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