { - Department of Human
Services - } { + Oregon Health Authority + } shall:
(1) Adopt rules for the administration of ORS 426.490 to
426.500;
Enrolled House Bill 2009 (HB 2009-C) Page 270
(2) Prepare a written discharge plan for each person with a
chronic mental illness who is a patient at a state mental
institution or who is committed to the { - department - }
{ + authority + } pursuant to ORS 426.005 to 426.223 and 426.241
to 426.380;
(3) Ensure that case managers are provided for each person with
a chronic mental illness described in subsection (2) of this
section; and
(4) Disburse from any available funds:
(a) Funds for one LINC model in the area served by F. H.
Dammasch State Hospital and one LINC model in the area served by
the Oregon State Hospital licensed under ORS 443.415;
(b) Discretionary funds for services necessary to implement a
discharge plan, including but not limited to transportation,
medication, recreation and socialization; and
(c) Funds to provide day treatment services, community
psychiatric inpatient services, and work activity services for
persons with chronic mental illness when needed.
SECTION 429. ORS 426.502 is amended to read:
426.502. As used in ORS 426.502 to 426.508:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'Community housing' means property
and related equipment that are used or could be used to house
persons with chronic mental illness and their care providers.
'Community housing' includes single-family housing and
multiple-unit residential housing.
{ - (2) - } { + (3) + } 'Construct' means to build,
install, assemble, expand, alter, convert, replace or relocate.
'Construct ' includes to install equipment and to prepare a site.
{ - (3) 'Department' means the Department of Human
Services. - }
(4) 'Equipment' means furnishings, fixtures or appliances that
are used or could be used to provide care in community housing.
(5) 'Multiple-unit residential housing' means housing that
provides two or more living units and spaces for common use by
the occupants in social and recreational activities.
'Multiple-unit residential housing' may include nonhousing
facilities incidental or appurtenant to the housing that, in the
determination of the
{ - department - } { + authority + }, improve the quality of
the housing.
(6) 'Person with a chronic mental illness' has the meaning
given that term in ORS 426.495.
(7) 'Single-family housing' means a detached living unit with
common living room and dining facilities for at least three
occupants with chronic mental illness. 'Single-family housing '
may include nonhousing facilities incidental or appurtenant to
the housing that, in the determination of the
{ - department - } { + authority + }, improve the quality of
the housing.
SECTION 430. ORS 426.504 is amended to read:
426.504. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may, through contract or
otherwise, acquire, purchase, receive, hold, exchange, demolish,
construct, lease, maintain, repair, replace, improve and equip
community housing for the purpose of housing persons with chronic
mental illness.
(2) The { - department - } { + authority + } may dispose of
community housing acquired under subsection (1) of this section
Enrolled House Bill 2009 (HB 2009-C) Page 271
in a public or private sale, upon such terms and conditions as
the
{ - department - } { + authority + } considers advisable to
increase the quality and quantity of community housing available
for persons with chronic mental illness. Except as provided in
subsection (3) of this section, in any instrument conveying fee
title to community housing, the { - department - }
{ + authority + } shall include language that restricts the use
of the community housing to housing for persons with chronic
mental illness. Such restriction is not a violation of ORS
93.270.
(3) If the { - department - } { + authority + } determines
that community housing acquired under subsection (1) of this
section is no longer suitable for use as community housing, the
{ - department - } { + authority + } may sell or otherwise
dispose of the community housing without including in any
instrument conveying fee title to the community housing any
language that restricts the use of the community housing.
Proceeds from the sale or disposition of community housing under
this subsection are considered proceeds described in ORS 426.506
(4)(c).
(4) When exercising the { - authority - } { + power + }
granted to the
{ - department - } { + authority + } under this section, the
{ - department - } { + authority + } is not subject to ORS
chapter 273 or ORS 270.100 to 270.190, 276.900 to 276.915 or
279A.250 to 279A.290.
SECTION 431. ORS 426.506 is amended to read:
426.506. (1) There is created in the State Treasury, separate
and distinct from the General Fund, the Community Mental Health
Housing Fund. All earnings on investments of moneys in the
Community Mental Health Housing Fund shall accrue to the fund.
Interest earned on moneys in the fund shall be credited to the
fund. All moneys in the fund are continuously appropriated to the
{ - Department of Human Services - } { + Oregon Health
Authority + } to carry out the provisions of ORS 426.504.
(2) The Community Mental Health Housing Fund shall be
administered by the { - department - } { + authority + } to
provide housing for persons with chronic mental illness. As used
in this subsection, ' housing' may include acquisition,
maintenance, repair, furnishings and equipment.
(3)(a) There is established within the Community Mental Health
Housing Fund a Community Housing Trust Account. With approval of
the State Treasurer and upon request of the Director of
{ - Human Services - } { + the Oregon Health Authority + },
moneys in the account may be invested as provided in ORS 293.701
to 293.820.
(b) Notwithstanding the provisions of ORS 270.150, the
{ - department - } { + authority + } shall deposit into the
Community Housing Trust Account the proceeds, less costs to the
state, received by the { - department - } { + authority + }
from the sale of F. H. Dammasch State Hospital property under ORS
426.508. The { - department - } { + authority + } may expend,
for the purposes set forth in ORS 426.504, any earnings credited
to the account, including any interest earned on moneys deposited
in the account, and up to five percent of the sale proceeds
initially credited to the account by the Oregon Department of
Administrative Services. At least 95 percent of the sale proceeds
shall remain in the account in perpetuity. Proceeds deposited in
the account may not be commingled with proceeds from the sale of
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any surplus real property owned, operated or controlled by the
{ - Department of Human Services - } { + authority + } and
used as a state training center.
(c) Interest earned on moneys in the Community Housing Trust
Account may be expended in the following manner:
(A) Seventy percent of interest earned on deposits in the
account shall be expended for community housing purposes; and
(B) Thirty percent of interest earned on deposits in the
account shall be expended for institutional housing purposes.
(d) Interest earned on deposits in the Community Housing Trust
Account shall not be used to support operating expenses of the
{ - department - } { + authority + }.
(4) The Community Mental Health Housing Fund shall consist of:
(a) Moneys appropriated to the fund by the Legislative
Assembly;
(b) Sale proceeds and earnings from the account under
subsection (3) of this section;
(c) Proceeds from the sale, transfer or lease of any surplus
real property owned, operated or controlled by the
{ - department - } { + authority + } and used as community
housing;
(d) Moneys reallocated from other areas of the
{ - department's - } { + authority's + } budget;
(e) Interest and earnings credited to the fund; and
(f) Gifts of money or other property from any source, to be
used for the purposes of developing housing for persons with
chronic mental illness.
(5) The { - department - } { + authority + } shall adopt
policies:
(a) To establish priorities for the use of moneys in the
Community Mental Health Housing Fund for the sole purpose of
developing housing for persons with chronic mental illness;
(b) To match public and private moneys available from other
sources for developing housing for persons with chronic mental
illness; and
(c) To administer the fund in a manner that will not exceed the
State Treasury's maximum cost per transaction.
(6) The { - Department of Human Services - }
{ + authority + } shall collaborate with the Housing and
Community Services Department to ensure the highest return and
best value for community housing from the Community Mental Health
Housing Fund.
(7) The { - Department of Human Services - }
{ + authority + } shall provide a report of revenues to and
expenditures from the Community Mental Health Housing Fund as
part of its budget submission to the Governor and Legislative
Assembly under ORS chapter 291.
SECTION 432. ORS 426.508 is amended to read:
426.508. (1) Notwithstanding ORS 421.611 to 421.630 or any
actions taken under ORS 421.611 to 421.630, the Department of
Corrections shall transfer the real property known as the F. H.
Dammasch State Hospital and all improvements to the Oregon
Department of Administrative Services to be sold for the benefit
of the { - Department of Human Services - } { + Oregon Health
Authority + }.
(2)(a) Notwithstanding ORS 270.100 to 270.190, and except as
provided in subsection (4) of this section, the Oregon Department
of Administrative Services shall sell or otherwise convey the
real property known as the F. H. Dammasch State Hospital in a
manner consistent with the provisions of this section. Conveyance
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shall not include transfer to a state agency. The sale price of
the real property shall equal or exceed the fair market value of
the real property. The Oregon Department of Administrative
Services shall engage the services of a licensed real estate
broker or principal real estate broker to facilitate the sale of
the real property.
(b) The Oregon Department of Administrative Services shall
retain from the sale or other conveyance of the real property
those costs incurred by the state in selling or conveying the
real property, including costs incurred by the Department of
Corrections in transferring the real property to the Oregon
Department of Administrative Services. The remaining proceeds
from the sale or other conveyance shall be transferred to the
Community Housing Trust Account created under ORS 426.506 (3).
(3) Redevelopment of the real property formerly occupied by the
F. H. Dammasch State Hospital shall be consistent with the
Dammasch Area Transportation Efficient Land Use Plan developed by
Clackamas County, the City of Wilsonville, the Oregon Department
of Administrative Services, the Department of Land Conservation
and Development, the Department of Transportation, the State
Housing Council, the { - Department of Human Services - }
{ + Oregon Health Authority + } and the Department of State
Lands.
(4) The Oregon Department of Administrative Services shall
reserve from the sale of the real property under subsection (2)
of this section not more than 10 acres. The real property
reserved from sale shall be transferred to the { - Department
of Human Services for use by the Department of Human Services to
develop community housing for persons with chronic mental
illness. The Oregon Department of Administrative Services and the
Department of Human Services shall jointly coordinate with the
City of Wilsonville to identify the real property reserved from
sale under this subsection - } { + Oregon Health Authority for
use by the authority to develop community housing for persons
with chronic mental illness. The department and the authority
shall jointly coordinate with the City of Wilsonville to identify
the real property reserved from sale under this subsection + }.
SECTION 433. ORS 426.650 is amended to read:
426.650. (1) Pursuant to rules promulgated by the
{ - Department of Human Services - } { + Oregon Health
Authority + }, the superintendent of any state hospital for the
treatment and care of persons with mental illness may admit and
hospitalize therein as a patient any person in need of medical or
mental therapeutic treatment as a sexually dangerous person who
voluntarily has made written application for such admission. No
person under the age of 18 years shall be admitted as a patient
to any such state hospital unless an application therefor in
behalf of the person has been executed by the parent, adult next
of kin or legal guardian of the person. Pursuant to rules and
regulations of the { - department - } { + authority + }, no
person voluntarily admitted to any state hospital shall be
detained therein more than 72 hours after the person, if at least
18 years of age, has given notice in writing of desire to be
discharged therefrom, or, if the patient is under the age of 18
years, after notice in writing has been given by the parent,
adult next of kin or legal guardian of the person that such
parent, adult next of kin or legal guardian desires that such
person be discharged therefrom.
(2) Any person voluntarily admitted to a state facility
pursuant to this section may upon application and notice to the
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superintendent of the institution concerned, be granted a
temporary leave of absence from the institution if such leave, in
the opinion of the chief medical officer, will not interfere with
the successful treatment or examination of the applicant.
SECTION 434. ORS 426.670 is amended to read:
426.670. The { - Department of Human Services - }
{ + Oregon Health Authority + } hereby is directed and
authorized to establish and operate treatment programs, either
separately within an existing state Department of Corrections
institution, as part of an existing program within { - a
Department of Human Services - } { + an Oregon Health
Authority + } institution, or in specified and approved sites in
the community to receive, treat, study and retain in custody, as
required, such sexually dangerous persons as are committed under
ORS 426.510 to 426.670.
SECTION 435. ORS 426.675 is amended to read:
426.675. (1) When a defendant has been convicted of a sexual
offense under ORS 163.305 to 163.467 or 163.525 and there is
probable cause to believe the defendant is a sexually dangerous
person, the court prior to imposing sentence may continue the
time for sentencing and commit the defendant to a facility
designated under ORS 426.670 for a period not to exceed 30 days
for evaluation and report.
(2) If the facility reports to the court that the defendant is
a sexually dangerous person and that treatment available may
reduce the risk of future sexual offenses, the court shall hold a
hearing to determine by clear and convincing evidence that the
defendant is a sexually dangerous person. The state and the
defendant shall have the right to call and cross-examine
witnesses at such hearing. The defendant may waive the hearing
required by this subsection.
(3) If the court finds that the defendant is a sexually
dangerous person and that treatment is available which will
reduce the risk of future sexual offenses, it may, in its
discretion at the time of sentencing:
(a) Sentence the defendant to probation on the condition that
the person participate in and successfully complete a treatment
program for sexually dangerous persons pursuant to ORS 426.670;
(b) Impose a sentence of imprisonment with the order that the
defendant be assigned by the Director of the Department of
Corrections to participate in a treatment program for sexually
dangerous persons pursuant to ORS 426.670. The Department of
Corrections and { - Department of Human Services - } { + the
Oregon Health Authority + } shall jointly adopt administrative
rules to coordinate assignment and treatment of prisoners under
this subsection; or
(c) Impose any other sentence authorized by law.
SECTION 436. ORS 426.680 is amended to read:
426.680. (1) The superintendent of the facility designated
under ORS 426.670 to receive commitments for medical or mental
therapeutic treatment of sexually dangerous persons may grant a
trial visit to a defendant committed as a condition of probation
where:
(a) The trial visit is not inconsistent with the terms and
conditions of probation; and
(b) The trial visit is agreed to by the community mental health
{ - and developmental disabilities - } program director for the
county in which the person would reside.
(2) Trial visit here shall correspond to trial visit as
described in ORS 426.273 to 426.292 and 426.335, except that the
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length of a trial visit may be for the duration of the period of
probation, subject to the consent of the sentencing court.
SECTION 437. ORS 427.104 is amended to read:
427.104. The Department of Human Services with funds
appropriated for that purpose by the legislature, shall establish
and operate a Developmental Disability Diagnosis and Evaluation
Service for people with mental retardation or developmental
disabilities. The Developmental Disability Diagnosis and
Evaluation Service shall provide all or part of diagnostic
evaluations, as defined in ORS 427.105, when complete evaluations
are not available through community { - mental health and - }
developmental disabilities programs, and the Developmental
Disability Diagnosis and Evaluation Service shall:
(1) Provide consultation and training to community { - mental
health and - } developmental disabilities programs in the
development of local diagnosis and evaluation services;
(2) Develop and periodically revise department standards and
procedures for diagnosis and evaluation services;
(3) Coordinate diagnostic evaluations statewide to minimize
duplication of tests and examinations;
(4) Approve applications for admission to the training center;
(5) Provide necessary information to the State Training Center
Review Board when a decision of the Developmental Disability
Diagnosis and Evaluation Service regarding admission to the state
training center is appealed by the person, the parents or legal
guardian of the person;
(6) Provide consultation to appropriate agencies and
individuals regarding persons evaluated; and
(7) Process and coordinate all placements of residents from the
state training center.
SECTION 437a. ORS 427.108 is amended to read:
427.108. The Department of Human Services shall establish fee
schedules for services under ORS 427.104. All fees collected
under this section shall be deposited in the { - Mental Health
and Developmental Disability - } { + Department of Human + }
Services Account.
SECTION 438. ORS 427.112 is amended to read:
427.112. A general hospital, community { - mental health
and - } developmental disabilities program, or other facility,
except a state training center, providing diagnostic evaluations
under ORS 427.105 shall charge to and collect from the person,
third party payers, or other persons or agencies otherwise
legally responsible therefor, the costs of the diagnostic
evaluation or emergency care, custody and treatment, as the
facility would for any other client or resident.
SECTION 439. ORS 427.180 is amended to read:
427.180. (1) A person shall be admitted to a state training
center only after:
(a) The person has either been committed to the Department of
Human Services as a mentally retarded person under ORS 427.290,
or an application for admission has been filed either by the
person or by another in the manner set forth in ORS 427.185;
(b) The person has undergone a diagnostic evaluation as defined
in ORS 427.105 and the completed evaluation has been provided to
the Developmental Disability Diagnosis and Evaluation Service
established under ORS 427.104; and
(c) Either the Developmental Disability Diagnosis and
Evaluation Service or, upon appeal, the Director of Human
Services finds that the person meets the requirements set out in
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subsection (2) of this section and approves the person for
admission.
(2) A person shall be approved for admission under subsection
(1)(c) of this section if the following conditions exist:
(a) The person is mentally retarded;
(b) Programs and services needed by the person are available in
a training center and comparable services are not available in
community { - mental health and - } developmental disabilities
programs or other human service agencies;
(c) Admission to a state training center is the best available
plan and in the best interest of the person, family of the person
and the community; and
(d) Space is available or may become available within a
reasonable time in an appropriate unit of a state training
center.
SECTION 440. ORS 427.185 is amended to read:
427.185. (1) A person seeking admission to a state training
center shall apply on forms and in the manner established by the
Department of Human Services, to the community { - mental
health and - } developmental disabilities program serving the
area in which the applicant currently resides. If the person
seeking admission is a minor or is incapacitated, the application
shall be made by the person's parents or guardian or by the
person entitled to custody.
(2) Upon receipt of an application, the community { - mental
health and - } developmental disabilities program shall provide
or arrange a diagnostic evaluation, meeting the requirements set
forth in ORS 427.105, of the person on whose behalf the
application for admission is made at a facility approved by the
department. The community { - mental health and - }
developmental disabilities program or its designee shall schedule
a date for the diagnostic evaluation and notify the applicant or
person having custody. No person shall be kept in residence in a
training center for a diagnostic evaluation longer than 10
business days.
(3) The costs of transportation to the community { - mental
health and - } developmental disabilities program or designated
facility shall be paid by the applicant. The cost of maintenance
for any period of residence in a training center shall be
determined as provided for in ORS 179.610 to 179.770 and paid by
the applicant or other persons or agencies legally responsible.
SECTION 441. ORS 427.190 is amended to read:
427.190. (1) Upon receipt of a completed diagnostic evaluation,
the community { - mental health and - } developmental
disabilities program shall forward the completed application and
the completed diagnostic evaluation to the Developmental
Disability Diagnosis and Evaluation Service.
(2) Upon receipt of a completed application and diagnostic
evaluation from the community { - mental health and - }
developmental disabilities program, the Developmental Disability
Diagnosis and Evaluation Service shall promptly determine the
eligibility and priority for admission in accordance with ORS
427.180 and 427.195.
(3) When space in an appropriate unit of a training center
becomes available for a person otherwise eligible for admission
under ORS 427.180, the Developmental Disability Diagnosis and
Evaluation Service shall notify the applicant or, if the person
is committed, the director of the community { - mental health
and - } developmental disabilities program in the county of the
person's residence that the person has been accepted for
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admission. The notice shall establish the date when the admission
is to be made. If the person does not appear at the designated
training center within 15 days after the date established for
admission, the application of the person may be canceled by the
Developmental Disability Diagnosis and Evaluation Service.
(4) A person applying for admission to a state training center
or, if the person is a minor or incapacitated, the person
applying for admission on behalf of the minor or incapacitated
person may appeal any decision of the Developmental Disability
Diagnosis and Evaluation Service regarding admission to the
Director of Human Services. The appeal shall be filed within 30
days of receipt of notice of the decision and shall set forth the
reasons for the appeal. The director shall convene the State
Training Center Review Board, established under ORS 427.205,
within 30 days of receipt of the appeal. The board shall advise
the director regarding disposition of the appeal, and the
director shall make a decision on the appeal within 30 days of
the meeting of the board. The decision of the director shall be
final.
SECTION 442. ORS 427.235 is amended to read:
427.235. (1) Any two persons may notify the judge of the court
having probate jurisdiction for the county or the circuit court,
if it is not the probate court but its jurisdiction has been
extended to include commitment of the mentally retarded under ORS
3.275, that a person within the county is a mentally retarded
person in need of commitment for residential care, treatment and
training. Such notice shall be in writing and sworn to before an
officer qualified to administer an oath and shall set forth the
facts sufficient to show the need for investigation. The circuit
court shall forward notice to the community { - mental health
and - } developmental disabilities program director in the county
if it finds the notice sufficient to show the need for
investigation. The director or the designee of the director
shall immediately investigate to determine whether the person is
in fact a mentally retarded person. However, if the petition for
commitment is from a state training center, the duties of the
community { - mental health and - } developmental disabilities
program director under ORS 427.235 to 427.270, 427.280 and
427.285 shall be the responsibility of the superintendent of the
state training center or the designee of the superintendent.
(2) Any person who acts in good faith shall not be held civilly
liable for making of the notification under subsection (1) of
this section.
(3) Any investigation conducted by the community { - mental
health and - } developmental disabilities program director or
the designee of the director under subsection (1) of this section
shall commence with an interview or examination of the allegedly
mentally retarded person, where possible, in the home of the
allegedly mentally retarded person or other place familiar to the
allegedly mentally retarded person. Further investigation if
warranted shall include a diagnostic evaluation as defined in ORS
427.105 and may also include interviews with the allegedly
mentally retarded person's relatives, neighbors, teachers and
physician. The investigation shall also determine if any
alternatives to commitment are available. The investigator shall
also determine and recommend to the court whether the person is
incapacitated and in need of a guardian or conservator.
(4) The investigation report shall be submitted to the court
within 30 days of receipt of notice from the court. A copy of the
investigation report and diagnostic evaluation, if any, shall
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also be made available to the Developmental Disability Diagnosis
and Evaluation Service and to the allegedly mentally retarded
person and, where the allegedly mentally retarded person is a
minor or incapacitated, to the parents of the allegedly mentally
retarded person or guardian as soon as possible after its
completion but in any case prior to a hearing held under ORS
427.245.
(5) Any person conducting an evaluation or investigation under
this section shall in no way be held civilly liable for
conducting the investigation or performing the diagnostic
evaluation.
(6) If requested by a person conducting an investigation under
this section, a physician who has examined the allegedly mentally
retarded person may, with patient authorization or in response to
a court order, provide any relevant information the physician has
regarding the allegedly mentally retarded person.
SECTION 443. ORS 427.245 is amended to read:
427.245. (1) If the court, following receipt of an
investigation report under ORS 427.235, concludes that there is
probable cause to believe that the subject of the investigation
is in fact a mentally retarded person, it shall, through the
issuance of a citation as provided in subsection (2) of this
section, cause the person to be brought before it at such time
and place as it may direct for a hearing to determine whether the
person is mentally retarded. The person shall be given the
opportunity to appear at the hearing. If the person is detained
pursuant to ORS 427.255, the court shall hold the hearing within
seven judicial days.
(2) Upon a determination under subsection (1) of this section
that probable cause exists to believe that the person is in fact
a mentally retarded person, the judge shall cause a citation to
issue to the person or, if the person is a minor or
incapacitated, to the parent or legal guardian of the person. The
citation shall state the specific reasons the person is believed
to be mentally retarded. The citation shall also contain a notice
of the time and place of the commitment hearing, the right to
legal counsel, the right to have legal counsel appointed if the
person is unable to afford legal counsel, the right to have legal
counsel appointed immediately if so requested, the right to
subpoena witnesses in behalf of the person to testify at the
hearing, the right to cross-examine all witnesses and such other
information as the court may direct. The citation shall be served
on the person by the community { - mental health and - }
developmental disabilities program director or the designee of
the director delivering a duly certified copy of the original to
the person prior to the hearing. The person, the parents of the
person or the legal guardian of the person shall have the
opportunity to consult with legal counsel prior to being brought
before the court. The community { - mental health and - }
developmental disabilities program director or the designee of
the director shall advise the person of the purpose of the
citation and the possible consequences of the proceeding.
SECTION 444. ORS 427.255 is amended to read:
427.255. (1) If the court finds that there is probable cause to
believe that failure to take an allegedly mentally retarded
person into custody pending an investigation or hearing would
pose an imminent and serious danger to the person or to others,
the judge may issue a warrant of detention to either the
community
Enrolled House Bill 2009 (HB 2009-C) Page 279
{ - mental health and - } developmental disabilities program
director or the sheriff of the county directing that the person
or the designee of the person take the allegedly mentally
retarded person into custody and produce the mentally retarded
person at the time and place stated in the warrant. At the time
the person is taken into custody, the person taking the person
into custody shall advise the allegedly mentally retarded person
or, if the allegedly mentally retarded person is incapacitated or
a minor, the parents or guardian of the allegedly mentally
retarded person of the person's right to counsel, to have legal
counsel appointed if the allegedly mentally retarded person is
unable to afford legal counsel, and, if requested, to have legal
counsel appointed immediately.
(2) A person taken into custody under subsection (1) of this
section shall be provided all care, custody, evaluation and
treatment required for the mental and physical health and safety
of the person and the director of the facility retaining custody
shall report any care, custody, evaluation or treatment provided
the person to the court as required by ORS 427.280. Any
diagnostic evaluation performed on such person shall be
consistent with Department of Human Services rules and ORS
427.105. Any prescription or administration of drugs shall be the
sole responsibility of the treating physician. The allegedly
mentally retarded person shall have the right to the least
hazardous treatment procedures while in custody, and the treating
physician shall be notified immediately of the use of any
mechanical restraints on the person. A note of each use of
mechanical restraint and the reasons therefor shall be made a
part of the person's clinical record over the signature of the
treating physician.
SECTION 445. ORS 427.275 is amended to read:
427.275. (1) Any physician or psychologist employed by the
judge to make a diagnostic evaluation of a person alleged to be
mentally retarded shall be allowed a fee as the court in its
discretion determines reasonable for the evaluation. The costs of
the evaluation shall be paid by the county of residence of the
person or, if the person has no residence within the state, by
the county in which the person is taken into custody. The county
shall not be held responsible for the costs of prior examinations
or tests reported to the court, or of diagnostic evaluations
performed or arranged by the community { - mental health
and - } developmental disabilities program or Department of Human
Services.
(2) Witnesses subpoenaed to give testimony shall receive the
same fees as are paid in criminal cases and are subject to
compulsory attendance in the same manner as provided in ORS
136.567 to 136.603. The attendance of out-of-state witnesses may
be secured in the same manner as provided in ORS 136.623 to
136.637. The party who subpoenas the witness or requests the
court to subpoena the witness is responsible for payment of the
cost of the subpoena and payment for the attendance of the
witness at a hearing. When the witness has been subpoenaed on
behalf of an allegedly mentally retarded person who is
represented by appointed counsel, the fees and costs allowed for
that witness shall be paid pursuant to ORS 135.055.
SECTION 446. ORS 427.280 is amended to read:
427.280. The court shall be fully advised by the community
{ - mental health and - } developmental disabilities program
director or, when the person has been detained under ORS 427.255,
by the director of the facility retaining custody of all
Enrolled House Bill 2009 (HB 2009-C) Page 280
treatment known to have been administered to the allegedly
mentally retarded person after a citation has been issued to the
person.
SECTION 447. ORS 427.300 is amended to read:
427.300. (1) The Department of Human Services may, at its
discretion, direct any court-committed mentally retarded person
to the facility best able to treat and train the person. The
authority of the department on such matters shall be final.
(2) At any time, for good cause and in the best interest of the
mentally retarded person, the department may decide to transfer a
resident from one facility to another or discharge a resident as
no longer in need of residential care, treatment or training in a
state training center. Fifteen days prior to department action,
the department shall notify the resident and the parent, guardian
or person entitled to custody of the resident by certified mail
of its decision. The notice shall indicate the right of the
aforementioned parties to appeal this decision to the State
Training Center Review Board in writing within 10 days after
receipt of notice. Within 30 days from the date the appeal is
received by the department, the State Training Center Review
Board shall hold a hearing at which the department and the person
having filed the appeal shall present their case and shall
communicate its recommendation to the Director of Human Services
pursuant to ORS 427.205 (4)(b); and the director shall
communicate the decision of the director by certified mail to the
appealing party.
(3) The department, pursuant to its rules, may delegate to a
community { - mental health and - } developmental disabilities
program director the responsibility for assignment of mentally
retarded persons to suitable facilities or transfer between such
facilities under conditions which the department may define. Any
voluntary client or resident shall be released from the treating
or training facility within 15 business days of the request of
the client or resident for release, unless commitment procedures
are initiated under ORS 427.235.
SECTION 448. ORS 427.306 is amended to read:
427.306. (1) No person, not incarcerated upon a criminal
charge, who has been alleged or adjudged a mentally retarded
person shall be confined in any prison, jail or other enclosure
where those charged with a crime or a violation of a municipal
ordinance are incarcerated.
(2) No person alleged or adjudged a mentally retarded person,
not incarcerated on a criminal charge, shall be confined without
an attendant in charge of the person. If not confined in a
community hospital, the community { - mental health and - }
developmental disabilities program director or sheriff having the
person in custody shall select some suitable person to act as
attendant in quarters suitable for the comfortable, safe and
humane confinement of the person. The person shall be detained in
the least restrictive setting consistent with the person's
emotional and physical needs and the protection of others.
SECTION 449. ORS 428.210 is amended to read:
428.210. As used in ORS 428.210 to 428.270:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'Department' means the Department
of Human Services.
{ - (2) - } { + (3) + } 'Foreign hospital' means an
institution in any other state which corresponds to the
institutions defined in subsection { - (7) - } { + (8) + } of
this section.
Enrolled House Bill 2009 (HB 2009-C) Page 281
{ - (3) - } { + (4) + } 'Nonresident' means any person who
is not a resident of this state as defined in subsection
{ - (6) - } { + (7) + } of this section.
{ - (4) - } { + (5) + } 'Other state' includes all the
states, territories, possessions, commonwealths and agencies of
the United States and the District of Columbia, with the
exception of the State of Oregon.
{ - (5) - } { + (6) + } 'Patient' means any person who has
been committed by a court of competent jurisdiction to a state
hospital, except a person committed to a state hospital pursuant
to ORS 136.150 (1969 Replacement Part), 136.160 (1969 Replacement
Part), 161.341 or 161.370.
{ - (6) - } { + (7) + } 'Resident of this state' means a
person who has lived in this state continuously for a period of
one year and who has not acquired legal residence in any other
state by living continuously therein for at least one year
subsequent to the residence of the person in this state. However,
a service man or woman on active duty in the Armed Forces of the
United States who was domiciled in Oregon upon entry into active
duty and who has acquired no other domicile shall be entitled to
have his or her children considered a resident of this state so
long as no other domicile is acquired by the service man or
woman.
{ - (7) - } { + (8) + } 'State hospital' means any
institution listed in ORS 426.010 or 427.010.
SECTION 450. ORS 428.220 is amended to read:
428.220. (1) In determining whether or not any person committed
by a court of competent jurisdiction to a state hospital or
foreign hospital is a resident of this state:
(a) The time spent in a state hospital or foreign hospital or
on parole therefrom shall not be counted in determining the
residence of such person in this or any other state.
(b) The residence of such person at the time of commitment
shall remain the residence of the person for the duration of the
commitment of the person.
(2) The Department of Human Services may give written
authorization for the admission to { - a state hospital
whenever - } { + the Eastern Oregon Training Center
whenever + }:
(a) The residence of any person cannot be established after
reasonable and diligent investigation and effort.
(b) The peculiar circumstances of a case, in the judgment of
the department, provide a sufficient reason for the suspension of
the residence requirement provided by ORS 428.210 { - (6) - }
{ + (7) + }.
{ + (3) The Oregon Health Authority may give written
authorization for the admission to the Blue Mountain Recovery
Center or the Oregon State Hospital whenever:
(a) The residence of any person cannot be established after
reasonable and diligent investigation and effort.
(b) The peculiar circumstances of a case, in the judgment of
the authority, provide a sufficient reason for the suspension of
the residence requirement provided by ORS 428.210 (7). + }
SECTION 451. ORS 428.230 is amended to read:
428.230. (1) Except as provided in ORS 428.205, 428.220 and
428.330, the Department of Human Services { + and the Oregon
Health Authority + } shall return nonresident patients to any
other state in which they may have legal residence.
(2) The department may give written authorization for the
return to { - a state hospital - } { + the Eastern Oregon
Enrolled House Bill 2009 (HB 2009-C) Page 282
Training Center + } of a resident of Oregon who has been
committed by a court of competent jurisdiction to a foreign
hospital.
(3) The superintendent of { - any state hospital - }
{ + the Eastern Oregon Training Center + } shall admit and care
for any person eligible for admission pursuant to subsection (2)
of this section or ORS 428.220 (2) upon receipt of a certified
copy of the commitment papers and the written authorization of
the department.
{ + (4) The authority may give written authorization for the
return to the Blue Mountain Recovery Center or the Oregon State
Hospital of a resident of Oregon who has been committed by a
court of competent jurisdiction to a foreign hospital.
(5) The superintendent of the Blue Mountain Recovery Center or
the Oregon State Hospital shall admit and care for any person
eligible for admission pursuant to subsection (4) of this section
or ORS 428.220 (3) upon receipt of a certified copy of the
commitment papers and the written authorization of the
authority. + }
SECTION 452. ORS 428.240 is amended to read:
428.240. (1) For the purpose of facilitating the return of
nonresident patients, the Department of Human Services may enter
into a reciprocal agreement with any other state for the mutual
exchange of persons committed by a court of competent
jurisdiction to { - any state hospital or - } { + the Eastern
Oregon Training Center or a + } foreign hospital, whose legal
residence is in the other's jurisdiction.
{ + (2) For the purpose of facilitating the return of
nonresident patients, the Oregon Health Authority may enter into
a reciprocal agreement with any other state for the mutual
exchange of persons committed by a court of competent
jurisdiction to the Blue Mountain Recovery Center, the Oregon
State Hospital or a foreign hospital, whose legal residence is in
the other's jurisdiction. + }
{ - (2) - } { + (3) + } In such agreements, the department
{ + or authority + } may:
(a) Only for purposes of mutual exchange with the other state,
vary the period of residence required by ORS 428.210
{ - (6) - } { + (7) + }.
(b) Provide for the arbitration of disputes arising out of the
mutual exchange of such persons between this state and any other
state.
SECTION 453. ORS 428.260 is amended to read:
428.260. (1) For the purpose of carrying out the provisions of
ORS 428.210 to 428.270, the Department of Human Services { + or
the Oregon Health Authority + } may employ all help necessary in
arranging for and transporting nonresident patients.
(2) The cost and expense of providing such assistance and all
expenses incurred in effecting the transportation of such
patients shall be paid from funds appropriated for that purpose
upon vouchers approved by the { - department and the
superintendent of the state hospital from which such patients are
transported - } { + department, the authority or the
superintendent of the Eastern Oregon Training Center, the Blue
Mountain Recovery Center or the Oregon State Hospital + }.
SECTION 454. ORS 428.270 is amended to read:
428.270. (1) Any person, except an officer, agent or employee
of a common carrier acting in the line of duty, who brings or in
any way aids in bringing into this state any patient without the
written authorization of the Department of Human Services { + or
Enrolled House Bill 2009 (HB 2009-C) Page 283
the Oregon Health Authority + }, shall be liable to this state
for all expenses incurred in the care of such patient and in the
transportation of such patient to the other state where the
patient legally resides.
(2) Hospitals and sanitariums, other than state hospitals, that
care for and treat persons with mental illness or mental
retardation shall be responsible for the return of those persons
to their places of residence or domicile outside the state if
they are brought into this state for treatment and care and are
discharged from such institutions without being fully recovered.
(3) Failure to comply with the provisions of subsection (2) of
this section shall render the person operating the hospital or
sanitarium liable to reimburse the state for all expenses
incurred in the care, maintenance and return of the persons with
mental illness or mental retardation to their places of residence
or domicile outside the state.
SECTION 455. ORS 428.310 is amended to read:
428.310. The Department of Human Services { + or the Oregon
Health Authority + } may execute and terminate a compact on
behalf of the State of Oregon with any state, territory or
possession of the United States, the District of Columbia and the
Commonwealth of Puerto Rico joining therein, in the form
substantially as follows:
_________________________________________________________________
The contracting states solemnly agree that:
ARTICLE I
The party states find that the proper and expeditious treatment
of the mentally ill and mentally deficient can be facilitated by
cooperative action, to the benefit of the patients, their
families, and society as a whole. Further, the party states find
that the necessity of and desirability for furnishing such care
and treatment bears no primary relation to the residence or
citizenship of the patient but that, on the contrary, the
controlling factors of community safety and humanitarianism
require that facilities and services be made available for all
who are in need of them. Consequently, it is the purpose of this
compact and of the party states to provide the necessary legal
basis for the institutionalization or other appropriate care and
treatment of the mentally ill and mentally deficient under a
system that recognizes the paramount importance of patient
welfare and to establish the responsibilities of the party states
in terms of such welfare.
ARTICLE II
As used in this compact:
(a) 'Sending state' shall mean a party state from which a
patient is transported pursuant to the provisions of the compact
or from which it is contemplated that a patient may be so sent.
(b) 'Receiving state' shall mean a party state to which a
patient is transported pursuant to the provisions of the compact
or to which it is contemplated that a patient may be so sent.
(c) 'Institution' shall mean any hospital or other facility
maintained by a party state or political subdivision thereof for
the care and treatment of mental illness or mental deficiency.
(d) 'Patient' shall mean any person subject to or eligible as
determined by the laws of the sending state, for
institutionalization or other care, treatment or supervision
pursuant to the provisions of this compact.
Enrolled House Bill 2009 (HB 2009-C) Page 284
(e) 'After-care' shall mean care, treatment and services
provided a patient, as defined herein, on convalescent status or
conditional release.
(f) 'Mental illness' shall mean mental disease to such extent
that a person so afflicted requires care and treatment for his
own welfare, or the welfare of others, or of the community.
(g) 'Mental deficiency' shall mean mental deficiency as defined
by appropriate clinical authorities to such extent that a person
so afflicted is incapable of managing himself and his affairs,
but shall not include mental illness as defined herein.
(h) 'State' shall mean any state, territory or possession of
the United States, the District of Columbia and the Commonwealth
of Puerto Rico.
ARTICLE III
(a) Whenever a person physically present in any party state
shall be in need of institutionalization by reason of mental
illness or mental deficiency, the person shall be eligible for
care and treatment in an institution in that state irrespective
of the residence, settlement or citizenship qualifications of the
person.
(b) The provisions of paragraph (a) of this article to the
contrary notwithstanding, any patient may be transferred to an
institution in another state whenever there are factors based
upon clinical determinations indicating that the care and
treatment of said patient would be facilitated or improved
thereby. Any such institutionalization may be for the entire
period of care and treatment or for any portion or portions
thereof. The factors referred to in this paragraph shall include
the patient's full record with due regard for the location of the
patient's family, character of the illness and probable duration
thereof, and such other factors as shall be considered
appropriate.
(c) No state shall be obliged to receive any patient pursuant
to the provisions of paragraph (b) of this article unless the
sending state has given advance notice of its intention to send
the patient; furnished all available medical and other pertinent
records concerning the patient; given the qualified medical or
other appropriate clinical authorities of the receiving state an
opportunity to examine the patient if said authorities so wish;
and unless the receiving state shall agree to accept the patient.
(d) In the event that the laws of the receiving state establish
a system of priorities for the admission of patients, an
interstate patient under this compact shall receive the same
priority as a local patient and shall be taken in the same order
and at the same time that the patient would be taken if the
patient were a local patient.
(e) Pursuant to this compact, the determination as to the
suitable place of institutionalization for a patient may be
reviewed at any time and such further transfer of the patient may
be made as seems likely to be in the best interest of the
patient.
ARTICLE IV
(a) Whenever, pursuant to the laws of the state in which a
patient is physically present, it shall be determined that the
patient should receive after-care or supervision, such care or
supervision may be provided in a receiving state. If the medical
or other appropriate clinical authorities having responsibility
for the care and treatment of the patient in the sending state
shall have reason to believe that after-care in another state
would be in the best interest of the patient and would not
Enrolled House Bill 2009 (HB 2009-C) Page 285
jeopardize the public safety, they shall request the appropriate
authorities in the receiving state to investigate the
desirability of affording the patient such after-care in said
receiving state, and such investigation shall be made with all
reasonable speed. The request for investigation shall be
accompanied by complete information concerning the patient's
intended place of residence and the identity of the person in
whose charge it is proposed to place the patient, the complete
medical history of the patient, and such other documents as may
be pertinent.
(b) If the medical or other appropriate clinical authorities
having responsibility for the care and treatment of the patient
in the sending state and the appropriate authorities in the
receiving state find that the best interest of the patient would
be served thereby, and if the public safety would not be
jeopardized thereby, the patient may receive after-care or
supervision in the receiving state.
(c) In supervising, treating or caring for a patient on
after-care pursuant to the terms of this article, a receiving
state shall employ the same standards of visitation, examination,
care and treatment that it employs for similar local patients.
ARTICLE V
Whenever a dangerous or potentially dangerous patient escapes
from an institution in any party state, that state shall promptly
notify all appropriate authorities within and without the
jurisdiction of the escape in a manner reasonably calculated to
facilitate the speedy apprehension of the escapee. Immediately
upon the apprehension and identification of any such dangerous or
potentially dangerous patient, the patient shall be detained in
the state where found pending disposition in accordance with law.
ARTICLE VI
The duly accredited officers of any state party to this
compact, upon the establishment of their authority and the
identity of the patient, shall be permitted to transport any
patient being moved pursuant to this compact through any and all
states party to this compact, without interference.
ARTICLE VII
(a) No person shall be deemed a patient of more than one
institution at any given time. Completion of transfer of any
patient to an institution in a receiving state shall have the
effect of making the person a patient of the institution in the
receiving state.
(b) The sending state shall pay all costs of and incidental to
the transportation of any patient pursuant to this compact, but
any two or more party states may, by making a specific agreement
for that purpose, arrange for a different allocation of costs as
among themselves.
(c) No provision of this compact shall be construed to alter or
affect any internal relationships among the departments, agencies
and officers of and in the government of a party state, or
between a party state and its subdivisions, as to the payment of
costs, or responsibilities therefor.
(d) Nothing in this compact shall be construed to prevent any
party state or subdivision thereof from asserting any right
against any person, agency or other entity in regard to costs for
which such party state or subdivision thereof may be responsible
pursuant to any provision of this compact.
(e) Nothing in this compact shall be construed to invalidate
any reciprocal agreement between a party state and a nonparty
state relating to institutionalization, care or treatment of the
Enrolled House Bill 2009 (HB 2009-C) Page 286
mentally ill or mentally deficient, or any statutory authority
pursuant to which such agreements may be made.
ARTICLE VIII
(a) Nothing in this compact shall be construed to abridge,
diminish, or in any way impair the rights, duties and
responsibilities of any patient's guardian on the guardian's own
behalf or in respect of any patient for whom the guardian may
serve, except that where the transfer of any patient to another
jurisdiction makes advisable the appointment of a supplemental or
substitute guardian, any court of competent jurisdiction in the
receiving state may make such supplemental or substitute
appointment and the court which appointed the previous guardian
shall upon being duly advised of the new appointment, and upon
the satisfactory completion of such accounting and other acts as
such court may by law require, relieve the previous guardian of
power and responsibility to whatever extent shall be appropriate
in the circumstances; provided, however, that in the case of any
patient having settlement in the sending state, the court of
competent jurisdiction in the sending state shall have the sole
discretion to relieve a guardian appointed by it or continue the
power and responsibility of the guardian, whichever it shall deem
advisable. The court in the receiving state may, in its
discretion, confirm or reappoint the person or persons previously
serving as guardian in the sending state in lieu of making a
supplemental or substitute appointment.
(b) The term 'guardian' as used in paragraph (a) of this
article shall include any guardian, trustee, legal committee,
conservator or other person or agency however denominated who is
charged by law with responsibility for the property of a patient.
ARTICLE IX
(a) No provision of this compact except Article V shall apply
to any person institutionalized while under sentence in a penal
or correctional institution or while subject to trial on a
criminal charge, or whose institutionalization is due to the
commission of an offense for which, in the absence of mental
illness or mental deficiency, said person would be subject to
incarceration in a penal or correctional institution.
(b) To every extent possible, it shall be the policy of states
party to this compact that no patient shall be placed or detained
in any prison, jail or lockup, but such patient shall, with all
expedition, be taken to a suitable institutional facility for
mental illness or mental deficiency.
ARTICLE X
(a) Each party state shall appoint a 'compact administrator'
who, on behalf of the state of the compact administrator, shall
act as general coordinator of activities under the compact in the
state of the compact administrator and who shall receive copies
of all reports, correspondence, and other documents relating to
any patient processed under the compact by the state of the
compact administrator either in the capacity of sending or
receiving state. The compact administrator or the duly designated
representative of the compact administrator shall be the official
with whom other party states shall deal in any matter relating to
the compact or any patient processed thereunder.
(b) The compact administrators of the respective party states
shall have power to promulgate reasonable rules and regulations
to carry out more effectively the terms and provisions of this
compact.
ARTICLE XI
Enrolled House Bill 2009 (HB 2009-C) Page 287
The duly constituted administrative authorities of any two or
more party states may enter into supplementary agreements for the
provision of any service or facility or for the maintenance of
any institution on a joint or cooperative basis whenever the
states concerned shall find that such agreements will improve
services, facilities, or institutional care and treatment in the
fields of mental illness or mental deficiency. No such
supplementary agreement shall be construed so as to relieve any
party state of any obligation which it otherwise would have under
other provisions of this compact.
ARTICLE XII
This compact shall enter into full force and effect as to any
state when entered into according to law and such state shall
thereafter be a party thereto with any and all states legally
joining therein.
ARTICLE XIII
(a) A state party to this compact may withdraw therefrom as
provided by law and such renunciation shall be by the same
authority which executed it. Such withdrawal shall take effect
one year after notice thereof has been communicated officially
and in writing to the governors and compact administrators of all
other party states. However, the withdrawal of any state shall
not change the status of any patient who has been sent to said
state or sent out of said state pursuant to the provisions of the
compact.
(b) Withdrawal from any agreement permitted by Article VII (b)
as to costs or from any supplementary agreement made pursuant to
Article XI shall be in accordance with the terms of such
agreement.
ARTICLE XIV
This compact shall be liberally construed so as to effectuate
the purposes thereof. The provisions of this compact shall be
severable and if any phrase, clause, sentence or provision of
this compact is declared to be contrary to the constitution of
any party state or of the United States or the applicability
thereof to any government, agency, person or circumstance is held
invalid, the validity of the remainder of this compact and the
applicability thereof to any government, agency, person or
circumstance shall not be affected thereby. If this compact shall
be held contrary to the constitution of any state party thereto,
the compact shall remain in full force and effect as to the
remaining states and in full force and effect as to the state
affected as to all severable matters.
_________________________________________________________________
SECTION 456. ORS 428.320 is amended to read:
428.320. { + (1) + } { - The - } { + When the person who
is the subject of the compact is being transported to or from the
Eastern Oregon Training Center, the + } Department of Human
Services shall carry out the duties of compact administrator, may
promulgate rules and regulations to carry out more effectively
the terms of the compact, and may enter into supplementary
agreements with appropriate officials of other states pursuant to
Articles VII and XI of the compact. The power of termination of
the compact formerly vested in the Board of Control under ORS
428.310 is vested in the department.
{ + (2) When the person who is the subject of the compact is
being transported to or from the Blue Mountain Recovery Center or
the Oregon State Hospital, the Oregon Health Authority shall
carry out the duties of compact administrator, may promulgate
Enrolled House Bill 2009 (HB 2009-C) Page 288
rules and regulations to carry out more effectively the terms of
the compact, and may enter into supplementary agreements with
appropriate officials of other states pursuant to Articles VII
and XI of the compact. The power of termination of the compact
formerly vested in the Board of Control under ORS 428.310 is
vested in the authority. + }
SECTION 457. ORS 428.330 is amended to read:
428.330. (1) The Department of Human Services { + or the
Oregon Health Authority + } may comply with the terms of the
Interstate Compact on Mental Health in dealing with a state which
is not a party of the interstate compact.
(2) When the department { + or the authority + } acts under
subsection (1) of this section, the term 'party state,' as used
in the Interstate Compact on Mental Health, includes states which
are not parties of the interstate compact.
SECTION 458. ORS 430.010 is amended to read:
430.010. As used in ORS 430.010 to 430.050, 430.140 to 430.170,
430.265, 430.270 and 430.610 to 430.695:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'Department' means the Department
of Human Services.
{ - (2) - } { + (3) + } 'Health facility' means a facility
licensed as required by ORS 441.015 or a facility accredited by
the Joint Commission on Accreditation of Hospitals, either of
which provides full-day or part-day acute treatment for
alcoholism, drug addiction or mental or emotional disturbance,
and is licensed to admit persons requiring 24-hour nursing care.
{ - (3) - } { + (4) + } 'Residential facility' or 'day or
partial hospitalization program' means a program or facility
providing an organized full-day or part-day program of treatment.
Such a program or facility shall be licensed, approved,
established, maintained, contracted with or operated by the
{ - department - } { + authority + } under:
(a) ORS 430.265 to 430.380 and 430.610 to 430.880 for
alcoholism;
(b) ORS 430.265 to 430.380, 430.405 to 430.565 and 430.610 to
430.880 for drug addiction; or
(c) ORS 430.610 to 430.880 for mental or emotional
disturbances.
{ - (4) - } { + (5) + } 'Outpatient service' means:
(a) A program or service providing treatment by appointment and
by medical or osteopathic physicians licensed by the Oregon
Medical Board under ORS 677.010 to 677.450; psychologists
licensed by the State Board of Psychologist Examiners under ORS
675.010 to 675.150; nurse practitioners registered by the Oregon
State Board of Nursing under ORS 678.010 to 678.410; or clinical
social workers licensed by the State Board of Clinical Social
Workers under ORS 675.510 to 675.600; or
(b) A program or service providing treatment by appointment
that is licensed, approved, established, maintained, contracted
with or operated by the { - department - } { + authority + }
under:
(A) ORS 430.265 to 430.380 and 430.610 to 430.880 for
alcoholism;
(B) ORS 430.265 to 430.380, 430.405 to 430.565 and 430.610 to
430.880 for drug addiction; or
(C) ORS 430.610 to 430.880 for mental or emotional
disturbances.
SECTION 459. ORS 430.021 is amended to read:
430.021. Subject to ORS 417.300 and 417.305:
Enrolled House Bill 2009 (HB 2009-C) Page 289
(1) The Department of Human Services shall:
(a) Direct, promote, correlate and coordinate all the
activities, duties and direct services for persons with
{ - mental or emotional disturbances, mental retardation,
developmental disabilities, alcoholism or drug dependence - }
{ + mental retardation or developmental disabilities + } { - ;
and - } { + . + }
(b) Promote, correlate and coordinate the { - mental health
and - } developmental disabilities activities of all governmental
organizations throughout the state in which there is any direct
contact with { - mental health and - } developmental
disabilities programs.
{ + (c) Establish, coordinate, assist and direct a community
developmental disabilities program in cooperation with local
government units and integrate such a program with the state
developmental disabilities program.
(d) Promote public education in this state concerning
developmental disabilities and act as the liaison center for work
with all interested public and private groups and agencies in the
field of developmental disabilities services.
(2) The Oregon Health Authority shall:
(a) Direct, promote, correlate and coordinate all the
activities, duties and direct services for persons with mental or
emotional disturbances, alcoholism or drug dependence.
(b) Promote, correlate and coordinate the mental health
activities of all governmental organizations throughout the state
in which there is any direct contact with mental health programs.
(c) Establish, coordinate, assist and direct a community mental
health program in cooperation with local government units and
integrate such a program with the state mental health program.
(d) Promote public education in this state concerning mental
health and act as the liaison center for work with all interested
public and private groups and agencies in the field of mental
health services. + }
{ - (2) - } { + (3) + } The department { + and the
authority + } shall develop cooperative programs with interested
private groups throughout the state to effect better community
awareness and action in the
{ - field - } { + fields + } of mental health and
developmental disabilities, and encourage and assist in all
necessary ways community general hospitals to establish
psychiatric services.
{ - (3) - } { + (4) + } To the greatest extent possible,
the least costly settings for treatment, outpatient services and
residential facilities shall be widely available and utilized
except when contraindicated because of individual health care
needs. State agencies that purchase treatment for mental or
emotional disturbances shall develop criteria consistent with
this policy. In reviewing applications for certificates of need,
the Director of { - Human Services - } { + the Oregon Health
Authority + } shall take this policy into account.
{ - (4) The department shall establish, coordinate, assist
and direct a community mental health and developmental
disabilities program in cooperation with local government units
and integrate such a program with the total state mental and
developmental disabilities health program. - }
{ - (5) The department shall promote public education in the
state concerning mental health and developmental disabilities and
act as the liaison center for work with all interested public and
Enrolled House Bill 2009 (HB 2009-C) Page 290
private groups and agencies in the field of mental health and
developmental disabilities services. - }
{ - (6) - } { + (5) + } The department { + and the
authority + } shall accept the custody of persons committed to
its care by the courts of this state.
{ - (7) - } { + (6) + } The { - department - }
{ + authority + } shall adopt rules to require a facility and a
nonhospital facility as those terms are defined in ORS 426.005,
and a provider that employs a person described in ORS 426.415, if
subject to { - department - } { + authority + } rules
regarding the use of restraint or seclusion during the course of
mental health treatment of a child or adult, to report to the
{ - department - } { + authority + } each calendar quarter the
number of incidents involving the use of restraint or seclusion.
The aggregate data shall be made available to the public.
SECTION 460. ORS 430.030 is amended to read:
430.030. The enumeration of duties, functions and powers under
ORS 430.021 shall not be deemed exclusive nor construed as a
limitation on the powers and authority vested in the Department
of Human Services { + or the Oregon Health Authority + } by
other provisions of law.
SECTION 461. ORS 430.050 is amended to read:
430.050. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + }, with the approval of the Governor,
shall appoint at least 15 but not more than 20 members of a
Mental Health Advisory Board, composed of both lay and
professionally trained individuals, qualified by training or
experience to study the problems of mental health and make
recommendations for the development of policies and procedures
with respect to the state mental health programs. The membership
shall provide balanced representation of program areas and shall
include persons who represent the interests of children. At least
four members of the board shall be persons with disabilities who
shall serve as the Disability Issues Advisory Committee which is
hereby established. The members of the board shall serve for
terms of four years and are entitled to compensation and expenses
as provided in ORS 292.495. The director may remove any member of
the board for misconduct, incapacity or neglect of duty.
(2) The { - Department of Human Services - } { + Oregon
Health Authority + } shall adopt rules specifying the duties of
the board. In addition to those duties assigned by rule, the
board shall assist the { - department - } { + authority + }
in planning and preparation of administrative rules for the
assumption of responsibility for psychiatric care in state and
community hospitals by community mental health { - and
developmental disabilities - } programs, in accordance with ORS
430.630 (3)(e).
(3) The board shall meet at least once each quarter.
(4) The director may make provision for technical and clerical
assistance to the Mental Health Advisory Board and for the
expenses of such assistance.
(5) The Disability Issues Advisory Committee shall meet at
least once annually to make recommendations to the Mental Health
Advisory Board.
(6) As used in this section, 'person with a disability ' means
any person who:
(a) Has a physical or mental impairment which substantially
limits one or more major life activities;
(b) Has a record of such an impairment; or
(c) Is regarded as having such an impairment.
Enrolled House Bill 2009 (HB 2009-C) Page 291
SECTION 462. ORS 430.071 is amended to read:
430.071. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt a policy that
supports and promotes self-determination for persons receiving
mental health services. The policy shall be designed to remove
barriers that:
(1) Segregate persons with disabilities from full participation
in the community in the most integrated setting in accordance
with the United States Supreme Court decision in Olmstead v.
L.C., 527 U.S. 581 (1999); and
(2) Prevent persons with disabilities from enjoying a
meaningful life, the benefits of community involvement and
citizen rights guaranteed by law.
SECTION 463. ORS 430.073 is amended to read:
430.073. (1) As used in this section and ORS 430.075, '
consumer' means a person who has received or is receiving mental
health or addiction services.
(2) The Director of { - Human Services - } { + the Oregon
Health Authority + } shall establish a Consumer Advisory Council
to advise the director on the provision of mental health services
by the
{ - Department of Human Services - } { + Oregon Health
Authority + }. The council may review, evaluate and provide
feedback on all site reviews related to mental health services
provided by the
{ - department - } { + authority + }.
(3) The director shall appoint 15 to 25 consumers to the
council. In making appointments, the director shall strive to
balance the representation according to geographic areas of the
state and age.
(4) The { - department - } { + authority + } shall provide
administrative support to the council.
(5) Members of the council are not entitled to compensation or
reimbursement of expenses under ORS 292.495.
SECTION 464. ORS 430.078 is amended to read:
430.078. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules to implement
ORS 430.071 to 430.075.
SECTION 465. ORS 430.140 is amended to read:
430.140. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } is designated as the state
agency to apply to and receive from the federal government or any
agency thereof such grants for promoting mental health, including
grants for mental hygiene programs, as may be available to this
state or any of its political subdivisions or agencies.
(2) For the purposes of subsection (1) of this section, the
{ - department is designated the Mental Health Authority for
the State of Oregon and - } { + authority + } shall:
(a) Disburse or supervise the disbursement of all funds made
available at any time by the federal government or this state for
those purposes, except the funds made available by the state for
the care of dependent or delinquent children in public or private
institutions.
(b) Adopt, carry out and administer plans for those purposes.
Plans so adopted shall be made statewide in application insofar
as reasonably feasible, possible or permissible, and shall be so
devised as to meet the approval of the federal government or any
of its agencies, not inconsistent with the laws of the state.
SECTION 466. ORS 430.160 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 292
430.160. All funds { - applied for and received by the
Department of Human Services and - } allotted to the state by
the Surgeon General, the Treasury Department, or other agency of
the United States for the construction and operation of community
facilities in carrying out the state plan for the promotion of
mental health { - and retardation - } { + or developmental
disability + } services, shall be deposited with the State
Treasurer and shall be credited to a special account in the State
Treasury, separate from the General Fund, to be used as a
depository for such federal funds. Such funds hereby are
continuously appropriated and shall be expended solely for the
purpose of construction and operation of community facilities and
in accordance with the plan upon which the allotment to the state
was based.
SECTION 467. ORS 430.165 is amended to read:
430.165. The { - Department of Human Services - }
{ + Oregon Health Authority + } may prescribe fee schedules for
any of the programs that it establishes and operates under ORS
430.265, 430.306 to 430.375, 430.405, 430.415, 430.850 to
430.880, 813.500 and 813.510. The fees shall be charged and
collected by the { - department - } { + authority + } in the
same manner as charges are collected under ORS 179.610 to
179.770. When the { - department - } { + authority + } acts
under this section, ' person in a state institution' or 'person
at a state institution' or any similar phrase, as defined in ORS
179.610, includes a person who receives services from a program
for which fee schedules are established under this section.
SECTION 468. ORS 430.170 is amended to read:
430.170. (1) On request of the Department of Human Services,
the Oregon Department of Administrative Services shall draw on
amounts appropriated to the Department of Human Services for
operating expenses for use by the Department of Human Services as
a revolving fund. { + Claims for reimbursement of amounts paid
from the revolving fund shall be submitted to the Department of
Human Services and the Oregon Department of Administrative
Services for approval. When such claims have been approved by the
Department of Human Services and the Oregon Department of
Administrative Services, a payment covering them shall be drawn
in favor of the Department of Human Services and charged against
the appropriate fund or account, and shall be used to reimburse
the revolving fund.
(2) On request of the Oregon Health Authority, the Oregon
Department of Administrative Services shall draw on amounts
appropriated to the authority for operating expenses for use by
the authority as a revolving fund. Claims for reimbursement of
amounts paid from the revolving fund shall be submitted to the
authority and the Oregon Department of Administrative Services
for approval. When such claims have been approved by the
authority and the Oregon Department of Administrative Services, a
payment covering them shall be drawn in favor of the authority
and charged against the appropriate fund or account, and shall be
used to reimburse the revolving fund. + }
{ + (3) + } { - The revolving fund - } { + A revolving
fund established under subsection (1) or (2) of this section + }
shall not exceed the aggregate sum of $25,000 including
unreimbursed advances. The revolving fund shall be deposited with
the State Treasurer to be held in a special account against which
the Department of Human Services { + or the Oregon Health
Authority + } may draw checks. The Department of Human Services
{ + or the authority + } may establish petty cash funds within
Enrolled House Bill 2009 (HB 2009-C) Page 293
the revolving fund by drawing checks upon the revolving fund
payable to the custodians of the petty cash funds.
{ - (2) - } { + (4) + } { - The revolving fund - }
{ + A revolving fund established under subsections (1) or (2) of
this section + } may be used by the Department of Human Services
{ + or the authority + } to pay incidental expenses for which
the Department { + of Human Services or the authority + } has
appropriated funds.
{ - (3) Claims for reimbursement of amounts paid from the
revolving fund shall be submitted to the Department of Human
Services and the Oregon Department of Administrative Services for
approval. When such claims have been approved by the Department
of Human Services and the Oregon Department of Administrative
Services, a payment covering them shall be drawn in favor of the
Department of Human Services and charged against the appropriate
fund or account, and shall be used to reimburse the revolving
fund. - }
SECTION 469. ORS 430.195 is amended to read:
430.195. (1) The Department of Human Services may receive funds
that are the property of the department's clients or are
contributed for the use of the department's clients. The
department shall deposit such funds in trust accounts established
under ORS 293.445. Interest earned by a trust account shall be
credited to the account.
{ + (2) The Oregon Health Authority may receive funds that
are the property of the authority's clients or are contributed
for the use of the authority's clients. The authority shall
deposit such funds in trust accounts established under ORS
293.445. Interest earned by a trust account shall be credited to
the account. + }
{ - (2) - } { + (3) + } Disbursements from a trust account
shall be made for purposes for which the contributions or
payments were made to the department { + or the authority + }.
When such purposes include the care or maintenance of a client,
the department { - may reimburse itself - } { + or the
authority may draw reimbursements from the account to pay + } for
care and services provided to the client.
{ - (3) - } { + (4) + } The department { + or the
authority + } may by interagency agreement authorize another
state agency to exercise the authority granted under this
section. Any system of accounts used for purposes of this
subsection shall provide detailed accountability for each receipt
and disbursement of funds for each client. The department
{ + and the authority + } shall remain accountable for the
proper handling of the trust accounts authorized by this section.
SECTION 470. ORS 430.205 is amended to read:
430.205. As used in this section and ORS 430.210:
(1) 'Facility' means any of the following { - which - }
{ + that + } are licensed or certified by the Department of
Human Services { + or the Oregon Health Authority + } or
{ - which - } { + that + } contract with { - that department
or a program - } { + the department or authority + } for the
provision of services:
(a) A health care facility as defined in ORS 442.015;
(b) A domiciliary care facility as defined in ORS 443.205;
(c) A residential facility as defined in ORS 443.400; or
(d) An adult foster home as defined in ORS 443.705.
(2) 'Person' means an individual who has a mental illness or
developmental disability and receives services from a program or
facility.
Enrolled House Bill 2009 (HB 2009-C) Page 294
(3) 'Program' means a community mental health { - and - }
{ + program or a community + } developmental disabilities
program as described in ORS 430.610 to 430.695 and agencies with
which { - it - } { + the program + } contracts to provide
services.
(4) 'Services' means mental health { - and - } { + services
or + } developmental disabilities services provided under ORS
430.630.
SECTION 471. ORS 430.210 is amended to read:
430.210. (1) While receiving services, every person shall have
the right to:
(a) Choose from available services those which are appropriate,
consistent with the plan developed in accordance with paragraphs
(b) and (c) of this subsection and provided in a setting and
under conditions that are least restrictive to the person's
liberty, that are least intrusive to the person and that provide
for the greatest degree of independence.
(b) An individualized written service plan, services based upon
that plan and periodic review and reassessment of service needs.
(c) Ongoing participation in planning of services in a manner
appropriate to the person's capabilities, including the right to
participate in the development and periodic revision of the plan
described in paragraph (b) of this subsection, and the right to
be provided with a reasonable explanation of all service
considerations.
(d) Not receive services without informed voluntary written
consent except in a medical emergency or as otherwise permitted
by law.
(e) Not participate in experimentation without informed
voluntary written consent.
(f) Receive medication only for the person's individual
clinical needs.
(g) Not be involuntarily terminated or transferred from
services without prior notice, notification of available sources
of necessary continued services and exercise of a grievance
procedure.
(h) A humane service environment that affords reasonable
protection from harm, reasonable privacy and daily access to
fresh air and the outdoors, except that such access may be
limited when it would create significant risk of harm to the
person or others.
(i) Be free from abuse or neglect and to report any incident of
abuse without being subject to retaliation.
(j) Religious freedom.
(k) Not be required to perform labor, except personal
housekeeping duties, without reasonable and lawful compensation.
(L) Visit with family members, friends, advocates and legal and
medical professionals.
(m) Exercise all rights set forth in ORS { - 426.385 and - }
427.031 if the individual is committed to the Department of Human
Services.
{ + (n) Exercise all rights set forth in ORS 426.385 if the
individual is committed to the Oregon Health Authority. + }
{ - (n) - } { + (o) + } Be informed at the start of
services and periodically thereafter of the rights guaranteed by
this section and the procedures for reporting abuse, and to have
these rights and procedures, including the name, address and
telephone number of the system described in ORS 192.517 (1),
prominently posted in a location readily accessible to the person
Enrolled House Bill 2009 (HB 2009-C) Page 295
and made available to the person's guardian and any
representative designated by the person.
{ - (o) - } { + (p) + } Assert grievances with respect to
infringement of the rights described in this section, including
the right to have such grievances considered in a fair, timely
and impartial grievance procedure.
{ - (p) - } { + (q) + } Have access to and communicate
privately with any public or private rights protection program or
rights advocate.
{ - (q) - } { + (r) + } Exercise all rights described in
this section without any form of reprisal or punishment.
(2) An individual who is receiving developmental disability
services under ORS 430.630 has the right to be informed and have
the individual's guardian and any representative designated by
the individual be informed that a family member has contacted the
{ - department - } { + Department of Human Services + } to
determine the location of the individual, and to be informed of
the name and contact information, if known, of the family member.
(3) The rights described in this section are in addition to,
and do not limit, all other statutory and constitutional rights
which are afforded all citizens including, but not limited to,
the right to vote, marry, have or not have children, own and
dispose of property, enter into contracts and execute documents.
(4) The rights described in this section may be asserted and
exercised by the person, the person's guardian and any
representative designated by the person.
(5) Nothing in this section may be construed to alter any legal
rights and responsibilities between parent and child.
SECTION 472. ORS 430.215 is amended to read:
430.215. { + (1) + } The Department of Human Services shall be
responsible for { - : - }
{ - (1) - } planning, policy development, administration and
delivery of services to children with developmental disabilities
and their families. Services to children with developmental
disabilities may include, but are not limited to, case
management, family support, crisis and diversion services,
intensive in-home services, and residential and foster care
services { + . + } { - ; and - }
(2) { + The Oregon Health Authority shall be responsible
for + } psychiatric residential and day treatment services for
children with mental or emotional disturbances.
SECTION 473. ORS 430.240 is amended to read:
430.240. The { - Department of Human Services - }
{ + Oregon Health Authority + } in developing treatment programs
for drug-dependent persons shall develop programs that assist
drug-dependent persons to become persons who are able to live
healthy and productive lives without the use of any natural or
synthetic opiates.
SECTION 474. ORS 430.255 is amended to read:
430.255. (1)(a) There is created in the office of the Governor
the Governor's Council on Alcohol and Drug Abuse Programs. The
council shall consist of not more than 11 members who are
appointed by the Governor for terms of four years. Members are
eligible for one reappointment. Members must be without
conflicting interests and as representative as possible of:
(A) Geographic regions of the state;
(B) At-risk populations, including among others, youth, the
elderly, minorities and women;
(C) Knowledgeable professionals, such as pharmacists,
physicians, attorneys and the like who are not necessarily
Enrolled House Bill 2009 (HB 2009-C) Page 296
representatives of professional organizations, but who may be
recovering;
(D) Knowledgeable nonprofessionals who may represent advocate
groups and who may be recovering; and
(E) Local advisory groups.
(b) In addition to the members appointed to the council under
paragraph (a) of this subsection, the council shall include:
(A) One member appointed by the President of the Senate, who
shall be a member of the Senate and who shall be a nonvoting,
advisory member; and
(B) One member appointed by the Speaker of the House of
Representatives, who shall be a member of the House of
Representatives and who shall be a nonvoting, advisory member.
(2) The duties of the Governor's Council on Alcohol and Drug
Abuse Programs are to:
(a) Assess the economic and social impact of alcohol and drug
abuse on the State of Oregon and report the findings and
recommendations to the Governor by January 1 of each
even-numbered year.
(b) Review and make recommendations to the Governor on the
goals, financing, priorities and a state plan for prevention,
intervention and treatment of alcohol and drug abuse problems,
which encompasses all appropriate state agencies and is
consistent with ORS 430.258, by January 1 of each even-numbered
year.
(c) Review alcohol and drug abuse programs and make
recommendations to the Governor on the effectiveness and
priorities for improvements of all such prevention and treatment
programs for alcohol and drug problems engaged in or financed
through state agencies by January 1 of each even-numbered year.
(d) Review and approve the components of the local coordinated
comprehensive plan created pursuant to ORS 417.775 that address
alcohol and other drug prevention and treatment plans developed
under ORS 430.258.
(e) Work to ensure broad-based citizen involvement in the
planning and execution of the alcohol and drug prevention and
treatment plans at both the state and local level.
(3) Members of the council are entitled to compensation and
expenses as provided under ORS 292.495.
(4) The Governor may remove any member for misconduct,
incapacity or neglect of duty.
(5) The Director of { - Human Services - } { + the Oregon
Health Authority + } shall provide the technical and financial
support as is required and authorized by the Legislative Assembly
and as is necessary to carry out this section and ORS
{ - 409.010, - } 430.250, 430.257, 430.258, 430.259, 430.270,
430.290, 430.359, 430.368, 430.535 and 430.630.
SECTION 475. ORS 430.257 is amended to read:
430.257. (1) The Legislative Assembly finds that alcohol and
other drug use, abuse and addiction:
(a) Pose significant social and public health problems for
Oregon;
(b) Impact the budgets and workloads of state and local
agencies that provide services for children and families and
contribute to incidences of crime, violence, accidents and
deaths, as well as reducing worker productivity; and
(c) Contribute substantially to the problems faced by a
significant number of persons served by the Department of Human
Services, Department of Corrections, { + Oregon Health
Enrolled House Bill 2009 (HB 2009-C) Page 297
Authority, + } Oregon Youth Authority, Juvenile Crime Prevention
Advisory Committee and State Commission on Children and Families.
(2) The Department of Human Services, Department of
Corrections, { + Oregon Health Authority, + } Oregon Youth
Authority, Juvenile Crime Prevention Advisory Committee and State
Commission on Children and Families shall contribute to the
development of a comprehensive state plan for alcohol and other
drug prevention, intervention and treatment services.
(3) The administrative heads of the Department of Education,
Department of Human Services, { + Oregon Health Authority, + }
Oregon State Police, Department of Transportation, Oregon Liquor
Control Commission, Juvenile Crime Prevention Advisory Committee
and State Commission on Children and Families shall each
designate an individual, or in the instance of multidivisional
departments, individuals, to serve as liaison to and assist the
Governor's Council on Alcohol and Drug Abuse Programs in meeting
the policies, duties and responsibilities set forth in this
section and ORS { - 409.010, - } 430.250, 430.255, 430.258,
430.259, 430.270, 430.290, 430.359, 430.368, 430.535 and 430.630.
SECTION 476. ORS 430.259 is amended to read:
430.259. All state agencies providing alcohol and other drug
prevention and treatment services and strategies, or purchasing
prevention and treatment services and strategies from local
community providers approved or licensed by the { - Department
of Human Services - } { + Oregon Health Authority + }, shall
coordinate with the office to report expenditures and client data
for the purposes of service capacity utilization and monitoring
resources and outcomes coordination in the statewide plan of
services and strategies for alcohol and other drug prevention and
treatment for children and families prepared under ORS 430.258.
SECTION 477. ORS 430.265 is amended to read:
430.265. The { - Department of Human Services - }
{ + Oregon Health Authority + } is authorized to contract with
the federal government for services to alcohol and drug-dependent
persons who are either residents or nonresidents of the State of
Oregon.
SECTION 478. ORS 430.270 is amended to read:
430.270. The { - Department of Human Services - }
{ + Oregon Health Authority + }, in consultation with the
Governor's Council on Alcohol and Drug Abuse Programs, shall take
such means as it considers most effective to bring to the
attention of the general public, employers, the professional
community and particularly the youth of the state, the harmful
effects to the individual and society of the irresponsible use of
alcoholic beverages, controlled substances and other chemicals,
and substances with abuse potential.
SECTION 479. ORS 430.290 is amended to read:
430.290. (1) The objective of this section is to prevent
alcoholism and drug dependency.
(2) To carry out the objective of this section, the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall:
(a) Consult with and be advised by the Governor's Council on
Alcohol and Drug Abuse Programs and the Mental Health Advisory
Board in identifying program priorities for the primary
prevention of alcoholism and drug dependency.
(b) Solicit program proposals that address identified
priorities from agencies, associations, individuals or any
political subdivision of this state and award and distribute
Enrolled House Bill 2009 (HB 2009-C) Page 298
moneys under this section in accordance with the provisions of
this section.
(3) Every applicant for a grant to develop a primary prevention
of alcoholism program shall be assisted in its preparation by the
local alcohol planning committee, if there be one, operating in
the area to which the application relates. Every applicant shall
establish to the satisfaction of the { - department - }
{ + authority + } that the committee was actively involved in
the development and preparation of such program.
(4) Every grant applicant shall include the recommendations of
the local alcohol planning committee, if there be one, operating
in the area. The { - department - } { + authority + } shall
take the recommendations of the local alcohol planning committee
into consideration before making or refusing a grant.
SECTION 480. ORS 430.306 is amended to read:
430.306. As used in ORS 430.315 to 430.335, 430.397 and
430.399, unless the context requires otherwise:
(1) 'Alcoholic' means any person who has lost the ability to
control the use of alcoholic beverages, or who uses alcoholic
beverages to the extent that the health of the person or that of
others is substantially impaired or endangered or the social or
economic function of the person is substantially disrupted. An
alcoholic may be physically dependent, a condition in which the
body requires a continuing supply of alcohol to avoid
characteristic withdrawal symptoms, or psychologically dependent,
a condition characterized by an overwhelming mental desire for
continued use of alcoholic beverages.
(2) 'Applicant' means a city, county or any combination
thereof.
(3) { - ' Department' means the Department of Human
Services. - } { + ' Authority' means the Oregon Health
Authority. + }
(4) 'Detoxification center' means a publicly or privately
operated profit or nonprofit facility approved by the
{ - department - } { + authority + } that provides emergency
care or treatment for alcoholics or drug-dependent persons.
(5) 'Director of the treatment facility' means the person in
charge of treatment and rehabilitation programs at a treatment
facility.
(6) 'Drug-dependent person' means one who has lost the ability
to control the personal use of controlled substances or other
substances with abuse potential, or who uses such substances or
controlled substances to the extent that the health of the person
or that of others is substantially impaired or endangered or the
social or economic function of the person is substantially
disrupted. A drug-dependent person may be physically dependent, a
condition in which the body requires a continuing supply of a
drug or controlled substance to avoid characteristic withdrawal
symptoms, or psychologically dependent, a condition characterized
by an overwhelming mental desire for continued use of a drug or
controlled substance.
(7) 'Halfway house' means a publicly or privately operated
profit or nonprofit, residential facility approved by the
{ - department - } { + authority + } that provides
rehabilitative care and treatment for alcoholics or
drug-dependent persons.
(8) 'Local alcoholism planning committee' means a committee
appointed or designated by the county governing body under ORS
430.342.
Enrolled House Bill 2009 (HB 2009-C) Page 299
(9) 'Other treatment facility' includes outpatient facilities,
inpatient facilities and such other facilities as the
{ - department - } { + authority + } determines suitable, any
of which may provide diagnosis and evaluation, medical care,
detoxification, social services or rehabilitation for alcoholics
or drug-dependent persons and which operate in the form of a
general hospital, a state hospital, a foster home, a hostel, a
clinic or other suitable form approved by the
{ - department - } { + authority + }.
SECTION 481. ORS 430.315 is amended to read:
430.315. The Legislative Assembly finds alcoholism or drug
dependence is an illness. The alcoholic or drug-dependent person
is ill and should be afforded treatment for that illness. To the
greatest extent possible, the least costly settings for
treatment, outpatient services and residential facilities shall
be widely available and utilized except when contraindicated
because of individual health care needs. State agencies that
purchase treatment for alcoholism or drug dependence shall
develop criteria consistent with this policy in consultation with
the { - Department of Human Services - } { + Oregon Health
Authority + }. In reviewing applications for certificate of need,
the Director of { - Human Services - } { + the Oregon Health
Authority + } shall take this policy into account.
SECTION 482. ORS 430.335 is amended to read:
430.335. Subject to the availability of funds therefor, the
{ - Department of Human Services - } { + Oregon Health
Authority + } may:
(1) Provide directly through publicly operated treatment
facilities, which shall not be considered to be state
institutions, or by contract with publicly or privately operated
profit or nonprofit treatment facilities, for the care of
alcoholics or drug-dependent persons.
(2) Sponsor and encourage research of alcoholism and drug
dependence.
(3) Seek to coordinate public and private programs relating to
alcoholism and drug dependence.
(4) Apply for federally granted funds available for study or
prevention and treatment of alcoholism and drug dependence.
(5) Directly or by contract with public or private entities,
administer financial assistance, loan and other programs to
assist the development of drug and alcohol free housing.
SECTION 483. ORS 430.342 is amended to read:
430.342. (1) The governing body of each county or combination
of counties in a mental health administrative area, as designated
by the { - Department of Human Services - } { + Oregon Health
Authority, + } shall appoint a local alcoholism planning
committee or shall designate an already existing body to act as
the local alcoholism planning committee.
(2) The committee shall identify needs and establish priorities
for alcoholism services. In doing so, it shall coordinate its
activities with existing community mental health planning bodies.
(3) Members of the committee shall be representative of the
geographic area and shall be persons with interest or experience
in developing programs dealing with alcohol problems. The
membership of the committee shall include a number of minority
members which reasonably reflects the proportion of the need for
alcoholism treatment and rehabilitation services of minorities in
the community.
SECTION 484. ORS 430.345 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 300
430.345. Upon application therefor, the { - Department of
Human Services - } { + Oregon Health Authority + } may make
grants from funds specifically appropriated for the purposes of
carrying out ORS 430.345 to 430.380 to any applicant for the
establishment, operation and maintenance of alcohol and drug
abuse prevention, early intervention and treatment services. When
necessary, a portion of the appropriated funds may be designated
by the
{ - department - } { + authority + } for training and
technical assistance, or additional funds may be appropriated for
this purpose. Alcohol and drug abuse prevention, early
intervention and treatment services shall be approved if the
applicant establishes to the satisfaction of the
{ - department - } { + authority + }:
(1) The adequacy of the services to accomplish the goals of the
applicant and the program goals are consonant with the purposes
of ORS 430.306, 430.338 to 430.380, 471.810, 473.030 and 473.050
and goals of the State Plan for Alcohol Problems.
(2) The community need for the services as documented in the
annual community mental health plan.
(3) That an appropriate operating relationship exists, or will
exist with other community facilities able to assist in providing
alcohol and drug abuse prevention, early intervention and
treatment services, including nearby detoxification centers and
halfway houses.
(4) That the services comply with the rules adopted by the
{ - department - } { + authority + } pursuant to ORS 430.357.
SECTION 485. ORS 430.350 is amended to read:
430.350. (1) Every applicant for a grant made under ORS 430.345
to 430.380 shall be assisted in the preparation and development
of alcohol and drug abuse prevention, early intervention and
treatment services by the local planning committee operating in
the area to which the application relates. Every application
shall establish to the satisfaction of the
{ - Department of Human Services - } { + Oregon Health
Authority + } that the committee was actively involved in the
development and preparation of such program.
(2) The { - department - } { + authority + } shall require
of every applicant for a grant made under ORS 430.345 to 430.380
the recommendation of the local planning committee in the area to
which the application relates. The { - department - }
{ + authority + } shall take such recommendation into
consideration before making or refusing grants under ORS 430.345
to 430.380.
SECTION 486. ORS 430.357 is amended to read:
430.357. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall make all necessary and
proper rules governing the administration of ORS 430.345 to
430.380, including but not limited to standards, consistent with
modern knowledge about alcohol and drug abuse prevention, early
intervention and treatment services.
(2) All standards and guidelines adopted by the
{ - Department of Human Services - } { + authority + } to
implement programs authorized under ORS 430.345 to 430.380 shall
be adopted as rules pursuant to ORS chapter 183 regardless of
whether they come within the definition of rule in ORS 183.310
(8).
SECTION 487. ORS 430.359 is amended to read:
430.359. (1) Upon approval of an application, the
{ - Department of Human Services - } { + Oregon Health
Enrolled House Bill 2009 (HB 2009-C) Page 301
Authority + } shall enter into a matching fund relationship with
the applicant. In all cases the amount granted by the
{ - department - } { + authority + } under the matching
formula shall not exceed 50 percent of the total estimated costs,
as approved by the { - department - } { + authority + }, of
the alcohol and drug abuse prevention, early intervention and
treatment services.
(2) The amount of state funds shall be apportioned among the
applicants according to the community need of the applicant for
services as compared with the community needs of all applicants.
In evaluating the community needs of the applicant, the
{ - department - } { + authority + }, in consultation with
the Governor's Council on Alcohol and Drug Abuse Programs, shall
give priority consideration to those applications that identify
and include alcohol and drug abuse prevention, early intervention
and treatment services aimed at providing services to minorities
with a significant population of affected persons. The funds
granted shall be distributed monthly.
(3) Federal funds at the disposal of an applicant for use in
providing alcohol and drug abuse prevention, early intervention
and treatment services may be counted toward the percentage
contribution of an applicant.
(4) An applicant that is, at the time of a grant made under
this section, expending funds appropriated by its governing body
for the alcohol and drug abuse prevention, early intervention and
treatment services shall, as a condition to the receipt of funds
under this section, maintain its financial contribution to these
programs at an amount not less than the preceding year. However,
the financial contribution requirement may be waived in its
entirety or in part in any year by the { - Department of Human
Services - } { + authority + } because of:
(a) The severe financial hardship that would be imposed to
maintain the contribution in full or in part;
(b) The application of any special funds for the alcohol and
drug abuse prevention, early intervention and treatment services
in the prior year when such funds are not available in the
current year;
(c) The application of federal funds, including but not limited
to general revenue sharing, distributions from the Oregon and
California land grant fund and block grant funds to the alcohol
and drug abuse prevention, early intervention and treatment
services in the prior year when such funds are not available for
such application in the current year; or
(d) The application of fund balances resulting from fees,
donations or underexpenditures in a given year of the funds
appropriated to counties pursuant to ORS 430.380 (2) to the
alcohol and drug abuse prevention, early intervention and
treatment services in the prior year when such funds are not
available for such application in the current year.
(5) Any moneys received by an applicant from fees,
contributions or other sources for alcohol and drug abuse
prevention, early intervention and treatment services for service
purposes, including federal funds, shall be considered a portion
of an applicant's contribution for the purpose of determining the
matching fund formula relationship. All moneys so received shall
only be used for the purposes of carrying out ORS 430.345 to
430.380.
(6) Grants made pursuant to ORS 430.345 to 430.380 shall be
paid from funds specifically appropriated therefor and shall be
Enrolled House Bill 2009 (HB 2009-C) Page 302
paid in the same manner as other claims against the state are
paid.
SECTION 488. ORS 430.364 is amended to read:
430.364. Within the limits of available funds, in giving
priority consideration under ORS 430.359 (2), the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall:
(1) Identify all applications containing funding proposals for
minority programs and assess the extent to which such funding
proposals address the needs of minorities as stated in ORS
430.362, adjusting such amounts as it deems justified on the
basis of the facts presented for its consideration and such
additional information as may be necessary to determine an
appropriate level of funding for such programs, and award such
funds to those applicants for the purposes stated in the
application; and
(2) After making a determination of the appropriate level of
funding minority programs under subsection (1) of this section,
assess the remaining portions of all applications containing
minority program funding proposals together with applications
which do not contain funding proposals for minority programs on
the basis of the remaining community need stated in ORS 430.345,
adjusting such amounts as it deems justified on the basis of the
facts presented for its consideration and such additional
information as may be necessary to determine an appropriate level
of funding such programs, and award such funds to those
applicants.
SECTION 489. ORS 430.366 is amended to read:
430.366. (1) Every proposal for alcohol and drug abuse
prevention, early intervention and treatment services received
from an applicant shall contain:
(a) A clear statement of the goals and objectives of the
program for the following fiscal year, including the number of
persons to be served and methods of measuring the success of
services rendered;
(b) A description of services to be funded; and
(c) A statement of the minorities to be served, if a minority
program.
(2) Thirty days before the end of each fiscal year, every
service funded under ORS 430.306, 430.338 to 430.380, 471.810,
473.030 and 473.050 shall file a concise progress report with the
{ - Department of Human Services - } { + Oregon Health
Authority + }, including a narrative statement of progress made
in meeting its goals and objectives for the year.
(3) The { - department - } { + authority + } shall assemble
all progress reports received in each biennium and transmit them
to the succeeding session of the Legislative Assembly.
SECTION 490. ORS 430.368 is amended to read:
430.368. (1) Any alcohol and drug abuse prevention, early
intervention and treatment service, including but not limited to
minority programs, aggrieved by any final action of an applicant
with regard to requesting funding for the program from the
{ - Department of Human Services - } { + Oregon Health
Authority + }, may appeal the applicant's action to the Director
of { - Human Services - } { + the Oregon Health Authority + }
within 30 days of the action. For the purposes of this section
'final action' means the submission of the applicant's compiled
funding requests to the { - department - } { + authority + }.
The director shall review, in consultation with the Governor's
Council on Alcohol and Drug Abuse Programs, all appealed actions
Enrolled House Bill 2009 (HB 2009-C) Page 303
for compliance with the purposes and requirements of ORS 430.306,
430.338 to 430.380, 471.810, 473.030 and 473.050, including but
not limited to ORS 430.338 (5).
(2) The director shall act on all appeals within 60 days of
filing, or before the time of the { - department's - }
{ + authority's + } decision on the applicant's funding request,
whichever is less. The director is not required to follow
procedures for hearing a contested case, but shall set forth
written findings justifying the action. The decision of the
director shall be final, and shall not be subject to judicial
review.
SECTION 491. ORS 430.375 is amended to read:
430.375. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall recommend fee schedules to
be used in determining the dollar fee to charge a person admitted
to approved alcohol and drug abuse prevention, early intervention
and treatment services for the expenses incurred by the service
in offering alcohol and drug abuse prevention, early intervention
and treatment services. An individual facility may adopt the
schedules developed by the
{ - department - } { + authority + } or may, subject to the
approval of the
{ - department - } { + authority + }, develop and adopt its
own fee schedules. The fee schedules adopted by each facility
shall be applied uniformly to all persons admitted to the
facility and shall be based on the costs of a person's alcohol
and drug abuse prevention, early intervention and treatment
services and the ability of the person to pay. The person
admitted shall be liable to the facility only to the extent
indicated by the fee schedules.
SECTION 492. ORS 430.380 is amended to read:
430.380. (1) There is established in the General Fund of the
State Treasury an account to be known as the Mental Health
Alcoholism and Drug Services Account. Moneys deposited in the
account are continuously appropriated for the purposes of ORS
430.345 to 430.380. Moneys deposited in the account may be
invested in the manner prescribed in ORS 293.701 to 293.820.
(2) Forty percent of the moneys in the Mental Health Alcoholism
and Drug Services Account shall be continuously appropriated to
the counties on the basis of population. The counties must use
the moneys for the establishment, operation and maintenance of
alcohol and drug abuse prevention, early intervention and
treatment services and for local matching funds under ORS 430.345
to 430.380.
(3) Forty percent of the moneys shall be continuously
appropriated to the { - Department of Human Services - }
{ + Oregon Health Authority + } to be used for state matching
funds to counties for alcohol and drug abuse prevention, early
intervention and treatment services pursuant to ORS 430.345 to
430.380.
(4) Twenty percent of the moneys shall be continuously
appropriated to the { - Department of Human Services - }
{ + Oregon Health Authority + } to be used for alcohol and drug
abuse prevention, early intervention and treatment services for
inmates of correctional and penal institutions and for parolees
therefrom and for probationers as provided pursuant to rules of
the { - department - } { + authority + }. However, prior to
expenditure of moneys under this subsection, the
{ - department - } { + authority + } must present its program
plans for approval to the appropriate legislative body which is
Enrolled House Bill 2009 (HB 2009-C) Page 304
either the Joint Ways and Means Committee during a session of the
Legislative Assembly or the Emergency Board during the interim
between sessions.
SECTION 493. ORS 430.395 is amended to read:
430.395. (1) Subject to the availability of funds, the
{ - Department of Human Services - } { + Oregon Health
Authority + } may fund regional centers for the treatment of
adolescents with drug and alcohol dependencies.
(2) The { - Department of Human Services - }
{ + authority + } shall define by rule a minimum number of
inpatient beds and outpatient slots necessary for effective
treatment and economic operation of any regional center funded by
state funds.
(3) The areas to be served by any treatment facility shall be
determined by the following:
(a) Areas that demonstrate the most need;
(b) Areas with no treatment program or an inadequate program;
and
(c) Areas where there is strong, organized community support
for youth treatment programs.
(4) The area need is determined by:
(a) Current area youth admissions to treatment programs;
(b) Per capita consumption of alcohol in the area;
(c) Percentage of area population between 10 and 18 years of
age;
(d) Whether the area has effective, specialized outpatient and
early intervention services in place;
(e) Whether the area suffers high unemployment and economic
depression; and
(f) Other evidence of need.
(5) As used in this section, 'regional center' means a
community residential treatment facility including intensive
residential and outpatient care for adolescents with drug and
alcohol dependencies.
SECTION 494. ORS 430.397 is amended to read:
430.397. Any person may voluntarily apply for admission to any
treatment facility, as defined in ORS 430.306, operated pursuant
to rules of the { - Department of Human Services - }
{ + Oregon Health Authority + }. The director of the treatment
facility shall determine whether the person shall be admitted as
a patient, or referred to another appropriate treatment facility
or denied referral or admission. If the person is under 18 years
of age or an incompetent, the director of the treatment facility
shall notify the person's parents or guardian of the admission or
referral.
SECTION 495. ORS 430.420 is amended to read:
430.420. (1) In collaboration with local seizing agencies, the
district attorney, the local public safety coordinating council
and the local mental health advisory committee, a local
alcoholism planning committee appointed or designated pursuant to
ORS 430.342 shall develop a plan to integrate drug treatment
services into the criminal justice system for offenders who
commit nonviolent felony drug possession offenses. The plan may
also include property offenders as provided for under ORS
475.245. The plan developed under this subsection must be
incorporated into the local coordinated comprehensive plan
required by ORS 417.775.
(2)(a) A plan may include, but need not be limited to, programs
that occur before adjudication, after adjudication as part of a
sentence of probation or as part of a conditional discharge.
Enrolled House Bill 2009 (HB 2009-C) Page 305
(b) A plan must include, but need not be limited to:
(A) A description of local criminal justice and treatment
coordination efforts;
(B) A description of the method by which local, state and
federal treatment resources are prioritized and allocated to meet
the needs of the drug abusing offender population;
(C) The principles that guide criminal justice strategies for
supervision and treatment of drug abusing offenders and the
purchase of treatment services from local community providers;
(D) The desired outcomes for criminal justice strategies for
supervision and treatment of drug abusing offenders and the
provision of treatment services and identification of a method
for monitoring and reporting the outcomes; and
(E) Consistent standards for measuring the success of criminal
justice strategies for supervision and treatment of drug abusing
offenders and the provision of treatment.
(3) A program must include, but need not be limited to:
(a) Ongoing oversight of the participant;
(b) Frequent monitoring to determine whether a participant is
using controlled substances unlawfully; and
(c) A coordinated strategy governing responses to a
participant's compliance or noncompliance with the program.
(4) The local alcoholism planning committee shall submit the
plan to the { - Department of Human Services - } { + Oregon
Health Authority + } and shall provide the county board of
commissioners with a copy of the plan.
SECTION 496. ORS 430.422 is amended to read:
430.422. The Drug Prevention and Education Fund is established
separate and distinct from the General Fund. The Drug Prevention
and Education Fund consists of moneys deposited in the fund under
ORS 131.597 and 430.426, and other moneys as may be appropriated
to the fund by law. The moneys in the Drug Prevention and
Education Fund are continuously appropriated to the
{ - Department of Human Services - } { + Oregon Health
Authority + } for the purpose of assisting counties in paying the
costs incurred by the counties in providing drug treatment
services pursuant to plans submitted under ORS 430.420.
SECTION 497. ORS 430.424 is amended to read:
430.424. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall distribute moneys in the
Drug Prevention and Education Fund established in ORS 430.422
based on a review of the plans submitted to the office under ORS
430.420. Funding criteria include, but need not be limited to,
whether the plan includes the existence or development of a drug
treatment court or a drug diversion program.
SECTION 498. ORS 430.426 is amended to read:
430.426. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules necessary to
carry out the provisions of ORS 430.420 to 430.426.
(2) The { - department - } { + authority + } may accept
gifts, grants and donations from any source, public or private.
Moneys accepted under this section must be deposited in the Drug
Prevention and Education Fund to be used for the purposes for
which the fund is established.
SECTION 499. ORS 430.450 is amended to read:
430.450. As used in ORS 430.450 to 430.555, unless the context
requires otherwise:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'Community diversion plan' means a
system of services approved and monitored by the { - Department
Enrolled House Bill 2009 (HB 2009-C) Page 306
of Human Services - } { + Oregon Health Authority + } in
accordance with approved county mental health plans, which may
include but need not be limited to, medical, educational,
vocational, social and psychological services, training,
counseling, provision for residential care, and other
rehabilitative services designed to benefit the defendant and
protect the public.
{ - (2) - } { + (3) + } 'Crimes of violence against the
person' means criminal homicide, assault and related offenses as
defined in ORS 163.165 to 163.208, rape and sexual abuse, incest,
or any other crime involving the use of a deadly weapon or which
results in physical harm or death to a victim.
{ - (3) 'Department' means the Department of Human
Services. - }
(4) 'Diversion' means the referral or transfer from the
criminal justice system into a program of treatment or
rehabilitation of a defendant diagnosed as drug dependent and in
need of treatment at { - department - } { + authority + }
approved sites, on the condition that the defendant successfully
fulfills the specified obligations of a program designed for
rehabilitation.
(5) 'Diversion coordinator' means a person designated by a
county mental health program director to work with the criminal
justice system and health care delivery system to screen
defendants who may be suitable for diversion; to coordinate the
formulation of individual diversion plans for such defendants;
and to report to the court the performance of those defendants
being treated under an individual diversion plan.
(6) 'Director of the treatment facility' means the person in
charge of treatment and rehabilitation programs at the treatment
facility.
(7) 'Drug abuse' means repetitive, excessive use of a drug or
controlled substance short of dependence, without medical
supervision, which may have a detrimental effect on the
individual or society.
(8) 'Drug-dependent person' means one who has lost the ability
to control the personal use of controlled substances or other
substances with abuse potential, or who uses such substances or
controlled substances to the extent that the health of the person
or that of others is substantially impaired or endangered or the
social or economic function of the person is substantially
disrupted. A drug-dependent person may be physically dependent, a
condition in which the body requires a continuing supply of a
drug or controlled substance to avoid characteristic withdrawal
symptoms, or psychologically dependent, a condition characterized
by an overwhelming mental desire for continued use of a drug or
controlled substance.
(9) 'Evaluation' means any diagnostic procedures used in the
determination of drug dependency, and may include but are not
limited to chemical testing, medical examinations and interviews.
(10) 'Individual diversion plan' means a system of services
tailored to the individual's unique needs as identified in the
evaluation, which may include but need not be limited to medical,
educational, vocational, social and psychological services,
training, counseling, provision for residential care, and other
rehabilitative services designed to benefit the defendant and
protect the public. The plan shall include appropriate methods
for monitoring the individual's progress toward achievement of
the defined treatment objectives and shall also include periodic
review by the court.
Enrolled House Bill 2009 (HB 2009-C) Page 307
(11) 'Treatment facility' means detoxification centers,
outpatient clinics, residential care facilities, hospitals and
such other facilities determined to be suitable by the
{ - Department of Human Services - } { + authority + }, any of
which may provide diagnosis and evaluation, medical care,
detoxification, social services or rehabilitation.
SECTION 500. ORS 430.535 is amended to read:
430.535. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } and the Governor's Council on
Alcohol and Drug Abuse Programs shall, subject to the
availability of funds, develop bilingual forms to assist
non-English-speaking persons in understanding their rights under
ORS 430.450 to 430.555.
(2) The { - department - } { + authority + } shall assist
county mental health programs in the development of comprehensive
and coordinated identification, evaluation, treatment, education
and rehabilitation services for the drug-dependent person. The
State Plan for Drug Problems shall be consistent with such
system.
SECTION 501. ORS 430.540 is amended to read:
430.540. (1) The county mental health program director shall
designate sites for evaluation in the county plan of individuals
who may be or are known to be drug dependent. The
{ - Department of Human Services - } { + Oregon Health
Authority + } shall establish standards for such sites and
periodically publish a list of approved sites.
(2) The costs of evaluation shall be borne by the county of
appropriate jurisdiction.
SECTION 502. ORS 430.545 is amended to read:
430.545. (1) Evaluation sites provided for under ORS 430.450 to
430.555 shall conduct such procedures as may be necessary to
determine if an individual is a drug-dependent person. A person
shall be evaluated only with that person's written consent.
Subject to approval of the { - Department of Human Services - }
{ + Oregon Health Authority + }, the director of a treatment
facility or the director of an evaluation site may designate
personnel to provide treatment or evaluation as appropriate under
the lawful limitations of their certification, licensure or
professional practice.
(2) Antagonist drugs may be administered for diagnosis of
addiction by a registered nurse at an approved site when the
nurse has completed required training and a physician is
available on call. Antagonist drugs shall not be administered
without informed written consent of the person.
SECTION 503. ORS 430.560 is amended to read:
430.560. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall establish for
drug-dependent persons treatment programs that involve:
(a) Detoxification;
(b) Detoxification with acupuncture and counseling; and
(c) The supplying of synthetic opiates to such persons under
close supervision and control. However, the supplying of
synthetic opiates shall be used only when detoxification or
detoxification with acupuncture and counseling has proven
ineffective or upon a written request of a physician licensed by
the Oregon Medical Board showing medical need for synthetic
opiates if the request is approved in writing by the parole and
probation officer, if any, of the drug-dependent person. The copy
of the request and the approval must be included in the client's
permanent treatment and releasing authority records.
Enrolled House Bill 2009 (HB 2009-C) Page 308
(2) Notwithstanding subsection (1) of this section, synthetic
opiates may be made available to a pregnant woman with her
informed consent without prior resort to the treatment programs
described in subsection (1)(a) and (b) of this section.
(3) In establishing the programs authorized by subsection (1)
of this section, the { - Department of Human Services - }
{ + Oregon Health Authority + } may enter into contracts with
detoxification programs, physicians licensed by the Oregon
Medical Board, acupuncturists, counselors, licensed pharmacies
and any agency of this state or a political subdivision in this
state to conduct the required examinations and to supply the
services used in the programs.
(4) The { - department - } { + authority + } shall
establish rules of eligibility for the programs authorized by ORS
430.565 and this section, considering such factors as residency,
duration of dependency on drugs or controlled substances, failure
of previous attempts at abstinence and other relevant factors.
The
{ - department - } { + authority + } shall establish
reasonable fees for participation in the programs.
(5) Pursuant to ORS chapter 183, the { - department - }
{ + authority + } shall adopt rules governing the administration
of the programs authorized by ORS 430.565 and this section.
SECTION 504. ORS 430.565 is amended to read:
430.565. The provisions of any law restricting the use,
possession, control or administration of a controlled substance
shall not apply to any physician, pharmacist or other person
while participating in the program authorized by ORS 430.560
(1)(c) so long as the physician, pharmacist or other person
complies with provisions of ORS 430.560 and this section and the
rules of the
{ - Department of Human Services - } { + Oregon Health
Authority + } made pursuant to ORS 430.560 and this section.
SECTION 505. ORS 430.570 is amended to read:
430.570. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall cause information
concerning the usefulness and feasibility of opiate inhibitors to
be made available to persons involved in administering diversion
programs, corrections programs and other programs for drug
dependent persons.
SECTION 506. ORS 430.610 is amended to read:
430.610. It is declared to be the policy and intent of the
Legislative Assembly that:
(1) Subject to the availability of funds, { - mental
health - } services should be available to all persons with
mental or emotional disturbances, mental retardation,
developmental disabilities, alcoholism or drug dependence, and
persons who are alcohol or drug abusers, regardless of age,
county of residence or ability to pay;
(2) The Department of Human Services { + , the Oregon Health
Authority + } and other state agencies shall conduct their
activities in the least costly and most efficient manner so that
delivery of services to persons with mental or emotional
disturbances, mental retardation, developmental disabilities,
alcoholism or drug dependence, and persons who are alcohol or
drug abusers, shall be effective and coordinated;
(3) To the greatest extent possible, mental health { + and
developmental disabilities + } services shall be delivered in the
community where the person lives in order to achieve maximum
Enrolled House Bill 2009 (HB 2009-C) Page 309
coordination of services and minimum disruption in the life of
the person; and
(4) The State of Oregon shall encourage, aid and financially
assist its county governments in the establishment and
development of community mental health { - and - }
{ + programs or community + } developmental disabilities
programs, including but not limited to, treatment and
rehabilitation services for persons with mental or emotional
disturbances, mental retardation, developmental disabilities,
alcoholism or drug dependence, and persons who are alcohol or
drug abusers, and prevention of these problems through county
administered community mental health { - and - } { + programs
or community + } developmental disabilities programs.
SECTION 507. ORS 430.620 is amended to read:
430.620. (1) The county court or board of county commissioners,
or its representatives designated by it for the purpose, of any
county, on behalf of the county, may:
(a) In conformity with the rules of the Department of Human
Services, establish and operate, or contract with a public agency
or private corporation for, a community { - mental health
and - } developmental disabilities program.
{ + (b) In conformity with the rules of the Oregon Health
Authority, establish and operate, or contract with a public
agency or private corporation for, a community mental health
program. + }
{ - (b) - } { + (c) + } Cooperate, coordinate or act
jointly with any other county or counties or any appropriate
officer or agency of such counties in establishing and operating
or contracting for a community mental health { - and - }
{ + program or community + } developmental disabilities program
to service all such counties in conformity with the regulations
of the department { + or the authority + }.
{ - (c) - } { + (d) + } Expend county moneys for the
purposes referred to in paragraph (a) { - or (b) - } { + , (b)
or (c) + } of this subsection.
{ - (d) - } { + (e) + } Accept and use or expend property
or moneys from any public or private source made available for
the purposes referred to in paragraph (a) { - or