75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
House Bill 2009
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of House Interim Committee on
Health Care)
CHAPTER ................
AN ACT
Relating to health care; creating new provisions; amending ORS
25.323, 65.800, 87.533, 90.113, 90.440, 92.337, 93.270, 97.210,
97.450, 97.977, 105.580, 106.045, 106.081, 109.094, 109.096,
109.225, 109.251, 109.675, 109.680, 109.685, 109.695, 110.318,
113.085, 113.105, 113.145, 114.525, 114.535, 115.125, 116.093,
116.253, 124.050, 125.060, 127.646, 127.720, 127.865, 130.370,
130.425, 135.139, 135.917, 137.227, 137.228, 137.464, 137.466,
137.658, 144.102, 144.270, 161.315, 161.327, 161.336, 161.341,
161.346, 161.365, 161.370, 161.375, 161.385, 161.390, 163.206,
165.698, 166.250, 166.291, 166.412, 166.470, 169.076, 169.690,
179.010, 179.040, 179.050, 179.055, 179.065, 179.105, 179.110,
179.140, 179.150, 179.210, 179.230, 179.240, 179.321, 179.325,
179.331, 179.360, 179.370, 179.375, 179.380, 179.385, 179.390,
179.450, 179.460, 179.473, 179.479, 179.490, 179.492, 179.505,
179.509, 179.610, 179.620, 179.640, 179.653, 179.655, 179.660,
179.701, 179.711, 179.731, 179.740, 179.745, 179.770, 181.537,
181.637, 182.415, 182.515, 182.535, 184.345, 192.517, 192.519,
192.527, 192.535, 192.537, 192.539, 192.547, 192.549, 192.630,
197.660, 198.792, 199.461, 199.490, 199.495, 199.512, 222.120,
222.850, 222.860, 222.870, 222.875, 222.880, 222.883, 222.885,
222.890, 222.897, 222.900, 222.911, 244.050, 247.570, 276.180,
276.610, 276.612, 278.315, 279A.050, 285A.213, 285B.563,
291.371, 314.840, 315.604, 315.613, 320.308, 323.455, 323.625,
332.111, 336.222, 336.227, 336.235, 336.245, 339.333, 339.505,
339.869, 343.221, 343.499, 343.961, 345.535, 346.015, 346.035,
348.320, 351.105, 352.008, 401.259, 401.300, 401.347, 401.654,
401.657, 401.661, 401.667, 401.670, 401.871, 408.305, 408.310,
408.320, 408.325, 408.380, 408.570, 408.580, 409.010, 409.320,
409.330, 409.410, 409.420, 409.425, 409.430, 409.435, 409.500,
409.520, 409.530, 409.540, 409.600, 409.619, 409.621, 409.623,
409.625, 409.720, 409.740, 409.745, 409.747, 411.620, 411.708,
414.025, 414.033, 414.034, 414.042, 414.049, 414.051, 414.065,
414.073, 414.105, 414.106, 414.109, 414.115, 414.125, 414.135,
414.145, 414.151, 414.153, 414.211, 414.221, 414.225, 414.227,
414.312, 414.314, 414.316, 414.318, 414.320, 414.325, 414.327,
414.329, 414.330, 414.332, 414.334, 414.336, 414.338, 414.350,
414.355, 414.360, 414.365, 414.375, 414.380, 414.390, 414.410,
414.420, 414.426, 414.428, 414.534, 414.536, 414.538, 414.540,
414.630, 414.640, 414.707, 414.708, 414.709, 414.710, 414.712,
414.720, 414.725, 414.727, 414.728, 414.735, 414.736, 414.737,
414.738, 414.739, 414.740, 414.741, 414.742, 414.743, 414.750,
414.751, 414.805, 414.807, 414.815, 414.839, 416.430, 416.510,
Enrolled House Bill 2009 (HB 2009-C) Page 1
416.530, 416.540, 416.550, 416.560, 416.570, 416.580, 416.590,
416.600, 416.610, 416.990, 417.346, 417.728, 417.730, 417.735,
417.795, 417.845, 418.704, 418.706, 419B.005, 419B.839,
419C.239, 419C.443, 419C.507, 419C.529, 419C.530, 419C.532,
419C.533, 419C.538, 419C.542, 420.505, 420.870, 420A.135,
420A.145, 420A.155, 421.504, 426.005, 426.010, 426.020,
426.060, 426.070, 426.072, 426.074, 426.075, 426.095, 426.110,
426.120, 426.127, 426.130, 426.140, 426.150, 426.170, 426.180,
426.217, 426.220, 426.223, 426.225, 426.228, 426.231, 426.232,
426.233, 426.234, 426.235, 426.236, 426.237, 426.238, 426.241,
426.250, 426.273, 426.275, 426.278, 426.292, 426.300, 426.301,
426.303, 426.307, 426.330, 426.335, 426.370, 426.385, 426.395,
426.415, 426.495, 426.500, 426.502, 426.504, 426.506, 426.508,
426.650, 426.670, 426.675, 426.680, 427.104, 427.108, 427.112,
427.180, 427.185, 427.190, 427.235, 427.245, 427.255, 427.275,
427.280, 427.300, 427.306, 428.210, 428.220, 428.230, 428.240,
428.260, 428.270, 428.310, 428.320, 428.330, 430.010, 430.021,
430.030, 430.050, 430.071, 430.073, 430.078, 430.140, 430.160,
430.165, 430.170, 430.195, 430.205, 430.210, 430.215, 430.240,
430.255, 430.257, 430.259, 430.265, 430.270, 430.290, 430.306,
430.315, 430.335, 430.342, 430.345, 430.350, 430.357, 430.359,
430.364, 430.366, 430.368, 430.375, 430.380, 430.395, 430.397,
430.420, 430.422, 430.424, 430.426, 430.450, 430.535, 430.540,
430.545, 430.560, 430.565, 430.570, 430.610, 430.620, 430.630,
430.632, 430.635, 430.640, 430.665, 430.670, 430.672, 430.673,
430.675, 430.685, 430.690, 430.693, 430.695, 430.705, 430.715,
430.725, 430.735, 430.850, 430.860, 430.870, 430.880, 430.920,
430.925, 430.955, 431.035, 431.045, 431.110, 431.120, 431.150,
431.155, 431.157, 431.170, 431.175, 431.180, 431.190, 431.195,
431.210, 431.220, 431.230, 431.250, 431.260, 431.262, 431.264,
431.270, 431.290, 431.310, 431.330, 431.335, 431.340, 431.345,
431.350, 431.375, 431.380, 431.385, 431.415, 431.416, 431.418,
431.530, 431.550, 431.607, 431.609, 431.611, 431.613, 431.619,
431.623, 431.627, 431.633, 431.671, 431.705, 431.710, 431.715,
431.720, 431.725, 431.730, 431.735, 431.740, 431.745, 431.750,
431.760, 431.825, 431.827, 431.830, 431.831, 431.832, 431.834,
431.836, 431.853, 431.890, 431.915, 431.920, 431.940, 431.945,
431.950, 431.955, 431.990, 432.005, 432.010, 432.015, 432.020,
432.025, 432.030, 432.060, 432.085, 432.119, 432.146, 432.240,
432.287, 432.312, 432.317, 432.500, 432.510, 432.520, 432.530,
432.540, 432.900, 433.001, 433.004, 433.006, 433.008, 433.010,
433.012, 433.017, 433.035, 433.040, 433.045, 433.055, 433.060,
433.065, 433.075, 433.080, 433.085, 433.090, 433.094, 433.100,
433.110, 433.133, 433.140, 433.220, 433.235, 433.245, 433.255,
433.260, 433.267, 433.269, 433.271, 433.273, 433.282, 433.283,
433.285, 433.290, 433.295, 433.312, 433.314, 433.321, 433.323,
433.326, 433.345, 433.350, 433.355, 433.360, 433.365, 433.367,
433.370, 433.375, 433.407, 433.419, 433.423, 433.443, 433.452,
433.511, 433.517, 433.521, 433.526, 433.715, 433.750, 433.760,
433.810, 433.835, 433.850, 433.855, 433.860, 433.990, 435.090,
435.100, 435.105, 435.205, 435.225, 435.254, 435.256, 437.010,
437.030, 438.010, 438.060, 438.070, 438.110, 438.120, 438.130,
438.140, 438.150, 438.160, 438.210, 438.310, 438.320, 438.420,
438.435, 438.440, 438.450, 438.605, 438.610, 438.615, 438.620,
440.420, 441.017, 441.020, 441.022, 441.025, 441.030, 441.037,
441.050, 441.055, 441.057, 441.060, 441.062, 441.082, 441.085,
441.094, 441.164, 441.166, 441.170, 441.180, 441.630, 441.705,
441.710, 441.712, 441.715, 441.720, 441.750, 441.755, 441.815,
441.990, 442.011, 442.015, 442.120, 442.315, 442.325, 442.342,
442.502, 442.584, 442.700, 442.705, 442.710, 442.720, 442.725,
Enrolled House Bill 2009 (HB 2009-C) Page 2
442.730, 442.735, 442.740, 442.745, 442.750, 442.755, 442.760,
442.800, 442.807, 443.005, 443.015, 443.035, 443.045, 443.055,
443.085, 443.205, 443.225, 443.315, 443.325, 443.327, 443.340,
443.345, 443.400, 443.405, 443.410, 443.415, 443.420, 443.422,
443.425, 443.430, 443.435, 443.440, 443.445, 443.450, 443.455,
443.460, 443.705, 443.715, 443.720, 443.725, 443.730, 443.733,
443.735, 443.738, 443.740, 443.742, 443.745, 443.755, 443.760,
443.765, 443.767, 443.775, 443.780, 443.785, 443.790, 443.795,
443.865, 443.870, 443.991, 444.300, 444.310, 444.320, 444.330,
445.010, 445.030, 445.050, 445.070, 445.090, 445.110, 445.130,
445.140, 445.150, 445.180, 445.185, 446.310, 446.320, 446.321,
446.322, 446.324, 446.325, 446.330, 446.335, 446.340, 446.345,
446.347, 446.348, 446.350, 446.425, 447.124, 448.005, 448.011,
448.020, 448.030, 448.035, 448.037, 448.040, 448.051, 448.060,
448.100, 448.115, 448.119, 448.123, 448.131, 448.135, 448.140,
448.145, 448.150, 448.153, 448.155, 448.160, 448.165, 448.170,
448.175, 448.180, 448.250, 448.255, 448.268, 448.271, 448.273,
448.277, 448.278, 448.279, 448.280, 448.285, 448.295, 448.315,
448.330, 448.407, 448.409, 448.410, 448.450, 448.460, 448.465,
448.990, 450.165, 450.845, 451.445, 452.151, 452.300, 452.530,
453.001, 453.005, 453.035, 453.055, 453.065, 453.075, 453.085,
453.095, 453.105, 453.115, 453.125, 453.135, 453.205, 453.225,
453.235, 453.245, 453.255, 453.265, 453.342, 453.347, 453.370,
453.605, 453.635, 453.645, 453.665, 453.675, 453.685, 453.695,
453.705, 453.715, 453.745, 453.752, 453.754, 453.757, 453.761,
453.771, 453.775, 453.780, 453.785, 453.790, 453.795, 453.800,
453.805, 453.807, 453.864, 453.867, 453.870, 453.873, 453.876,
453.879, 453.885, 453.888, 453.891, 453.894, 453.897, 453.900,
453.903, 453.909, 453.995, 454.235, 455.680, 458.525, 458.532,
459.386, 459.390, 459.395, 466.135, 466.280, 466.605, 466.615,
468.035, 468.055, 468.060, 468A.707, 468B.150, 469.525,
469.533, 469.559, 469.611, 471.190, 471.235, 471.333, 471.432,
471.547, 471.732, 475.225, 475.302, 475.303, 475.304, 475.306,
475.309, 475.312, 475.316, 475.320, 475.331, 475.334, 475.338,
475.565, 476.030, 478.260, 479.215, 479.217, 479.220, 480.225,
497.162, 527.710, 537.532, 537.534, 541.845, 545.101, 547.045,
561.740, 609.652, 616.010, 616.015, 616.020, 616.077, 616.330,
616.711, 616.745, 619.095, 624.010, 624.020, 624.036, 624.041,
624.046, 624.051, 624.060, 624.070, 624.073, 624.077, 624.080,
624.086, 624.091, 624.096, 624.106, 624.111, 624.116, 624.121,
624.165, 624.310, 624.320, 624.330, 624.340, 624.370, 624.380,
624.390, 624.400, 624.410, 624.430, 624.490, 624.495, 624.510,
624.530, 624.550, 624.570, 624.630, 624.650, 624.670, 624.990,
624.992, 628.270, 634.550, 656.319, 657.010, 657.880, 657.885,
657A.260, 657A.400, 657A.410, 657A.420, 675.360, 675.365,
676.160, 677.290, 677.491, 677.510, 677.515, 677.805, 677.812,
678.153, 678.362, 678.440, 678.730, 680.205, 682.017, 682.019,
682.025, 682.028, 682.031, 682.039, 682.045, 682.047, 682.051,
682.056, 682.062, 682.068, 682.075, 682.079, 682.085, 682.105,
682.107, 682.109, 682.111, 682.117, 682.208, 682.212, 682.216,
682.220, 682.224, 682.245, 682.991, 685.055, 685.160, 688.545,
688.595, 688.625, 688.630, 688.635, 688.640, 688.645, 688.650,
688.655, 688.660, 688.665, 689.605, 689.645, 690.055, 690.057,
690.205, 691.405, 691.485, 692.300, 693.115, 701.505, 708A.430,
722.262, 723.466, 731.276, 735.610, 735.612, 735.614, 735.625,
735.630, 735.701, 735.706, 735.722, 735.734, 735.754, 735.756,
743.018, 743.730, 743.737, 743.831, 802.250, 807.720, 813.021,
813.025, 813.030, 813.240, 813.260, 813.270, 813.500, 815.260,
820.330, 820.360, 820.380 and 830.110 and sections 13 and 14,
chapter 653, Oregon Laws 1991, section 6, chapter 1059, Oregon
Enrolled House Bill 2009 (HB 2009-C) Page 3
Laws 1999, section 2, chapter 798, Oregon Laws 2001, section 2,
chapter 76, Oregon Laws 2003, section 18, chapter 810, Oregon
Laws 2003, sections 5 and 7, chapter 99, Oregon Laws 2007,
section 2, chapter 460, Oregon Laws 2007, section 2, chapter
665, Oregon Laws 2007, section 27, chapter 697, Oregon Laws
2007, sections 3 and 4, chapter 838, Oregon Laws 2007, section
2a, chapter 872, Oregon Laws 2007, section 21, chapter 18,
Oregon Laws 2008, and section 2, chapter 31, Oregon Laws 2008;
repealing ORS 414.019, 414.021, 414.022, 414.023, 414.024,
414.031, 414.032, 414.036, 414.038, 414.039, 414.085, 414.107,
414.660, 414.670, 414.744, 430.180, 430.190, 442.035, 442.045,
442.057, 445.270 and 735.706 and sections 10 and 13, chapter
810, Oregon Laws 2003; appropriating money; and declaring an
emergency.
Be It Enacted by the People of the State of Oregon:
{ +
HEALTH AUTHORITY LAW + }
{ +
ESTABLISHING OREGON HEALTH POLICY BOARD + }
{ +
(Establishment; Appointment; Term; Confirmation; Per Diem) + }
SECTION 1. { + (1) There is established the Oregon Health
Policy Board, consisting of nine members appointed by the
Governor.
(2) The term of office of each member is four years, but a
member serves at the pleasure of the Governor. Before the
expiration of the term of a member, the Governor shall appoint a
successor whose term begins on January 1 next following. A member
is eligible for reappointment. If there is a vacancy for any
cause, the Governor shall make an appointment to become
immediately effective for the unexpired term.
(3) The appointment of the board is subject to confirmation by
the Senate in the manner prescribed in ORS 171.562 and 171.565.
(4) Members of the board are entitled to reimbursement of per
diem and travel expenses for their attendance at board meetings
and subcommittee meetings as provided in ORS 292.495. + }
SECTION 2. { + Notwithstanding the term of office specified by
section 1 of this 2009 Act, of the members first appointed to the
Oregon Health Policy Board:
(1) Two shall serve for terms ending December 31, 2011.
(2) Two shall serve for terms ending December 31, 2012.
(3) Two shall serve for terms ending December 31, 2013.
(4) Three shall serve for terms ending December 31, 2014. + }
{ + NOTE: + } Section 3 was deleted by amendment. Subsequent
sections were not renumbered.
{ +
(Qualification of Members) + }
SECTION 4. { + (1) The Oregon Health Policy Board consists of
individuals who:
(a) Are United States citizens and residents of this state;
(b) Have demonstrated leadership skills in their professional
and civic lives;
Enrolled House Bill 2009 (HB 2009-C) Page 4
(c) To the greatest extent practicable, represent the various
geographic, ethnic, gender, racial and economic diversity of this
state; and
(d) Collectively offer expertise, knowledge and experience in
consumer advocacy, management of a company that offers health
insurance to its employees, public health, finance, organized
labor, health care and the operation of a small business.
(2) No more than four members of the board may be individuals:
(a) Whose household incomes, during the individuals' tenure on
the board or during the 12-month period prior to the individuals'
appointment to the board, come from health care or from a health
care related field; or
(b) Who receive health care benefits from a publicly funded
state health benefit plan.
(3) No more than four members of the board may be, during the
individuals' tenure on the board or during the 12-month period
prior to the individuals' appointment to the board, employed in a
health care or health care related field.
(4) At least one member of the board shall have an active
license to provide health care in Oregon and shall be appointed
to serve in addition to the members offering the expertise,
knowledge and experience described in subsection (1)(d) of this
section. + }
{ +
(Officers; Quorum; Meetings) + }
SECTION 5. { + (1) The Governor shall select from the
membership of the Oregon Health Policy Board the chairperson and
vice chairperson.
(2) A majority of the members of the board constitutes a quorum
for the transaction of business.
(3) The board shall meet at least once every month and shall
meet at least once every two years in each congressional district
in this state, at a place, day and hour determined by the board.
The board may also meet at other times and places specified by
the call of the chairperson or a majority of the members of the
board, or as specified in bylaws adopted by the board. + }
{ +
(Authority to Adopt Rules) + }
SECTION 6. { + In accordance with applicable provisions of ORS
chapter 183, the Oregon Health Policy Board may adopt rules
necessary for the administration of the laws that the board is
charged with administering. + }
{ +
(Committees) + }
SECTION 7. { + (1) The Oregon Health Policy Board shall
establish the committees described in subsections (2) and (3) of
this section.
(2)(a) The Public Health Benefit Purchasers Committee shall
include individuals who purchase health care for the following:
(A) The Public Employees' Benefit Board.
(B) The Oregon Educators Benefit Board.
(C) Trustees of the Public Employees Retirement System.
(D) A city government.
(E) A county government.
Enrolled House Bill 2009 (HB 2009-C) Page 5
(F) A special district.
(G) Any private nonprofit organization that receives the
majority of its funding from the state and requests to
participate on the committee.
(b) The Public Health Benefit Purchasers Committee shall:
(A) Identify and make specific recommendations to achieve
uniformity across all public health benefit plan designs based on
the best available clinical evidence, recognized best practices
for health promotion and disease management, demonstrated
cost-effectiveness and shared demographics among the enrollees
within the pools covered by the benefit plans.
(B) Develop an action plan for ongoing collaboration to
implement the benefit design alignment described in subparagraph
(A) of this paragraph and shall leverage purchasing to achieve
benefit uniformity if practicable.
(C) Continuously review and report to the Oregon Health Policy
Board on the committee's progress in aligning benefits while
minimizing the cost shift to individual purchasers of insurance
without shifting costs to the private sector or the Oregon Health
Insurance Exchange.
(c) The Oregon Health Policy Board shall work with the Public
Health Benefit Purchasers Committee to identify uniform
provisions for state and local public contracts for health
benefit plans that achieve maximum quality and cost outcomes. The
board shall collaborate with the committee to develop steps to
implement joint contract provisions. The committee shall identify
a schedule for the implementation of contract changes. The
process for implementation of joint contract provisions must
include a review process to protect against unintended cost
shifts to enrollees or agencies.
(d) Proposals and plans developed in accordance with this
subsection shall be completed by October 1, 2010, and shall be
submitted to the Oregon Health Policy Board for its approval and
possible referral to the Legislative Assembly no later than
December 31, 2010.
(3)(a) The Health Care Workforce Committee shall include
individuals who have the collective expertise, knowledge and
experience in a broad range of health professions, health care
education and health care workforce development initiatives.
(b) The Health Care Workforce Committee shall coordinate
efforts to recruit and educate health care professionals and
retain a quality workforce to meet the demand that will be
created by the expansion in health care coverage, system
transformations and an increasingly diverse population.
(c) The Health Care Workforce Committee shall conduct an
inventory of all grants and other state resources available for
addressing the need to expand the health care workforce to meet
the needs of Oregonians for health care.
(4) Members of the committees described in subsections (2) and
(3) of this section who are not members of the Oregon Health
Policy Board are not entitled to compensation but shall be
reimbursed from funds available to the board for actual and
necessary travel and other expenses incurred by them by their
attendance at committee meetings, in the manner and amount
provided in ORS 292.495. + }
SECTION 7a. { + There is established in the State Treasury,
separate and distinct from the General Fund, the Health Care
Workforce Strategic Fund. The fund shall consist of moneys
obtained from federal and private sources as well as any moneys
appropriated to the fund by the Legislative Assembly. Moneys in
Enrolled House Bill 2009 (HB 2009-C) Page 6
the fund are continuously appropriated to the Oregon Health
Authority to meet the goals established by the Health Care
Workforce Committee established pursuant to section 7 of this
2009 Act. + }
{ +
(Advisory and Technical Committees) + }
SECTION 8. { + (1) The Oregon Health Policy Board may
establish such advisory and technical committees as the board
considers necessary to aid and advise the board in the
performance of the board's functions. These committees may be
continuing or temporary committees. The board shall determine the
representation, membership, terms and organization of the
committees and shall appoint the members of the committees.
(2) Members of the committees who are not members of the board
are not entitled to compensation, but at the discretion of the
board may be reimbursed from funds available to the board for
actual and necessary travel and other expenses incurred by them
in the performance of their official duties, in the manner and
amount provided in ORS 292.495. + }
{ +
(Duties) + }
SECTION 9. { + (1) The duties of the Oregon Health Policy
Board are to:
(a) Be the policy-making and oversight body for the Oregon
Health Authority established in section 10 of this 2009 Act and
all of the authority's departmental divisions, including the
Oregon Health Insurance Exchange described in section 17 of this
2009 Act.
(b) Develop and submit a plan to the Legislative Assembly by
December 31, 2010, to provide and fund access to affordable,
quality health care for all Oregonians by 2015.
(c) Develop a program to provide health insurance premium
assistance to all low and moderate income individuals who are
legal residents of Oregon.
(d) Establish and continuously refine uniform, statewide health
care quality standards for use by all purchasers of health care,
third-party payers and health care providers as quality
performance benchmarks.
(e) Establish evidence-based clinical standards and practice
guidelines that may be used by providers.
(f) Approve and monitor community-centered health initiatives
described in section 10 (1)(g) of this 2009 Act that are
consistent with public health goals, strategies, programs and
performance standards adopted by the Oregon Health Policy Board
to improve the health of all Oregonians, and shall regularly
report to the Legislative Assembly on the accomplishments and
needed changes to the initiatives.
(g) Establish cost containment mechanisms to reduce health care
costs.
(h) Ensure that Oregon's health care workforce is sufficient in
numbers and training to meet the demand that will be created by
the expansion in health coverage, health care system
transformations, an increasingly diverse population and an aging
workforce.
Enrolled House Bill 2009 (HB 2009-C) Page 7
(i) Work with the Oregon congressional delegation to advance
the adoption of changes in federal law or policy to promote
Oregon's comprehensive health reform plan.
(j) Establish a health benefit package in accordance with
section 16 of this 2009 Act to be used as the baseline for all
health benefit plans offered through the Oregon Health Insurance
Exchange.
(k) Develop and submit a plan to the Legislative Assembly by
December 31, 2010, with recommended policies and procedures for
the Oregon Health Insurance Exchange developed in accordance with
section 17 of this 2009 Act.
(L) Develop and submit a plan to the Legislative Assembly by
December 31, 2010, with recommendations for the development of a
publicly owned health benefit plan that operates in the exchange
under the same rules and regulations as all health insurance
plans offered through the exchange, including fully allocated
fixed and variable operating and capital costs.
(m) By December 31, 2010, investigate and report to the
Legislative Assembly, and annually thereafter, on the feasibility
and advisability of future changes to the health insurance market
in Oregon, including but not limited to the following:
(A) A requirement for every resident to have health insurance
coverage.
(B) A payroll tax as a means to encourage employers to continue
providing health insurance to their employees.
(C) Expansion of the exchange to include a program of premium
assistance and to advance reforms of the insurance market.
(D) The implementation of a system of interoperable electronic
health records utilized by all health care providers in this
state.
(n) Meet cost-containment goals by structuring reimbursement
rates to reward comprehensive management of diseases, quality
outcomes and the efficient use of resources by promoting
cost-effective procedures, services and programs including,
without limitation, preventive health, dental and primary care
services, web-based office visits, telephone consultations and
telemedicine consultations.
(o) Oversee the expenditure of moneys from the Health Care
Workforce Strategic Fund to support grants to primary care
providers and rural health practitioners, to increase the number
of primary care educators and to support efforts to create and
develop career ladder opportunities.
(p) Work with the Public Health Benefit Purchasers Committee,
administrators of the medical assistance program and the
Department of Corrections to identify uniform contracting
standards for health benefit plans that achieve maximum quality
and cost outcomes and align the contracting standards for all
state programs to the greatest extent practicable.
(2) The Oregon Health Policy Board is authorized to:
(a) Subject to the approval of the Governor, organize and
reorganize the authority as the board considers necessary to
properly conduct the work of the authority.
(b) Submit directly to the Legislative Counsel, no later than
October 1 of each even-numbered year, requests for measures
necessary to provide statutory authorization to carry out any of
the board's duties or to implement any of the board's
recommendations. The measures may be filed prior to the beginning
of the legislative session in accordance with the rules of the
House of Representatives and the Senate.
Enrolled House Bill 2009 (HB 2009-C) Page 8
(3) If the board or the authority is unable to perform, in
whole or in part, any of the duties described in sections 1 to 18
of this 2009 Act without federal approval, the board is
authorized to request waivers or other approval necessary to
perform those duties. The board shall implement any portions of
those duties not requiring legislative authority or federal
approval, to the extent practicable.
(4) The enumeration of duties, functions and powers in this
section is not intended to be exclusive nor to limit the duties,
functions and powers imposed on the board by sections 1 to 18 of
this 2009 Act and by other statutes.
(5) The board shall consult with the Department of Consumer and
Business Services in completing the tasks set forth in subsection
(1)(j), (k) and (m)(A) and (C) of this section. + }
{ +
ESTABLISHING OREGON HEALTH AUTHORITY + }
{ +
(Establishment; Duties; Powers) + }
SECTION 10. { + (1) The Oregon Health Authority is
established. The authority shall:
(a) Carry out policies adopted by the Oregon Health Policy
Board;
(b) Develop a plan for the Oregon Health Insurance Exchange in
accordance with section 17 of this 2009 Act;
(c) Administer the Oregon Prescription Drug Program;
(d) Administer the Family Health Insurance Assistance Program;
(e) Provide regular reports to the board with respect to the
performance of health services contractors serving recipients of
medical assistance, including reports of trends in health
services and enrollee satisfaction;
(f) Guide and support, with the authorization of the board,
community-centered health initiatives designed to address
critical risk factors, especially those that contribute to
chronic disease;
(g) Be the state Medicaid agency for the administration of
funds from Titles XIX and XXI of the Social Security Act and
administer medical assistance under ORS chapter 414;
(h) In consultation with the Director of the Department of
Consumer and Business Services, periodically review and recommend
standards and methodologies to the Legislative Assembly for:
(A) Review of administrative expenses of health insurers;
(B) Approval of rates; and
(C) Enforcement of rating rules adopted by the Department of
Consumer and Business Services;
(i) Structure reimbursement rates for providers that serve
recipients of medical assistance to reward comprehensive
management of diseases, quality outcomes and the efficient use of
resources and to promote cost-effective procedures, services and
programs including, without limitation, preventive health, dental
and primary care services, web-based office visits, telephone
consultations and telemedicine consultations;
(j) Guide and support community three-share agreements in which
an employer, state or local government and an individual all
contribute a portion of a premium for a community-centered health
initiative or for insurance coverage; and
(k) Develop, in consultation with the Department of Consumer
and Business Services and the Health Insurance Reform Advisory
Enrolled House Bill 2009 (HB 2009-C) Page 9
Committee, one or more products designed to provide more
affordable options for the small group market.
(2) The Oregon Health Authority is authorized to:
(a) Create an all-claims, all-payer database to collect health
care data and monitor and evaluate health care reform in Oregon
and to provide comparative cost and quality information to
consumers, providers and purchasers of health care about Oregon's
health care systems and health plan networks in order to provide
comparative information to consumers.
(b) Develop uniform contracting standards for the purchase of
health care, including the following:
(A) Uniform quality standards and performance measures;
(B) Evidence-based guidelines for major chronic disease
management and health care services with unexplained variations
in frequency or cost;
(C) Evidence-based effectiveness guidelines for select new
technologies and medical equipment; and
(D) A statewide drug formulary that may be used by publicly
funded health benefit plans.
(c) Submit directly to the Legislative Counsel, no later than
October 1 of each even-numbered year, requests for measures
necessary to provide statutory authorization to carry out any of
the authority's duties or to implement any of the board's
recommendations. The measures may be filed prior to the beginning
of the legislative session in accordance with the rules of the
House of Representatives and the Senate.
(3) The enumeration of duties, functions and powers in this
section is not intended to be exclusive nor to limit the duties,
functions and powers imposed on or vested in the Oregon Health
Authority by sections 1 to 18 of this 2009 Act or by other
statutes. + }
{ +
(Director) + }
SECTION 11. { + (1) The Oregon Health Authority is under the
supervision and control of a director, who is responsible for the
performance of the duties, functions and powers of the authority.
(2) The Governor shall appoint the Director of the Oregon
Health Authority, who holds office at the pleasure of the
Governor. The appointment of the director shall be subject to
confirmation by the Senate in the manner provided by ORS 171.562
and 171.565.
(3) The director shall have the power to:
(a) Contract for and procure, on a fee or part-time basis, or
both, such actuarial, technical or other professional services as
may be required for the discharge of duties.
(b) Obtain such other services as the director considers
necessary or desirable, including participation in organizations
of state insurance supervisory officials and appointment of
advisory committees. A member of an advisory committee so
appointed shall receive no compensation for services as a member,
but, subject to any other applicable law regulating travel and
other expenses of state officers, shall receive actual and
necessary travel and other expenses incurred in the performance
of official duties.
(4) The director may apply for, receive and accept grants,
gifts or other payments, including property or services from any
governmental or other public or private person and may make
arrangement for the use of the receipts, including the
Enrolled House Bill 2009 (HB 2009-C) Page 10
undertaking of special studies and other projects relating to the
costs of health care, access to health care, public health and
health care reform. + }
{ + NOTE: + } Section 12 was deleted by amendment. Subsequent
sections were not renumbered.
{ +
(Officers and Employees) + }
SECTION 13. { + Subject to any applicable provisions of ORS
chapter 240, the Director of the Oregon Health Authority shall
appoint all subordinate officers and employees of the Oregon
Health Authority, prescribe their duties and fix their
compensation. + }
{ +
(General Authority to Adopt Rules) + }
SECTION 14. { + In accordance with applicable provisions of
ORS chapter 183, the Director of the Oregon Health Authority may
adopt rules necessary for the administration of the laws that the
Oregon Health Authority is charged with administering. + }
{ +
(Oaths, Depositions and Subpoenas) + }
SECTION 15. { + The Director of the Oregon Health Authority,
each deputy director and authorized representatives of the
director may administer oaths, take depositions and issue
subpoenas to compel the attendance of witnesses and the
production of documents or other written information necessary to
carry out the provisions of sections 1 to 18 of this 2009 Act. If
any person fails to comply with a subpoena issued under this
section or refuses to testify on matters on which the person
lawfully may be interrogated, the director, deputy director or
authorized representative may follow the procedure set out in ORS
183.440 to compel obedience. + }
{ +
(Baseline Health Benefit Package) + }
SECTION 16. { + The Oregon Health Authority, in developing and
offering the health benefit package required by section 9 (1)(j)
of this 2009 Act, may not establish policies or procedures that
discourage insurers from offering more comprehensive health
benefit plans that provide greater consumer choice at a higher
cost. The health benefit package approved by the Oregon Health
Policy Board shall:
(1) Promote the provision of services through an integrated
health home model that reduces unnecessary hospitalizations and
emergency department visits.
(2) Require little or no cost sharing for evidence-based
preventive care and services, such as care and services that have
been shown to prevent acute exacerbations of disease symptoms in
individuals with chronic illnesses.
(3) Create incentives for individuals to actively participate
in their own health care and to maintain or improve their health
status.
(4) Require a greater contribution by an enrollee to the cost
of elective or discretionary health services.
Enrolled House Bill 2009 (HB 2009-C) Page 11
(5) Include a defined set of health care services that are
affordable, financially sustainable and based upon the
prioritized list of health services developed and updated by the
Health Services Commission under ORS 414.720. + }
{ +
ESTABLISHING DEPARTMENTAL ENTITIES WITHIN + }
{ +
OREGON HEALTH AUTHORITY + }
{ +
(Oregon Health Insurance Exchange) + }
SECTION 17. { + (1) The Oregon Health Authority, in
consultation with the Director of the Department of Consumer and
Business Services, shall develop a plan for the staffing, funding
and administration of the Oregon Health Insurance Exchange within
the Oregon Health Authority. The plan shall set forth the duties
and responsibilities of the exchange, which:
(a) Shall include consideration of the following:
(A) The selection and pricing of benefit plans to be offered
through the exchange, including the health benefit package
developed under section 9 (1)(j) of this 2009 Act. The plans
shall include a range of price, copayment and deductible options.
(B) The rating and underwriting standards applicable to the
exchange, including whether to incorporate community rating and
guaranteed issue.
(C) Determining the role of the Public Employees' Benefit
Board, the Oregon Educators Benefit Board and other public
purchasers, including state-funded private nonprofit
organizations.
(D) The development of a transition period for the rollover of
individual policies into the exchange.
(E) Enforcement of the rules governing the sale of insurance
within the exchange.
(F) Identifying the role of insurance producers.
(G) Providing benefit plans through the exchange at little or
no cost to low income individuals.
(H) Maximizing the participation of private insurance plans
offered through the exchange.
(I) Determining how to ensure that employees of small
employers, and part time and seasonal workers will have access to
portability plans.
(b) May include the following:
(A) Establishing criteria for the selection of insurance
carriers to participate in the exchange.
(B) Establishing a requirement that all residents of this state
have health care coverage.
(C) Determining whether the exchange should be the exclusive
market for individual and small group purchasers, or whether such
purchasers will continue to have other options to obtain
coverage.
(D) Determining whether and how to use health savings accounts.
(E) Determining whether and how to use high deductible plans.
(F) Determining the extent to which it is permissible under the
Internal Revenue Code to pay premiums, deductibles and copayments
on a pretax basis.
(G) Determining the need to develop and implement a reinsurance
program.
Enrolled House Bill 2009 (HB 2009-C) Page 12
(2) The Oregon Health Authority shall submit the plan developed
under this section to the Oregon Health Policy Board for
approval.
(3) No later than October 1, 2010, the board shall submit a
request to Legislative Counsel pursuant to section 9 (2)(b) of
this 2009 Act for a measure to implement the plan. + }
{ +
(Establishment of Oregon Health Authority Fund) + }
SECTION 18. { + The Oregon Health Authority Fund is
established in the State Treasury, separate and distinct from the
General Fund. Interest earned by the Oregon Health Authority Fund
shall be credited to the fund. Moneys in the fund are
continuously appropriated to the Oregon Health Authority for
carrying out the duties, functions and powers of the authority
under section 10 of this 2009 Act. + }
{ +
TRANSFER OF FUNCTIONS TO OREGON HEALTH AUTHORITY + }
{ +
(Duties, Functions and Powers) + }
SECTION 19. { + (1)(a) Except as provided in paragraph (b) of
this subsection, all of the duties, functions and powers of the
Department of Human Services with respect to health and health
care are imposed upon, transferred to and vested in the Oregon
Health Authority, including but not limited to:
(A) Developing the policies for and the provision of publicly
funded medical care and medical assistance in this state.
(B) Ensuring the promotion and protection of public health and
the licensing of health care facilities.
(C) Developing the policies for and the provision of mental
health treatment and treatment for substance use disorders.
(D) The administration of the Oregon Prescription Drug Program.
(E) Responsibility for the Office for Oregon Health Policy and
Research and all of the functions of the office.
(F) The responsibilities of the Oregon Health Fund Board
established in section 5, chapter 697, Oregon Laws 2007.
(b) The department shall retain all of its duties, functions
and powers with respect to:
(A) Services provided in long term care facilities, home-based
and community-based care settings and residential facilities to
individuals who have physical disabilities or developmental
disabilities or who receive residential facility care for
seniors; and
(B) Non-medical services provided to individuals by the
department.
(2) All duties, functions and powers of the Oregon Department
of Administrative Services with respect to the Public Employees'
Benefit Board and the Oregon Educators Benefit Board are imposed
upon, transferred to and vested in the Oregon Health Authority.
(3) All of the duties, functions and powers of the Department
of Consumer and Business Services with respect to the Oregon
Medical Insurance Pool Board and the operation of the Oregon
Medical Insurance Pool are imposed upon, transferred to and
vested in the Oregon Health Authority.
(4) All of the duties, functions and powers of the Office of
Private Health Partnerships, including the administration of the
Enrolled House Bill 2009 (HB 2009-C) Page 13
Family Health Insurance Assistance Program, are imposed upon,
transferred to and vested in the Oregon Health Authority.
(5) The Oregon Health Policy Commission is abolished. On the
operative date of this section, the tenure of office of the
members of the Oregon Health Policy Commission ceases. All the
duties, functions and powers of the Oregon Health Policy
Commission are imposed upon, transferred to and vested in the
Oregon Health Authority.
(6) The directors of the Department of Human Services, the
Oregon Department of Administrative Services and the Department
of Consumer and Business Services and the Administrator of the
Office of Private Health Partnerships shall work together to
establish a timeline and to implement the transfer of duties,
functions and powers pursuant to this section.
(7) All changes necessary to accomplish this section shall be
completed by June 30, 2011. When developing the 2011-2013
biennial budget, the Governor's budget shall reflect the
implementation of the provisions of this section. + }
SECTION 20. { + On or before January 2, 2012, the Department
of Human Services and the Oregon Health Authority may delegate to
each other any duties, functions or powers transferred by section
19 of this 2009 Act that the department or the authority deem
necessary for the efficient and effective operation of their
respective functions. + }
SECTION 21. { + (1) No later than June 30, 2011, the
Department of Human Services, the Oregon Department of
Administrative Services, the Department of Consumer and Business
Services, the Office of Private Health Partnerships and the
Oregon Health Policy Commission shall:
(a) Deliver to the Oregon Health Authority all records and
property within the jurisdiction of the departments and the
office that relate to the duties, functions and powers
transferred by section 19 of this 2009 Act; and
(b) Transfer to the Oregon Health Authority those employees
engaged primarily in the exercise of the duties, functions and
powers transferred by section 19 of this 2009 Act.
(2) The Director of the Oregon Health Authority shall take
possession of the records and property, and shall take charge of
the employees and employ them in the exercise of the duties,
functions and powers transferred by section 19 of this 2009 Act,
without reduction of compensation but subject to change or
termination of employment or compensation as provided by law.
With respect to any employees transferred to the Oregon Health
Authority under this section who are, on the effective date of
this 2009 Act, represented by a labor organization or covered by
a collective bargaining agreement, the authority shall recognize
the labor organization as the collective bargaining
representative for the employees and shall adopt and apply the
terms of the collective bargaining agreement covering the
employees.
(3) The Governor shall resolve any dispute between the
Department of Human Services, the Department of Consumer and
Business Services, the Oregon Department of Administrative
Services, the Office of Private Health Partnerships or the Oregon
Health Policy Commission and the Oregon Health Authority relating
to transfers of records, property and employees under this
section, and the Governor's decision is final. + }
{ +
(Effect on Actions, Proceedings and Prosecutions) + }
Enrolled House Bill 2009 (HB 2009-C) Page 14
SECTION 22. { + The transfer of duties, functions and powers
to the Oregon Health Authority by section 19 of this 2009 Act
does not affect any action, proceeding or prosecution involving
or with respect to such duties, functions and powers begun before
and pending at the time of the transfer, except that the Oregon
Health Authority is substituted for the Department of Human
Services, the Oregon Department of Administrative Services, the
Department of Consumer and Business Services, the Office of
Private Health Partnerships or the Oregon Health Policy
Commission in the action, proceeding or prosecution. + }
SECTION 23. { + Notwithstanding the transfer of duties,
functions and powers by section 19 of this 2009 Act, the rules of
the Department of Human Services, the Oregon Department of
Administrative Services, the Department of Consumer and Business
Services and the Office of Private Health Partnerships that
relate to the duties, functions and powers transferred by section
19 of this 2009 Act continue in effect until superseded or
repealed by the rules of the Oregon Health Authority. References
in the rules of the Department of Human Services, the Oregon
Department of Administrative Services, the Department of Consumer
and Business Services and the Office of Private Health
Partnerships or to an officer or employee of such entities are
considered to be references to the Oregon Health Authority or
employee of the Oregon Health Authority. + }
{ +
(Effect on Liabilities, Duties and Obligations) + }
SECTION 24. { + (1) Nothing in sections 19 to 22 of this 2009
Act relieves a person of a liability, duty or obligation accruing
under or with respect to the duties, functions and powers
transferred by section 19 of this 2009 Act. The Oregon Health
Authority may undertake the collection or enforcement of any such
liability, duty or obligation.
(2) The rights and obligations of the Department of Human
Services, the Oregon Department of Administrative Services, the
Department of Consumer and Business Services, the Office of
Private Health Partnerships and the Oregon Health Policy
Commission legally incurred under contracts, leases and business
transactions executed, entered into or begun before the effective
date of this 2009 Act and with respect to the duties, functions
and powers transferred by section 19 of this 2009 Act are
transferred to the Oregon Health Authority. For the purpose of
succession to these rights and obligations, the Oregon Health
Authority is a continuation of the Department of Human Services,
the Oregon Department of Administrative Services, the Department
of Consumer and Business Services, the Office of Private Health
Partnerships and the Oregon Health Policy Commission and not a
new authority. + }
SECTION 25. { + Whenever, in any uncodified law or resolution
of the Legislative Assembly or in any rule, document, record or
proceeding authorized by the Legislative Assembly, reference is
made to the Department of Human Services, the Oregon Department
of Administrative Services, the Department of Consumer and
Business Services, the Office of Private Health Partnerships or
the Oregon Health Policy Commission or an executive, officer or
employee of the departments, office or commission, with respect
to the duties, functions and powers transferred by section 19 of
this 2009 Act, the reference is considered to be a reference to
the Oregon Health Policy Board, the Oregon Health Authority or an
Enrolled House Bill 2009 (HB 2009-C) Page 15
executive, officer or employee of the Oregon Health
Authority. + }
{ +
NO RESTRAINT OF TRADE + }
SECTION 26. { + The activities of insurers working under the
direction of the Oregon Health Authority and the Department of
Consumer and Business Services pursuant to section 9 (1)(j) of
this 2009 Act or participating in the Oregon Health Insurance
Exchange created under section 17 of this 2009 Act do not
constitute a conspiracy or restraint of trade or an illegal
monopoly, nor are they carried out for the purposes of lessening
competition or fixing prices arbitrarily. + }
{ +
PREMIUM RATE FILING + }
SECTION 27. { + Sections 28 and 29 of this 2009 Act are added
to and made a part of ORS chapter 743. + }
SECTION 28. { + (1) When an insurer files a schedule or table
of premium rates for individual, portability or small employer
health insurance under ORS 743.018, the Director of the
Department of Consumer and Business Services shall open a 30-day
public comment period on the rate filing that begins on the date
the insurer files the schedule or table of premium rates. The
director shall post all comments to the website of the Department
of Consumer and Business Services without delay.
(2) The director shall give written notice to an insurer
approving or disapproving a rate filing or, with the written
consent of the insurer, modifying a rate filing submitted under
ORS 743.018 no later than 10 business days after the close of the
public comment period. The notice shall comply with the
requirements of ORS 183.415. + }
SECTION 29. { + An insurer licensed by the Department of
Consumer and Business Services shall include in any rate filing
under ORS 743.018 with respect to individual and small employer
health insurance policies a statement of administrative expenses
in the form and manner prescribed by the department by rule. The
statement must include, but is not limited to:
(1) A statement of administrative expenses on a per member per
month basis; and
(2) An explanation of the basis for any proposed premium rate
increases or decreases. + }
SECTION 30. { + Sections 28 and 29 of this 2009 Act and the
amendments to ORS 743.018 by section 31 of this 2009 Act apply to
rate filings submitted to the Department of Consumer and Business
Services on or after April 1, 2010. + }
SECTION 31. ORS 743.018 is amended to read:
743.018. (1) Except for group life and health insurance, and
except as provided in ORS 743.015, every insurer shall file with
the Director of the Department of Consumer and Business Services
all schedules and tables of premium rates for life and health
insurance to be used on risks in this state, and shall file any
amendments to or corrections of such schedules and tables.
{ + Premium rates are subject to approval, disapproval or
withdrawal of approval by the director as provided in ORS
742.003, 742.005 and 742.007. + }
(2) Except as provided in ORS 743.737 and 743.760 and
subsection (3) of this section, a rate filing by a carrier for
Enrolled House Bill 2009 (HB 2009-C) Page 16
any of the following health benefit plans subject to ORS 743.730
to 743.773 shall be available for public inspection immediately
upon submission of the filing to the director:
(a) Health benefit plans for small employers.
(b) Portability health benefit plans.
(c) Individual health benefit plans.
{ - (3) The director, upon request by a carrier, may exempt
from disclosure any part of the filing that the director
determines to contain trade secrets and that would, if disclosed,
harm competition. The part that the director determines to be
exempt from disclosure shall be considered confidential for
purposes of ORS 705.137. The director may not disclose a part of
a filing subject to a carrier's request pending the director's
determination under this subsection. - }
{ + (3) The director may by rule:
(a) Specify all information a carrier must submit as part of a
rate filing under this section; and
(b) Identify the information submitted that will be exempt from
disclosure under this section because the information constitutes
a trade secret and would, if disclosed, harm competition.
(4) The director, after conducting an actuarial review of the
rate filing, may approve a proposed premium rate for a health
benefit plan for small employers or for an individual health
benefit plan if, in the director's discretion, the proposed rates
are:
(a) Actuarially sound;
(b) Reasonable and not excessive, inadequate or unfairly
discriminatory; and
(c) Based upon reasonable administrative expenses.
(5) In order to determine whether the proposed premium rates
for a health benefit plan for small employers or for an
individual health benefit plan are reasonable and not excessive,
inadequate or unfairly discriminatory, the director may consider:
(a) The insurer's financial position, including but not limited
to profitability, surplus, reserves and investment savings.
(b) Historical and projected administrative costs and medical
and hospital expenses.
(c) Historical and projected loss ratio between the amounts
spent on medical services and earned premiums.
(d) Any anticipated change in the number of enrollees if the
proposed premium rate is approved.
(e) Changes to covered benefits or health benefit plan design.
(f) Changes in the insurer's health care cost containment and
quality improvement efforts since the insurer's last rate filing
for the same category of health benefit plan.
(g) Whether the proposed change in the premium rate is
necessary to maintain the insurer's solvency or to maintain rate
stability and prevent excessive rate increases in the future.
(h) Any public comments received under section 28 of this 2009
Act pertaining to the standards set forth in subsection (4) of
this section and this subsection.
(6) With the written consent of the insurer, the director may
modify a schedule or table of premium rates filed in accordance
with subsection (1) of this section.
(7) The requirements of this section do not supersede other
provisions of law that require insurers, health care service
contractors or multiple employer welfare arrangements providing
health insurance to file schedules or tables of premium rates or
proposed premium rates with the director or to seek the
director's approval of rates or changes to rates. + }
Enrolled House Bill 2009 (HB 2009-C) Page 17
{ + NOTE: + } Sections 32 to 54 were deleted by amendment.
Subsequent sections were not renumbered.
{ +
CONFORMING AMENDMENTS + }
SECTION 55. ORS 25.323 is amended to read:
25.323. (1) Except as provided in this section, whenever a
child support order is entered or modified under this chapter,
ORS chapter 107, 108, 109, 110 or ORS 416.400 to 416.465,
419B.400 or 419C.590, the court or the enforcing agency shall
order one or both parties to provide satisfactory health care
coverage that is reasonable in cost and accessible to the child.
An order for health care coverage under this subsection may
include health care coverage provided by a public entity.
(2) In addition to ordering health care coverage under
subsection (1) of this section, the court or enforcing agency may
order one or both parties to pay medical support for the child.
Medical support ordered under this subsection must be reasonable
in cost.
(3) If the court or the enforcing agency finds that the parties
cannot provide satisfactory health care coverage because
satisfactory health care coverage that is reasonable in cost and
accessible to the child is not available at the time the child
support order is entered, the court or the enforcing agency:
(a) Shall order one or both parties to provide satisfactory
health care coverage that is reasonable in cost and accessible to
the child when the coverage becomes available; and
(b) May order that, until the court or enforcing agency
determines that satisfactory health care coverage that is
reasonable in cost and accessible to the child is available and
modifies the order, one or both parties pay medical support that
is reasonable in cost. The court or enforcing agency shall make
written findings on whether to order the payment of medical
support under this paragraph.
(4) The cost of any amount ordered to provide satisfactory
health care coverage and medical support under this section must
be included in the child support calculation made under ORS
25.275.
{ - (5) The court or enforcing agency may not order a party
to pay medical support under this section if the party is
eligible to receive medical assistance under ORS 414.032, or has
a dependent child in the household who is eligible to receive
medical assistance under ORS 414.032. - }
{ - (6) - } { + (5) + } The Department of Justice shall
adopt rules for determining the reasonableness of the cost of
satisfactory health care coverage and of medical support for the
purposes of this section, and for determining how the costs of
providing health care coverage and medical support affect the
total support obligation for a child under ORS 25.275.
SECTION 56. ORS 65.800 is amended to read:
65.800. For purposes of ORS 65.803 to 65.815:
(1) 'Hospital' means a hospital as defined in ORS 442.015
{ - (19) - } .
(2) 'Noncharitable entity' means any person or entity that is
not a public benefit or religious corporation and is not wholly
owned or controlled by one or more public benefit or religious
corporations.
SECTION 57. ORS 87.533 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 18
87.533. A lien created by ORS 87.503 shall not be enforced so
as to interfere with:
(1) Any assets or income allowed to the community spouse or
dependent family member under 42 U.S.C. 1396r-5(d) or any rule of
the Department of Human Services.
(2) The priority given to the recovery of medical assistance
payments under ORS 115.125 (1)(i) { + or (j) + } or other
medical assistance claims under ORS 414.105 (2) and (3).
(3) The eligibility of a person for medical assistance or
entitlement to Medicaid assistance payments.
SECTION 58. ORS 90.113 is amended to read:
90.113. Residence in a { - Department of Human Services - }
licensed program, facility or home described in ORS 430.306 to
430.375, 430.380, 430.385, 430.395, 430.397 to 430.401, 430.405
to 430.565, 430.570, 430.590, 443.400 to 443.455, 443.705 to
443.825 or 443.835 is not governed by this chapter.
SECTION 59. ORS 90.440 is amended to read:
90.440. (1) As used in this section:
(a) 'Group recovery home' means a place that provides occupants
with shared living facilities and that meets the description of a
group home under 42 U.S.C. 300x-25.
(b) 'Illegal drugs' includes controlled substances or
prescription drugs:
(A) For which the tenant does not have a valid prescription; or
(B) That are used by the tenant in a manner contrary to the
prescribed regimen.
(c) 'Peace officer' means a sheriff, constable, marshal or
deputy or a member of a state or city police force.
(2) Notwithstanding ORS 90.375 and 90.435, a group recovery
home may terminate a tenancy and peaceably remove a tenant
without complying with ORS 105.105 to 105.168 if the tenant has
used or possessed alcohol or illegal drugs within the preceding
seven days. For purposes of this subsection, the following are
sufficient proof that a tenant has used or possessed alcohol or
illegal drugs:
(a) The tenant fails a test for alcohol or illegal drug use;
(b) The tenant refuses a request made in good faith by the
group recovery home that the tenant take a test for alcohol or
illegal drug use; or
(c) Any person has personally observed the tenant using or
possessing alcohol or illegal drugs.
(3) A group recovery home that undertakes the removal of a
tenant under this section shall personally deliver to the tenant
a written notice that:
(a) Describes why the tenant is being removed;
(b) Describes the proof that the tenant has used or possessed
alcohol or illegal drugs within the seven days preceding delivery
of the notice;
(c) Specifies the date and time by which the tenant must move
out of the group recovery home;
(d) Explains that if the removal was wrongful or in bad faith
the tenant may seek injunctive relief to recover possession under
ORS 105.121 and may bring an action to recover monetary damages;
and
(e) Gives contact information for the local legal services
office and for the Oregon State Bar's Lawyer Referral Service,
identifying those services as possible sources for free or
reduced-cost legal services.
(4) A written notice in substantially the following form meets
the requirements of subsection (3) of this section:
Enrolled House Bill 2009 (HB 2009-C) Page 19
_________________________________________________________________
This notice is to inform you that you must move out of
_____ (insert address of group recovery home) by _____ (insert
date and time that is not less than 24 hours after delivery of
notice).
The reason for this notice is _____ (specify use or possession
of alcohol or illegal drugs, as applicable, and dates of
occurrence).
The proof of your use or possession is _____ (specify facts).
If you did not use or possess alcohol or illegal drugs within
the seven days before delivery of this notice, if this notice was
given in bad faith or if your group recovery home has not
substantially complied with ORS 90.440, you may be able to get a
court to order the group recovery home to let you move back in.
You may also be able to recover monetary damages.
You may be eligible for free legal services at your local legal
services office _____ (insert telephone number) or reduced fee
legal services through the Oregon State Bar at 1-800-452-7636.
_________________________________________________________________
(5) Within the notice period, a group recovery home shall allow
a tenant removed under this section to follow any emergency
departure plan that was prepared by the tenant and approved by
the group recovery home at the time the tenancy began. If the
removed tenant does not have an emergency departure plan, a
representative of the group recovery home shall offer to take the
removed tenant to a public shelter, detoxification center or
similar location if existing in the community.
(6) The date and time for moving out specified in a notice
under subsection (3) of this section must be at least 24 hours
after the date and time the notice is delivered to the tenant. If
the tenant remains on the group recovery home premises after the
date and time for moving out specified in the notice, the tenant
is a person remaining unlawfully in a dwelling as described in
ORS 164.255 and not a person described in ORS 105.115. Only a
peace officer may forcibly remove a tenant who remains on the
group recovery home premises after the date and time specified
for moving out.
(7) A group recovery home that removes a tenant under this
section shall send a copy of the notice described in subsection
(3) of this section to the { - Department of Human Services - }
{ + Oregon Health Authority + } no later than 72 hours after
delivering the notice to the tenant.
(8) A tenant who is removed under subsection (2) of this
section may obtain injunctive relief to recover possession and
may recover an amount equal to the greater of actual damages or
three times the tenant's monthly rent if:
(a) The group recovery home removed the tenant in bad faith or
without substantially complying with this section; or
(b) If removal is under subsection (2)(c) of this section, the
removal was wrongful because the tenant did not use or possess
alcohol or illegal drugs.
(9) Notwithstanding ORS 12.125, a tenant who seeks to obtain
injunctive relief to recover possession under ORS 105.121 must
commence the action to seek relief not more than 90 days after
the date specified in the notice for the tenant to move out.
(10) In any court action regarding the removal of a tenant
under this section, a group recovery home may present evidence
that the tenant used or possessed alcohol or illegal drugs within
Enrolled House Bill 2009 (HB 2009-C) Page 20
seven days preceding the removal, whether or not the evidence was
described in the notice required by subsection (3) of this
section.
(11) This section does not prevent a group recovery home from
terminating a tenancy as provided by any other provision of this
chapter and evicting a tenant as provided in ORS 105.105 to
105.168.
SECTION 60. ORS 92.337 is amended to read:
92.337. (1) The Real Estate Commissioner shall grant an
exemption pursuant to this section if a subdivider or series
partitioner submits on a form prepared by the commissioner,
verification that:
(a) The subdivision or series partition is recorded pursuant to
ORS 92.010 to 92.190;
(b) Each lot or parcel is situated on a surfaced roadway which,
together with means for operation and maintenance, meets the
standards of the governing body of the local jurisdiction and is
either a concrete or asphalt surface road which has right of way
and improvements, including curbs and necessary and adequate
drainage structures, or a road which meets alternative standards
of the governing body of the local jurisdiction;
(c) The subdivision or series partition, where necessary, has
drainage structures and fill designed to prevent flooding and
approved by the appropriate governing body;
(d) Energy sources and telephone services for normal domestic
use are economically available to the subdivision or series
partition and are ready for hookup for each lot or parcel at time
of sale or lease;
(e) Water is available for each lot or parcel at the time of
sale or lease of each lot or parcel in quantity and quality for
domestic use as determined by the { - Department of Human
Services - } { + Oregon Health Authority + };
(f) A municipally owned disposal system, an individual or
collective subsurface sewage disposal system to serve the lot or
parcel, or a privately owned sewage disposal system is available
for each lot or parcel at the time of sale or lease of each lot
or parcel which meets the requirements of the Environmental
Quality Commission;
(g) A surety bond, or bonds, or other security or agreements to
complete the improvements is provided by the subdivider or series
partitioner to the city or county having jurisdiction so that all
of the subdivision or series partition improvements committed by
the subdivider or series partitioner to the city or county will
be completed; and
(h) Provisions, satisfactory to the commissioner, have been
made for satisfaction of all liens and encumbrances existing
against the subdivision or series partition which secure or
evidence the payment of money.
(2) A subdivision or series partition granted exemption under
this section shall be exempt from the provisions of ORS 92.305 to
92.495 and 92.820 except ORS 92.375, 92.385, 92.425, 92.427,
92.430, 92.433, 92.455, 92.460, 92.465, 92.475, 92.485, 92.490
and 92.495.
(3) The commissioner may withdraw the exemption provided by
this section if the commissioner determines that the subdivider
or series partitioner has provided false information or omitted
to state material facts to obtain the exemption or has failed to
comply with any provision to which the subdivider or series
partitioner is subject under subsections (1) and (2) of this
section.
Enrolled House Bill 2009 (HB 2009-C) Page 21
(4) In the event that any provision under subsection (1) of
this section is not or cannot be satisfied and without invoking
the power granted under subsection (3) of this section, the
commissioner and the subdivider or series partitioner may
mutually agree in writing upon a written disclosure of the
condition that shall be provided to any prospective purchaser
prior to the sale or lease of any interest in the subdivision or
series partition to carry out the public policy stated in ORS
92.313.
(5) The form required by subsection (1) of this section shall
be accompanied by a filing fee of $100 plus $10 for each lot,
parcel or interest in the subdivision or series partition, with a
maximum fee of $500.
(6) For purposes of verification by the subdivider or series
partitioner under subsection (1)(b), (c) and (g) of this section,
a copy of the conditions imposed by the appropriate governing
body will be sufficient.
SECTION 61. ORS 93.270, as amended by section 16, chapter 100,
Oregon Laws 2007, is amended to read:
93.270. (1) A person conveying or contracting to convey fee
title to real property may not include in an instrument for that
purpose a provision:
(a) Restricting the use of the real property by any person or
group of persons by reason of race, color, religion, sex, sexual
orientation, national origin or disability.
(b) Restricting the use of the real property by any home or
facility that is licensed { - by or under the authority of the
department - } under ORS 443.400 to 443.455 or 443.705 to
443.825 to provide residential care alone or in conjunction with
treatment or training or a combination thereof.
(2) Any provision in an instrument executed in violation of
subsection (1) of this section is void and unenforceable.
(3) An instrument that contains a provision restricting the use
of real property in a manner listed in subsection (1)(b) of this
section does not give rise to any public or private right of
action to enforce the restriction.
(4)(a) An instrument that contains a provision restricting the
use of real property by requiring roofing materials with a lower
fire rating than that required in the state building code
established under ORS chapter 455 does not give rise to any
public or private right of action to enforce the restriction in
an area determined by a local jurisdiction as a wildfire hazard
zone. Prohibitions on public or private right of action under
this paragraph are limited solely to considerations of fire
rating.
(b) As used in this subsection, 'wildfire hazard zones' are
areas that are legally declared by a governmental agency having
jurisdiction over the area to have special hazards caused by a
combination of combustible natural fuels, topography and climatic
conditions that result in a significant hazard of catastrophic
fire over relatively long periods each year. Wildfire hazard
zones shall be determined using criteria established by the State
Forestry Department.
SECTION 62. ORS 97.210 is amended to read:
97.210. The body of any person who died of smallpox,
diphtheria, scarlet fever or other disease that the
{ - Department of Human Services - } { + Oregon Health
Authority + }, by rule, may prescribe, shall not be subject to
the provisions of ORS 97.170 to 97.200.
SECTION 63. ORS 97.450 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 22
97.450. (1)(a) Whenever any cemetery that is within the limits
of any county, city or town has been abandoned, or it is
desirable to abandon such cemetery, the governing body of any
county, if the cemetery is owned by the county, or the corporate
authorities of the city or town, if the cemetery is owned by the
city or town, or the trustees or directors, if the cemetery is
owned by an association or corporation, may order that such
burial ground be discontinued, have the remains of all persons
interred in the cemetery moved to some other suitable place and
provide for the removal and reerection of all stones and
monuments marking said graves. Each removal must be made in an
appropriate manner and in accordance with the directions of the
Director of { - Human Services - } { + the Oregon Health
Authority + }. Prior to any removal authorized under this
section, written notice must be given to the family, or next of
kin of the deceased, if known, and if unknown, notice of the
removal shall be published for at least four successive weeks in
a newspaper of general circulation in the county in which the
cemetery is located and twice in a newspaper with statewide
circulation.
(b) Any removal and the costs of the proceedings under this
section shall be at the expense of the county, city or town,
individual, corporation or association owning the cemetery to be
moved.
(2) Notwithstanding subsection (1)(a) of this section, a
cemetery or burial ground containing human remains that were
interred before February 14, 1909, may not be discontinued or
declared abandoned or have remains removed from the burial ground
or cemetery without prior notice to and comment by the Oregon
Commission on Historic Cemeteries. When commenting on a request
to discontinue or declare abandoned a cemetery or burial ground,
the commission shall consider:
(a) The listing of the cemetery or burial ground under ORS
97.782;
(b) The historic significance of the cemetery or graves
included in the request; and
(c) The findings of any archaeological survey of the cemetery
or burial ground.
SECTION 64. ORS 97.977 is amended to read:
97.977. (1)(a) The { - Department of Human Services - }
{ + Oregon Health Authority + } may allow an organ procurement
organization to establish a donor registry.
(b) Only one donor registry may be established within this
state.
(c) The donor registry shall comply with subsections (3) and
(4) of this section.
(2) The Department of Transportation shall:
(a) Cooperate with a person who administers the donor registry
established under subsection (1) of this section for the purpose
of transferring to the donor registry all relevant information
regarding a donor's making, amending or revoking an anatomical
gift.
(b) When requested by the organ procurement organization that
has established the donor registry in this state, the department
shall electronically transfer to the organ procurement
organization the name, address, birthdate and donor designation
listed on the driver license or identification card of a person
designated as a donor. The organ procurement organization shall
treat the information transferred from the department as
Enrolled House Bill 2009 (HB 2009-C) Page 23
confidential and may use the information only to expedite the
making of anatomical gifts authorized by the donor.
(3) The donor registry must:
(a) Allow a donor or other person authorized under ORS 97.955
to include on the donor registry a statement or symbol that the
donor has made, amended or revoked an anatomical gift;
(b) Be accessible to a procurement organization to allow the
procurement organization to obtain relevant information on the
donor registry to determine, at or near death of the donor or a
prospective donor, whether the donor or prospective donor has
made, amended or revoked an anatomical gift; and
(c) Be accessible for purposes of this subsection seven days a
week on a 24-hour basis.
(4) Personally identifiable information on the donor registry
about a donor or prospective donor may not be used or disclosed
without the express consent of the donor, prospective donor or
person who made the anatomical gift for any purpose other than to
determine, at or near death of the donor or prospective donor,
whether the donor or prospective donor has made, amended or
revoked an anatomical gift.
SECTION 65. ORS 105.580 is amended to read:
105.580. (1) Except as provided in subsection (3) of this
section, if the existence of the nuisance is established in the
action, an order of abatement shall be entered as part of the
general judgment in the case.
(2) The order of abatement may direct the effectual closing of
the premises, building or place against its use for any purpose,
and so keeping it closed for a period of one year, unless sooner
released. The court shall not include provisions for the closing
of the premises under the provisions of this subsection unless
that relief is specifically requested in the complaint.
(3) The court, if satisfied of an owner's good faith, shall
enter no order of abatement as to that owner if the court finds
that the owner:
(a) Had no knowledge of the existence of the nuisance or has
been making reasonable efforts to abate the nuisance;
(b) Has not been guilty of any contempt of court in the
proceedings; and
(c) Will make best efforts to immediately abate any nuisance
that may exist and prevent it from being a nuisance for a period
of one year thereafter.
(4) Except for an order of abatement entered based on the
manufacture of a controlled substance, if an order of abatement
has been entered and an owner subsequently meets the requirements
of this section, the order of abatement shall be canceled as to
that owner.
(5) If the court enters an order under this section on the
basis that the property was used for the manufacture of a
controlled substance, the court shall send a copy of the order to
the Director of { - Human Services - } { + the Oregon Health
Authority + }. The director or the director's designee shall
declare the property to be an illegal drug manufacturing site for
purposes of ORS 453.855 to 453.912. An order of the court under
this section shall not be canceled until the director or the
director's designee determines the property to be fit for use.
Upon determining the property to be fit for use, the director or
designee shall notify the court, which shall cancel the abatement
order.
SECTION 65a. ORS 106.045 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 24
106.045. (1) In addition to any other fees provided by law, the
county clerk shall collect a fee of $25 upon the application for
a marriage license.
(2) The county clerk shall regularly pay over to the
{ - Director of Human Services - } { + Oregon Health
Authority + } all moneys collected under subsection (1) of this
section to be credited to the Domestic Violence Fund pursuant to
ORS 409.300.
SECTION 65b. Section 5, chapter 99, Oregon Laws 2007, is
amended to read:
{ + Sec. 5. + } (1) The { - Department of Human
Services - } { + Oregon Health Authority + } shall prepare
forms entitled:
(a) 'Declaration of Domestic Partnership' meeting the
requirements of section 6 { + , chapter 99, Oregon Laws 2007 + }
{ - of this 2007 Act - } ; and
(b) 'Certificate of Registered Domestic Partnership. '
(2) The { - department - } { + authority + } shall
distribute the forms to each county clerk. The
{ - department - } { + authority + } and each county clerk
shall make the Declaration of Domestic Partnership forms
available to the public.
SECTION 65c. Section 7, chapter 99, Oregon Laws 2007, is
amended to read:
{ + Sec. 7. + } (1) In addition to any other fees provided by
law, the county clerk shall collect a fee of $25 for registering
a Declaration of Domestic Partnership.
(2) The county clerk shall regularly pay over to the
{ - Director of Human Services - } { + Oregon Health
Authority + } all moneys collected under subsection (1) of this
section to be credited to the Domestic Violence Fund pursuant to
ORS 409.300.
SECTION 66. ORS 106.081 is amended to read:
106.081. When the county clerk issues a marriage license, the
county clerk shall also give to the licensees a pamphlet
describing the medical condition known as fetal alcohol syndrome,
its causes and its effects. The pamphlet shall be provided to the
counties by the { - Department of Human Services - }
{ + Oregon Health Authority + } under ORS 431.825 for
distribution under this section.
SECTION 67. ORS 109.094 is amended to read:
109.094. Upon the paternity of a child being established in the
proceedings, the father shall have the same rights as a father
who is or was married to the mother of the child. The clerk of
the court shall certify the fact of paternity to the Center for
Health Statistics of the { - Department of Human Services - }
{ + Oregon Health Authority + }, and the Center for Health
Statistics shall prepare a new birth certificate for the child.
SECTION 68. ORS 109.096 is amended to read:
109.096. (1) When the paternity of a child has not been
established under ORS 109.070, the putative father is entitled to
reasonable notice in adoption or other court proceedings
concerning the custody of the child, except for juvenile court
proceedings, if the petitioner knows, or by the exercise of
ordinary diligence should have known:
(a) That the child resided with the putative father at any time
during the 60 days immediately preceding the initiation of the
proceeding, or at any time since the child's birth if the child
is less than 60 days old when the proceeding is initiated; or
Enrolled House Bill 2009 (HB 2009-C) Page 25
(b) That the putative father repeatedly has contributed or
tried to contribute to the support of the child during the year
immediately preceding the initiation of the proceeding, or during
the period since the child's birth if the child is less than one
year old when the proceeding is initiated.
(2) Except as provided in subsection (3) or (4) of this
section, a verified statement of the mother of the child or of
the petitioner, or an affidavit of another person with knowledge
of the facts, filed in the proceeding and asserting that the
child has not resided with the putative father, as provided in
subsection (1)(a) of this section, and that the putative father
has not contributed or tried to contribute to the support of the
child, as provided in subsection (1)(b) of this section, is
sufficient proof to enable the court to grant the relief sought
without notice to the putative father.
(3) The putative father is entitled to reasonable notice in a
proceeding for the adoption of the child if notice of the
initiation of filiation proceedings as required by ORS 109.225
was on file with the Center for Health Statistics of the
{ - Department of Human Services - } { + Oregon Health
Authority + } prior to the child's being placed in the physical
custody of a person or persons for the purpose of adoption by
them. If the notice of the initiation of filiation proceedings
was not on file at the time of the placement, the putative father
is barred from contesting the adoption proceeding.
(4) Except as otherwise provided in subsection (3) of this
section, the putative father is entitled to reasonable notice in
court proceedings concerning the custody of the child, other than
juvenile court proceedings, if notice of the initiation of
filiation proceedings as required by ORS 109.225 was on file with
the Center for Health Statistics prior to the initiation of the
proceedings.
(5) Notice under this section is not required to be given to a
putative father who was a party to filiation proceedings under
ORS 109.125 that were dismissed or resulted in a finding that he
was not the father of the child.
(6) The notice required under this section shall be given in
the manner provided in ORS 109.330.
(7) No notice given under this section need disclose the name
of the mother of the child.
(8) A putative father has the primary responsibility to protect
his rights, and nothing in this section shall be used to set
aside an act of a permanent nature including, but not limited to,
adoption or termination of parental rights, unless the father
establishes within one year after the entry of the final judgment
or order fraud on the part of a petitioner in the proceeding with
respect to matters specified in subsections (1) to (5) of this
section.
SECTION 69. ORS 109.225 is amended to read:
109.225. (1) After filing the petition, the petitioner shall
cause the Center for Health Statistics of the { - Department of
Human Services - } { + Oregon Health Authority + } to be served
by mail with a notice setting forth the court in which the
petition was filed, the date of the filing therein, the case
number, the full name and address of the child, the date and
place of the child's birth, or if the child is not yet born, the
date and place of the child's conception and the probable date of
the child's birth, the full names and addresses of the child's
alleged parents, and the names and addresses of the petitioner
and of the respondents in the proceedings.
Enrolled House Bill 2009 (HB 2009-C) Page 26
(2) The Center for Health Statistics shall file immediately the
notice, or a copy thereof, with the record of the birth of the
child or in the same manner as its filing of records of birth if
the center does not have a record of the birth. The center shall
only provide the information contained in the notice to persons
whose names appear in the notice or to persons or agencies
showing a legitimate interest in the parent-child relationship
including, but not limited to, parties to adoption, juvenile
court or heirship proceedings.
SECTION 70. ORS 109.251 is amended to read:
109.251. As used in ORS 109.250 to 109.262, 'blood tests '
includes any test for genetic markers to determine paternity of a
type generally acknowledged as reliable by accreditation bodies
designated by the { - Department of Human Services - }
{ + Oregon Health Authority + } in compliance with the United
States Secretary of Health and Human Services, and performed by a
laboratory approved by such accreditation body. 'Blood tests'
includes but is not limited to the Human Leucocyte Antigen Test,
the deoxyribonucleic acid test and any test that extracts genetic
material from any human tissue.
SECTION 71. ORS 109.675 is amended to read:
109.675. (1) A minor 14 years of age or older may obtain,
without parental knowledge or consent, outpatient diagnosis or
treatment of a mental or emotional disorder or a chemical
dependency, excluding methadone maintenance, by a physician
licensed by the Oregon Medical Board, a psychologist licensed by
the State Board of Psychologist Examiners, a nurse practitioner
registered by the Oregon State Board of Nursing, a clinical
social worker licensed by the State Board of Clinical Social
Workers or a community mental health { - and developmental
disabilities - } program established and operated pursuant to
ORS 430.620 when approved to do so by the { - Department of
Human Services - } { + Oregon Health Authority + } pursuant to
rule.
(2) However, the person providing treatment shall have the
parents of the minor involved before the end of treatment unless
the parents refuse or unless there are clear clinical indications
to the contrary, which shall be documented in the treatment
record. The provisions of this subsection do not apply to:
(a) A minor who has been sexually abused by a parent; or
(b) An emancipated minor, whether emancipated under the
provisions of ORS 109.510 and 109.520 or 419B.550 to 419B.558 or,
for the purpose of this section only, emancipated by virtue of
having lived apart from the parents or legal guardian while being
self-sustaining for a period of 90 days prior to obtaining
treatment as provided by this section.
SECTION 72. ORS 109.680 is amended to read:
109.680. A physician, psychologist, nurse practitioner,
licensed clinical social worker or community mental health
{ - and developmental disabilities - } program described in ORS
109.675 may advise the parent or parents or legal guardian of any
minor described in ORS 109.675 of the diagnosis or treatment
whenever the disclosure is clinically appropriate and will serve
the best interests of the minor's treatment because the minor's
condition has deteriorated or the risk of a suicide attempt has
become such that inpatient treatment is necessary, or the minor's
condition requires detoxification in a residential or acute care
facility. If such disclosure is made, the physician,
psychologist, nurse practitioner, licensed clinical social worker
or community mental health { - and developmental
Enrolled House Bill 2009 (HB 2009-C) Page 27
disabilities - } program shall not be subject to any civil
liability for advising the parent, parents or legal guardian
without the consent of the minor.
SECTION 73. ORS 109.685 is amended to read:
109.685. A physician, psychologist, nurse practitioner,
licensed clinical social worker or community mental health
{ - and developmental disabilities - } program described in ORS
109.675 who in good faith provides diagnosis or treatment to a
minor as authorized by ORS 109.675 shall not be subject to any
civil liability for providing such diagnosis or treatment without
consent of the parent or legal guardian of the minor.
SECTION 74. ORS 109.695 is amended to read:
109.695. For the purpose of carrying out the policy and intent
of ORS 109.675 to 109.695 while taking into account the
respective rights of minors at risk of chemical dependency or
mental or emotional disorder and the rights and interests of
parents or legal guardians of such minors, the { - Department
of Human Services - } { + Oregon Health Authority + } shall
adopt rules for the implementation of ORS 109.675 to 109.695 by
community mental health { - and developmental disabilities - }
programs approved to do so. Such rules shall provide for the
earliest feasible involvement of the parents or guardians in the
treatment plan consistent with clinical requirements of the
minor.
SECTION 75. ORS 110.318 is amended to read:
110.318. In a proceeding to establish, enforce or modify a
support order or to determine parentage, a tribunal of this state
may exercise personal jurisdiction over a nonresident individual
if:
(1) The individual is personally served with notice within this
state;
(2) The individual submits to the jurisdiction of this state by
consent, by entering a general appearance or by filing a
responsive document having the effect of waiving any contest to
personal jurisdiction;
(3) The individual resided with the child in this state;
(4) The individual resided in this state and provided prenatal
expenses or support for the child;
(5) The child resides in this state as a result of the acts or
directives of the individual;
(6) The individual engaged in sexual intercourse in this state
and the child may have been conceived by that act of intercourse;
(7) The individual asserted parentage in the registry
maintained in this state by the Center for Health Statistics of
the { - Department of Human Services - } { + Oregon Health
Authority + } by filing a voluntary acknowledgment of paternity
under ORS 109.070; or
(8) There is any other basis consistent with the Constitutions
of the State of Oregon and the United States for the exercise of
personal jurisdiction.
SECTION 76. ORS 113.085 is amended to read:
113.085. (1) Except as provided in subsection (2) of this
section, upon the filing of the petition, if there is no will or
there is a will and it has been proved, the court shall appoint a
qualified person it finds suitable as personal representative,
giving preference in the following order:
(a) To the executor named in the will.
(b) To the surviving spouse of the decedent or the nominee of
the surviving spouse of the decedent.
Enrolled House Bill 2009 (HB 2009-C) Page 28
(c) To the nearest of kin of the decedent or the nominee of the
nearest of kin of the decedent.
(d) To the Director of Human Services or a designee, if it
appears the decedent received public assistance pursuant to ORS
chapter 411 { - or 414 and that such assistance is a claim
against the estate - } .
{ + (e) To the Director of the Oregon Health Authority or a
designee, if it appears the decedent received medical assistance
pursuant to ORS chapter 414. + }
{ - (e) - } { + (f) + } To the Department of Veterans'
Affairs, if the decedent was a protected person under ORS 406.050
(7), and the department has joined in the petition for such
appointment.
{ - (f) - } { + (g) + } To any other person.
(2) Except as provided in subsection (3) of this section, the
court shall appoint the Department of State Lands as personal
representative if it appears that the decedent died wholly
intestate and without known heirs. The Attorney General shall
represent the Department of State Lands in the administration of
the estate. Any funds received by the Department of State Lands
in the capacity of personal representative may be deposited in
accounts, separate and distinct from the General Fund,
established with the State Treasurer. Interest earned by such
account shall be credited to that account.
(3) The court may appoint a person other than the Department of
State Lands to administer the estate of a decedent who died
wholly intestate and without known heirs if the person filing a
petition under ORS 113.035 attaches written authorization from an
estate administrator of the Department of State Lands appointed
under ORS 113.235 approving the filing of the petition by the
person. Except as provided by rule adopted by the Director of the
Department of State Lands, an estate administrator may consent to
the appointment of another person to act as personal
representative only if it appears after investigation that the
estate is insolvent.
SECTION 77. ORS 113.105 is amended to read:
113.105. (1) Unless a testator provides in a will that no bond
shall be required of the executor of the estate, or unless the
personal representative is the sole heir or devisee or is the
Department of State Lands, { - or is the Director of Human
Services or a designee, or is - } the Department of Veterans'
Affairs { + , the Director of Human Services or a designee or the
Director of the Oregon Health Authority or a designee + }, the
personal representative may not act nor shall letters be issued
to the personal representative until the personal representative
files with the clerk of the court a bond. The bond shall be
executed by a surety company authorized to transact surety
business in this state, or by one or more sufficient personal
sureties approved by the court. A personal surety must be a
resident of this state. The court may, in its discretion, require
a bond notwithstanding any provision in a will that no bond is
required. The bond shall be for the security and benefit of all
interested persons and shall be conditioned upon the personal
representative faithfully performing the duties of the trust.
(2) The amount of the bond set by the court shall be adequate
to protect interested persons, but in no event shall it be less
than $1,000. In setting the amount of the bond the court shall
consider:
(a) The nature, liquidity and apparent value of the assets of
the estate.
Enrolled House Bill 2009 (HB 2009-C) Page 29
(b) The anticipated income during administration.
(c) The probable indebtedness and taxes.
(3) Nothing in this section affects the provisions of ORS
709.240, relating to a trust company acting as personal
representative.
(4) Notwithstanding any other provisions of this section, a
court may, in its discretion, waive the requirement of a bond if
all devisees and heirs known to the court agree in writing that
the requirement be waived and the signed agreement is filed with
the court at the time of filing of the petition for the
appointment of a personal representative.
SECTION 78. ORS 113.145 is amended to read:
113.145. (1) Upon appointment a personal representative shall
deliver or mail to the devisees, heirs and the persons described
in ORS 113.035 (8) and (9) who were required to be named in the
petition for appointment of a personal representative, at the
addresses therein shown, information that shall include:
(a) The title of the court in which the estate proceeding is
pending and the clerk's file number;
(b) The name of the decedent and the place and date of the
death of the decedent;
(c) Whether or not a will of the decedent has been admitted to
probate;
(d) The name and address of the personal representative and the
attorney of the personal representative;
(e) The date of the appointment of the personal representative;
(f) A statement advising the devisee, heir or other interested
person that the rights of the devisee, heir or other interested
person may be affected by the proceeding and that additional
information may be obtained from the records of the court, the
personal representative or the attorney for the personal
representative;
(g) If information under this section is required to be
delivered or mailed to a person described in ORS 113.035 (8), a
statement that the rights of the person in the estate may be
barred unless the person proceeds as provided in ORS 113.075
within four months of the delivery or mailing of the information;
and
(h) If information under this section is required to be
delivered or mailed to a person described in ORS 113.035 (9), a
statement that the rights of the person in the estate may be
barred unless the person proceeds as provided in ORS 112.049
within four months of the delivery or mailing of the information.
(2) If the personal representative is a devisee, heir or other
interested person named in the petition the personal
representative is not required to deliver or mail the information
under this section to the personal representative.
(3) The failure of the personal representative to give
information under this section is a breach of duty to the persons
concerned, but does not affect the validity of appointment,
duties or powers or the exercise of duties or powers.
(4) Within 30 days after the date of appointment a personal
representative shall cause to be filed in the estate proceeding
proof of the delivery or mailing required by this section or a
waiver of notice as provided under ORS 111.225. The proof shall
include a copy of the information delivered or mailed and the
names of the persons to whom it was delivered or mailed.
(5) If before the filing of the final account the personal
representative has actual knowledge that the petition did not
include the name and address of any person described in ORS
Enrolled House Bill 2009 (HB 2009-C) Page 30
113.035 (4), (5), (7), (8) or (9), the personal representative
shall:
(a) Make reasonable efforts under the circumstances to
ascertain each of those names and addresses;
(b) Promptly deliver or mail information as described in
subsection (1) of this section to each of those persons located
after the filing of the petition and before the filing of the
final account; and
(c) File in the estate proceeding, on or before filing the
final account under ORS 116.083, proof of compliance with this
subsection or a waiver of notice as provided under ORS 111.225.
(6) Within 30 days after the appointment of a personal
representative, the personal representative must mail or deliver
the information specified in subsection (1) of this section and a
copy of the death certificate of the decedent to the Department
of Human Services { + and the Oregon Health Authority + }.
SECTION 79. ORS 114.525 is amended to read:
114.525. An affidavit filed under ORS 114.515 shall:
(1) State the name, age, domicile, post-office address and
Social Security number of the decedent;
(2) State the date and place of the decedent's death. A
certified copy of the death certificate shall be attached to the
affidavit;
(3) Describe and state the fair market value of all property in
the estate, including a legal description of any real property;
(4) State that no application or petition for the appointment
of a personal representative has been granted in Oregon;
(5) State whether the decedent died testate or intestate, and
if the decedent died testate, the will shall be attached to the
affidavit;
(6) List the heirs of the decedent and the last address of each
heir as known to the affiant, and state that a copy of the
affidavit showing the date of filing and a copy of the will, if
the decedent died testate, will be delivered to each heir or
mailed to the heir at the last-known address;
(7) If the decedent died testate, list the devisees of the
decedent and the last address of each devisee as known to the
affiant and state that a copy of the will and a copy of the
affidavit showing the date of filing will be delivered to each
devisee or mailed to the devisee at the last-known address;
(8) State the interest in the property described in the
affidavit to which each heir or devisee is entitled and the
interest, if any, that will escheat;
(9) State that reasonable efforts have been made to ascertain
creditors of the estate. List the expenses of and claims against
the estate remaining unpaid or on account of which the affiant or
any other person is entitled to reimbursement from the estate,
including the known or estimated amounts thereof and the names
and addresses of the creditors as known to the affiant, and state
that a copy of the affidavit showing the date of filing will be
delivered to each creditor who has not been paid in full or
mailed to the creditor at the last-known address;
(10) Separately list the name and address of each person known
to the affiant to assert a claim against the estate that the
affiant disputes and the known or estimated amount thereof and
state that a copy of the affidavit showing the date of filing
will be delivered to each such person or mailed to the person at
the last-known address;
Enrolled House Bill 2009 (HB 2009-C) Page 31
(11) State that a copy of the affidavit showing the date of
filing will be mailed or delivered to the Department of Human
Services { + and the Oregon Health Authority + };
(12) State that claims against the estate not listed in the
affidavit or in amounts larger than those listed in the affidavit
may be barred unless:
(a) A claim is presented to the affiant within four months of
the filing of the affidavit at the address stated in the
affidavit for presentment of claims; or
(b) A personal representative of the estate is appointed within
the time allowed under ORS 114.555; and
(13) If the affidavit lists one or more claims that the affiant
disputes, state that any such claim may be barred unless:
(a) A petition for summary determination is filed within four
months of the filing of the affidavit; or
(b) A personal representative of the estate is appointed within
the time allowed under ORS 114.555.
SECTION 80. ORS 114.535 is amended to read:
114.535. (1) Any person indebted to the decedent or having
possession of personal property belonging to the estate, to whom
a certified copy of the affidavit filed under ORS 114.515 is
delivered by the affiant on or after the 10th day following the
filing of the affidavit, shall pay, transfer or deliver the
personal property to the affiant. Any person who has received
property of the decedent under ORS 446.616, 722.262 or 803.094,
or any similar statute providing for the transfer of property of
an estate which is not being probated shall pay, transfer or
deliver the property to the affiant if the person would be
required to pay, transfer or deliver the property to a personal
representative of the estate. The transferor is discharged and
released from any liability or responsibility for the transfer in
the same manner and with the same effect as if the property had
been transferred, delivered or paid to a personal representative
of the estate of the decedent.
(2) A transfer agent of any corporate security registered in
the name of the decedent shall change the registered ownership on
the books of the corporation to the person entitled thereto on
presentation of a certified copy of the affidavit filed under ORS
114.515.
(3) If a person to whom an affidavit is delivered refuses to
pay, deliver or transfer any personal property to the affiant or
the person entitled to the property as disclosed in the affidavit
filed under ORS 114.515, the property may be recovered or its
payment, delivery or transfer compelled upon proof of the
transferee's entitlement in a proceeding brought for the purpose
by or on behalf of the transferee.
(4) If the { - affidavit was signed by the Director of Human
Services or a designee of the director, the director or the
designee - } { + Director of Human Services, the designee of
the Director of Human Services, the Director of the Oregon Health
Authority or the designee of the Director of the Oregon Health
Authority signs the affidavit, the Director of Human Services,
the designee of the Director of Human Services, the Director of
the Oregon Health Authority or the designee of the Director of
the Oregon Health Authority + } may certify a copy of the
affidavit for the purposes described in subsection (1) or (2) of
this section.
SECTION 81. ORS 115.125 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 32
115.125. (1) If the applicable assets of the estate are
insufficient to pay all expenses and claims in full, the personal
representative shall make payment in the following order:
(a) Support of spouse and children, subject to the limitations
imposed by ORS 114.065.
(b) Expenses of administration.
(c) Expenses of a plain and decent funeral and disposition of
the remains of the decedent.
(d) Debts and taxes with preference under federal law.
(e) Reasonable and necessary medical and hospital expenses of
the last illness of the decedent, including compensation of
persons attending the decedent.
(f) Taxes with preference under the laws of this state that are
due and payable while possession of the estate of the decedent is
retained by the personal representative.
(g) Debts owed employees of the decedent for labor performed
within 90 days immediately preceding the date of death of the
decedent.
(h) Child support arrearages.
{ + (i) The claim of the Oregon Health Authority for the
amount of the state's monthly contribution to the federal
government to defray the costs of outpatient prescription drug
coverage provided to a person who is eligible for Medicare Part D
prescription drug coverage and who receives benefits under the
state medical assistance program or Title XIX of the Social
Security Act. + }
{ - (i) - } { + (j) + } The claim of the Department of
Human Services for the net amount of assistance paid to or for
the decedent, in the following order:
{ - (A) The amount of the state's monthly contribution to the
federal government to defray the costs of outpatient prescription
drug coverage provided to a person who is eligible for Medicare
Part D prescription drug coverage and who receives benefits under
the state medical assistance program or Title XIX of the Social
Security Act; - }
{ - (B) - } { + (A) + } Public assistance, as defined in
ORS 411.010, funded entirely by moneys from the General Fund;
{ + and + }
{ - (C) - } { + (B) + } Public assistance, as defined in
ORS 411.010, funded by a combination of state and federal funds
{ - ; and - } { + . + }
{ - (D) - } { + (k) The claim of the Department of Human
Services or the Oregon Health Authority for the care + }
{ - Care - } and maintenance of the decedent at a state
institution, as provided in ORS 179.610 to 179.770.
{ - (j) - } { + (L) + } The claim of the Department of
Corrections for care and maintenance of any decedent who was at a
state institution to the extent provided in ORS 179.610 to
179.770.
{ - (k) - } { + (m) + } All other claims against the
estate.
(2) If the applicable assets of the estate are insufficient to
pay in full all expenses or claims of any one class specified in
subsection (1) of this section, each expense or claim of that
class shall be paid only in proportion to the amount thereof.
SECTION 82. ORS 116.093 is amended to read:
116.093. (1) Upon filing the final account and petition for a
judgment of distribution, the personal representative shall fix a
time for filing objections thereto in a notice thereof. Not less
Enrolled House Bill 2009 (HB 2009-C) Page 33
than 20 days before the time fixed in the notice, the personal
representative shall cause a copy of the notice to be mailed to:
(a) Each heir at the last-known address of the heir, if the
decedent died intestate.
(b) Each devisee at the last-known address of the devisee, if
the decedent died testate.
(c) Each creditor who has not received payment in full and
whose claim has not otherwise been barred.
(d) Any other person known to the personal representative to
have or to claim an interest in the estate being distributed.
(2) The notice need not be mailed to the personal
representative.
(3) Proof of the mailing to those persons entitled to notice
shall be filed in the estate proceeding at or before approval of
the final account.
(4) If the Department of Human Services has presented a claim
under ORS chapter 411 { - or 414 or ORS 416.310 to 416.340,
416.510 to 416.990 or 417.010 to 417.080 - } { + or ORS 416.310
to 416.340 or 417.010 to 417.080, or the Oregon Health Authority
has presented a claim under ORS chapter 414 or ORS 416.310 to
416.340 or 416.510 to 416.990 + }, or the Department of
Corrections { - or the authorized agent of the Department of
Corrections - } has presented a claim under ORS 179.620 (3), and
the claim has not been settled or paid in full, the personal
representative shall mail to the appropriate department a copy of
the final account at the same time, and shall make proof of the
mailing in the same manner, as the notice provided for in this
section.
SECTION 83. ORS 116.253 is amended to read:
116.253. (1) Within 10 years after the death of a decedent
whose estate escheated in whole or in part to the state, or
within eight years after the entry of a judgment or order
escheating property of an estate to the state, a claim may be
made for the property escheated, or the proceeds thereof, by or
on behalf of a person not having actual knowledge of the escheat
or by or on behalf of a person who at the time of the escheat was
unable to prove entitlement to the escheated property.
(2) The claim shall be made by a petition filed with the
Director of the Department of State Lands. The claim is
considered a contested case as provided in ORS 183.310 and there
is the right of judicial review as provided in ORS 183.480. The
petition must include a declaration under penalty of perjury in
the form required by ORCP 1 E and shall state:
(a) The age and place of residence of the claimant by whom or
on whose behalf the petition is filed;
(b) That the claimant lawfully is entitled to the property or
proceeds, briefly describing the property or proceeds;
(c) That at the time the property escheated to the state the
claimant had no knowledge or notice thereof or was unable to
prove entitlement to the escheated property and has subsequently
acquired new evidence of that entitlement;
(d) That the claimant claims the property or proceeds as an
heir or devisee or as the personal representative of the estate
of an heir or devisee, setting forth the relationship, if any, of
the claimant to the decedent who at the time of death was the
owner;
(e) That 10 years have not elapsed since the death of the
decedent, or that eight years have not elapsed since the entry of
the judgment or order escheating the property to the state; and
Enrolled House Bill 2009 (HB 2009-C) Page 34
(f) If the petition is not filed by the claimant, the status of
the petitioner.
(3) If it is determined that the claimant is entitled to the
property or the proceeds thereof, the Director of the Department
of State Lands shall deliver the property to the petitioner,
subject to and charged with any tax on the property and the costs
and expenses of the state in connection therewith.
(4) If the person whose property escheated or reverted to the
state was at any time an inmate of a state institution in Oregon
for persons with mental illness or mental retardation, the
reasonable unpaid cost { - , as determined by the Department of
Human Services, - } of the care and maintenance of the person
while a ward of the institution, regardless of when the cost was
incurred, may be deducted from, or, if necessary, be offset in
full against, the amount of the escheated property. { + The
reasonable unpaid cost of care and maintenance shall be
determined by:
(a) The Department of Human Services for patients of the
Eastern Oregon Training Center; and
(b) The Oregon Health Authority for patients of the Blue
Mountain Recovery Center and the Oregon State Hospital. + }
(5) For the purposes of this section, the death of the decedent
is presumed to have occurred on the date shown in the decedent's
death certificate or in any other similar document issued by the
jurisdiction in which the death occurred or issued by an agency
of the federal government.
SECTION 84. ORS 124.050 is amended to read:
124.050. As used in ORS 124.050 to 124.095:
(1) 'Abuse' means one or more of the following:
(a) Any physical injury caused by other than accidental means,
or which appears to be at variance with the explanation given of
the injury.
(b) Neglect which leads to physical harm through withholding of
services necessary to maintain health and well-being.
(c) Abandonment, including desertion or willful forsaking of an
elderly person or the withdrawal or neglect of duties and
obligations owed an elderly person by a caretaker or other
person.
(d) Willful infliction of physical pain or injury.
(e) An act that constitutes a crime under ORS 163.375, 163.405,
163.411, 163.415, 163.425, 163.427, 163.465 or 163.467.
(f) Wrongfully taking or appropriating money or property, or
knowingly subjecting an elderly person or person with a
disability to alarm by conveying a threat to wrongfully take or
appropriate money or property, which threat reasonably would be
expected to cause the person to believe that the threat will be
carried out.
(2) 'Elderly person' means any person 65 years of age or older
who is not subject to the provisions of ORS 441.640 to 441.665.
(3) 'Law enforcement agency' means:
(a) Any city or municipal police department.
(b) Any county sheriff's office.
(c) The Oregon State Police.
(d) Any district attorney.
(4) 'Public or private official' means:
(a) Physician, naturopathic physician, osteopathic physician,
chiropractor or podiatric physician and surgeon, including any
intern or resident.
(b) Licensed practical nurse, registered nurse, nurse's aide,
home health aide or employee of an in-home health service.
Enrolled House Bill 2009 (HB 2009-C) Page 35
(c) Employee of the Department of Human Services { - , county
health department or community mental health and - } { + or
community + } developmental disabilities program.
{ + (d) Employee of the Oregon Health Authority, county
health department or community mental health program. + }
{ - (d) - } { + (e) + } Peace officer.
{ - (e) - } { + (f) + } Member of the clergy.
{ - (f) - } { + (g) + } Licensed clinical social worker.
{ - (g) - } { + (h) + } Physical, speech or occupational
therapists.
{ - (h) - } { + (i) + } Senior center employee.
{ - (i) - } { + (j) + } Information and referral or
outreach worker.
{ - (j) - } { + (k) + } Licensed professional counselor or
licensed marriage and family therapist.
{ - (k) - } { + (L) + } Any public official who comes in
contact with elderly persons in the performance of the official's
official duties.
{ - (L) - } { + (m) + } Firefighter or emergency medical
technician.
SECTION 85. ORS 125.060 is amended to read:
125.060. (1) The notices required by this section must be given
to all persons whose identities and addresses can be ascertained
in the exercise of reasonable diligence by the person required to
give the notice.
(2) Notice of the filing of a petition for the appointment of a
fiduciary or entry of other protective order must be given by the
petitioner to the following persons:
(a) The respondent, if the respondent has attained 14 years of
age.
(b) The spouse, parents and adult children of the respondent.
(c) If the respondent does not have a spouse, parent or adult
child, the person or persons most closely related to the
respondent.
(d) Any person who is cohabiting with the respondent and who is
interested in the affairs or welfare of the respondent.
(e) Any person who has been nominated as fiduciary or appointed
to act as fiduciary for the respondent by a court of any state,
any trustee for a trust established by or for the respondent, any
person appointed as a health care representative under the
provisions of ORS 127.505 to 127.660 and any person acting as
attorney-in-fact for the respondent under a power of attorney.
(f) If the respondent is a minor, the person who has exercised
principal responsibility for the care and custody of the
respondent during the 60-day period before the filing of the
petition.
(g) If the respondent is a minor and has no living parents, any
person nominated to act as fiduciary for the minor in a will or
other written instrument prepared by a parent of the minor.
(h) If the respondent is receiving moneys paid or payable by
the United States through the Department of Veterans Affairs, a
representative of the United States Department of Veterans
Affairs regional office that has responsibility for the payments
to the protected person.
(i) If the respondent is receiving moneys paid or payable for
public assistance provided under ORS chapter 411 { - or 414 - }
by the State of Oregon through the Department of Human Services,
a representative of the department.
{ + (j) If the respondent is receiving moneys paid or payable
for medical assistance provided under ORS chapter 414 by the
Enrolled House Bill 2009 (HB 2009-C) Page 36
State of Oregon through the Oregon Health Authority, a
representative of the authority. + }
{ - (j) - } { + (k) + } If the respondent is committed to
the legal and physical custody of the Department of Corrections,
the Attorney General and the superintendent or other officer in
charge of the facility in which the respondent is confined.
{ - (k) - } { + (L) + } If the respondent is a foreign
national, the consulate for the respondent's country.
{ - (L) - } { + (m) + } Any other person that the court
requires.
(3) Notice of a motion for the termination of the protective
proceedings, for removal of a fiduciary, for modification of the
powers or authority of a fiduciary, for approval of a fiduciary's
actions or for protective orders in addition to those sought in
the petition must be given by the person making the motion to the
following persons:
(a) The protected person, if the protected person has attained
14 years of age.
(b) Any person who has filed a request for notice in the
proceedings.
(c) Except for a fiduciary who is making a motion, any
fiduciary who has been appointed for the protected person.
(d) If the protected person is receiving moneys paid or payable
by the United States through the Department of Veterans Affairs,
a representative of the United States Department of Veterans
Affairs regional office that has responsibility for the payments
to the protected person.
(e) If the protected person is committed to the legal and
physical custody of the Department of Corrections, the Attorney
General and the superintendent or other officer in charge of the
facility in which the protected person is confined.
(f) Any other person that the court requires.
(4) A request for notice under subsection (3)(b) of this
section must be in writing and include the name, address and
phone number of the person requesting notice. A copy of the
request must be mailed by the person making the request to the
petitioner or to the fiduciary if a fiduciary has been appointed.
The original request must be filed with the court. The person
filing the request must pay the fee specified by ORS 21.310 (5).
(5) A person who files a request for notice in the proceedings
in the manner provided by subsection (4) of this section is
entitled to receive notice from the fiduciary of any motion
specified in subsection (3) of this section and of any other
matter to which a person listed in subsection (2) of this section
is entitled to receive notice under a specific provision of this
chapter.
(6) If the Department of Human Services is nominated as
guardian for the purpose of consenting to the adoption of a
minor, the notice provided for in this section must also be given
to the minor's brothers, sisters, aunts, uncles and grandparents.
(7) In addition to the requirements of subsection (2) of this
section, notice of the filing of a petition for the appointment
of a guardian for a person who is alleged to be incapacitated
must be given by the petitioner to the following persons:
(a) Any attorney who is representing the respondent in any
capacity.
(b) If the respondent is a resident of a nursing home or
residential facility, or if the person nominated to act as
fiduciary intends to place the respondent in a nursing home or
residential facility, the office of the Long Term Care Ombudsman.
Enrolled House Bill 2009 (HB 2009-C) Page 37
(c) If the respondent is a resident of a mental health
treatment facility or a residential facility for individuals with
developmental disabilities, or if the person nominated to act as
fiduciary intends to place the respondent in such a facility, the
system described in ORS 192.517 (1).
(8) In addition to the requirements of subsection (3) of this
section, in a protective proceeding in which a guardian has been
appointed, notice of the motions specified in subsection (3) of
this section must be given by the person making the motion to the
following persons:
(a) Any attorney who represented the protected person at any
time during the protective proceeding.
(b) If the protected person is a resident of a nursing home or
residential facility, or if the motion seeks authority to place
the protected person in a nursing home or residential facility,
the office of the Long Term Care Ombudsman.
(c) If the protected person is a resident of a mental health
treatment facility or a residential facility for individuals with
developmental disabilities, or if the motion seeks authority to
place the protected person in such a facility, the system
described in ORS 192.517 (1).
(9) A respondent or protected person may not waive the notice
required under this section.
(10) The requirement that notice be served on an attorney for a
respondent or protected person under subsection (7)(a) or (8)(a)
of this section does not impose any responsibility on the
attorney receiving the notice to represent the respondent or
protected person in the protective proceeding.
{ + NOTE: + } Section 86 was deleted by amendment. Subsequent
sections were not renumbered.
SECTION 87. ORS 127.646 is amended to read:
127.646. As used in ORS 127.646 to 127.654:
(1) 'Health care organization' means a home health agency,
hospice program, hospital, long term care facility or health
maintenance organization.
(2) 'Health maintenance organization' has the meaning given
that term in ORS 750.005, except that 'health maintenance
organization' includes only those organizations that participate
in the federal Medicare or Medicaid programs.
(3) 'Home health agency' has the meaning given that term in ORS
443.005.
(4) 'Hospice program' has the meaning given that term in ORS
443.850.
(5) 'Hospital' has the meaning given that term in ORS 442.015
{ - (19) - } , except that 'hospital' does not include a special
inpatient care facility.
(6) 'Long term care facility' has the meaning given that term
in ORS 442.015, except that 'long term care facility' does not
include an intermediate care facility for individuals with mental
retardation.
SECTION 88. ORS 127.720 is amended to read:
127.720. (1) The physician or provider may subject the
principal to mental health treatment in a manner contrary to the
principal's wishes as expressed in a declaration for mental
health treatment only:
(a) If the principal is committed to the { - Department of
Human Services - } { + Oregon Health Authority + } pursuant to
ORS 426.005 to 426.390 and treatment is authorized in compliance
with ORS 426.385 (3) and administrative rule; or
(b) In cases of emergency endangering life or health.
Enrolled House Bill 2009 (HB 2009-C) Page 38
(2) A declaration does not limit any authority provided in ORS
426.005 to 426.390 either to take a person into custody, or to
admit, retain or treat a person in a health care facility.
SECTION 89. ORS 127.865 is amended to read:
127.865. s3.11. Reporting requirements. (1)(a) The
{ - Department of Human Services - } { + Oregon Health
Authority + } shall annually review a sample of records
maintained pursuant to ORS 127.800 to 127.897.
(b) The { - department - } { + authority + } shall require
any health care provider upon dispensing medication pursuant to
ORS 127.800 to 127.897 to file a copy of the dispensing record
with the
{ - department - } { + authority + }.
(2) The { - department - } { + authority + } shall make
rules to facilitate the collection of information regarding
compliance with ORS 127.800 to 127.897. Except as otherwise
required by law, the information collected shall not be a public
record and may not be made available for inspection by the
public.
(3) The { - department - } { + authority + } shall generate
and make available to the public an annual statistical report of
information collected under subsection (2) of this section.
SECTION 90. ORS 130.370 is amended to read:
130.370. (1) Within three months after a petition is entered in
the register of the court under ORS 130.355, or within such
longer time as the court allows, a trustee must make reasonably
diligent efforts to investigate the financial records and affairs
of the settlor and to take such further actions as are reasonably
necessary to ascertain the identity and address of each person
who has or asserts a claim against the trust estate. The court
shall allow the trustee as much time as requested by the trustee
for the purpose of determining the claims against the trust
estate. The trustee must thereafter cause to be delivered or
mailed a notice containing the information required in subsection
(2) of this section to each person known by the trustee to have
or to assert a claim against the trust estate and to the
Department of Human Services { + and the Oregon Health
Authority + }. Notice under this section is not required for any
claim that has already been presented, accepted or paid in full
or on account of a claim that is merely conjectural.
(2) The notice required by this section must include:
(a) The name and Social Security number of the settlor;
(b) The name of the trustee and the address at which claims
must be presented;
(c) A statement that claims against the trust estate that are
not presented to the trustee within 30 days after the date of the
notice may be barred;
(d) The date of the notice, which shall be the date on which
the notice is delivered or mailed; and
(e) A copy of the settlor's death certificate.
SECTION 91. ORS 130.425 is amended to read:
130.425. (1) Claims allowed against the trust estate under ORS
130.350 to 130.450 must be paid by the trustee in the following
order of priority:
(a) Expenses of administering the trust estate.
(b) Expenses of a plain and decent funeral and disposition of
the remains of the settlor.
(c) Debts and taxes with preference under federal law.
Enrolled House Bill 2009 (HB 2009-C) Page 39
(d) Reasonable and necessary medical and hospital expenses of
the last illness of the settlor, including compensation of
persons attending the settlor.
(e) Taxes with preference under the laws of this state that are
due and payable while possession of the trust estate of the
settlor is retained by the trustee.
(f) Debts owed employees of the settlor for labor performed
within 90 days immediately preceding the date of death of the
settlor.
(g) Child support arrearages.
(h) A claim of the Department of Human Services for the net
amount of public assistance, as defined in ORS 411.010 { - ,
paid to or for the settlor, and the claim of the department for
care and maintenance of any settlor who was at a state
institution to the extent provided in ORS 179.610 to 179.770 - }
.
{ + (i) A claim of the Department of Human Services or the
Oregon Health Authority for the care and maintenance of any
settlor who was a patient at a state institution under ORS
179.610 to 179.770. + }
{ - (i) - } { + (j) + } All other claims against the trust
estate.
(2) If the assets of the trust estate are insufficient to pay
in full all expenses or claims of any one class specified in
subsection (1) of this section, each expense or claim of that
class shall be paid only in proportion to the amount thereof.
SECTION 92. ORS 135.139 is amended to read:
135.139. (1) When a person has been charged with a crime in
which it appears from the nature of the charge that the
transmission of body fluids from one person to another may have
been involved, the district attorney, upon the request of the
victim or the parent or guardian of a minor or incapacitated
victim, shall seek the consent of the person charged to submit to
a test for HIV and any other communicable disease. In the absence
of such consent or failure to submit to the test, the district
attorney may petition the court for an order requiring the person
charged to submit to a test for HIV and any other communicable
disease.
(2)(a) At the time of an appearance before a circuit court
judge on a criminal charge, the judge shall inform every person
arrested and charged with a crime, in which it appears from the
nature of the charge that the transmission of body fluids from
one person to another may have been involved, of the availability
of testing for HIV and other communicable diseases and shall
cause the alleged victim of such a crime, if any, or a parent or
guardian of the victim, if any, to be notified that testing for
HIV and other communicable diseases is available. The judge shall
inform the person arrested and charged and the victim, or parent
or guardian of the victim, of the availability of counseling
under the circumstances described in subsection (7) of this
section.
(b) Notwithstanding the provisions of ORS 433.045, if the
district attorney files a petition under subsection (1) of this
section, the court shall order the person charged to submit to
testing if the court determines there is probable cause to
believe that:
(A) The person charged committed the crime; and
(B) The victim has received a substantial exposure, as defined
by rule of the { - Department of Human Services - }
{ + Oregon Health Authority + }.
Enrolled House Bill 2009 (HB 2009-C) Page 40
(3) Notwithstanding the provisions of ORS 433.045, upon
conviction of a person for any crime in which the court
determines from the facts that the transmission of body fluids
from one person to another was involved and if the person has not
been tested pursuant to subsection (2) of this section, the court
shall seek the consent of the convicted person to submit to a
test for HIV and other communicable diseases. In the absence of
such consent or failure to submit to the test, the court shall
order the convicted person to submit to the test if the victim of
the crime, or a parent or guardian of the victim, requests the
court to make such order.
(4) When a test is ordered under subsection (2) or (3) of this
section, the victim of the crime or a parent or guardian of the
victim, shall designate an attending physician to receive such
information on behalf of the victim.
(5) If an HIV test results in a negative reaction, the court
may order the person to submit to another HIV test six months
after the first test was administered.
(6) The result of any test ordered under this section is not a
public record and shall be available only to:
(a) The victim.
(b) The parent or guardian of a minor or incapacitated victim.
(c) The attending physician who is licensed to practice
medicine.
(d) The { - Department of Human Services - } { + Oregon
Health Authority + }.
(e) The person tested.
(7) If an HIV test ordered under this section results in a
positive reaction, the individual subject to the test shall
receive post-test counseling as required by the { - Department
of Human Services, - } { + Oregon Health Authority + } by rule.
The results of HIV tests ordered under this section shall be
reported to the
{ - Department of Human Services - } { + authority + }.
Counseling and referral for appropriate health care, testing and
support services as directed by the Director of { - Human
Services - } { + the Oregon Health Authority + } shall be
provided to the victim or victims at the request of the victim or
victims, or the parent or guardian of a minor or incapacitated
victim.
(8) The costs of testing and counseling provided under
subsections (2), (3) and (7) of this section shall be paid
through the compensation for crime victims program authorized by
ORS 147.005 to 147.367 from amounts appropriated for such
purposes. Restitution to the state for payment of the costs of
any counseling provided under this section and for payment of the
costs of any test ordered under this section shall be included by
the court in any order requiring the convicted person to pay
restitution.
(9) When a court orders a convicted person to submit to a test
under this section, the withdrawal of blood may be performed only
by a physician licensed to practice medicine or by a licensed
health care provider acting within the provider's licensed scope
of practice or acting under the supervision of a physician
licensed to practice medicine.
(10) No person authorized by subsection (9) of this section to
withdraw blood, no person assisting in the performance of the
test nor any medical care facility where blood is withdrawn or
tested that has been ordered by the court to withdraw or test
blood shall be liable in any civil or criminal action when the
Enrolled House Bill 2009 (HB 2009-C) Page 41
act is performed in a reasonable manner according to generally
accepted medical practices.
(11) The results of tests or reports, or information therein,
obtained under this section shall be confidential and shall not
be divulged to any person not authorized by this section to
receive the information. Any violation of this subsection is a
Class C misdemeanor.
(12) As used in this section:
(a) 'HIV test' means a test as defined in ORS 433.045.
(b) 'Parent or guardian of the victim' means a custodial parent
or legal guardian of a victim who is a minor or incapacitated
person.
(c) 'Positive reaction' means a positive HIV test with a
positive confirmatory test result as specified by the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(d) 'Transmission of body fluids' means the transfer of blood,
semen, vaginal secretions or other body fluids identified by rule
of the { - Department of Human Services - }
{ + authority + }, from the perpetrator of a crime to the mucous
membranes or potentially broken skin of the victim.
(e) 'Victim' means the person or persons to whom transmission
of body fluids from the perpetrator of the crime occurred or was
likely to have occurred in the course of the crime.
SECTION 93. ORS 135.917 is amended to read:
135.917. (1) Courts having jurisdiction over the offense of
possession of less than one ounce of marijuana shall designate
agencies or organizations to perform the diagnostic assessment
and treatment required under possession of marijuana diversion
agreements described in ORS 135.907. The designated agencies or
organizations must meet the standards set by the { - Department
of Human Services - } { + Oregon Health Authority + } to
perform the diagnostic assessment and treatment of drug
dependency and must be certified by the { - Department of Human
Services - } { + authority + }. Wherever possible, a court
shall designate agencies or organizations to perform the
diagnostic assessment that are separate from those that may be
designated to carry out a program of treatment for drug
dependency.
(2) Monitoring of a defendant's progress under a diversion
agreement shall be the responsibility of the diagnostic
assessment agency or organization. It shall make a report to the
court stating the defendant's successful completion or failure to
complete all or any part of the treatment program specified by
the diagnostic assessment. The form of the report shall be
determined by agreement between the court and the diagnostic
assessment agency or organization. The court shall make the
report of the diagnostic assessment agency or organization that
is required by this subsection a part of the record of the case.
SECTION 94. ORS 137.227 is amended to read:
137.227. (1) After a defendant has been convicted of a crime,
the court may cause the defendant to be evaluated to determine if
the defendant is an alcoholic or a drug-dependent person, as
those terms are defined in ORS 430.306. The evaluation shall be
conducted by an agency or organization designated under
subsection (2) of this section.
(2) The court shall designate agencies or organizations to
perform the evaluations required under subsection (1) of this
section. The designated agencies or organizations must meet the
standards set by the { - Department of Human Services - }
Enrolled House Bill 2009 (HB 2009-C) Page 42
{ + Oregon Health Authority + } to perform the evaluations for
drug dependency and must be approved by the { - department - }
{ + authority + }. Wherever possible, a court shall designate
agencies or organizations to perform the evaluations that are
separate from those that may be designated to carry out a program
of treatment for alcohol or drug dependency.
SECTION 95. ORS 137.228 is amended to read:
137.228. (1) When a defendant is sentenced for a crime, the
court may enter a finding that the defendant is an alcoholic or a
drug-dependent person, as those terms are defined in ORS 430.306.
The finding may be based upon any evidence before the court,
including, but not limited to, the facts of the case,
stipulations of the parties and the results of any evaluation
conducted under ORS 137.227.
(2) When the court finds that the defendant is an alcoholic or
a drug-dependent person, the court, when it sentences the
defendant to a term of imprisonment, shall direct the Department
of Corrections to place the defendant in an appropriate alcohol
or drug treatment program, to the extent that resources are
available. The alcohol or drug treatment program shall meet the
standards promulgated by the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
430.357.
SECTION 96. ORS 137.464 is amended to read:
137.464. (1)(a) At the death warrant hearing under ORS 137.463,
the court shall order that the { - Department of Human
Services - } { + Oregon Health Authority + } or its designee
perform an assessment of the defendant's mental capacity to
engage in reasoned choices of legal strategies and options if:
(A) The defendant indicates the wish to waive the right to
counsel; and
(B) The court has substantial reason to believe that, due to
mental incapacity, the defendant cannot engage in reasoned
choices of legal strategies and options.
(b) The court also shall order an assessment described in
paragraph (a) of this subsection upon motion by the state.
(2) If the requirements of subsection (1) of this section are
met, the court may order the defendant to be committed to a state
mental hospital designated by the { - Department of Human
Services - } { + authority + } for a period not exceeding 30
days for the purpose of assessing the defendant's mental
capacity. The report of any competency assessment performed under
this section must include, but need not be limited to, the
following:
(a) A description of the nature of the assessment;
(b) A statement of the mental condition of the defendant; and
(c) A statement regarding the defendant's mental capacity to
engage in reasoned choices of legal strategies and options.
(3) If the competency assessment cannot be conducted because
the defendant is unwilling to participate, the report must so
state and must include, if possible, an opinion as to whether the
unwillingness of the defendant is the result of a mental
condition affecting the defendant's mental capacity to engage in
reasoned choices of legal strategies and options.
(4) The { - Department of Human Services - }
{ + authority + } shall file three copies of the report of the
competency assessment with the clerk of the court, who shall
cause copies to be delivered to the district attorney and to
counsel for the defendant.
SECTION 97. ORS 137.466 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 43
137.466. (1) If the court has ordered the { - Department of
Human Services - } { + Oregon Health Authority + } to perform a
competency assessment of the defendant under ORS 137.464 and the
assessment has been completed, the court shall determine the
issue of the defendant's mental capacity to engage in reasoned
choices of legal strategies and options. If neither the state nor
counsel for the defendant contests the finding of the report
filed under ORS 137.464, the court may make the determination of
the defendant's mental capacity to engage in reasoned choices of
legal strategies and options on the basis of the report. If the
finding is contested, the court shall hold a hearing on the
issue. If the report is received in evidence at the hearing, the
party contesting the finding has the right to summon and to
cross-examine the psychiatrist or psychologist who submitted the
report and to offer evidence on the issue. Either party may
introduce other evidence regarding the defendant's mental
capacity to engage in reasoned choices of legal strategies and
options.
(2) If the court determines that, due to mental incapacity, the
defendant cannot engage in reasoned choices of legal strategies
and options, the court shall continue the appointment of counsel
provided under ORS 137.463.
(3) No appeal may be taken from an order issued pursuant to
this section.
SECTION 98. ORS 137.658 is amended to read:
137.658. (1) The chairperson of the Oregon Criminal Justice
Commission may create any committees within the commission as the
chairperson may think necessary. Persons who are not commission
members may be appointed as members to serve on the committees
with the approval of the commission.
(2) The chairperson shall appoint members of committees created
under this section in such a manner as to ensure representation
from all segments of the criminal justice system that are
affected by the work of the committee. In selecting members for
committee assignments, the chairperson shall consider, but is not
limited to, representatives from the following:
(a) The Attorney General;
(b) The Director of the Department of Corrections;
(c) The chairperson of the State Board of Parole and
Post-Prison Supervision;
(d) The Superintendent of State Police;
(e) The chief administrative employee of the Psychiatric
Security Review Board;
(f) The Director of Human Services;
{ + (g) The Director of the Oregon Health Authority; + }
{ - (g) - } { + (h) + } The Director of the Oregon Youth
Authority;
{ - (h) - } { + (i) + } Trial judges;
{ - (i) - } { + (j) + } Judges of the Oregon Supreme Court
or Court of Appeals;
{ - (j) - } { + (k) + } Majority and minority parties of
the House of Representatives and the Senate;
{ - (k) - } { + (L) + } District attorneys;
{ - (L) - } { + (m) + } Criminal defense attorneys;
{ - (m) - } { + (n) + } County sheriffs;
{ - (n) - } { + (o) + } County commissioners;
{ - (o) - } { + (p) + } County community corrections
directors;
{ - (p) - } { + (q) + } Chiefs of police;
{ - (q) - } { + (r) + } Victims of crime;
Enrolled House Bill 2009 (HB 2009-C) Page 44
{ - (r) - } { + (s) + } The public at large;
{ - (s) - } { + (t) + } The director of a nonprofit entity
created for the purpose of increasing understanding of the adult
and juvenile justice systems and promotion of effective policies
for prevention and control of crime; and
{ - (t) - } { + (u) + } Private contract providers.
SECTION 99. ORS 144.102 is amended to read:
144.102. (1) The State Board of Parole and Post-Prison
Supervision or local supervisory authority responsible for
correctional services for a person shall specify in writing the
conditions of post-prison supervision imposed under ORS 144.096.
A copy of the conditions shall be given to the person upon
release from prison or jail.
(2) The board or the supervisory authority shall determine, and
may at any time modify, the conditions of post-prison
supervision, which may include, among other conditions, that the
person shall:
(a) Comply with the conditions of post-prison supervision as
specified by the board or supervisory authority.
(b) Be under the supervision of the Department of Corrections
and its representatives or other supervisory authority and abide
by their direction and counsel.
(c) Answer all reasonable inquiries of the board, the
department or the supervisory authority.
(d) Report to the parole officer as directed by the board, the
department or the supervisory authority.
(e) Not own, possess or be in control of any weapon.
(f) Respect and obey all municipal, county, state and federal
laws.
(g) Understand that the board or supervisory authority may, at
its discretion, punish violations of post-prison supervision.
(h) Attend a victim impact treatment session in a county that
has a victim impact program. If the board or supervisory
authority requires attendance under this paragraph, the board or
supervisory authority may require the person, as an additional
condition of post-prison supervision, to pay a reasonable fee to
the victim impact program to offset the cost of the person's
participation. The board or supervisory authority may not order
a person to pay a fee in excess of $5 under this paragraph.
(i) If required to report as a sex offender under ORS 181.595,
report with the Department of State Police, a chief of police, a
county sheriff or the supervising agency:
(A) When supervision begins;
(B) Within 10 days of a change in residence;
(C) Once each year within 10 days of the person's date of
birth;
(D) Within 10 days of the first day the person works at,
carries on a vocation at or attends an institution of higher
education; and
(E) Within 10 days of a change in work, vocation or attendance
status at an institution of higher education.
(3)(a) The board or supervisory authority may establish special
conditions as the board or supervisory authority determines
necessary because of the individual circumstances of the person
on post-prison supervision.
(b) If the person is on post-prison supervision following
conviction of a sex crime, as defined in ORS 181.594, the board
or supervisory authority shall include all of the following as
special conditions of the person's post-prison supervision:
Enrolled House Bill 2009 (HB 2009-C) Page 45
(A) Agreement to comply with any curfew set by the board, the
supervisory authority or the supervising officer.
(B) A prohibition against contacting a person under 18 years of
age without the prior written approval of the board, supervisory
authority or supervising officer.
(C) A prohibition against being present more than one time,
without the prior written approval of the board, supervisory
authority or supervising officer, at a place where persons under
18 years of age regularly congregate.
(D) In addition to the prohibition under subparagraph (C) of
this paragraph, a prohibition against being present, without the
prior written approval of the board, supervisory authority or
supervising officer, at, or on property adjacent to, a school,
child care center, playground or other place intended for use
primarily by persons under 18 years of age.
(E) A prohibition against working or volunteering at a school,
child care center, park, playground or other place where persons
under 18 years of age regularly congregate.
(F) Entry into and completion of or successful discharge from a
sex offender treatment program approved by the board, supervisory
authority or supervising officer. The program may include
polygraph and plethysmograph testing. The person is responsible
for paying for the treatment program.
(G) A prohibition against any contact with the victim, directly
or indirectly, unless approved by the victim, the person's
treatment provider and the board, supervisory authority or
supervising officer.
(H) Unless otherwise indicated for the treatment required under
subparagraph (F) of this paragraph, a prohibition against
viewing, listening to, owning or possessing any sexually
stimulating visual or auditory materials that are relevant to the
person's deviant behavior.
(I) Agreement to consent to a search of the person or the
vehicle or residence of the person upon the request of a
representative of the board or supervisory authority if the
representative has reasonable grounds to believe that evidence of
a violation of a condition of post-prison supervision will be
found.
(J) Participation in random polygraph examinations to obtain
information for risk management and treatment. The person is
responsible for paying the expenses of the examinations. The
results of a polygraph examination under this subparagraph may
not be used in evidence in a hearing to prove a violation of
post-prison supervision.
(K) Maintenance of a driving log and a prohibition against
driving a motor vehicle alone unless approved by the board,
supervisory authority or supervising officer.
(L) A prohibition against using a post-office box unless
approved by the board, supervisory authority or supervising
officer.
(M) A prohibition against residing in any dwelling in which
another sex offender who is on probation, parole or post-prison
supervision resides unless approved by the board, supervisory
authority or supervising officer, or in which more than one other
sex offender who is on probation, parole or post-prison
supervision resides unless approved by the board or the director
of the supervisory authority, or a designee of the board or
director. As soon as practicable, the supervising officer of a
person subject to the requirements of this subparagraph shall
review the person's living arrangement with the person's sex
Enrolled House Bill 2009 (HB 2009-C) Page 46
offender treatment provider to ensure that the arrangement
supports the goals of offender rehabilitation and community
safety. As used in this subparagraph:
(i) 'Dwelling' has the meaning given that term in ORS 469.160.
(ii) 'Dwelling' does not include a residential treatment
facility or a halfway house.
(iii) 'Halfway house' means a publicly or privately operated
profit or nonprofit residential facility that provides
rehabilitative care and treatment for sex offenders.
(c)(A) If the person is on post-prison supervision following
conviction of a sex crime, as defined in ORS 181.594, or an
assault, as defined in ORS 163.175 or 163.185, and the victim was
under 18 years of age, the board or supervisory authority, if
requested by the victim, shall include as a special condition of
the person's post-prison supervision that the person not reside
within three miles of the victim unless:
(i) The victim resides in a county having a population of less
than 130,000 and the person is required to reside in that county
under subsection (6) of this section;
(ii) The person demonstrates to the board or supervisory
authority by a preponderance of the evidence that no mental
intimidation or pressure was brought to bear during the
commission of the crime;
(iii) The person demonstrates to the board or supervisory
authority by a preponderance of the evidence that imposition of
the condition will deprive the person of a residence that would
be materially significant in aiding in the rehabilitation of the
person or in the success of the post-prison supervision; or
(iv) The person resides in a halfway house. As used in this
sub-subparagraph, 'halfway house' means a publicly or privately
operated profit or nonprofit residential facility that provides
rehabilitative care and treatment for sex offenders.
(B) A victim may request imposition of the special condition of
post-prison supervision described in this paragraph at the time
of sentencing in person or through the prosecuting attorney. A
victim's request may be included in the judgment document.
(C) If the board or supervisory authority imposes the special
condition of post-prison supervision described in this paragraph
and if at any time during the period of post-prison supervision
the victim moves to within three miles of the person's residence,
the board or supervisory authority may not require the person to
change the person's residence in order to comply with the special
condition of post-prison supervision.
(4)(a) The board or supervisory authority may require the
person to pay, as a condition of post-prison supervision, any
compensatory fines, restitution or attorney fees:
(A) As determined, imposed or required by the sentencing court;
or
(B) When previously required as a condition of any type of
supervision that is later revoked.
(b) The board may require a person to pay restitution as a
condition of post-prison supervision imposed for an offense other
than the offense for which the restitution was ordered if the
person:
(A) Was ordered to pay restitution as a result of another
conviction; and
(B) Has not fully paid the restitution by the time the person
has completed the period of post-prison supervision imposed for
the offense for which the restitution was ordered.
Enrolled House Bill 2009 (HB 2009-C) Page 47
(5) A person's failure to apply for or accept employment at any
workplace where there is a labor dispute in progress does not
constitute a violation of the conditions of post-prison
supervision. As used in this subsection, 'labor dispute' has the
meaning given that term in ORS 662.010.
(6)(a) When a person is released from imprisonment on
post-prison supervision, the board shall order, as a condition of
post-prison supervision, that the person reside for the first six
months after release in the county where the person resided at
the time of the offense that resulted in the imprisonment.
(b) Upon motion of the board, the person, a victim or a
district attorney, the board may waive the residency requirement
only after making a finding that one of the following conditions
has been met:
(A) The person provides proof of employment with no set ending
date in a county other than the established county of residence;
(B) The person is found to pose a significant danger to a
victim of the person's crime, or a victim or victim's family is
found to pose a significant danger to the person residing in the
established county of residence;
(C) The person has a spouse or biological or adoptive family
residing in a county other than the established county of
residence who will be materially significant in aiding in the
rehabilitation of the person and in the success of the
post-prison supervision;
(D) As another condition of post-prison supervision, the person
is required to participate in a treatment program that is not
available in the established county of residence;
(E) The person desires to be released to another state; or
(F) The board finds other good cause, of a nature similar to
the other conditions listed in this paragraph, for the waiver.
(c)(A) The board shall determine the county where the person
resided at the time of the offense by establishing the person's
last address at the time of the offense. In making its
determination, the board shall examine all of the following:
(i) An Oregon driver license, regardless of its validity;
(ii) Records maintained by the Department of Revenue;
(iii) Records maintained by the Department of State Police
bureau of criminal identification;
(iv) Records maintained by the Department of Human Services;
{ - and - }
(v) Records maintained by the Department of Corrections
{ - . - } { + ; and + }
{ + (vi) Records maintained by the Oregon Health
Authority. + }
(B) When the person did not have an identifiable address of
record at the time of the offense, the person is considered to
have resided in the county where the offense occurred.
(C) If the person is serving multiple sentences, the county of
residence shall be determined according to the date of the last
arrest resulting in a conviction.
(D) In determining the person's county of residence for
purposes of this subsection, the board may not consider offenses
committed by the person while the person was incarcerated in a
Department of Corrections facility.
(7) As used in this section, 'attends,' 'institution of higher
education,' 'works' and 'carries on a vocation' have the meanings
given those terms in ORS 181.594.
SECTION 100. ORS 144.270 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 48
144.270. (1) The State Board of Parole and Post-Prison
Supervision, in releasing a person on parole, shall specify in
writing the conditions of the parole and a copy of such
conditions shall be given to the person paroled.
(2) The board shall determine, and may at any time modify, the
conditions of parole, which may include, among other conditions,
that the parolee shall:
(a) Accept the parole granted subject to all terms and
conditions specified by the board.
(b) Be under the supervision of the Department of Corrections
and its representatives and abide by their direction and counsel.
(c) Answer all reasonable inquiries of the board or the parole
officer.
(d) Report to the parole officer as directed by the board or
parole officer.
(e) Not own, possess or be in control of any weapon.
(f) Respect and obey all municipal, county, state and federal
laws.
(g) Understand that the board may, in its discretion, suspend
or revoke parole if it determines that the parole is not in the
best interest of the parolee, or in the best interest of society.
(3)(a) The board may establish such special conditions as it
determines are necessary because of the individual circumstances
of the parolee.
(b) If the person is on parole following conviction of a sex
crime, as defined in ORS 181.594, the board shall include all of
the following as special conditions of the person's parole:
(A) Agreement to comply with any curfew set by the board or the
supervising officer.
(B) A prohibition against contacting a person under 18 years of
age without the prior written approval of the board or
supervising officer.
(C) A prohibition against being present more than one time,
without the prior written approval of the board or supervising
officer, at a place where persons under 18 years of age regularly
congregate.
(D) In addition to the prohibition under subparagraph (C) of
this paragraph, a prohibition against being present, without the
prior written approval of the board or supervising officer, at,
or on property adjacent to, a school, child care center,
playground or other place intended for use primarily by persons
under 18 years of age.
(E) A prohibition against working or volunteering at a school,
child care center, park, playground or other place where persons
under 18 years of age regularly congregate.
(F) Entry into and completion of or successful discharge from a
sex offender treatment program approved by the board or
supervising officer. The program may include polygraph and
plethysmograph testing. The person is responsible for paying for
the treatment program.
(G) A prohibition against any contact with the victim, directly
or indirectly, unless approved by the victim, the person's
treatment provider and the board or supervising officer.
(H) Unless otherwise indicated for the treatment required under
subparagraph (F) of this paragraph, a prohibition against
viewing, listening to, owning or possessing any sexually
stimulating visual or auditory materials that are relevant to the
person's deviant behavior.
(I) Agreement to consent to a search of the person or the
vehicle or residence of the person upon the request of a
Enrolled House Bill 2009 (HB 2009-C) Page 49
representative of the board if the representative has reasonable
grounds to believe that evidence of a violation of a condition of
parole will be found.
(J) Participation in random polygraph examinations to obtain
information for risk management and treatment. The person is
responsible for paying the expenses of the examinations. The
results of a polygraph examination under this subparagraph may
not be used in evidence in a hearing to prove a violation of
parole.
(K) Maintenance of a driving log and a prohibition against
driving a motor vehicle alone unless approved by the board or
supervising officer.
(L) A prohibition against using a post-office box unless
approved by the board or supervising officer.
(M) A prohibition against residing in any dwelling in which
another sex offender who is on probation, parole or post-prison
supervision resides unless approved by the board or supervising
officer, or in which more than one other sex offender who is on
probation, parole or post-prison supervision resides unless
approved by the board or a designee of the board. As soon as
practicable, the supervising officer of a person subject to the
requirements of this subparagraph shall review the person's
living arrangement with the person's sex offender treatment
provider to ensure that the arrangement supports the goals of
offender rehabilitation and community safety. As used in this
subparagraph:
(i) 'Dwelling' has the meaning given that term in ORS 469.160.
(ii) 'Dwelling' does not include a residential treatment
facility or a halfway house.
(iii) 'Halfway house' means a publicly or privately operated
profit or nonprofit residential facility that provides
rehabilitative care and treatment for sex offenders.
(c)(A) If the person is on parole following conviction of a sex
crime, as defined in ORS 181.594, or an assault, as defined in
ORS 163.175 or 163.185, and the victim was under 18 years of age,
the board, if requested by the victim, shall include as a special
condition of the person's parole that the person not reside
within three miles of the victim unless:
(i) The victim resides in a county having a population of less
than 130,000 and the person is required to reside in that county
under subsection (5) of this section;
(ii) The person demonstrates to the board by a preponderance of
the evidence that no mental intimidation or pressure was brought
to bear during the commission of the crime;
(iii) The person demonstrates to the board by a preponderance
of the evidence that imposition of the condition will deprive the
person of a residence that would be materially significant in
aiding in the rehabilitation of the person or in the success of
the parole; or
(iv) The person resides in a halfway house. As used in this
sub-subparagraph, 'halfway house' means a publicly or privately
operated profit or nonprofit residential facility that provides
rehabilitative care and treatment for sex offenders.
(B) A victim may request imposition of the special condition of
parole described in this paragraph at the time of sentencing in
person or through the prosecuting attorney. A victim's request
may be included in the judgment document.
(C) If the board imposes the special condition of parole
described in this paragraph and if at any time during the period
of parole the victim moves to within three miles of the parolee's
Enrolled House Bill 2009 (HB 2009-C) Page 50
residence, the board may not require the parolee to change the
parolee's residence in order to comply with the special condition
of parole.
(4) It is not a cause for revocation of parole that the parolee
failed to apply for or accept employment at any workplace where
there is a labor dispute in progress. As used in this subsection,
'labor dispute' has the meaning given that term in ORS 662.010.
(5)(a) When the board grants an inmate parole from the custody
of the Department of Corrections, the board shall order, as a
condition of parole, that the inmate reside for the first six
months in the county where the inmate resided at the time of the
offense that resulted in the imprisonment.
(b) Upon motion of the board, an inmate, a victim or a district
attorney, the board may waive the residency requirement only
after making a finding that one of the following conditions has
been met:
(A) The inmate provides proof of a job with no set ending date
in a county other than the established county of residence;
(B) The inmate is found to pose a significant danger to the
victim of the offender's crime, or the victim or victim's family
is found to pose a significant danger to the inmate residing in
the county of residence;
(C) The inmate has a spouse or biological or adoptive family
residing in other than the county of residence who will be
materially significant in aiding in the rehabilitation of the
offender and in the success of the parole;
(D) As another condition of parole, the inmate is required to
participate in a treatment program that is not available or
located in the county of residence;
(E) The inmate desires to be paroled to another state; or
(F) The board finds other good cause, of a nature similar to
the other conditions listed in this paragraph, for the waiver.
(c)(A) For purposes of this subsection, 'residency' means the
last address at the time of the offense, as established by an
examination of all of the following:
(i) An Oregon driver license, regardless of its validity;
(ii) Records maintained by the Department of Revenue;
(iii) Records maintained by the Department of State Police
bureau of criminal identification;
(iv) Records maintained by the Department of Human Services;
{ - and - }
(v) Records maintained by the Department of Corrections
{ - . - } { + ; and + }
{ + (vi) Records maintained by the Oregon Health
Authority. + }
(B) When an inmate did not have one identifiable address of
record at the time of the offense, the inmate shall be considered
to have resided in the county where the offense occurred.
(C) If the inmate is serving multiple sentences, the county of
residence shall be determined according to the date of the last
arrest resulting in a conviction.
(D) If the inmate is being rereleased after revocation of
parole, the county of residence shall be determined according to
the date of the arrest resulting in a conviction of the
underlying offense.
(E) In determining the inmate's county of residence, a
conviction for an offense that the inmate committed while
incarcerated in a state corrections institution may not be
considered.
Enrolled House Bill 2009 (HB 2009-C) Page 51
(6) When the board grants an inmate parole from the custody of
the Department of Corrections and if the inmate is required to
report as a sex offender under ORS 181.595, the board, as a
condition of parole, shall order the inmate to report with the
Department of State Police, a chief of police, a county sheriff
or the supervising agency:
(a) When supervision begins;
(b) Within 10 days of a change in residence;
(c) Once each year within 10 days of the inmate's date of
birth;
(d) Within 10 days of the first day the person works at,
carries on a vocation at or attends an institution of higher
education; and
(e) Within 10 days of a change in work, vocation or attendance
status at an institution of higher education.
(7) As used in this section, 'attends,' 'institution of higher
education,' 'works' and 'carries on a vocation' have the meanings
given those terms in ORS 181.594.
SECTION 101. ORS 161.315 is amended to read:
161.315. Upon filing of notice or the introduction of evidence
by the defendant as provided in ORS 161.309 (3), the state shall
have the right to have at least one psychiatrist or licensed
psychologist of its selection examine the defendant. The state
shall file notice with the court of its intention to have the
defendant examined. Upon filing of the notice, the court, in its
discretion, may order the defendant committed to a state
institution or any other suitable facility, if the defendant is
18 years of age or older, for observation and examination as the
court may designate for a period not to exceed 30 days. If the
defendant is under 18 years of age, upon filing of the notice,
the court, in its discretion, may order the defendant committed
to a secure intensive community inpatient facility designated by
the
{ - Department of Human Services - } { + Oregon Health
Authority + } for observation and examination as the court may
designate for a period not to exceed 30 days. If the defendant
objects to the examiner chosen by the state, the court for good
cause shown may direct the state to select a different examiner.
SECTION 102. ORS 161.327 is amended to read:
161.327. (1)(a) Following the entry of a judgment pursuant to
ORS 161.319 and the dispositional determination under ORS
161.325, if the court finds that the person would have been
guilty of a felony, or of a misdemeanor during a criminal episode
in the course of which the person caused physical injury or risk
of physical injury to another, the court shall order that a
psychiatric or psychological evaluation be performed and a report
of the evaluation be provided to the court if an evaluation was
not performed or a report was not provided to the court prior to
trial. Upon receipt of the evaluation, the court shall order that
the person be placed under the jurisdiction of the Psychiatric
Security Review Board for care and treatment if the court finds
by a preponderance of the evidence that the person is affected by
mental disease or defect and presents a substantial danger to
others requiring commitment to:
(A) A state hospital designated by the { - Department of
Human Services - } { + Oregon Health Authority + } if the
person is at least 18 years of age; or
(B) A secure intensive community inpatient facility designated
by the { - Department of Human Services - } { + authority + }
if the person is under 18 years of age.
Enrolled House Bill 2009 (HB 2009-C) Page 52
(b) The period of jurisdiction of the board is equal to the
maximum sentence provided by statute for the crime for which the
person was found guilty except for insanity.
(c) When a court orders a psychiatric or psychological
evaluation of a financially eligible person under this
subsection, the court shall order the public defense services
executive director to pay a reasonable fee for the evaluation
from funds available for the purpose.
(2) The court shall determine whether the person should be
committed to a state hospital, or to a secure intensive community
inpatient facility, designated by the { - Department of Human
Services - } { + authority + } or conditionally released
pending any hearing before the board as follows:
(a) If the court finds that the person presents a substantial
danger to others and is not a proper subject for conditional
release, the court shall order the person committed to a state
hospital designated by the { - Department of Human Services - }
{ + authority + } if the person is at least 18 years of age, or
to a secure intensive community inpatient facility designated by
the
{ - Department of Human Services - } { + authority + } if the
person is under 18 years of age, for custody, care and treatment
pending hearing before the board in accordance with ORS 161.341
to 161.351.
(b) If the court finds that the person presents a substantial
danger to others but that the person can be adequately controlled
with supervision and treatment if conditionally released and that
necessary supervision and treatment are available, the court may
order the person conditionally released, subject to those
supervisory orders of the court as are in the best interests of
justice, the protection of society and the welfare of the person.
The court shall designate a person or state, county or local
agency to supervise the person upon release, subject to those
conditions as the court directs in the order for conditional
release. Prior to the designation, the court shall notify the
person or agency to whom conditional release is contemplated and
provide the person or agency an opportunity to be heard before
the court. After receiving an order entered under this paragraph,
the person or agency designated shall assume supervision of the
person pursuant to the direction of the Psychiatric Security
Review Board. The person or agency designated as supervisor shall
be required to report in writing no less than once per month to
the board concerning the supervised person's compliance with the
conditions of release.
(3) For purposes of this section, a person affected by a mental
disease or defect in a state of remission is considered to have a
mental disease or defect requiring supervision when the disease
may, with reasonable medical probability, occasionally become
active and, when active, render the person a danger to others.
(4) In determining whether a person should be conditionally
released, the court may order evaluations, examinations and
compliance as provided in ORS 161.336 (4) and 161.346 (2).
(5) In determining whether a person should be committed to a
state hospital or to a secure intensive community inpatient
facility or conditionally released, the court shall have as its
primary concern the protection of society.
(6) Upon placing a person on conditional release, the court
shall notify the board in writing of the court's conditional
release order, the supervisor appointed, and all other conditions
of release, and the person shall be on conditional release
Enrolled House Bill 2009 (HB 2009-C) Page 53
pending hearing before the board in accordance with ORS 161.336
to 161.351. Upon compliance with this subsection and subsections
(1) and (2) of this section, the court's jurisdiction over the
person is terminated and the board assumes jurisdiction over the
person.
(7) An order of the court under this section is a final order
appealable by the person found guilty except for insanity in
accordance with ORS 19.205 (5). Notwithstanding ORS 19.255,
notice of an appeal under this section shall be served and filed
within 90 days after the order appealed from is entered in the
register. The person shall be entitled on appeal to suitable
counsel possessing skills and experience commensurate with the
nature and complexity of the case. If the person is financially
eligible, suitable counsel shall be appointed in the manner
provided in ORS 138.500 (1), and the compensation for counsel and
costs and expenses of the person necessary to the appeal shall be
determined and paid as provided in ORS 138.500.
(8) Upon placing a person under the jurisdiction of the board,
the court shall notify the person of the right to appeal and the
right to a hearing before the board in accordance with ORS
161.336 (7) and 161.341 (4).
SECTION 103. ORS 161.336 is amended to read:
161.336. (1) If the Psychiatric Security Review Board
determines that the person presents a substantial danger to
others but can be adequately controlled with supervision and
treatment if conditionally released and that necessary
supervision and treatment are available, the board may order the
person conditionally released, subject to those supervisory
orders of the board as are in the best interests of justice, the
protection of society and the welfare of the person. The board
may designate any person or state, county or local agency the
board considers capable of supervising the person upon release,
subject to those conditions as the board directs in the order for
conditional release. Prior to the designation, the board shall
notify the person or agency to whom conditional release is
contemplated and provide the person or agency an opportunity to
be heard before the board. After receiving an order entered under
this section, the person or agency designated shall assume
supervision of the person pursuant to the direction of the board.
(2) Conditions of release contained in orders entered under
this section may be modified from time to time and conditional
releases may be terminated by order of the board as provided in
ORS 161.351.
(3) For purposes of this section, a person affected by a mental
disease or defect in a state of remission is considered to have a
mental disease or defect requiring supervision when the disease
may, with reasonable medical probability, occasionally become
active and, when active, render the person a danger to others.
The person may be continued on conditional release by the board
as provided in this section.
(4)(a) As a condition of release, the board may require the
person to report to any state or local mental health facility for
evaluation. Whenever medical, psychiatric or psychological
treatment is recommended, the board may order the person, as a
condition of release, to cooperate with and accept the treatment
from the facility.
(b) The facility to which the person has been referred for
evaluation shall perform the evaluation and submit a written
report of its findings to the board. If the facility finds that
Enrolled House Bill 2009 (HB 2009-C) Page 54
treatment of the person is appropriate, it shall include its
recommendations for treatment in the report to the board.
(c) Whenever treatment is provided by the facility, it shall
furnish reports to the board on a regular basis concerning the
progress of the person.
(d) Copies of all reports submitted to the board pursuant to
this section shall be furnished to the person and the person's
counsel. The confidentiality of these reports is determined
pursuant to ORS 192.501 to 192.505.
(e) The facility shall comply with any other conditions of
release prescribed by order of the board.
(5) If at any time while the person is under the jurisdiction
of the board it appears to the board or its chairperson that the
person has violated the terms of the conditional release or that
the mental health of the individual has changed, the board or its
chairperson may order the person returned for evaluation or
treatment to a state hospital designated by the { - Department
of Human Services - } { + Oregon Health Authority + } if the
person is at least 18 years of age, or to a secure intensive
community inpatient facility designated by the { - Department
of Human Services - } { + authority + } if the person is under
18 years of age. A written order of the board, or its chairperson
on behalf of the board, is sufficient warrant for any law
enforcement officer to take into custody such person and
transport the person accordingly. A sheriff, municipal police
officer, constable, parole and probation officer, prison official
or other peace officer shall execute the order, and the person
shall be returned as soon as practicable to the custody of the
{ - Department of Human Services - } { + authority + }.
Within 20 days following the return of the person to the custody
of the { - Department of Human Services - }
{ + authority + }, the board shall conduct a hearing. Notice of
the time and place of the hearing shall be given to the person,
the attorney representing the person and the Attorney General.
The board may continue the person on conditional release or, if
it finds by a preponderance of the evidence that the person is
affected by mental disease or defect and presents a substantial
danger to others and cannot be adequately controlled if
conditional release is continued, it may order the person
committed to a state hospital designated by the
{ - Department of Human Services - } { + authority + } if the
person is at least 18 years of age, or to a secure intensive
community inpatient facility designated by the { - Department
of Human Services - } { + authority + } if the person is under
18 years of age. The state must prove by a preponderance of the
evidence the person's unfitness for conditional release. A person
in custody pursuant to this subsection has the same rights as any
person appearing before the board pursuant to ORS 161.346.
(6) The community mental health { - and developmental
disabilities - } program director, the director of the facility
providing treatment to a person on conditional release, any peace
officer or any person responsible for the supervision of a person
on conditional release may take a person on conditional release
into custody or request that the person be taken into custody if
there is reasonable cause to believe the person is a substantial
danger to others because of mental disease or defect and that the
person is in need of immediate care, custody or treatment. Any
person taken into custody pursuant to this subsection shall be
transported as soon as practicable to a state hospital designated
by the { - Department of Human Services - } { + authority + }
Enrolled House Bill 2009 (HB 2009-C) Page 55
if the person is at least 18 years of age, or to a secure
intensive community inpatient facility designated by the
{ - Department of Human Services - } { + authority + } if the
person is under 18 years of age. A person taken into custody
under this subsection has the same rights as any person appearing
before the board pursuant to ORS 161.346.
(7)(a) Any person conditionally released under this section may
apply to the board for discharge from or modification of an order
of conditional release on the ground that the person is no longer
affected by mental disease or defect or, if still so affected, no
longer presents a substantial danger to others and no longer
requires supervision, medication, care or treatment. Notice of
the hearing on an application for discharge or modification of an
order of conditional release shall be made to the Attorney
General. The applicant, at the hearing pursuant to this
subsection, must prove by a preponderance of the evidence the
applicant's fitness for discharge or modification of the order of
conditional release. Applications by the person for discharge or
modification of conditional release shall not be filed more often
than once every six months.
(b) Upon application by any person or agency responsible for
supervision or treatment pursuant to an order of conditional
release, the board shall conduct a hearing to determine if the
conditions of release shall be continued, modified or terminated.
The application shall be accompanied by a report setting forth
the facts supporting the application.
(8) The total period of commitment and conditional release
ordered pursuant to this section may not exceed the maximum
sentence provided by statute for the crime for which the person
was found guilty except for insanity.
(9) The board shall maintain and keep current the medical,
social and criminal history of all persons committed to its
jurisdiction. The confidentiality of records maintained by the
board shall be determined pursuant to ORS 192.501 to 192.505.
(10) In determining whether a person should be committed to a
state hospital or to a secure intensive community inpatient
facility, conditionally released or discharged, the board shall
have as its primary concern the protection of society.
SECTION 104. ORS 161.341 is amended to read:
161.341. (1) If the Psychiatric Security Review Board finds,
upon its initial hearing, that the person presents a substantial
danger to others and is not a proper subject for conditional
release, the board shall order the person committed to, or
retained in, a state hospital designated by the { - Department
of Human Services - } { + Oregon Health Authority + } if the
person is at least 18 years of age, or to a secure intensive
community inpatient facility designated by the { - Department
of Human Services - } { + authority + } if the person is under
18 years of age, for custody, care and treatment. The period of
commitment ordered by the board may not exceed the maximum
sentence provided by statute for the crime for which the person
was found guilty except for insanity.
(2) If at any time after the commitment of a person to a state
hospital, or to a secure intensive community inpatient facility,
designated by the { - Department of Human Services - }
{ + authority + } under this section, the superintendent of the
hospital or the director of the secure intensive community
inpatient facility is of the opinion that the person is no longer
affected by mental disease or defect, or, if so affected, no
longer presents a substantial danger to others or that the person
Enrolled House Bill 2009 (HB 2009-C) Page 56
continues to be affected by mental disease or defect and
continues to be a danger to others, but that the person can be
controlled with proper care, medication, supervision and
treatment if conditionally released, the superintendent or
director shall apply to the board for an order of discharge or
conditional release. The application shall be accompanied by a
report setting forth the facts supporting the opinion of the
superintendent or director. If the application is for conditional
release, the application must also be accompanied by a verified
conditional release plan. The board shall hold a hearing on the
application within 60 days of its receipt. Not less than 20 days
prior to the hearing before the board, copies of the report shall
be sent to the Attorney General.
(3) The attorney representing the state may choose a
psychiatrist or licensed psychologist to examine the person prior
to the initial or any later decision by the board on discharge or
conditional release. The results of the examination shall be in
writing and filed with the board, and shall include, but need not
be limited to, an opinion as to the mental condition of the
person, whether the person presents a substantial danger to
others and whether the person could be adequately controlled with
treatment as a condition of release.
(4) Any person who has been committed to a state hospital, or
to a secure intensive community inpatient facility, designated by
the { - Department of Human Services - } { + authority + }
for custody, care and treatment or another person acting on the
person's behalf may apply to the board for an order of discharge
or conditional release upon the grounds:
(a) That the person is no longer affected by mental disease or
defect;
(b) If so affected, that the person no longer presents a
substantial danger to others; or
(c) That the person continues to be affected by a mental
disease or defect and would continue to be a danger to others
without treatment, but that the person can be adequately
controlled and given proper care and treatment if placed on
conditional release.
(5) When application is made under subsection (4) of this
section, the board shall require that a report from the
superintendent of the hospital or the director of the secure
intensive community inpatient facility be prepared and
transmitted as provided in subsection (2) of this section. The
applicant must prove by a preponderance of the evidence the
applicant's fitness for discharge or conditional release under
the standards of subsection (4) of this section, unless more than
two years has passed since the state had the burden of proof on
that issue, in which case the state shall have the burden of
proving by a preponderance of the evidence the applicant's lack
of fitness for discharge or conditional release. Applications for
discharge or conditional release under subsection (4) of this
section shall not be filed more often than once every six months
commencing with the date of the initial board hearing.
(6) The board is not required to hold a hearing on a first
application under subsection (4) of this section any sooner than
90 days after the initial hearing. However, hearings resulting
from any subsequent requests shall be held within 60 days of the
filing of the application.
(7)(a) In no case shall any person committed by the court under
ORS 161.327 to a state hospital, or to a secure intensive
community inpatient facility, designated by the { - Department
Enrolled House Bill 2009 (HB 2009-C) Page 57
of Human Services - } { + authority + } be held in the hospital
or facility for more than 90 days from the date of the court's
commitment order without an initial hearing before the board to
determine whether the person should be conditionally released or
discharged.
(b) In no case shall a person be held pursuant to this section
for a period of time exceeding two years without a hearing before
the board to determine whether the person should be conditionally
released or discharged.
SECTION 105. ORS 161.346 is amended to read:
161.346. (1) The Psychiatric Security Review Board shall
conduct hearings upon any application for discharge, conditional
release, commitment or modification filed pursuant to ORS
161.336, 161.341 or 161.351 and as otherwise required by ORS
161.336 to 161.351 and shall make findings on the issues before
it which may include:
(a) If the board finds that the person is no longer affected by
mental disease or defect, or, if so affected, no longer presents
a substantial danger to others, the board shall order the person
discharged from commitment or from conditional release.
(b) If the board finds that the person is still affected by a
mental disease or defect and is a substantial danger to others,
but can be controlled adequately if conditionally released with
treatment as a condition of release, the board shall order the
person conditionally released as provided in ORS 161.336.
(c) If the board finds that the person has not recovered from
the mental disease or defect and is a substantial danger to
others and cannot adequately be controlled if conditionally
released on supervision, the board shall order the person
committed to, or retained in, a state hospital designated by the
{ - Department of Human Services - } { + Oregon Health
Authority + } if the person is at least 18 years of age, or a
secure intensive community inpatient facility designated by the
{ - Department of Human Services - } { + authority + } if the
person is under 18 years of age, for care, custody and treatment.
(2) At any time, the board may appoint a psychiatrist or
licensed psychologist to examine the person and to submit a
report to the board. Reports filed with the board pursuant to the
examination shall include, but need not be limited to, an opinion
as to the mental condition of the person and whether the person
presents a substantial danger to others, and whether the person
could be adequately controlled with treatment as a condition of
release. To facilitate the examination of the person, the board
may order the person placed in the temporary custody of any state
hospital or other suitable facility.
(3) The board may make the determination regarding discharge or
conditional release based upon the written reports submitted
pursuant to this section. If any member of the board desires
further information from the examining psychiatrist or licensed
psychologist who submitted the report, these persons shall be
summoned by the board to give testimony. The board shall consider
all evidence available to it which is material, relevant and
reliable regarding the issues before the board. Such evidence may
include but is not limited to the record of trial, the
information supplied by the attorney representing the state or by
any other interested party, including the person, and information
concerning the person's mental condition and the entire
psychiatric and criminal history of the person. All evidence of a
type commonly relied upon by reasonably prudent persons in the
conduct of their serious affairs shall be admissible at hearings.
Enrolled House Bill 2009 (HB 2009-C) Page 58
Testimony shall be taken upon oath or affirmation of the witness
from whom received. The officer presiding at the hearing shall
administer oaths or affirmations to witnesses.
(4) The board shall furnish to the person about whom the
hearing is being conducted, the attorney representing the person,
the Attorney General, the district attorney and the court or
department of the county from which the person was committed
written notice of any hearing pending under this section within a
reasonable time prior to the hearing. The notice shall include:
(a) The time, place and location of the hearing.
(b) The nature of the hearing and the specific action for which
a hearing has been requested, the issues to be considered at the
hearing and a reference to the particular sections of the
statutes and rules involved.
(c) A statement of the authority and jurisdiction under which
the hearing is to be held.
(d) A statement of all rights under subsection (6) of this
section.
(5) Prior to the commencement of a hearing, the board or
presiding officer shall serve personally or by mail a written
notice to each party as provided in ORS 183.413 (2).
(6) At the hearing, the person about whom the hearing is being
held shall have the right:
(a) To appear at all proceedings held pursuant to this section,
except board deliberations.
(b) To cross-examine all witnesses appearing to testify at the
hearing.
(c) To subpoena witnesses and documents as provided in ORS
161.395.
(d) To be represented by suitable legal counsel possessing
skills and experience commensurate with the nature and complexity
of the case, to consult with counsel prior to the hearing and, if
financially eligible, to have suitable counsel appointed at state
expense.
(e) To examine all information, documents and reports which the
board considers. If then available to the board, the information,
documents and reports shall be disclosed to the person so as to
allow examination prior to the hearing.
(7) A record shall be kept of all hearings before the board,
except board deliberations.
(8) Upon request of any party before the board, or on its own
motion, the board may continue a hearing for a reasonable period
not to exceed 60 days to obtain additional information or
testimony or for other good cause shown.
(9) Within 15 days following the conclusion of the hearing, the
board shall provide to the person, the attorney representing the
person, the Attorney General or other attorney representing the
state, if any, written notice of the board's decision.
(10) The burden of proof on all issues at hearings of the board
shall be by a preponderance of the evidence.
(11) If the board determines that the person about whom the
hearing is being held is financially eligible, the board shall
appoint suitable counsel to represent the person. Counsel so
appointed shall be an attorney who satisfies the professional
qualifications established by the Public Defense Services
Commission under ORS 151.216. The public defense services
executive director shall determine and allow fair compensation
for counsel appointed under this subsection and the reasonable
expenses of the person in respect to the hearing. Compensation
payable to appointed counsel shall not be less than the
Enrolled House Bill 2009 (HB 2009-C) Page 59
applicable compensation level established under ORS 151.216. The
compensation and expenses so allowed shall be paid by the public
defense services executive director from funds available for the
purpose.
(12) The Attorney General may represent the state at contested
hearings before the board unless the district attorney of the
county from which the person was committed elects to represent
the state. The district attorney of the county from which the
person was committed shall cooperate with the Attorney General in
securing the material necessary for presenting a contested
hearing before the board. If the district attorney elects to
represent the state, the district attorney shall give timely
written notice of such election to the Attorney General, the
board and the attorney representing the person.
SECTION 106. ORS 161.365 is amended to read:
161.365. (1) Whenever the court has reason to doubt the
defendant's fitness to proceed by reason of incapacity as defined
in ORS 161.360, the court may call to its assistance in reaching
its decision any witness and may appoint a psychiatrist or
psychologist to examine the defendant and advise the court.
(2) If the court determines the assistance of a psychiatrist or
psychologist would be helpful, the court may order the defendant
to be committed for the purpose of an examination for a period
not exceeding 30 days to a state mental hospital designated by
the { - Department of Human Services - } { + Oregon Health
Authority + } if the defendant is at least 18 years of age, or to
a secure intensive community inpatient facility designated by the
{ - Department of Human Services - } { + authority + } if the
defendant is under 18 years of age. The report of each
examination shall include, but is not necessarily limited to, the
following:
(a) A description of the nature of the examination;
(b) A statement of the mental condition of the defendant; and
(c) If the defendant suffers from a mental disease or defect,
an opinion as to whether the defendant is incapacitated within
the definition set out in ORS 161.360.
(3) Except when the defendant and the court both request to the
contrary, the report may not contain any findings or conclusions
as to whether the defendant as a result of mental disease or
defect was subject to the provisions of ORS 161.295 or 161.300 at
the time of the criminal act charged.
(4) If the examination by the psychiatrist or psychologist
cannot be conducted by reason of the unwillingness of the
defendant to participate therein, the report shall so state and
shall include, if possible, an opinion as to whether such
unwillingness of the defendant was the result of mental disease
or defect affecting capacity to proceed.
(5) The report of the examination shall be filed in triplicate
with the clerk of the court, who shall cause copies to be
delivered to the district attorney and to counsel for defendant.
(6) When upon motion of the court or a financially eligible
defendant, the court has ordered a psychiatric or psychological
examination of the defendant, a county or justice court shall
order the county to pay, and a circuit court shall order the
public defense services executive director to pay from funds
available for the purpose:
(a) A reasonable fee if the examination of the defendant is
conducted by a psychiatrist or psychologist in private practice;
and
Enrolled House Bill 2009 (HB 2009-C) Page 60
(b) All costs including transportation of the defendant if the
examination is conducted by a psychiatrist or psychologist in the
employ of the { - Department of Human Services - } { + Oregon
Health Authority + } or a community mental health { - and
developmental disabilities - } program established under ORS
430.610 to 430.670.
(7) When such an examination is ordered at the request or with
the acquiescence of a defendant who is determined not to be
financially eligible, the examination shall be performed at the
defendant's expense. When such an examination is ordered at the
request of the prosecution, the county shall pay for the expense
of the examination.
SECTION 107. ORS 161.370 is amended to read:
161.370. (1) When the defendant's fitness to proceed is drawn
in question, the issue shall be determined by the court. If
neither the prosecuting attorney nor counsel for the defendant
contests the finding of the report filed by a psychiatrist or
psychologist under ORS 161.365, the court may make the
determination on the basis of such report. If the finding is
contested, the court shall hold a hearing on the issue. If the
report is received in evidence upon such hearing, the party who
contests the finding thereof shall have the right to summon and
to cross-examine any psychiatrist or psychologist who submitted
the report and to offer evidence upon the issue. Other evidence
regarding the defendant's fitness to proceed may be introduced by
either party.
(2) If the court determines that the defendant lacks fitness to
proceed, the proceeding against the defendant shall be suspended,
except as provided in subsection (12) of this section, and the
court shall commit the defendant to the custody of the
superintendent of a state mental hospital designated by the
{ - Department of Human Services - } { + Oregon Health
Authority + } if the defendant is at least 18 years of age, or to
the custody of the director of a secure intensive community
inpatient facility designated by the { - Department of Human
Services - } { + authority + } if the defendant is under 18
years of age, or shall release the defendant on supervision for
as long as such unfitness shall endure. The court may release the
defendant on supervision if it determines that care other than
commitment for incapacity to stand trial would better serve the
defendant and the community. It may place conditions which it
deems appropriate on the release, including the requirement that
the defendant regularly report to the
{ - Department of Human Services - } { + authority + } or a
community mental health { - and developmental disabilities - }
program for examination to determine if the defendant has
regained capacity to stand trial. When the court, on its own
motion or upon the application of the superintendent of the
hospital or director of the secure intensive community inpatient
facility in which the defendant is committed, a person examining
the defendant as a condition of release on supervision, or either
party, determines, after a hearing, if a hearing is requested,
that the defendant has regained fitness to proceed, the
proceeding shall be resumed. If, however, the court is of the
view that so much time has elapsed since the commitment or
release of the defendant on supervision that it would be unjust
to resume the criminal proceeding, the court on motion of either
party may dismiss the charge and may order the defendant to be
discharged or cause a proceeding to be commenced forthwith under
ORS 426.070 to 426.170 or 427.235 to 427.290.
Enrolled House Bill 2009 (HB 2009-C) Page 61
(3) The superintendent of a state hospital or director of a
secure intensive community inpatient facility shall cause the
defendant to be evaluated within 60 days from the defendant's
delivery into the superintendent's or director's custody, for the
purpose of determining whether there is a substantial probability
that, in the foreseeable future, the defendant will have the
capacity to stand trial.
(4) In addition, the superintendent or director shall:
(a) Immediately notify the committing court if the defendant,
at any time, gains or regains the capacity to stand trial or will
never have the capacity to stand trial.
(b) Within 90 days of the defendant's delivery into the
superintendent's or director's custody, notify the committing
court that:
(A) The defendant has the present capacity to stand trial;
(B) There is no substantial probability that, in the
foreseeable future, the defendant will gain or regain the
capacity to stand trial; or
(C) There is a substantial probability that, in the foreseeable
future, the defendant will gain or regain the capacity to stand
trial. If such a probability exists, the superintendent or
director shall give the court an estimate of the time in which
the defendant, with appropriate treatment, is expected to gain or
regain capacity.
(5) If the superintendent or director determines that there is
a substantial probability that, in the foreseeable future, the
defendant will gain or regain the capacity to stand trial, unless
the court otherwise orders, the defendant shall remain in the
superintendent's or director's custody where the defendant shall
receive treatment designed for the purpose of enabling the
defendant to gain or regain capacity. In keeping with the notice
requirement under subsection (4)(b) of this section, the
superintendent or director shall, for the duration of the
defendant's period of commitment, submit a progress report to the
committing court, concerning the defendant's capacity or
incapacity, at least once every 180 days as measured from the
date of the defendant's delivery into the superintendent's or
director's custody.
(6) A defendant who remains committed under subsection (5) of
this section shall be discharged within a period of time that is
reasonable for making a determination concerning whether or not,
and when, the defendant may gain or regain capacity. However,
regardless of the number of charges with which the defendant is
accused, in no event shall the defendant be committed for longer
than whichever of the following, measured from the defendant's
initial custody date, is shorter:
(a) Three years; or
(b) A period of time equal to the maximum sentence the court
could have imposed if the defendant had been convicted.
(7) The superintendent or director shall notify the committing
court of the defendant's impending discharge 30 days before the
date on which the superintendent or director is required to
discharge the defendant under subsection (6) of this section.
(8) When the committing court receives a notice from the
superintendent or director under either subsection (4) or (7) of
this section concerning the defendant's progress or lack thereof,
the committing court shall determine after a hearing, if a
hearing is requested, whether the defendant presently has the
capacity to stand trial.
Enrolled House Bill 2009 (HB 2009-C) Page 62
(9) If under subsection (8) of this section the court
determines that the defendant lacks the capacity to stand trial,
the court shall further determine whether there is a substantial
probability that the defendant, in the foreseeable future, will
gain or regain the capacity to stand trial and whether the
defendant is entitled to discharge under subsection (6) of this
section. If the court determines that there is no substantial
probability that the defendant, in the foreseeable future, will
gain or regain the capacity to stand trial or that the defendant
is entitled to discharge under subsection (6) of this section,
the court shall dismiss, without prejudice, all charges against
the defendant and:
(a) Order that the defendant be discharged; or
(b) Initiate commitment proceedings under ORS 426.070 or
427.235 to 427.290.
(10) All notices required under this section shall be filed
with the clerk of the court and delivered to both the district
attorney and the counsel for the defendant.
(11) If the defendant regains fitness to proceed, the term of
any sentence received by the defendant for conviction of the
crime charged shall be reduced by the amount of time the
defendant was committed under this section to the custody of a
state mental hospital, or to the custody of a secure intensive
community inpatient facility, designated by the { - Department
of Human Services - } { + Oregon Health Authority + }.
(12) The fact that the defendant is unfit to proceed does not
preclude any objection through counsel and without the personal
participation of the defendant on the grounds that the indictment
is insufficient, that the statute of limitations has run, that
double jeopardy principles apply or upon any other ground at the
discretion of the court which the court deems susceptible of fair
determination prior to trial.
SECTION 108. ORS 161.375 is amended to read:
161.375. (1) When a patient, who has been placed at the Oregon
State Hospital for evaluation, care, custody and treatment under
the jurisdiction of the Psychiatric Security Review Board or by
court order under ORS 161.315, 161.365 or 161.370, has escaped or
is absent without authorization from the Oregon State Hospital or
from the custody of any person in whose charge the superintendent
has placed the patient, the superintendent may order the arrest
and detention of the patient.
(2) When a patient, who has been placed at a secure intensive
community inpatient facility for evaluation, care, custody and
treatment under the jurisdiction of the Psychiatric Security
Review Board or by court order under ORS 161.315, 161.365,
161.370 or 419C.527, has escaped or is absent without
authorization from the facility or from the custody of any person
in whose charge the director of the facility has placed the
patient, the director of the facility shall notify the Director
of { - Human Services. The Director of Human Services - }
{ + the Oregon Health Authority. The Director of the Oregon
Health Authority + }may order the arrest and detention of the
patient.
(3) The superintendent or the { - Director of Human
Services - } { + Director of the Oregon Health Authority + } may
issue an order under this section based upon a reasonable belief
that grounds exist for issuing the order. When reasonable, the
superintendent or the
Enrolled House Bill 2009 (HB 2009-C) Page 63
{ - Director of Human Services - } { + Director of the Oregon
Health Authority + } shall investigate to ascertain whether such
grounds exist.
(4) Any order issued by the superintendent or the
{ - Director of Human Services - } { + Director of the Oregon
Health Authority + } as authorized by this section constitutes
full authority for the arrest and detention of the patient and
all laws applicable to warrant or arrest apply to the order. An
order issued by the superintendent or the { - Director of Human
Services - } { + Director of the Oregon Health Authority + }
under this section expires 72 hours after being signed by the
superintendent or the { - Director of Human Services - }
{ + Director of the Oregon Health Authority + }.
(5) As used in this section, 'superintendent' means the
superintendent of the Oregon State Hospital or the
superintendent's authorized representative.
SECTION 109. ORS 161.385 is amended to read:
161.385. (1) There is hereby created a Psychiatric Security
Review Board consisting of 10 members appointed by the Governor
and subject to confirmation by the Senate under section 4,
Article III of the Oregon Constitution.
(2) The membership of the board may not include any district
attorney, deputy district attorney or public defender. The
Governor shall appoint:
(a) A psychiatrist experienced in the criminal justice system
and not otherwise employed on a full-time basis by the
{ - Department of Human Services - } { + Oregon Health
Authority + } or a community mental health { - and
developmental disabilities - } program;
(b) A licensed psychologist experienced in the criminal justice
system and not otherwise employed on a full-time basis by the
{ - Department of Human Services - } { + authority + } or a
community mental health { - and developmental disabilities - }
program;
(c) A member with substantial experience in the processes of
parole and probation;
(d) A lawyer with substantial experience in criminal trial
practice;
(e) A psychiatrist certified, or eligible to be certified, by
the Oregon Medical Board in child psychiatry who is experienced
in the juvenile justice system and not employed on a full-time
basis by the { - Department of Human Services - }
{ + authority + } or a community mental health { - and
developmental disabilities - } program;
(f) A licensed psychologist who is experienced in child
psychology and the juvenile justice system and not employed on a
full-time basis by the { - Department of Human Services - }
{ + authority + } or a community mental health { - and
developmental disabilities - } program;
(g) A member with substantial experience in the processes of
juvenile parole and probation;
(h) A lawyer with substantial experience in juvenile law
practice; and
(i) Two members of the general public.
(3) The term of office of each member is four years. The
Governor at any time may remove any member for inefficiency,
neglect of duty or malfeasance in office. Before the expiration
of the term of a member, the Governor shall appoint a successor
whose term begins on July 1 next following. A member is eligible
for reappointment. If there is a vacancy for any cause, the
Enrolled House Bill 2009 (HB 2009-C) Page 64
Governor shall make an appointment to become immediately
effective for the unexpired term.
(4) A member of the board not otherwise employed full-time by
the state shall be paid on a per diem basis an amount equal to
$289.22, adjusted according to the executive pay plan for the
biennium, for each day during which the member is engaged in the
performance of official duties, including necessary travel time.
In addition, subject to ORS 292.220 to 292.250 regulating travel
and other expenses of state officers and employees, the member
shall be reimbursed for actual and necessary travel and other
expenses incurred in the performance of official duties.
(5) Subject to any applicable provision of the State Personnel
Relations Law, the board may hire employees to aid it in
performing its duties.
(6) The board consists of two five-member panels. The adult
panel is responsible for persons placed under the board's
jurisdiction under ORS 161.327 and 419C.544 and consists of those
members appointed under subsection (2)(a) to (d) of this section
and one of the public members. The juvenile panel is responsible
for young persons placed under the board's jurisdiction under ORS
419C.529 and consists of those members appointed under subsection
(2)(e) to (h) of this section and the other public member.
(7)(a) Each panel shall select one of its members as
chairperson to serve for a one-year term with such duties and
powers as the panel determines.
(b) A majority of the voting members of a panel constitutes a
quorum for the transaction of business of the panel.
(8) Each panel shall meet at least twice every month, unless
the chairperson determines that there is not sufficient business
before the panel to warrant a meeting at the scheduled time. The
panel shall also meet at other times and places specified by the
call of the chairperson or of a majority of the members of the
panel.
(9)(a) When a person over whom a panel of the board exercises
its jurisdiction is adversely affected or aggrieved by a final
order of the panel, the person is entitled to judicial review of
the final order. The person is entitled on judicial review to
suitable counsel possessing skills and experience commensurate
with the nature and complexity of the case. If the person is
financially eligible, suitable counsel shall be appointed by the
reviewing court in the manner provided in ORS 138.500 (1). If the
person is financially eligible, the public defense services
executive director shall determine and pay, as provided in ORS
138.500, the cost of briefs, any other expenses of the person
necessary to the review and compensation for counsel appointed
for the person. The costs, expenses and compensation so allowed
shall be paid as provided in ORS 138.500.
(b) The order and the proceedings underlying the order are
subject to review by the Court of Appeals upon petition to that
court filed within 60 days of the order for which review is
sought. The panel shall submit to the court the record of the
proceeding or, if the person agrees, a shortened record. The
record may include a certified true copy of a tape recording of
the proceedings at a hearing in accordance with ORS 161.346. A
copy of the record transmitted shall be delivered to the person
by the panel.
(c) The court may affirm, reverse or remand the order on the
same basis as provided in ORS 183.482 (8).
Enrolled House Bill 2009 (HB 2009-C) Page 65
(d) The filing of the petition does not stay the panel's order,
but the panel or the Court of Appeals may order a stay upon
application on such terms as are deemed proper.
SECTION 110. ORS 161.390 is amended to read:
161.390. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall promulgate rules for the
assignment of persons to state mental hospitals or secure
intensive community inpatient facilities under ORS 161.341,
161.365 and 161.370 and for establishing standards for evaluation
and treatment of persons committed to a state hospital or a
secure intensive community inpatient facility, designated by the
{ - department - } { + authority + }, or ordered to a
community mental health { - and developmental disabilities - }
program under ORS 161.315 to 161.351 { - and 428.210 - } .
(2) Whenever the Psychiatric Security Review Board requires the
preparation of a predischarge or preconditional release plan
before a hearing or as a condition of granting discharge or
conditional release for a person committed under ORS 161.327 or
161.341 to a state hospital or a secure intensive community
inpatient facility for custody, care and treatment, the
{ - Department of Human Services - } { + authority + } is
responsible for and shall prepare the plan.
(3) In carrying out a conditional release plan prepared under
subsection (2) of this section, the { - Department of Human
Services - } { + authority + } may contract with a community
mental health { - and developmental disabilities - } program,
other public agency or private corporation or an individual to
provide supervision and treatment for the conditionally released
person.
SECTION 111. ORS 165.698 is amended to read:
165.698. The prosecuting attorney shall notify the
{ - Department of Human Services - } { + Oregon Health
Authority + } and any appropriate licensing boards of the
conviction of a person under ORS 165.692.
SECTION 112. ORS 166.250 is amended to read:
166.250. (1) Except as otherwise provided in this section or
ORS 166.260, 166.270, 166.274, 166.291, 166.292 or 166.410 to
166.470, a person commits the crime of unlawful possession of a
firearm if the person knowingly:
(a) Carries any firearm concealed upon the person;
(b) Possesses a handgun that is concealed and readily
accessible to the person within any vehicle; or
(c) Possesses a firearm and:
(A) Is under 18 years of age;
(B)(i) While a minor, was found to be within the jurisdiction
of the juvenile court for having committed an act which, if
committed by an adult, would constitute a felony or a misdemeanor
involving violence, as defined in ORS 166.470; and
(ii) Was discharged from the jurisdiction of the juvenile court
within four years prior to being charged under this section;
(C) Has been convicted of a felony or found guilty, except for
insanity under ORS 161.295, of a felony;
(D) Was committed to the { - Department of Human Services - }
{ + Oregon Health Authority + } under ORS 426.130; or
(E) Was found to be mentally ill and subject to an order under
ORS 426.130 that the person be prohibited from purchasing or
possessing a firearm as a result of that mental illness.
(2) This section does not prohibit:
(a) A minor, who is not otherwise prohibited under subsection
(1)(c) of this section, from possessing a firearm:
Enrolled House Bill 2009 (HB 2009-C) Page 66
(A) Other than a handgun, if the firearm was transferred to the
minor by the minor's parent or guardian or by another person with
the consent of the minor's parent or guardian; or
(B) Temporarily for hunting, target practice or any other
lawful purpose; or
(b) Any citizen of the United States over the age of 18 years
who resides in or is temporarily sojourning within this state,
and who is not within the excepted classes prescribed by ORS
166.270 and subsection (1) of this section, from owning,
possessing or keeping within the person's place of residence or
place of business any handgun, and no permit or license to
purchase, own, possess or keep any such firearm at the person's
place of residence or place of business is required of any such
citizen. As used in this subsection, 'residence' includes a
recreational vessel or recreational vehicle while used, for
whatever period of time, as residential quarters.
(3) Firearms carried openly in belt holsters are not concealed
within the meaning of this section.
(4) Unlawful possession of a firearm is a Class A misdemeanor.
SECTION 113. ORS 166.291 is amended to read:
166.291. (1) The sheriff of a county, upon a person's
application for an Oregon concealed handgun license, upon receipt
of the appropriate fees and after compliance with the procedures
set out in this section, shall issue the person a concealed
handgun license if the person:
(a)(A) Is a citizen of the United States; or
(B) Is a legal resident alien who can document continuous
residency in the county for at least six months and has declared
in writing to the United States Citizenship and Immigration
Services the intent to acquire citizenship status and can present
proof of the written declaration to the sheriff at the time of
application for the license;
(b) Is at least 21 years of age;
(c) Is a resident of the county;
(d) Has no outstanding warrants for arrest;
(e) Is not free on any form of pretrial release;
(f) Demonstrates competence with a handgun by any one of the
following:
(A) Completion of any hunter education or hunter safety course
approved by the State Department of Fish and Wildlife or a
similar agency of another state if handgun safety was a component
of the course;
(B) Completion of any National Rifle Association firearms
safety or training course if handgun safety was a component of
the course;
(C) Completion of any firearms safety or training course or
class available to the general public offered by law enforcement,
community college, or private or public institution or
organization or firearms training school utilizing instructors
certified by the National Rifle Association or a law enforcement
agency if handgun safety was a component of the course;
(D) Completion of any law enforcement firearms safety or
training course or class offered for security guards,
investigators, reserve law enforcement officers or any other law
enforcement officers if handgun safety was a component of the
course;
(E) Presents evidence of equivalent experience with a handgun
through participation in organized shooting competition or
military service;
Enrolled House Bill 2009 (HB 2009-C) Page 67
(F) Is licensed or has been licensed to carry a firearm in this
state, unless the license has been revoked; or
(G) Completion of any firearms training or safety course or
class conducted by a firearms instructor certified by a law
enforcement agency or the National Rifle Association if handgun
safety was a component of the course;
(g) Has never been convicted of a felony or found guilty,
except for insanity under ORS 161.295, of a felony;
(h) Has not been convicted of a misdemeanor or found guilty,
except for insanity under ORS 161.295, of a misdemeanor within
the four years prior to the application;
(i) Has not been committed to the { - Department of Human
Services - } { + Oregon Health Authority + } under ORS 426.130;
(j) Has not been found to be mentally ill and is not subject to
an order under ORS 426.130 that the person be prohibited from
purchasing or possessing a firearm as a result of that mental
illness;
(k) Has been discharged from the jurisdiction of the juvenile
court for more than four years if, while a minor, the person was
found to be within the jurisdiction of the juvenile court for
having committed an act that, if committed by an adult, would
constitute a felony or a misdemeanor involving violence, as
defined in ORS 166.470;
(L) Has not been convicted of an offense involving controlled
substances or participated in a court-supervised drug diversion
program, except this disability does not operate to exclude a
person if:
(A) The person has been convicted only once of violating ORS
475.864 (3) and has not completed a court-supervised drug
diversion program under ORS 135.907; or
(B) The person has completed a court-supervised drug diversion
program under ORS 135.907 and has not been convicted of violating
ORS 475.864 (3);
(m) Is not subject to a citation issued under ORS 163.735 or an
order issued under ORS 30.866, 107.700 to 107.735 or 163.738;
(n) Has not received a dishonorable discharge from the Armed
Forces of the United States; and
(o) Is not required to register as a sex offender in any state.
(2) A person who has been granted relief under ORS 166.274 or
166.293 or 18 U.S.C. 925(c) or has had the person's record
expunged under the laws of this state or equivalent laws of other
jurisdictions is not subject to the disabilities in subsection
(1)(g) to (L) of this section.
(3) Before the sheriff may issue a license:
(a) The application must state the applicant's legal name,
current address and telephone number, date and place of birth,
hair and eye color and height and weight. The application must
also list the applicant's residence address or addresses for the
previous three years. The application must contain a statement by
the applicant that the applicant meets the requirements of
subsection (1) of this section. The application may include the
Social Security number of the applicant if the applicant
voluntarily provides this number. The application must be signed
by the applicant.
(b) The applicant must submit to fingerprinting and
photographing by the sheriff. The sheriff shall fingerprint and
photograph the applicant and shall conduct any investigation
necessary to corroborate the requirements listed under subsection
(1) of this section. If a nationwide criminal records check is
necessary, the sheriff shall request the Department of State
Enrolled House Bill 2009 (HB 2009-C) Page 68
Police to conduct the check, including fingerprint
identification, through the Federal Bureau of Investigation. The
Federal Bureau of Investigation shall return the fingerprint
cards used to conduct the criminal records check and may not keep
any record of the fingerprints. The Department of State Police
shall report the results of the fingerprint-based criminal
records check to the sheriff. The Department of State Police
shall also furnish the sheriff with any information about the
applicant that the Department of State Police may have in its
possession from its central bureau of criminal identification
including, but not limited to, manual or computerized criminal
offender information.
(4) Application forms for concealed handgun licenses shall be
supplied by the sheriff upon request. The forms shall be uniform
throughout the state in substantially the following form:
_________________________________________________________________
APPLICATION FOR LICENSE TO CARRY CONCEALED HANDGUN
Date_____
I hereby declare as follows:
I am a citizen of the United States or a legal resident alien
who can document continuous residency in the county for at least
six months and have declared in writing to the United States
Citizenship and Immigration Services my intention to become a
citizen and can present proof of the written declaration to the
sheriff at the time of this application. I am at least 21 years
of age. I have been discharged from the jurisdiction of the
juvenile court for more than four years if, while a minor, I was
found to be within the jurisdiction of the juvenile court for
having committed an act that, if committed by an adult, would
constitute a felony or a misdemeanor involving violence, as
defined in ORS 166.470. I have never been convicted of a felony
or found guilty, except for insanity under ORS 161.295, of a
felony in the State of Oregon or elsewhere. I have not, within
the last four years, been convicted of a misdemeanor or found
guilty, except for insanity under ORS 161.295, of a misdemeanor.
Except as provided in ORS 166.291 (1)(L), I have not been
convicted of an offense involving controlled substances or
completed a court-supervised drug diversion program. There are no
outstanding warrants for my arrest and I am not free on any form
of pretrial release. I have not been committed to the
{ - Department of Human Services - } { + Oregon Health
Authority + } under ORS 426.130, nor have I been found mentally
ill and presently subject to an order prohibiting me from
purchasing or possessing a firearm because of mental illness. If
any of the previous conditions do apply to me, I have been
granted relief or wish to petition for relief from the disability
under ORS 166.274 or 166.293 or 18 U.S.C. 925(c) or have had the
records expunged. I am not subject to a citation issued under ORS
163.735 or an order issued under ORS 30.866, 107.700 to 107.735
or 163.738. I have never received a dishonorable discharge from
the Armed Forces of the United States. I am not required to
register as a sex offender in any state. I understand I will be
fingerprinted and photographed.
Legal name ________
Age ____ Date of birth _____
Place of birth ________
Social Security number _______
Enrolled House Bill 2009 (HB 2009-C) Page 69
(Disclosure of your Social Security account number is voluntary.
Solicitation of the number is authorized under ORS 166.291. It
will be used only as a means of identification.)
Proof of identification (Two pieces of current identification are
required, one of which must bear a photograph of the applicant.
The type of identification and the number on the identification
are to be filled in by the sheriff.):
1.________
2.________
Height ___ Weight ___
Hair color ___ Eye color ___
Current address _____
(List residence addresses for the
past three years on the back.)
City ___ County ___ Zip ___
Phone ___
I have read the entire text of this application, and the
statements therein are correct and true. (Making false statements
on this application is a misdemeanor.)
__________
(Signature of Applicant)
Character references.
__________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name Address
__________________
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
Name Address
Approved __ Disapproved __ by __
Competence with handgun demonstrated by ___ (to be filled in by
sheriff) Date ___ Fee Paid ___
License No. ___
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
(5)(a) Fees for concealed handgun licenses are:
(A) $15 to the Department of State Police for conducting the
fingerprint check of the applicant.
(B) $50 to the sheriff for the issuance or renewal of a
concealed handgun license.
Enrolled House Bill 2009 (HB 2009-C) Page 70
(C) $15 to the sheriff for the duplication of a license because
of loss or change of address.
(b) The sheriff may enter into an agreement with the Department
of Transportation to produce the concealed handgun license.
(6) No civil or criminal liability shall attach to the sheriff
or any authorized representative engaged in the receipt and
review of, or an investigation connected with, any application
for, or in the issuance, denial or revocation of, any license
under ORS 166.291 to 166.295 as a result of the lawful
performance of duties under those sections.
(7) Immediately upon acceptance of an application for a
concealed handgun license, the sheriff shall enter the
applicant's name into the Law Enforcement Data System indicating
that the person is an applicant for a concealed handgun license
or is a license holder.
(8) The county sheriff may waive the residency requirement in
subsection (1)(c) of this section for a resident of a contiguous
state who has a compelling business interest or other legitimate
demonstrated need.
(9) For purposes of subsection (1)(c) of this section, a person
is a resident of a county if the person:
(a) Has a current Oregon driver license issued to the person
showing a residence address in the county;
(b) Is registered to vote in the county and has a memorandum
card issued to the person under ORS 247.181 showing a residence
address in the county;
(c) Has documentation showing that the person currently leases
or owns real property in the county; or
(d) Has documentation showing that the person filed an Oregon
tax return for the most recent tax year showing a residence
address in the county.
SECTION 114. ORS 166.412 is amended to read:
166.412. (1) As used in this section:
(a) 'Antique firearm' has the meaning given that term in 18
U.S.C. 921;
(b) 'Department' means the Department of State Police;
(c) 'Firearm' has the meaning given that term in ORS 166.210,
except that it does not include an antique firearm;
(d) 'Firearms transaction record' means the firearms
transaction record required by 18 U.S.C. 921 to 929;
(e) 'Firearms transaction thumbprint form' means a form
provided by the department under subsection (12) of this section;
(f) 'Gun dealer' means a person engaged in the business, as
defined in 18 U.S.C. 921, of selling, leasing or otherwise
transferring a firearm, whether the person is a retail dealer,
pawnbroker or otherwise;
(g) 'Handgun' has the meaning given that term in ORS 166.210;
and
(h) 'Purchaser' means a person who buys, leases or otherwise
receives a firearm from a gun dealer.
(2) Except as provided in subsections (3)(c) and (13) of this
section, a gun dealer shall comply with the following before a
handgun is delivered to a purchaser:
(a) The purchaser shall present to the dealer current
identification meeting the requirements of subsection (4) of this
section.
(b) The gun dealer shall complete the firearms transaction
record and obtain the signature of the purchaser on the record.
(c) The gun dealer shall obtain the thumbprints of the
purchaser on the firearms transaction thumbprint form and attach
Enrolled House Bill 2009 (HB 2009-C) Page 71
the form to the gun dealer's copy of the firearms transaction
record to be filed with that copy.
(d) The gun dealer shall request by telephone that the
department conduct a criminal history record check on the
purchaser and shall provide the following information to the
department:
(A) The federal firearms license number of the gun dealer;
(B) The business name of the gun dealer;
(C) The place of transfer;
(D) The name of the person making the transfer;
(E) The make, model, caliber and manufacturer's number of the
handgun being transferred;
(F) The name and date of birth of the purchaser;
(G) The Social Security number of the purchaser if the
purchaser voluntarily provides this number to the gun dealer; and
(H) The type, issuer and identification number of the
identification presented by the purchaser.
(e) The gun dealer shall receive a unique approval number for
the transfer from the department and record the approval number
on the firearms transaction record and on the firearms
transaction thumbprint form.
(f) The gun dealer may destroy the firearms transaction
thumbprint form five years after the completion of the firearms
transaction thumbprint form.
(3)(a) Upon receipt of a request of the gun dealer for a
criminal history record check, the department shall immediately,
during the gun dealer's telephone call or by return call:
(A) Determine, from criminal records and other information
available to it, whether the purchaser is disqualified under ORS
166.470 from completing the purchase; and
(B) Notify the dealer when a purchaser is disqualified from
completing the transfer or provide the dealer with a unique
approval number indicating that the purchaser is qualified to
complete the transfer.
(b) If the department is unable to determine if the purchaser
is qualified or disqualified from completing the transfer within
30 minutes, the department shall notify the dealer and provide
the dealer with an estimate of the time when the department will
provide the requested information.
(c) If the department fails to provide a unique approval number
to a gun dealer or to notify the gun dealer that the purchaser is
disqualified under paragraph (a) of this subsection before the
close of the gun dealer's next business day following the request
by the dealer for a criminal history record check, the dealer may
deliver the handgun to the purchaser.
(4)(a) Identification required of the purchaser under
subsection (2) of this section shall include one piece of current
identification bearing a photograph and the date of birth of the
purchaser that:
(A) Is issued under the authority of the United States
Government, a state, a political subdivision of a state, a
foreign government, a political subdivision of a foreign
government, an international governmental organization or an
international quasi- governmental organization; and
(B) Is intended to be used for identification of an individual
or is commonly accepted for the purpose of identification of an
individual.
(b) If the identification presented by the purchaser under
paragraph (a) of this subsection does not include the current
address of the purchaser, the purchaser shall present a second
Enrolled House Bill 2009 (HB 2009-C) Page 72
piece of current identification that contains the current address
of the purchaser. The Superintendent of State Police may specify
by rule the type of identification that may be presented under
this paragraph.
(c) The department may require that the dealer verify the
identification of the purchaser if that identity is in question
by sending the thumbprints of the purchaser to the department.
(5) The department shall establish a telephone number that
shall be operational seven days a week between the hours of 8
a.m. and 10 p.m. for the purpose of responding to inquiries from
dealers for a criminal history record check under this section.
(6) No public employee, official or agency shall be held
criminally or civilly liable for performing the investigations
required by this section provided the employee, official or
agency acts in good faith and without malice.
(7)(a) The department may retain a record of the information
obtained during a request for a criminal records check for no
more than five years.
(b) The record of the information obtained during a request for
a criminal records check by a gun dealer is exempt from
disclosure under public records law.
(8) The { - Department of Human Services - } { + Oregon
Health Authority + } shall provide the Department of State Police
with direct electronic access to information from the
{ - Department of Human Services' - } { + authority's + }
database of information identifying persons meeting the criteria
in ORS 166.470 (1)(e) and (f) who were committed or subject to an
order under ORS 426.130. The
{ - Department of State Police and the Department of Human
Services - } { + department and the authority + } shall enter
into an agreement describing the access to information under this
subsection.
(9) A law enforcement agency may inspect the records of a gun
dealer relating to transfers of handguns with the consent of a
gun dealer in the course of a reasonable inquiry during a
criminal investigation or under the authority of a properly
authorized subpoena or search warrant.
(10) When a handgun is delivered, it shall be unloaded.
(11) In accordance with applicable provisions of ORS chapter
183, the Superintendent of State Police may adopt rules necessary
for:
(a) The design of the firearms transaction thumbprint form;
(b) The maintenance of a procedure to correct errors in the
criminal records of the department;
(c) The provision of a security system to identify dealers who
request a criminal history record check under subsection (2) of
this section; and
(d) The creation and maintenance of a database of the business
hours of gun dealers.
(12) The department shall publish the firearms transaction
thumbprint form and shall furnish the form to gun dealers on
application at cost.
(13) This section does not apply to transactions between
persons licensed as dealers under 18 U.S.C. 923.
SECTION 115. ORS 166.470 is amended to read:
166.470. (1) Unless relief has been granted under ORS 166.274,
18 U.S.C. 925(c) or the expunction laws of this state or an
equivalent law of another jurisdiction, a person may not
intentionally sell, deliver or otherwise transfer any firearm
Enrolled House Bill 2009 (HB 2009-C) Page 73
when the transferor knows or reasonably should know that the
recipient:
(a) Is under 18 years of age;
(b) Has been convicted of a felony or found guilty, except for
insanity under ORS 161.295, of a felony;
(c) Has any outstanding felony warrants for arrest;
(d) Is free on any form of pretrial release for a felony;
(e) Was committed to the { - Department of Human Services - }
{ + Oregon Health Authority + } under ORS 426.130;
(f) After January 1, 1990, was found to be mentally ill and
subject to an order under ORS 426.130 that the person be
prohibited from purchasing or possessing a firearm as a result of
that mental illness; or
(g) Has been convicted of a misdemeanor involving violence or
found guilty, except for insanity under ORS 161.295, of a
misdemeanor involving violence within the previous four years. As
used in this paragraph, 'misdemeanor involving violence' means a
misdemeanor described in ORS 163.160, 163.187, 163.190, 163.195
or 166.155 (1)(b).
(2) A person may not sell, deliver or otherwise transfer any
firearm that the person knows or reasonably should know is
stolen.
(3) Subsection (1)(a) of this section does not prohibit:
(a) The parent or guardian, or another person with the consent
of the parent or guardian, of a minor from transferring to the
minor a firearm, other than a handgun; or
(b) The temporary transfer of any firearm to a minor for
hunting, target practice or any other lawful purpose.
(4) Violation of this section is a Class A misdemeanor.
SECTION 116. ORS 169.076 is amended to read:
169.076. Each local correctional facility shall:
(1) Provide sufficient staff to perform all audio and visual
functions involving security, control, custody and supervision of
all confined detainees and prisoners, with personal inspection at
least once each hour. The supervision may include the use of
electronic monitoring equipment when approved by the Department
of Corrections and the governing body of the area in which the
facility is located.
(2) Have a comprehensive written policy with respect to:
(a) Legal confinement authority.
(b) Denial of admission.
(c) Telephone calls.
(d) Admission and release medical procedures.
(e) Medication and prescriptions.
(f) Personal property accountability which complies with ORS
133.455.
(g) Vermin and communicable disease control.
(h) Release process to include authority, identification and
return of personal property.
(i) Rules of the facility governing correspondence and
visitations.
(3) Formulate and publish plans to meet emergencies involving
escape, riots, assaults, fires, rebellions and other types of
emergencies; and regulations for the operation of the facility.
(4) Not administer any physical punishment to any prisoner at
any time.
(5) Provide for emergency medical and dental health, having
written policies providing for:
(a) Licensed physician or nurse practitioner review of the
facility's medical and dental plans.
Enrolled House Bill 2009 (HB 2009-C) Page 74
(b) The security of medication and medical supplies.
(c) A medical and dental record system to include request for
medical and dental attention, treatment prescribed,
prescriptions, special diets and other services provided.
(d) First aid supplies and staff first aid training.
(6) Prohibit firearms from the security area of the facility
except in times of emergency as determined by the administrator
of the facility.
(7) Insure that confined detainees and prisoners:
(a) Will be fed daily at least three meals served at regular
times, with no more than 14 hours between meals except when
routinely absent from the facility for work or other purposes.
(b) Will be fed nutritionally adequate meals in accordance with
a plan reviewed by a registered dietitian or the { - Department
of Human Services - } { + Oregon Health Authority + }.
(c) Be provided special diets as prescribed by the designated
facility physician or nurse practitioner.
(d) Shall have food procured, stored, prepared, distributed and
served under sanitary conditions, as defined by { - the
Department of Human Services rules as authorized by ORS
624.041 - } { + the authority under ORS 624.041 + }.
(8) Insure that the facility be clean, and provide each
confined detainee or prisoner:
(a) Materials to maintain personal hygiene.
(b) Clean clothing twice weekly.
(c) Mattresses and blankets that are clean and fire-retardant.
(9) Require each prisoner to shower at least twice weekly.
(10) Forward, without examination or censorship, each
prisoner's outgoing written communications to the Governor, jail
administrator, Attorney General, judge, Department of Corrections
or the attorney of the prisoner.
(11) Keep the facility safe and secure in accordance with the
State of Oregon Structural Specialty Code and Fire and Life
Safety Code.
(12) Have and provide each prisoner with written rules for
inmate conduct and disciplinary procedures. If a prisoner cannot
read or is unable to understand the written rules, the
information shall be conveyed to the prisoner orally.
(13) Not restrict the free exercise of religion unless failure
to impose the restriction will cause a threat to facility or
order.
(14) Safeguard and insure that the prisoner's legal rights to
access to legal materials are protected.
SECTION 117. ORS 169.690 is amended to read:
169.690. (1)(a) Before the Department of Corrections,
{ - Oregon Youth Authority or Department of Human Services - }
{ + Department of Human Services, Oregon Health Authority,
Oregon Youth Authority + } or any city, county or other public
agency establishes a facility described in paragraph (c) of this
subsection, the city, county, department, { - youth - }
authority or agency must designate a citizens advisory committee
in the proposed affected geographic area.
(b) If there is an established citizens group or neighborhood
organization in the affected geographic area which is established
or recognized by the city or county where it is located, it shall
be asked to nominate the committee. If there is none, the local
government body having jurisdiction over the affected area shall
appoint a committee selected from residents of the area.
(c) The facilities to which paragraph (a) of this subsection
applies are:
Enrolled House Bill 2009 (HB 2009-C) Page 75
(A) Halfway houses, work release centers or any other
domiciliary facilities for persons released from any penal or
correctional facility but still in the custody of the city,
county or public agency; and
(B) Youth care centers or other facilities authorized to accept
youth offenders under ORS 419C.478.
(2) The local governmental body having jurisdiction over the
affected geographic area shall appoint to the citizens advisory
committee persons from those nominated under subsection (1) of
this section and shall invite the participation of officers of
local governments having jurisdiction over the area.
(3) For each proposed house, center or other facility, the
agency responsible for establishing the house, center or facility
shall inform fully the citizens advisory committee of each
affected geographic area of the following:
(a) The proposed location, estimated population size and use;
(b) The numbers and qualifications of resident professional
staff;
(c) The proposed rules of conduct and discipline to be imposed
on residents; and
(d) Such other relevant information as the agency responsible
for establishing the house, center or facility considers
appropriate or which the advisory committee requests.
(4) The citizens advisory committee shall advise the agency
responsible for establishing the house, center or facility as to
the suitability of the proposed house, center or other facility
and may suggest changes in the proposal submitted under
subsection (3) of this section. The advice shall be in writing
and must represent the view of the majority of the committee.
(5) If the agency responsible for establishing the house,
center or facility rejects any of the advice of the citizens
advisory committee, it must submit its reasons in writing to the
committee.
(6) No person serving on a committee established under this
section should be entitled to receive any compensation or
reimbursement for service on such committee.
SECTION 118. ORS 179.010 is amended to read:
179.010. As used in this chapter, unless the context requires
otherwise { - , 'institutions' means the institutions designated
in ORS 179.321. - } { + :
(1) 'Institution' means the institutions designated in ORS
179.321.
(2) 'Agency' means:
(a) The Department of Corrections when the institution is a
Department of Corrections institution, as defined in ORS 421.005;
(b) The Department of Human Services when the institution is
the Eastern Oregon Training Center; or
(c) The Oregon Health Authority when the institution is the
Blue Mountain Recovery Center or an Oregon State Hospital
campus. + }
SECTION 119. ORS 179.040 is amended to read:
179.040. (1) { - The Department of Corrections and the
Department of Human Services - } { + The Department of
Corrections, the Department of Human Services and the Oregon
Health Authority + } shall:
(a) Govern, manage and administer the affairs of the public
institutions and works within their respective jurisdictions.
(b) Enter into contracts for the planning, erection, completion
and furnishings of all new buildings or additions at their
respective institutions.
Enrolled House Bill 2009 (HB 2009-C) Page 76
(c) Subject to any applicable provisions of ORS 279A.125,
279A.255, 279A.275, 279A.280, 279A.285, 279A.290, 279B.025,
279B.240, 279B.270, 279B.275, 279B.280 and 283.110 to 283.395,
enter into contracts for the purchase of supplies for their
respective institutions.
(d) Make and adopt rules, not inconsistent with law, for the
guidance of the { - Department of Corrections or the Department
of Human Services - } { + agencies + } and for the government
of their respective institutions.
(2) The { - Department of Corrections and the Department of
Human Services - } { + agencies + }, respectively, may:
(a) Sue and plead in all courts of law and equity.
(b) Perform all legal and peaceful acts requisite and necessary
for the successful management and maintenance of the institutions
within their respective jurisdictions.
SECTION 120. ORS 179.050 is amended to read:
179.050. The { - Department of Corrections and the Department
of Human Services - } { + Department of Corrections, the
Department of Human Services and the Oregon Health Authority + }
may receive, take and hold property, both real and personal, for
any institution within their respective jurisdictions. Title
shall be taken in the name of the state.
SECTION 121. ORS 179.055 is amended to read:
179.055. (1) The revenue from the rental or lease of property
administered by an institution governed or managed by the
{ - Department of Corrections or the Department of Human
Services - } { + Department of Corrections, the Department of
Human Services or the Oregon Health Authority + }, except
dormitory and housing rentals at institutions governed by
{ - either department - } { + the agencies + }, shall be
deposited in the account of the respective { - department - }
{ + agency + } for use by the respective { - department - }
{ + agency + } to pay for the cost of administration, taxes,
repairs and improvements on the property.
(2) The { - Department of Corrections or Department of Human
Services - } { + agencies + } may request the Oregon Department
of Administrative Services to make necessary repairs and
improvements on the property described in subsection (1) of this
section to be paid for by the { - Department of Corrections or
Department of Human Services - } { + agencies + } from the
proceeds derived from such rental or lease of the property or
from appropriations otherwise available.
SECTION 122. ORS 179.065 is amended to read:
179.065. The { - Department of Corrections and the Department
of Human Services - } { + Department of Corrections, the
Department of Human Services and the Oregon Health Authority + }
shall have the same powers with respect to furnishing heat,
light, power, sewage, fire protection and communications
facilities to institutions under their respective jurisdictions
as is granted to the Oregon Department of Administrative Services
under ORS 276.210 to 276.228, 276.234 to 276.244, 276.250 and
276.252. The powers shall be exercised in accordance with and
subject to the provisions of such sections.
SECTION 123. ORS 179.105 is amended to read:
179.105. (1) For a purpose of ORS 179.040, including aid and
support of research in any of the institutions, the
{ - Department of Corrections and the Department of Human
Services - } { + Department of Corrections, the Department of
Human Services and the Oregon Health Authority + } may in their
respective discretions accept from the United States or any of
Enrolled House Bill 2009 (HB 2009-C) Page 77
its agencies financial assistance and grants in the form of money
or labor, or from any other source any donation or grant of land
or gift of money or any other thing. Funds accepted in
accordance with the provisions of this section and ORS 179.110
shall be deposited with the State Treasurer and, subject to
subsection (2) of this section, are continuously appropriated to
the Department of Corrections { + , the + } { - or - }
Department of Human Services { + or the Oregon Health
Authority + }, as appropriate, and may be expended by the
Department { + of Corrections, the Department of Human Services
or the Oregon Health Authority + } according to the conditions
and terms of the grant or donation.
(2) Funds received under subsection (1) of this section or ORS
179.110 shall be expended subject to expenditure limitations
imposed on the Department of Corrections { + , the + }
{ - or - } Department of Human Services { + or the Oregon
Health Authority + } by the Legislative Assembly or, in the
absence of such limitations, only after approval of the
Legislative Assembly or of the Emergency Board, if approval is
required during the interim between sessions of the Legislative
Assembly.
(3) In any case where prior approval of the authority to expend
any funds available under subsection (1) of this section or ORS
179.110 is imposed as a term or condition of receipt of such
funds, the Legislative Assembly or the Emergency Board may
approve expenditures of such funds prior to their receipt.
SECTION 124. ORS 179.110 is amended to read:
179.110. Subject to the approval of the Director of the Oregon
Department of Administrative Services, the { - Department of
Corrections and the Department of Human Services - }
{ + Department of Corrections, the Department of Human Services
and the Oregon Health Authority + }, respectively, may accept and
receive grants of funds from the United States or any of its
agencies for the construction, equipment and betterment of any of
the institutions under its jurisdiction and may cooperate with
the United States or its agencies in such construction, equipment
and betterment. Any balances of appropriations for capital outlay
for any institution resulting from the use of funds so received
shall be placed in a common fund. The Department of
Corrections { + , + } { - and - } the Department of Human
Services { + and the Oregon Health Authority + } are authorized
and empowered in their discretion to expend such common fund or
any portion thereof in the construction, equipment or betterment
of any institution under its jurisdiction.
SECTION 125. ORS 179.140 is amended to read:
179.140. Subject to any applicable provision of ORS 279A.125,
279A.255, 279A.275, 279A.280, 279A.285, 279A.290, 279B.025,
279B.240, 279B.270, 279B.275, 279B.280, 283.110 to 283.395 and
291.232 to 291.260, all claims for supplies or materials
furnished or services rendered to institutions shall be audited
and approved as provided by law, upon the presentation of duly
verified vouchers therefor, approved in writing by the Director
of the Department of Corrections { + , + } { - or by - } the
Director of Human Services { + or the Director of the Oregon
Health Authority + }, or by their designees.
SECTION 126. ORS 179.150 is amended to read:
179.150. No officer of the Department of Corrections { + , + }
{ - or - } the Department of Human Services { + or the Oregon
Health Authority + } or officer, employee or other person
connected with an institution shall be pecuniarily interested in
Enrolled House Bill 2009 (HB 2009-C) Page 78
any contract for supplies or services furnished or rendered to an
institution, other than the services of regular employment.
SECTION 127. ORS 179.210 is amended to read:
179.210. (1) The Department of Human Services, the Department
of Corrections { + , the Oregon Health Authority + } and the
Superintendent of Public Instruction may audit, allow and pay a
claim for damage to property made by an employee of one of those
agencies if:
(a) The damage to property arises out of the claimant's
employment at one of the institutions or facilities operated by
the { - Department of Human Services or the Department of
Corrections - } { + agencies + }, or one of the schools
operated by the Superintendent of Public Instruction under ORS
346.010; and
(b) The employee files a written claim with the employee's
employer within 180 days after the employee discovers or should
have discovered the damage.
(2) No claim under subsection (1) of this section shall be
paid:
(a) That exceeds, in the aggregate with payments of other
claims, the moneys appropriated for such purpose.
(b) To the extent that the person incurring damage has been or
may be compensated by liability insurance or otherwise.
(c) If the { - Department of Human Services, the Department
of Corrections - } { + agencies + } or the Superintendent of
Public Instruction determines the cause or occasion of the
accident resulting in damage is chargeable to the conduct or
negligence of the party damaged.
SECTION 128. ORS 179.230 is amended to read:
179.230. The decision of the Department of Human Services, the
Department of Corrections { + , the Oregon Health Authority + }
or the Superintendent of Public Instruction to reject any claim
filed under ORS 179.210 is final, and is not subject to review
under ORS chapter 183, or by any other agency or court. The
provisions of this section do not affect any other remedy that
may be available to the claimant under law.
SECTION 129. ORS 179.240 is amended to read:
179.240. (1) If any person owes a debt to this state or a state
agency, and the debt has been fixed by final judgment of a court
of competent jurisdiction or is no longer subject to judicial
review, the { - Department of Corrections or the Department of
Human Services - } { + Department of Corrections, the
Department of Human Services or the Oregon Health Authority + }
shall deduct the amount of the debt from any award made to that
person under ORS 179.210.
(2) The { - Department of Corrections or the Department of
Human Services - } { + agencies + } shall request the State
Treasurer to transfer to the appropriate fund or account to which
the debt is owed, an amount equal to the amount deducted from the
award under subsection (1) of this section, for use during that
biennium in accordance with law by the state agency administering
the fund or account to which the debt is owed. The State
Treasurer shall evidence the transfer by proper bookkeeping
entries. If the
{ - Department of Corrections, Department of Human Services - }
{ + Department of Corrections, the Department of Human Services,
the Oregon Health Authority + } or { + the + } State Treasurer
cannot determine the appropriate fund or account, the amount
shall be transferred to the General Fund for general governmental
purposes.
Enrolled House Bill 2009 (HB 2009-C) Page 79
(3) Any debt owed by a person to this state or a state agency
is satisfied, upon the completion of a transfer made pursuant to
subsection (2) of this section, to the extent of the amount so
transferred.
SECTION 130. ORS 179.321 is amended to read:
179.321. (1) The Department of Human Services shall operate,
control, manage and supervise { - the Blue Mountain Recovery
Center, the Eastern Oregon Training Center and the Oregon State
Hospital - } { + the Eastern Oregon Training Center + }.
{ + (2) The Oregon Health Authority shall operate, control,
manage and supervise the Blue Mountain Recovery Center and the
Oregon State Hospital campuses. + }
{ - (2) - } { + (3) + } The Department of Corrections shall
operate, control, manage and supervise those institutions defined
as Department of Corrections institutions in ORS 421.005.
SECTION 131. ORS 179.325 is amended to read:
179.325. { + (1) + } The Department of Human Services may
order the change, in all or part, of the purpose and use of any
state institution being used as an institution for the care and
treatment of persons with { - mental illness or - } mental
retardation in order to care for persons committed to its custody
whenever the department determines that a change in purpose and
use will better enable { - the - } { + this + } state to meet
its responsibilities to persons with { - mental illness or - }
mental retardation. In determining whether to order the change,
the department shall consider changes in the number and source of
the admissions of persons with { - mental illness or - }
mental retardation.
{ + (2) The Oregon Health Authority may order the change, in
all or part, of the purpose and use of any state institution
being used as an institution for the care and treatment of
persons with mental illness in order to care for persons
committed to its custody whenever the authority determines that a
change in purpose and use will better enable this state to meet
its responsibilities to persons with mental illness. In
determining whether to order the change, the authority shall
consider changes in the number and source of the admissions of
persons with mental illness. + }
SECTION 132. ORS 179.331 is amended to read:
179.331. (1) The superintendents shall be appointed and,
whenever the public service requires such action, may be removed,
suspended or discharged, as follows:
(a) { - Superintendents of institutions described in ORS
179.321 (1) - } { + The superintendent of the Eastern Oregon
Training Center + }, by the Director of Human Services.
{ + (b) The superintendents of the Blue Mountain Recovery
Center and the Oregon State Hospital, by the Director of the
Oregon Health Authority. + }
{ - (b) - } { + (c) The + } superintendents of Department
of Corrections institutions as defined in ORS 421.005, by the
Director of the Department of Corrections.
(2) For purposes of the State Personnel Relations Law, the
superintendents are assigned to the unclassified service.
SECTION 133. ORS 179.360 is amended to read:
179.360. (1) Each superintendent shall:
(a) Have custody of the residents of the institution under
jurisdiction of the superintendent.
(b) Direct the care, custody and training of the residents
unless otherwise directed by law or by rule.
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(c) Adopt sanitary measures for the health and comfort of the
residents.
(d) Promote the mental, moral and physical welfare and
development of the residents.
(e) Enjoy the other powers and privileges and perform the other
duties that are prescribed by law or by rule or that naturally
attach themselves to the position of superintendent.
(f) Designate a physician licensed by the Oregon Medical Board
to serve as chief medical officer as provided in ORS 426.020 and
427.010, who will be directly responsible to the superintendent
for administration of the medical treatment programs at the
institution and assume such other responsibilities as are
assigned by the superintendent.
(2) { - The Director of the Department of Corrections or the
Director of Human Services - } { + The Director of the
Department of Corrections, the Director of Human Services and the
Director of the Oregon Health Authority + } shall prescribe for
their respective institutions:
(a) The duties of the superintendents where the duties are not
prescribed by law.
(b) The additional duties, beyond those prescribed by law, that
{ - the Director of the Department of Corrections or the
Director of Human Services - } { + each agency director + }
considers necessary for the good of the public service.
SECTION 134. ORS 179.370 is amended to read:
179.370. { - The Director of the Department of Corrections or
the Director of Human Services - } { + The Director of the
Department of Corrections, the Director of Human Services or the
Director of the Oregon Health Authority + } may require that a
superintendent reside in state-provided housing at the
institution under the jurisdiction of the superintendent. The
rental shall be determined pursuant to ORS 182.425.
SECTION 135. ORS 179.375 is amended to read:
179.375. (1) The { - Department of Corrections and the
Department of Human Services - } { + Department of Corrections,
the Department of Human Services and the Oregon Health
Authority + } shall
{ - insure - } { + ensure + } that adequate chaplaincy
services, including but not limited to Protestant and Roman
Catholic, are available at their respective institutions.
(2) Chaplains serving the various institutions shall, with
respect to the inmates or patients at such institutions:
(a) Provide for and attend to their spiritual needs.
(b) Visit them for the purpose of giving religious and moral
instruction.
(c) Participate in the rehabilitation programs affecting them.
SECTION 136. ORS 179.380 is amended to read:
179.380. (1) The { - Department of Corrections and the
Department of Human Services - } { + Department of Corrections,
the Department of Human Services and the Oregon Health
Authority + } shall authorize the employment of all necessary
physicians, attendants, nurses, engineers, messengers, clerks,
guards, cooks, waiters and other officers and employees not
specifically authorized by law and necessary to the successful
maintenance of their respective institutions. The amounts
expended for the services of such officers and employees shall
not exceed the amounts provided therefor in the biennial
appropriations for the institution.
(2) The { - Department of Corrections and the Department of
Human Services - } { + agencies + } shall designate in their
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respective rules which employees shall be officers, and shall
require all officers to take and subscribe to an oath of office
and, if the circumstances require it, to furnish bonds.
SECTION 137. ORS 179.385 is amended to read:
179.385. The { - Department of Corrections and the Department
of Human Services - } { + Department of Corrections, the
Department of Human Services and the Oregon Health Authority + },
respectively, may establish scholarship programs to provide
assistance in securing qualified personnel at state institutions
governed by them. Scholarships authorized by this section shall
be granted in accordance with rules and regulations adopted
respectively by the
{ - departments - } { + agencies + }.
SECTION 138. ORS 179.390 is amended to read:
179.390. (1) The superintendent of an institution { - other
than an institution within the jurisdiction of the Department of
Human Services shall, subject to the approval of the Director of
Human Services or the - } { + within the jurisdiction of the
Department of Corrections shall, subject to the approval of
the + } Director of the Department of Corrections, appoint in the
manner provided by law all assistants, officers and other
employees at the institution under the jurisdiction of the
superintendent. The superintendent may suspend or remove an
assistant, officer or other employee in the manner provided by
law, reporting all acts of suspension or removal to the
{ - Director of Human Services or - } Director of the
Department of Corrections for approval or disapproval. { - The
Director of Human Services or Director of the Department of
Corrections shall fix the salaries of assistants, officers and
employees where their salary is not fixed by law. The Director of
Human Services or Director of the Department of Corrections
shall, subject to any applicable provisions of the State
Personnel Relations Law, suspend or discharge any subordinate of
a superintendent when public service requires such action. - }
{ + (2) The Director of the Department of Corrections, the
Director of Human Services and the Director of the Oregon Health
Authority shall:
(a) Fix the salaries of assistants, officers and employees
where their salary is not fixed by law.
(b) Suspend or discharge any subordinate of a superintendent
when public service requires such action, except when suspending
or discharging the subordinate violates the State Personnel
Relations Law. + }
{ - (2) - } { + (3) + } The Director of Human Services or a
designee at
{ - each - } { + a + } facility under jurisdiction of the
Department of Human Services shall, as provided by law, appoint,
suspend or discharge an employee of the department. The Director
of Human Services may designate up to three employees at each
facility to act in the name of the director in accordance with
ORS 240.400.
{ + (4) The Director of the Oregon Health Authority or a
designee at a facility under jurisdiction of the Oregon Health
Authority shall, as provided by law, appoint, suspend or
discharge an employee of the authority. The director may
designate up to three employees at each facility to act in the
name of the director in accordance with ORS 240.400. + }
{ - (3) - } { + (5) + } In addition to or in lieu of
employing physicians, the Director of the Department of
Corrections or the designee thereof may contract for the personal
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services of physicians licensed to practice medicine by the
Oregon Medical Board to serve as medical advisors for the
{ - Department of Human Services - } { + Oregon Health
Authority + }. Advisors under such contracts shall be directly
responsible for administration of medical treatment programs at
penal and correctional institutions, as defined in ORS 421.005.
SECTION 139. ORS 179.450 is amended to read:
179.450. The { - Department of Corrections may direct the
employment of able-bodied persons at the Department of
Corrections institutions and the Department of Human Services may
direct the employment of able-bodied persons at institutions for
persons with mental illness or mental retardation - }
{ + Department of Corrections, the Department of Human Services
and the Oregon Health Authority may direct the employment of
able-bodied persons at the agencies' respective institutions + },
in the performance of useful work upon land owned by the state if
it does not compete with free labor. Work may not be performed
upon any such land except by consent and approval of the agency
of the state having management of the land.
SECTION 140. ORS 179.460 is amended to read:
179.460. (1) In order to encourage industry and thereby
increase productiveness in the institutions, the { - Department
of Corrections and the Department of Human Services - }
{ + Department of Corrections, the Department of Human Services
and the Oregon Health Authority + } shall prescribe rules and
regulations for the sale and exchange of surplus products of
each.
(2) The funds derived from the sale of the surplus products
shall be paid into the State Treasury and become a part of a fund
to be known as the State Institutional Betterment Fund, which
fund shall be expended by the { - Department of Corrections and
the Department of Human Services - } { + agencies + },
respectively, for the benefit of the institutions in proportion
to the amount earned by each.
(3) The provisions of this section apply to schools operated
under ORS 346.010.
SECTION 141. ORS 179.473 is amended to read:
179.473. (1) Whenever the health and welfare of the person and
the efficient administration of the institution require the
transfer of an inmate of a Department of Corrections institution
or a youth offender in a youth correction facility to another
institution:
(a) The Department of Corrections or the Oregon Youth
Authority, with the consent of the Department of Human Services,
may transfer a person at any institution under its jurisdiction
to an institution for persons with mental retardation, or, with
the consent of the Oregon Health and Science University, to the
Oregon Health and Science University.
(b) The Department of Corrections may transfer an inmate of a
Department of Corrections institution to a state mental hospital
listed in ORS 426.010 for evaluation and treatment pursuant to
rules adopted jointly by the Department of Corrections and the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(c) The Oregon Youth Authority may transfer a youth offender or
other person confined in a youth correction facility to a
hospital or facility designated by the { - Department of Human
Services - } { + Oregon Health Authority + } for evaluation and
treatment pursuant to rules adopted jointly by the Oregon Youth
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Authority and the { - Department of Human Services - }
{ + Oregon Health Authority + }.
(d) Except as provided in subsection (2) of this section, the
Department of Corrections or the Oregon Youth Authority may make
a transfer of a person from any institution under the
jurisdiction of the department or { + the Oregon Youth + }
Authority to any other institution under the jurisdiction of the
department or authority.
(2) A youth offender in a youth correction facility may not be
transferred to a Department of Corrections institution under
subsection (1) of this section. A youth offender in a youth
correction facility who has been transferred to another
institution may not be transferred from such other institution to
a Department of Corrections institution.
(3) The rules adopted under subsection (1)(b) and (c) of this
section must:
(a) Provide the inmate or youth offender with the rights to
which persons are entitled under ORS 179.485.
(b) Provide that a transfer of an inmate or a youth offender to
the { - Department of Human Services - } { + Oregon Health
Authority + } for stabilization and evaluation for treatment may
not exceed 30 days unless the transfer is extended pursuant to a
hearing required by paragraph (c) of this subsection.
(c) Provide for an administrative commitment hearing if:
(A) The { - Department of Human Services - } { + Oregon
Health Authority + } determines that administrative commitment
for treatment for a mental illness is necessary or advisable or
that the
{ - Department of Human Services - } { + authority + } needs
more than 30 days to stabilize or evaluate the inmate or youth
offender for treatment; and
(B) The inmate or youth offender does not consent to the
administrative commitment or an extension of the transfer.
(d) Provide for, at a minimum, all of the following for the
administrative commitment hearing process:
(A) Written notice to the inmate or youth offender that an
administrative commitment to a state mental hospital listed in
ORS 426.010 or a hospital or facility designated by the
{ - Department of Human Services - } { + Oregon Health
Authority + } or an extension of the transfer is being
considered. The notice required by this subparagraph must be
provided far enough in advance of the hearing to permit the
inmate or youth offender to prepare for the hearing.
(B) Disclosure to the inmate or youth offender, at the hearing,
of the evidence that is being relied upon for the administrative
commitment or the extension of the transfer.
(C) An opportunity, at the hearing, for the inmate or youth
offender to be heard in person and to present documentary
evidence.
(D) An opportunity, at the hearing, for the inmate or youth
offender to present the testimony of witnesses and to confront
and cross-examine witnesses called by the state. The opportunity
required by this subparagraph may be denied upon a finding by the
decision maker of good cause for not permitting the inmate or
youth offender to present the testimony of witnesses or confront
or cross-examine witnesses called by the state.
(E) An independent decision maker for the hearing.
(F) A written statement by the decision maker of the evidence
relied upon by the decision maker and the reasons for
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administratively committing the inmate or youth offender or
extending the transfer.
(G) A qualified and independent assistant for the inmate or
youth offender to be provided by the state if the inmate or youth
offender is financially unable to provide one.
(H) Effective and timely notice of the procedures required by
subparagraphs (A) to (G) of this paragraph.
(e) Provide that an inmate or a youth offender may not be
administratively committed involuntarily unless the independent
decision maker finds by clear and convincing evidence that the
inmate or youth offender is a mentally ill person as defined in
ORS 426.005.
(f) Provide that the duration of an administrative commitment
pursuant to an administrative commitment hearing be no more than
180 days unless the administrative commitment is renewed in a
subsequent administrative commitment hearing. Notwithstanding
this paragraph, an administrative commitment may not continue
beyond the term of incarceration to which the inmate was
sentenced or beyond the period of time that the youth offender
may be placed in a youth correction facility.
SECTION 142. ORS 179.479 is amended to read:
179.479. (1) The superintendent or other chief executive
officer of an institution described in ORS 179.321 may, when
authorized by regulation or direction of the { - Department of
Corrections or Department of Human Services - } { + Department
of Corrections, the Department of Human Services or the Oregon
Health Authority + }, convey an inmate to a physician, clinic or
hospital, including the Oregon Health and Science University, for
medical, surgical or dental treatment when such treatment cannot
satisfactorily be provided at the institution. An inmate conveyed
for treatment pursuant to this section shall be kept in the
custody of the institution from which the inmate is conveyed.
(2) The Department of Corrections { + , + } { - and - } the
Department of Human Services { - each - } { + and the Oregon
Health Authority + } shall prescribe rules and regulations
governing conveyances authorized by this section.
SECTION 143. ORS 179.490 is amended to read:
179.490. In the case of a necessary or emergency operation,
requiring the services of a specialist, and where the relatives
or guardians, in the judgment of the { - Department of
Corrections or Department of Human Services - } { + Department
of Corrections, the Department of Human Services or the Oregon
Health Authority + }, are unable to pay a part or the whole cost
of the operation, { - either department, in its discretion, - }
{ + the agencies + } may have the operation performed, the cost
of the operation to be payable from the funds of the institution
concerned.
SECTION 144. ORS 179.492 is amended to read:
179.492. (1) The { - Department of Human Services or the
Department of Corrections - } { + Department of Corrections,
the Department of Human Services or the Oregon Health
Authority + } shall dispense as written a prescription for a
brand-name mental health drug prescribed for a person while the
person is in the custody of an institution described in ORS
179.321 if the prescription specifies 'dispense as written' or
contains the notation ' D.A.W.' or other words of similar
meaning.
(2) If, at the time of commitment to the custody of an
institution described in ORS 179.321, a person has a prescription
for a specified brand-name mental health drug and the
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prescription specifies 'dispense as written' or contains the
notation ' D.A.W.' or other words of similar meaning, the
{ - Department of Human Services or the - } Department of
Corrections { + , the Department of Human Services or the Oregon
Health Authority + } shall ensure that the person is prescribed
the specified brand-name drug until a licensed health
professional with prescriptive privileges evaluates the person
and becomes responsible for the treatment of the person.
SECTION 145. ORS 179.505 is amended to read:
179.505. (1) As used in this section:
(a) 'Disclosure' means the release of, transfer of, provision
of access to or divulgence in any other manner of information
outside the health care services provider holding the
information.
(b) 'Health care services provider' means:
(A) Medical personnel or other staff employed by or under
contract with a public provider to provide health care or
maintain written accounts of health care provided to individuals;
or
(B) Units, programs or services designated, operated or
maintained by a public provider to provide health care or
maintain written accounts of health care provided to individuals.
(c) 'Individually identifiable health information' means any
health information that is:
(A) Created or received by a health care services provider; and
(B) Identifiable to an individual, including demographic
information that identifies the individual, or for which there is
a reasonable basis to believe the information can be used to
identify an individual, and that relates to:
(i) The past, present or future physical or mental health or
condition of an individual;
(ii) The provision of health care to an individual; or
(iii) The past, present or future payment for the provision of
health care to an individual.
(d) 'Personal representative' includes but is not limited to:
(A) A person appointed as a guardian under ORS 125.305,
419B.370, 419C.481 or 419C.555 with authority to make medical and
health care decisions;
(B) A person appointed as a health care representative under
ORS 127.505 to 127.660 or a representative under ORS 127.700 to
127.737 to make health care decisions or mental health treatment
decisions; and
(C) A person appointed as a personal representative under ORS
chapter 113.
(e) 'Psychotherapy notes' means notes recorded in any medium:
(A) By a mental health professional, in the performance of the
official duties of the mental health professional;
(B) Documenting or analyzing the contents of conversation
during a counseling session; and
(C) That are maintained separately from the rest of the
individual's record.
(f) 'Psychotherapy notes' does not mean notes documenting:
(A) Medication prescription and monitoring;
(B) Counseling session start and stop times;
(C) Modalities and frequencies of treatment furnished;
(D) Results of clinical tests; or
(E) Any summary of the following items:
(i) Diagnosis;
(ii) Functional status;
(iii) Treatment plan;
Enrolled House Bill 2009 (HB 2009-C) Page 86
(iv) Symptoms;
(v) Prognosis; or
(vi) Progress to date.
(g) 'Public provider' means:
(A) The { - state institutions for the care and treatment of
individuals with mental illness or developmental disabilities
operated by the Department of Human Services - } { + Blue
Mountain Recovery Center, the Eastern Oregon Training Center and
the Oregon State Hospital campuses + };
(B) Department of Corrections institutions as defined in ORS
421.005;
(C) A contractor of the { - Department of Human Services or
the Department of Corrections - } { + Department of
Corrections, the Department of Human Services or the Oregon
Health Authority + } that provides health care to individuals
residing in a state institution operated by the { - Department
of Human Services or the Department of Corrections - }
{ + agencies + };
(D) A community mental health { - and - } { + program or
community + } developmental disabilities program as described in
ORS 430.610 to 430.695 and the public and private entities with
which it contracts to provide mental health or developmental
disabilities programs or services;
(E) A program or service provided under ORS 431.250, 431.375 to
431.385 or 431.416;
(F) A program or service { - licensed, approved, established,
maintained or operated by or contracted with the Department of
Human Services under ORS 430.630 for individuals with
developmental disabilities and individuals with mental or
emotional disturbances - } { + established or maintained under
ORS 430.630 + };
(G) A program or facility providing an organized full-day or
part-day program of treatment that is licensed, approved,
established, maintained or operated by or contracted with the
{ - Department of Human Services - } { + Oregon Health
Authority + } for alcoholism, drug addiction or mental or
emotional disturbance; or
(H) A program or service providing treatment by appointment
that is licensed, approved, established, maintained or operated
by or contracted with the { - Department of Human Services - }
{ + authority + } for alcoholism, drug addiction or mental or
emotional disturbance.
(h) 'Written account' means records containing only
individually identifiable health information.
(2) Except as provided in subsections (3), (4), (6), (7), (8),
(9), (11), (12), (14), (15), (16) and (17) of this section or
unless otherwise permitted or required by state or federal law or
by order of the court, written accounts of the individuals served
by any health care services provider maintained in or by the
health care services provider by the officers or employees
thereof who are authorized to maintain written accounts within
the official scope of their duties are not subject to access and
may not be disclosed. This subsection applies to written accounts
maintained in or by facilities of the Department of Corrections
only to the extent that the written accounts concern the medical,
dental or psychiatric treatment as patients of those under the
jurisdiction of the Department of Corrections.
(3) If the individual or a personal representative of the
individual provides an authorization, the content of any written
account referred to in subsection (2) of this section must be
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disclosed accordingly, if the authorization is in writing and is
signed and dated by the individual or the personal representative
of the individual and sets forth with specificity the following:
(a) Name of the health care services provider authorized to
make the disclosure, except when the authorization is provided by
recipients of or applicants for public assistance to a
governmental entity for purposes of determining eligibility for
benefits or investigating for fraud;
(b) Name or title of the persons or organizations to which the
information is to be disclosed or that information may be
disclosed to the public;
(c) Name of the individual;
(d) Extent or nature of the information to be disclosed; and
(e) Statement that the authorization is subject to revocation
at any time except to the extent that action has been taken in
reliance thereon, and a specification of the date, event or
condition upon which it expires without express revocation.
However, a revocation of an authorization is not valid with
respect to inspection or records necessary to validate
expenditures by or on behalf of governmental entities.
(4) The content of any written account referred to in
subsection (2) of this section may be disclosed without an
authorization:
(a) To any person to the extent necessary to meet a medical
emergency.
(b) At the discretion of the responsible officer of the health
care services provider, which in the case of any
{ - Department of Human Services facility or community mental
health and developmental disabilities program shall be the
Director of Human Services - } { + Oregon Health Authority
facility or community mental health program is the Director of
the Oregon Health Authority + }, to persons engaged in scientific
research, program evaluation, peer review and fiscal audits.
However, individual identities may not be disclosed to such
persons, except when the disclosure is essential to the research,
evaluation, review or audit and is consistent with state and
federal law.
(c) To governmental agencies when necessary to secure
compensation for services rendered in the treatment of the
individual.
(5) When an individual's identity is disclosed under subsection
(4) of this section, a health care services provider shall
prepare, and include in the permanent records of the health care
services provider, a written statement indicating the reasons for
the disclosure, the written accounts disclosed and the recipients
of the disclosure.
(6) The content of any written account referred to in
subsection (2) of this section and held by a health care services
provider currently engaged in the treatment of an individual may
be disclosed to officers or employees of that provider, its
agents or cooperating health care services providers who are
currently acting within the official scope of their duties to
evaluate treatment programs, to diagnose or treat or to assist in
diagnosing or treating an individual when the written account is
to be used in the course of diagnosing or treating the
individual. Nothing in this subsection prevents the transfer of
written accounts referred to in subsection (2) of this section
among health care services providers, the Department of Human
Services, the Department of Corrections { + , the Oregon Health
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Authority + } or a local correctional facility when the transfer
is necessary or beneficial to the treatment of an individual.
(7) When an action, suit, claim, arbitration or proceeding is
brought under ORS 34.105 to 34.240 or 34.310 to 34.730 and
involves a claim of constitutionally inadequate medical care,
diagnosis or treatment, or is brought under ORS 30.260 to 30.300
and involves the Department of Corrections or an institution
operated by the department, nothing in this section prohibits the
disclosure of any written account referred to in subsection (2)
of this section to the Department of Justice, Oregon Department
of Administrative Services, or their agents, upon request, or the
subsequent disclosure to a court, administrative hearings
officer, arbitrator or other administrative decision maker.
(8)(a) When an action, suit, claim, arbitration or proceeding
involves { - the Department of Human Services or an institution
operated by the department - } { + the Department of Human
Services, the Oregon Health Authority or an institution operated
by the department or authority + }, nothing in this section
prohibits the disclosure of any written account referred to in
subsection (2) of this section to the Department of Justice,
Oregon Department of Administrative Services, or their agents.
(b) Disclosure of information in an action, suit, claim,
nonlabor arbitration or proceeding is limited by the relevancy
restrictions of ORS 40.010 to 40.585, 183.710 to 183.725, 183.745
and 183.750 and ORS chapter 183. Only written accounts of a
plaintiff, claimant or petitioner shall be disclosed under this
paragraph.
(c) Disclosure of information as part of a labor arbitration or
proceeding to support a personnel action taken against staff is
limited to written accounts directly relating to alleged action
or inaction by staff for which the personnel action was imposed.
(9)(a) The copy of any written account referred to in
subsection (2) of this section, upon written request of the
individual or a personal representative of the individual, shall
be disclosed to the individual or the personal representative of
the individual within a reasonable time not to exceed five
working days. The individual or the personal representative of
the individual shall have the right to timely access to any
written accounts.
(b) If the disclosure of psychiatric or psychological
information contained in the written account would constitute an
immediate and grave detriment to the treatment of the individual,
disclosure may be denied, if medically contraindicated by the
treating physician or a licensed health care professional in the
written account of the individual.
(c) The Department of Corrections may withhold psychiatric or
psychological information if:
(A) The information relates to an individual other than the
individual seeking it.
(B) Disclosure of the information would constitute a danger to
another individual.
(C) Disclosure of the information would compromise the privacy
of a confidential source.
(d) However, a written statement of the denial under paragraph
(c) of this subsection and the reasons therefor must be entered
in the written account.
(10) A health care services provider may require a person
requesting disclosure of the contents of a written account under
this section to reimburse the provider for the reasonable costs
incurred in searching files, abstracting if requested and copying
Enrolled House Bill 2009 (HB 2009-C) Page 89
if requested. However, an individual or a personal representative
of the individual may not be denied access to written accounts
concerning the individual because of inability to pay.
(11) A written account referred to in subsection (2) of this
section may not be used to initiate or substantiate any criminal,
civil, administrative, legislative or other proceedings conducted
by federal, state or local authorities against the individual or
to conduct any investigations of the individual. If the
individual, as a party to an action, suit or other judicial
proceeding, voluntarily produces evidence regarding an issue to
which a written account referred to in subsection (2) of this
section would be relevant, the contents of that written account
may be disclosed for use in the proceeding.
(12) Information obtained in the course of diagnosis,
evaluation or treatment of an individual that, in the
professional judgment of the health care services provider,
indicates a clear and immediate danger to others or to society
may be reported to the appropriate authority. A decision not to
disclose information under this subsection does not subject the
provider to any civil liability. Nothing in this subsection may
be construed to alter the provisions of ORS 146.750, 146.760,
419B.010, 419B.015, 419B.020, 419B.025, 419B.030, 419B.035,
419B.040 and 419B.045.
(13) The prohibitions of this section apply to written accounts
concerning any individual who has been treated by any health care
services provider irrespective of whether or when the individual
ceases to receive treatment.
(14) Persons other than the individual or the personal
representative of the individual who are granted access under
this section to the contents of a written account referred to in
subsection (2) of this section may not disclose the contents of
the written account to any other person except in accordance with
the provisions of this section.
(15) Nothing in this section prevents the Department of Human
Services { + or the Oregon Health Authority + } from disclosing
the contents of written accounts in its possession to individuals
or agencies with whom children in its custody are placed.
(16) The system described in ORS 192.517 (1) shall have access
to records, as defined in ORS 192.515, as provided in ORS
192.517.
(17)(a) Except as provided in paragraph (b) of this subsection,
a health care services provider must obtain an authorization from
an individual or a personal representative of the individual to
disclose psychotherapy notes.
(b) A health care services provider may use or disclose
psychotherapy notes without obtaining an authorization from the
individual or a personal representative of the individual to
carry out the following treatment, payment and health care
operations:
(A) Use by the originator of the psychotherapy notes for
treatment;
(B) Disclosure by the health care services provider for its own
training program in which students, trainees or practitioners in
mental health learn under supervision to practice or improve
their skills in group, joint, family or individual counseling; or
(C) Disclosure by the health care services provider to defend
itself in a legal action or other proceeding brought by the
individual or a personal representative of the individual.
(c) An authorization for the disclosure of psychotherapy notes
may not be combined with an authorization for a disclosure of any
Enrolled House Bill 2009 (HB 2009-C) Page 90
other individually identifiable health information, but may be
combined with another authorization for a disclosure of
psychotherapy notes.
SECTION 146. ORS 179.509 is amended to read:
179.509. (1) The superintendent of each state institution shall
submit quarterly reports on the number of deaths, including the
ages of the deceased, the causes of death and the disposition of
the remains, within the institution to the { - Department of
Human Services or to the Department of Corrections - }
{ + Department of Corrections, the Department of Human Services
or the Oregon Health Authority + }, as the case may be, having
jurisdiction over the institution.
(2) The { - Department of Human Services or the Department of
Corrections - } { + agencies + } shall compile the reports
described in subsection (1) of this section and submit them
quarterly to the offices of the President of the Senate and of
the Speaker of the House of Representatives.
SECTION 147. ORS 179.610 is amended to read:
179.610. As used in ORS 179.610 to 179.770, unless the context
requires otherwise:
{ - (1) 'Agency' means either the Department of Human
Services for a person in a state institution described in ORS
179.321 (1) or the Department of Corrections for a person in a
Department of Corrections institution as defined in ORS
421.005. - }
{ - (2) - } { + (1) + } 'Authorized representative' means
an individual or entity appointed under authority of ORS chapter
125, as guardian or conservator of a person, who has the ability
to control the person's finances, and any other individual or
entity holding funds or receiving benefits or income on behalf of
any person.
{ - (3) - } { + (2) + } 'Care' means all services rendered
by the state institutions as described in ORS 179.321 or by the
{ - Department of Human Services or the Department of
Corrections - } { + Department of Corrections, Department of
Human Services or Oregon Health Authority + } on behalf of those
institutions. These services include, but are not limited to,
such items as medical care, room, board, administrative costs and
other costs not otherwise excluded by law.
{ - (4) - } { + (3) + } 'Decedent's estate' has the meaning
given ' estate' in ORS 111.005 (15).
{ - (5) - } { + (4) + } 'Person,' 'person in a state
institution' or ' person at a state institution,' or any similar
phrase, means an individual who is or has been at a state
institution described in ORS 179.321.
{ - (6) - } { + (5) + } 'Personal estate' means all income
and benefits as well as all assets, including all personal and
real property of a living person, and includes assets held by the
person's authorized representative and all other assets held by
any other individual or entity holding funds or receiving
benefits or income on behalf of any person.
SECTION 148. ORS 179.620 is amended to read:
179.620. (1) A person and the personal estate of the person, or
a decedent's estate, is liable for the full cost of care. Full
cost of care is established according to ORS 179.701.
(2) While the person is liable for the full cost of care, the
maximum amount a person is required to pay toward the full cost
of care shall be determined according to the person's ability to
pay. Ability to pay is determined as provided in ORS 179.640.
Enrolled House Bill 2009 (HB 2009-C) Page 91
(3) Upon the death of a person, the decedent's estate shall be
liable for any unpaid cost of care. The liability of the
decedent's estate is limited to the cost of care incurred on or
after July 24, 1979. The decedent's estate shall not include
assets placed in trust for the person by other persons.
Collection of any amount from a decedent's estate shall be
pursuant to ORS 179.740.
(4) Regardless of subsection (1) of this section and ORS
179.610 { - (6) - } { + (5) + }, assets held in trust by a
trustee for a person are subject to laws generally applicable to
trusts.
(5) Notwithstanding subsections (1) and (3) of this section,
{ - neither the Department of Human Services nor the Department
of Corrections may - } { + the Department of Corrections, the
Department of Human Services and the Oregon Health Authority may
not + } collect the cost of care from:
(a) Any assets received by or owing to a person and the
personal estate of the person, or the decedent's estate, as
compensation from the state for injury, death or, if the
collection is being made by the Department of Corrections, the
false imprisonment of the person that occurred when the person
was in a state institution listed in ORS 179.321 and for which
the state admits liability or is found liable through
adjudication; and
(b) Any real or personal property of the personal estate of the
person, or the decedent's estate, that the person or an
authorized representative of the person can demonstrate was
purchased solely with assets referred to in paragraph (a) of this
subsection or partially with such assets, to the extent such
assets were used in the purchase.
SECTION 149. ORS 179.640 is amended to read:
179.640. (1)(a) { - Both the Department of Human Services and
the Department of Corrections - } { + The Department of
Corrections, the Department of Human Services and the Oregon
Health Authority + } shall establish rules for determining
ability to pay for persons in their respective institutions. The
rules adopted by each agency shall require, in addition to other
relevant factors, consideration of the personal estate, the
person's need for funds for personal support after release, and
the availability of third-party benefits such as, but not limited
to, Medicare or private insurance. Each agency may also consider
the probable length of stay at the state institution. Nothing in
this section requires the Department of Corrections to
investigate a person's ability to pay or to issue an
ability-to-pay order.
(b) When adopting rules under paragraph (a) of this subsection,
the Department of Corrections shall consider the person's needs
for funds to pay for the support of the person's children and to
pay any monetary obligations imposed on the person as a result of
the person's conviction.
(2) In determining a person's ability to pay, { - neither
agency - } { + none of the agencies + } may consider as part of
the personal estate of the person or the decedent's estate:
(a) Any assets received by or owing to the person and the
personal estate of the person, or the decedent's estate, as
compensation from the state for injury, death or, if the
collection is being made by the Department of Corrections, the
false imprisonment of the person that occurred when the person
was in a state institution listed in ORS 179.321 and for which
Enrolled House Bill 2009 (HB 2009-C) Page 92
the state admits liability or is found liable through
adjudication; and
(b) Any real or personal property that the person or an
authorized representative of the person can demonstrate was
purchased solely with assets referred to in paragraph (a) of this
subsection or partially with such assets, to the extent such
assets were used in the purchase.
(3) A person and the authorized representative of the person,
if any, shall provide all financial information requested by the
agency that is necessary to determine the person's ability to
pay. To determine ability to pay, the agency may use any
information available to the agency, including information
provided by the Department of Revenue from personal income tax
returns pursuant to ORS 314.840, and elderly rental assistance
claims. Upon request, the Department of Revenue shall release
copies of tax returns to the agency. When the person or the
person's authorized representative fails to provide evidence to
demonstrate an inability to pay full cost of care, the agency may
determine the person has the ability to pay the full cost of
care.
(4) The agency shall provide actual notice to the person and
any authorized representative, if known to the agency, of its
determination by issuing an ability-to-pay order. The order shall
state the person's full liability and the person's determined
ability to pay. Actual notice means receipt by the person and the
authorized representative of notice. The notice shall include a
copy of the ability-to-pay order, a description of the person's
appeal rights and the date upon which appeal rights terminate and
state the address where a request for hearing may be mailed or
delivered. At any time, the agency may reissue an ability-to-pay
order to notify an authorized representative as provided by ORS
179.653 (4).
(5) At any time during the person's stay at the state
institution or within 36 months from the date the person is
released, if the agency receives new financial information that
shows a change in the person's financial circumstances, the
agency shall consider the changed circumstances and issue a new
ability-to-pay order.
(6) Orders issued after the person is released may not require
the person to make payments toward the cost of care for more than
36 consecutive months following release. However, the agency may
collect beyond the 36-month period any payments that became due
but were not paid within the 36 months following release. Any
remaining balance of full cost of care shall be collected as
provided in ORS 179.740.
(7) Notwithstanding ORS 183.315 (5), if a person or authorized
representative disagrees with any ability-to-pay order issued
pursuant to this section, the person or authorized representative
may request a contested case hearing. To the extent practical,
the hearing will be held at a location convenient to the person
or the authorized representative. The request must be postmarked
within 60 days from the date of the mailing of the ability-to-pay
order. If the person or the authorized representative makes a
timely request for a contested case hearing, the hearing and any
appeal of the final hearing order shall be governed by ORS
183.413 to 183.497. If the person or the authorized
representative fails to make a timely request for a contested
case hearing, the ability-to-pay order shall be final and not
subject to judicial review, except as subsequently modified by
the agency as provided in subsection (5) of this section.
Enrolled House Bill 2009 (HB 2009-C) Page 93
(8) On appeal, regardless of other information presented,
payment of the full cost of care may be ordered if the person or
the authorized representative refuses to produce financial
information that the Hearings Officer or administrative law judge
determines is relevant and must be produced.
SECTION 150. ORS 179.653 is amended to read:
179.653. (1) If any person or authorized representative refuses
to pay for the cost of care as ordered by the { - Department of
Human Services or the Department of Corrections - }
{ + Department of Corrections, the Department of Human Services
or the Oregon Health Authority + } under ORS 179.640, the amount
unpaid plus interest shall be a lien in favor of the State of
Oregon. The lien shall arise as each payment is due under the
order and shall continue until the liability with interest is
satisfied. The lien shall be upon the title to and interest in
the real and personal property of the personal estate.
(2) Prior to the filing of a distraint warrant as provided in
ORS 179.655 (2), the lien shall only be valid against:
(a) Property of the person;
(b) Assets held by any authorized representative bound by the
ability-to-pay order; and
(c) Assets subject to lien held by any person or entity having
actual knowledge of the ability-to-pay order or the lien.
(3) Regardless of any other provision of law or statute that
provides a procedure for establishing obligations, including the
claim and payment provisions of ORS chapter 125, an authorized
representative who has received notice and had an opportunity to
request a contested case hearing shall comply with an
ability-to-pay order upon demand by the agency. The agency may
issue the demand any time after the order becomes final.
(4) An authorized representative who has not had an opportunity
to request a contested case hearing, either because the
authorized representative was not appointed at the time the
ability-to-pay order became final, or was not given notice of the
ability-to-pay order as required by ORS 179.640 (4), shall not be
bound by the order of the agency. To bind the authorized
representative, the ability-to-pay order must be reissued and
notice provided to the authorized representative pursuant to ORS
179.640 (4). The authorized representative shall have the same
appeal rights as if the order had originally been issued to the
authorized representative. After the order becomes final, the
authorized representative shall be bound as provided in
subsection (3) of this section. The agency may not issue an
execution of a lien or foreclose against property held by or in
the control of the authorized representative until the authorized
representative is bound by the order of the agency.
(5) An authorized representative who is a trustee shall only be
bound to the extent that the final order specifically finds that
the trust assets of a trust fund are subject to claim by the
agency.
(6) If the authorized representative does not comply with the
demand, the agency may file with the probate court a motion to
require the authorized representative to comply. If the
authorized representative is a conservator or guardian appointed
under ORS chapter 125, the motion shall be filed in that
proceeding. The motion shall be accompanied by an affidavit
stating that the order is final, that demand has been made on the
authorized representative and that the order has not been
complied with.
Enrolled House Bill 2009 (HB 2009-C) Page 94
(7) The authorized representative may object to the motion only
on grounds that the order is not final, that the order is not
binding on the authorized representative as provided in this
section or that all required payments have been made. The
objection must be by affidavit.
(8) If the authorized representative objects by affidavit, the
court shall hear the motion. If the court determines that the
ability-to-pay order is final and binding on the authorized
representative and that all required payments have not been made,
the court shall order the authorized representative to comply
with the ability-to-pay order.
(9) If the authorized representative fails to object by
affidavit within 15 days of the filing of the motion, the court
shall order the authorized representative to comply with the
order. An authorized representative who willfully fails or
refuses to comply may be found in contempt of court and may be
held personally responsible.
(10) Nothing in this section shall affect the requirement that
the agency issue a new order in accordance with ORS 179.640 (5)
if financial circumstances have changed.
SECTION 151. ORS 179.655 is amended to read:
179.655. (1) If any amount due the { - Department of Human
Services or the Department of Corrections - } { + Department of
Corrections, the Department of Human Services or the Oregon
Health Authority + } for the cost of care of a person is not paid
within 30 days after it becomes due, and no provision is made to
secure the payment by bond, deposit or otherwise, pursuant to
rules adopted by the appropriate agency, the agency may issue a
distraint warrant directed to any county of the state.
(2) After the receipt of the distraint warrant, the clerk of
the county shall enter in the County Clerk Lien Record the name
of the person, the amount for which the distraint warrant is
issued and the date the distraint warrant is recorded. The amount
of the distraint warrant shall become a lien upon the title to
and interest in any property owned or later acquired by the
debtor against whom it is issued, and it may be enforced by the
agency in the same manner as a judgment of the circuit court.
(3) In the event that an ability-to-pay order issued under ORS
179.640 (4) or (5) becomes final, and supersedes a previous final
ability-to-pay order on which a distraint warrant had been
issued, the agency shall issue a new distraint warrant
superseding the previous distraint warrant, and the lien shall
conform to the new order.
(4) The agency may direct a copy of the distraint warrant to
the sheriff of any county of the state commanding the sheriff to
levy upon and sell the real and personal property of the taxpayer
found within that county, for the payment of the amount due, with
interest, collection charge and the sheriff's fee. The sheriff
shall return the distraint warrant to the agency and pay to it
the money collected not less than 60 days from the date the copy
of the distraint warrant was directed to the sheriff.
(5) The agency may issue the directive provided in subsection
(4) of this section to any agent of the agency. In executing the
distraint warrant, the agent shall have the same powers conferred
by law upon sheriffs. However, the agent is not entitled to any
fee or compensation in excess of actual expenses incurred in the
performance of this duty.
SECTION 152. ORS 179.660 is amended to read:
179.660. If the { - Department of Human Services or the
Department of Corrections - } { + Department of Corrections,
Enrolled House Bill 2009 (HB 2009-C) Page 95
the Department of Human Services or the Oregon Health
Authority + } believes a person at one of its state institutions
needs a guardian or conservator, or both, and one has not been
appointed, the agency may request that the district attorney
institute proper proceedings for this appointment in the court
having probate jurisdiction. The county of which the person is a
resident, or was a resident at the time of admittance, shall be
the basis for determining the appropriate district attorney to be
contacted.
SECTION 153. ORS 179.701 is amended to read:
179.701. The cost-of-care rates for a person shall be
determined by the { - Department of Human Services or the
Department of Corrections - } { + Department of Corrections,
the Department of Human Services or the Oregon Health
Authority + }, as appropriate. The rates established shall be
reasonably related to current costs of the institutions as
described in ORS 179.321. Current costs shall exclude costs of
outpatient services as defined in ORS 430.010
{ - (4) - } { + (5) + } and any other costs not directly
related to the care for a person at a state institution.
SECTION 154. ORS 179.711 is amended to read:
179.711. (1) Remittance of amounts due for care of persons at
state institutions as provided in ORS 179.610 to 179.770 shall be
made to the { - Department of Human Services or the Department
of Corrections - } { + Department of Corrections, the
Department of Human Services or the Oregon Health Authority + },
as appropriate.
(2) The agency shall refund any unearned payment for the care
of a person at a state institution where payment has been made in
advance and the person dies or is discharged before the end of
the period for which payment was made. Any refund shall be paid
to the person, to the authorized representative of the person or
to the decedent's estate if the person has died. All claims for
refunds approved by the agency shall be paid as provided in ORS
293.295 to 293.462. Any amounts necessary for payment of refunds
are appropriated from the money collected by that agency under
the provisions of ORS 179.610 to 179.770.
SECTION 155. ORS 179.731 is amended to read:
179.731. If the { - Department of Human Services or the
Department of Corrections - } { + Department of Corrections,
the Department of Human Services or the Oregon Health
Authority + } determines that collection of the amount payable
under ORS 179.610 to 179.770 for the cost of care of a person
would be detrimental to the best interests of the person or the
agency, the agency may waive the collection of part or all of the
amount otherwise payable.
SECTION 156. ORS 179.740 is amended to read:
179.740. (1) The { - Department of Human Services or the
Department of Corrections - } { + Department of Corrections,
the Department of Human Services or the Oregon Health
Authority + }, as appropriate, may file a claim against the
decedent's estate for any unpaid charges under ORS 179.620 (3).
This shall be done in the same manner as claims of creditors and
with the priorities provided in ORS 115.125.
(2) If, within 90 days following the person's death, the
person's estate is not otherwise being probated, the agency may
petition any court of competent jurisdiction for the issuance of
letters of administration or testamentary. This action would be
for the purpose of collecting the full amount of unpaid cost of
care as determined by ORS 179.701 and limited by ORS 179.620 (3).
Enrolled House Bill 2009 (HB 2009-C) Page 96
However, the agency may not file a petition under this subsection
until at least 90 days after the death of the person who was at
the state institution and then only in the event that the
person's estate is not otherwise being probated.
(3) The agency may settle any claim against the decedent's
estate during the pendency of the probate proceeding by accepting
other security or in any other equitable manner. The agency may
waive all or part of the claim if it finds collection of this
amount due to be inequitable.
(4) The agency may not recover amounts that exceed the total
cost of care of the deceased person as computed under ORS 179.701
and limited by ORS 179.620 (3).
SECTION 157. ORS 179.745 is amended to read:
179.745. The State of Oregon, by and through the
{ - Department of Human Services or the Department of
Corrections - } { + Department of Corrections, the Department
of Human Services or the Oregon Health Authority + }, may take
title to real and personal property to carry out the provisions
of ORS 179.620, 179.653, 179.655 and 179.740. With the written
consent of the owner of real property or an authorized
representative of the owner, the agency may transfer real
property under the provisions of ORS 270.100 to 270.190. The
agency may transfer personal property under rules adopted by the
agency. The proceeds, less costs, of any real or personal
property transferred by the agency under this section shall be
credited to and deposited in the { - Mental Health and
Developmental Disability Services Account established by ORS
430.180 or the Department of Corrections Account established by
ORS 423.097 - } { + Department of Corrections Account, the
Department of Human Services Account or the Oregon Health
Authority Fund + }, as appropriate.
SECTION 158. ORS 179.770 is amended to read:
179.770. (1) In accordance with any applicable provisions of
ORS chapter 183, { - both the Department of Human Services and
the Department of Corrections - } { + the Department of
Corrections, the Department of Human Services and the Oregon
Health Authority + } may adopt any rules necessary to carry out
ORS 179.610 to 179.770.
(2) Subject to any applicable provision of the State Personnel
Relations Law, the agency may employ employees necessary to carry
out ORS 179.610 to 179.770.
SECTION 159. ORS 181.537 is amended to read:
181.537. (1) As used in this section:
(a) 'Care' means the provision of care, treatment, education,
training, instruction, supervision, placement services,
recreation or support to children, the elderly or persons with
disabilities.
(b) 'Qualified entity' means a community mental health
{ - and developmental disabilities program, - } { + program, a
community developmental disabilities program, + } a local health
department or an individual or business or organization, whether
public, private, for-profit, nonprofit or voluntary, that
provides care, including a business or organization that
licenses, certifies or registers others to provide care.
(2) The Department of Human Services { + , the Oregon Health
Authority + } and the Employment Department may require the
fingerprints of a person for the purpose of requesting a state or
nationwide criminal records check of the person under ORS
181.534:
(a) For agency employment purposes;
Enrolled House Bill 2009 (HB 2009-C) Page 97
(b) For the purposes of licensing, certifying, registering or
otherwise regulating or administering programs, persons or
qualified entities that provide care;
(c) For the purposes of employment decisions by or for
qualified entities that are regulated or otherwise subject to
oversight by the Department of Human Services { + or the Oregon
Health Authority + } and that provide care; or
(d) For the purposes of employment decisions made by a mass
transit district or transportation district for qualified
entities that, under contracts with the district or the
{ - Department of Human Services - } { + Oregon Health
Authority + }, employ persons to operate motor vehicles for the
transportation of medical assistance program clients.
(3) The Department of Human Services { + and the Oregon Health
Authority + } may conduct criminal records checks on a person
through the Law Enforcement Data System maintained by the
Department of State Police, if deemed necessary by the Department
of Human Services { + or the Oregon Health Authority + } to
protect children, elderly persons, persons with disabilities or
other vulnerable persons.
(4) The Department of Human Services { + and the Oregon Health
Authority + } may furnish to qualified entities, in accordance
with the { - Department of Human Services' - } rules { + of
the Department of Human Services or the Oregon Health
Authority + } and the rules of the Department of State Police,
information received from the Law Enforcement Data System.
However, any criminal offender records and information furnished
to the Department of Human Services { + or the Oregon Health
Authority + } by the Federal Bureau of Investigation through the
Department of State Police may not be disseminated to qualified
entities.
(5) A qualified entity, using rules adopted by the Department
of Human Services { + or the Oregon Health Authority + }, shall
determine under this section whether a person is fit to hold a
position, provide services, be employed or, if the qualified
entity has authority to make such a determination, be licensed,
certified or registered, based on the criminal records check
obtained pursuant to ORS 181.534, any false statements made by
the person regarding the criminal history of the person and any
refusal to submit or consent to a criminal records check
including fingerprint identification. If a person is determined
to be unfit, then that person may not hold the position, provide
services or be employed, licensed, certified or registered.
(6) In making the fitness determination under subsection (5) of
this section, the qualified entity shall consider:
(a) The nature of the crime;
(b) The facts that support the conviction or pending indictment
or indicate the making of the false statement;
(c) The relevancy, if any, of the crime or the false statement
to the specific requirements of the person's present or proposed
position, services, employment, license, certification or
registration; and
(d) Intervening circumstances relevant to the responsibilities
and circumstances of the position, services, employment, license,
certification or registration. Intervening circumstances include
but are not limited to the passage of time since the commission
of the crime, the age of the person at the time of the crime, the
likelihood of a repetition of offenses, the subsequent commission
of another relevant crime and a recommendation of an employer.
Enrolled House Bill 2009 (HB 2009-C) Page 98
(7) The Department of Human Services { + , the Oregon Health
Authority + } and the Employment Department may make fitness
determinations based on criminal offender records and information
furnished by the Federal Bureau of Investigation through the
Department of State Police only as provided in ORS 181.534.
(8) A qualified entity and an employee of a qualified entity
acting within the course and scope of employment are immune from
any civil liability that might otherwise be incurred or imposed
for determining pursuant to subsection (5) of this section that a
person is fit or not fit to hold a position, provide services or
be employed, licensed, certified or registered. A qualified
entity, employee of a qualified entity acting within the course
and scope of employment and an employer or employer's agent who
in good faith comply with this section and the decision of the
qualified entity or employee of the qualified entity acting
within the course and scope of employment are not liable for the
failure to hire a prospective employee or the decision to
discharge an employee on the basis of the qualified entity's
decision. An employee of the state acting within the course and
scope of employment is not liable for defamation or invasion of
privacy in connection with the lawful dissemination of
information lawfully obtained under this section.
(9) The Department of Human Services { + and the Oregon Health
Authority + } shall develop { - a system that maintains - }
{ + systems that maintain + } information regarding criminal
records checks in order to minimize the administrative burden
imposed by this section and ORS 181.534. Records maintained under
this subsection are confidential and may not be disseminated
except for the purposes of this section and in accordance with
the rules of the Department of Human Services { + , the Oregon
Health Authority + } and the Department of State Police. Nothing
in this subsection permits the Department of Human Services to
retain fingerprint cards obtained pursuant to this section.
(10) In addition to the rules required by ORS 181.534, the
Department of Human Services { + and the Oregon Health
Authority + }, in consultation with the Department of State
Police, shall adopt rules:
(a) Specifying which qualified entities are subject to this
section;
(b) Specifying which qualified entities may request criminal
offender information;
(c) Specifying which qualified entities are responsible for
deciding whether a subject individual is not fit for a position,
service, license, certification, registration or employment; and
(d) Specifying when a qualified entity, in lieu of conducting a
completely new criminal records check, may proceed to make a
fitness determination under subsection (5) of this section using
the information maintained by the Department of Human Services
{ + and the Oregon Health Authority + } pursuant to subsection
(9) of this section.
(11) If a person refuses to consent to the criminal records
check or refuses to be fingerprinted, the qualified entity shall
deny or terminate the employment of the person, or revoke or deny
any applicable position, authority to provide services,
employment, license, certification or registration.
(12) If the qualified entity requires a criminal records check
of employees or other persons, the application forms of the
qualified entity must contain a notice that employment is subject
to fingerprinting and a criminal records check.
SECTION 160. ORS 181.637 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 99
181.637. (1) The Board on Public Safety Standards and Training
shall establish the following policy committees:
(a) Corrections Policy Committee;
(b) Fire Policy Committee;
(c) Police Policy Committee;
(d) Telecommunications Policy Committee; and
(e) Private Security Policy Committee.
(2) The members of each policy committee shall select a
chairperson and vice chairperson for the policy committee. Only
members of the policy committee who are also members of the board
are eligible to serve as a chairperson or vice chairperson. The
vice chairperson may act as chairperson in the absence of the
chairperson.
(3) The Corrections Policy Committee consists of:
(a) All of the board members who represent the corrections
discipline;
(b) The chief administrative officer of the training division
of the Department of Corrections;
(c) A security manager from the Department of Corrections; and
(d) The following, who may not be current board members,
appointed by the chairperson of the board:
(A) One person recommended by and representing the Oregon State
Sheriffs' Association;
(B) Two persons recommended by and representing the Oregon Jail
Managers' Association;
(C) One person recommended by and representing a statewide
association of community corrections directors;
(D) One nonmanagement corrections officer employed by the
Department of Corrections; and
(E) One corrections officer who is a female, who is employed by
the Department of Corrections at a women's correctional facility
and who is a member of a bargaining unit.
(4) The Fire Policy Committee consists of:
(a) All of the board members who represent the fire service
discipline; and
(b) The following, who may not be current board members,
appointed by the chairperson of the board:
(A) One person recommended by and representing a statewide
association of fire instructors;
(B) One person recommended by and representing a statewide
association of fire marshals;
(C) One person recommended by and representing community
college fire programs; and
(D) One nonmanagement firefighter recommended by a statewide
organization of firefighters.
(5) The Police Policy Committee consists of:
(a) All of the board members who represent the law enforcement
discipline; and
(b) The following, who may not be current board members,
appointed by the chairperson of the board:
(A) One person recommended by and representing the Oregon
Association Chiefs of Police;
(B) Two persons recommended by and representing the Oregon
State Sheriffs' Association;
(C) One command officer recommended by and representing the
Oregon State Police; and
(D) One nonmanagement law enforcement officer.
(6) The Telecommunications Policy Committee consists of:
(a) All of the board members who represent the
telecommunications discipline; and
Enrolled House Bill 2009 (HB 2009-C) Page 100
(b) The following, who may not be current board members,
appointed by the chairperson of the board:
(A) Two persons recommended by and representing a statewide
association of public safety communications officers;
(B) One person recommended by and representing the Oregon
Association Chiefs of Police;
(C) One person recommended by and representing the Oregon State
Police;
(D) Two persons representing telecommunicators;
(E) One person recommended by and representing the Oregon State
Sheriffs' Association;
(F) One person recommended by and representing the Oregon Fire
Chiefs' Association;
(G) One person recommended by and representing the Emergency
Medical Services and Trauma Systems Program of the
{ - Department of Human Services - } { + Oregon Health
Authority + }; and
(H) One person representing paramedics and recommended by a
statewide association dealing with fire medical issues.
(7) The Private Security Policy Committee consists of:
(a) All of the board members who represent the private security
industry; and
(b) The following, who may not be current board members,
appointed by the chairperson of the board:
(A) One person representing unarmed private security
professionals;
(B) One person representing armed private security
professionals;
(C) One person representing the health care industry;
(D) One person representing the manufacturing industry;
(E) One person representing the retail industry;
(F) One person representing the hospitality industry;
(G) One person representing private business or a governmental
entity that utilizes private security services;
(H) One person representing persons who monitor alarm systems;
(I) Two persons who are investigators licensed under ORS
703.430, one of whom is recommended by the Oregon State Bar and
one of whom is in private practice; and
(J) One person who represents the public at large and who is
not related within the second degree by affinity or consanguinity
to a person who is employed or doing business as a private
security professional or executive manager, as defined in ORS
181.870, or as an investigator, as defined in ORS 703.401.
(8) In making appointments to the policy committees under this
section, the chairperson of the board shall seek to reflect the
diversity of the state's population. An appointment made by the
chairperson of the board must be ratified by the board before the
appointment is effective. The chairperson of the board may remove
an appointed member for just cause. An appointment to a policy
committee that is based on the member's employment is
automatically revoked if the member changes employment. The
chairperson of the board shall fill a vacancy in the same manner
as making an initial appointment. The term of an appointed member
is two years. An appointed member may be appointed to a second
term.
(9) A policy committee may meet at such times and places as
determined by the policy committee in consultation with the
Department of Public Safety Standards and Training. A majority of
a policy committee constitutes a quorum to conduct business. A
policy committee may create subcommittees if needed.
Enrolled House Bill 2009 (HB 2009-C) Page 101
(10)(a) Each policy committee shall develop policies,
requirements, standards and rules relating to its specific
discipline. A policy committee shall submit its policies,
requirements, standards and rules to the board for the board's
consideration. When a policy committee submits a policy,
requirement, standard or rule to the board for the board's
consideration, the board shall:
(A) Approve the policy, requirement, standard or rule;
(B) Disapprove the policy, requirement, standard or rule; or
(C) Defer a decision and return the matter to the policy
committee for revision or reconsideration.
(b) The board may defer a decision and return a matter
submitted by a policy committee under paragraph (a) of this
subsection only once. If a policy, requirement, standard or rule
that was returned to a policy committee is resubmitted to the
board, the board shall take all actions necessary to implement
the policy, requirement, standard or rule unless the board
disapproves the policy, requirement, standard or rule.
(c) Disapproval of a policy, requirement, standard or rule
under paragraph (a) or (b) of this subsection requires a
two-thirds vote by the members of the board.
(11) At any time after submitting a matter to the board, the
chairperson of the policy committee may withdraw the matter from
the board's consideration.
SECTION 161. ORS 182.415 is amended to read:
182.415. As used in ORS 182.415 to 182.435 and 240.086 unless
the context requires otherwise:
(1) 'Furnishings' includes furniture usually used in connection
with occupancy of a household but does not include rugs,
draperies, range, refrigerator, washer, dryer or any item of
furnishings received by the state or one of its agencies as a
gift, nor does it include any furniture purchased for the
state-owned residence required in relation to the official duties
of an institutional executive or the Chancellor of the Department
of Higher Education prior to September 9, 1971.
(2) 'Housing' includes single and multiple family dwellings,
apartments, and manufactured dwellings and manufactured dwelling
pads, available on a monthly tenancy but does not include guard
stations maintained by the State Forestry Department or dormitory
facilities at any state institution or at any state institution
of higher education.
(3) 'Dormitory' includes any facility which houses students and
those facilities used primarily for sleeping purposes by the
employees of the Department of Human Services { + or the Oregon
Health Authority + }.
(4) 'State agency' has the same meaning as in ORS 291.002.
SECTION 162. ORS 182.515 is amended to read:
182.515. As used in this section and ORS 182.525:
(1) 'Agency' means:
(a) The Department of Corrections;
(b) The Oregon Youth Authority;
(c) The State Commission on Children and Families; and
(d) That part of the { - Department of Human Services - }
{ + Oregon Health Authority + } that deals with mental health
and addiction issues.
(2) 'Cost effective' means that cost savings realized over a
reasonable period of time are greater than costs.
(3) 'Evidence-based program' means a program that:
(a) Incorporates significant and relevant practices based on
scientifically based research; and
Enrolled House Bill 2009 (HB 2009-C) Page 102
(b) Is cost effective.
(4)(a) 'Program' means a treatment or intervention program or
service that is intended to:
(A) Reduce the propensity of a person to commit crimes;
(B) Improve the mental health of a person with the result of
reducing the likelihood that the person will commit a crime or
need emergency mental health services; or
(C) Reduce the propensity of a person who is less than 18 years
of age to engage in antisocial behavior with the result of
reducing the likelihood that the person will become a juvenile
offender.
(b) 'Program' does not include:
(A) An educational program or service that an agency is
required to provide to meet educational requirements imposed by
state law; or
(B) A program that provides basic medical services.
(5) 'Scientifically based research' means research that obtains
reliable and valid knowledge by:
(a) Employing systematic, empirical methods that draw on
observation or experiment;
(b) Involving rigorous data analyses that are adequate to test
the stated hypotheses and justify the general conclusions drawn;
and
(c) Relying on measurements or observational methods that
provide reliable and valid data across evaluators and observers,
across multiple measurements and observations and across studies
by the same or different investigators.
SECTION 163. ORS 182.535 is amended to read:
182.535. For purposes of ORS 182.535 to 182.550, 'natural
resource agency' means the Department of Environmental Quality,
the State Department of Agriculture, the Water Resources
Department, the State Department of Fish and Wildlife, the State
Forestry Department, the Department of State Lands, the
Department of Education, the State Department of Geology and
Mineral Industries, the Department of Land Conservation and
Development, the State Marine Board, the Public Utility
Commission, the Department of Transportation, the State Fire
Marshal and the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
SECTION 164. ORS 184.345 is amended to read:
184.345. (1) The Oregon Department of Administrative Services
shall provide on a reimbursable basis administrative and other
services, as agreed to, to:
(a) The Department of Corrections;
(b) The Department of Human Services; { - and - }
{ + (c) The Oregon Health Authority; and + }
{ - (c) - } { + (d) + } The State Board of Education.
(2) In addition to its duties under subsection (1) of this
section, the Oregon Department of Administrative Services shall
provide clerical support to the Energy Facility Siting Council.
SECTION 165. ORS 192.517 is amended to read:
192.517. (1) The system designated to protect and advocate for
the rights of individuals shall have access to all records of:
(a) Any individual who is a client of the system if the
individual or the legal guardian or other legal representative of
the individual has authorized the system to have such access;
(b) Any individual, including an individual who has died or
whose whereabouts are unknown:
Enrolled House Bill 2009 (HB 2009-C) Page 103
(A) If the individual by reason of the individual's mental or
physical condition or age is unable to authorize such access;
(B) If the individual does not have a legal guardian or other
legal representative, or the state or a political subdivision of
this state is the legal guardian of the individual; and
(C) If a complaint regarding the rights or safety of the
individual has been received by the system or if, as a result of
monitoring or other activities which result from a complaint or
other evidence, there is probable cause to believe that the
individual has been subject to abuse or neglect; and
(c) Any individual who has a legal guardian or other legal
representative, who is the subject of a complaint of abuse or
neglect received by the system, or whose health and safety is
believed with probable cause to be in serious and immediate
jeopardy if the legal guardian or other legal representative:
(A) Has been contacted by the system upon receipt of the name
and address of the legal guardian or other legal representative;
(B) Has been offered assistance by the system to resolve the
situation; and
(C) Has failed or refused to act on behalf of the individual.
(2) The system shall have access to the name, address and
telephone number of any legal guardian or other legal
representative of an individual.
(3) The system that obtains access to records under this
section shall maintain the confidentiality of the records to the
same extent as is required of the provider of the services,
except as provided under the Protection and Advocacy for Mentally
Ill Individuals Act (42 U.S.C. 10806) as in effect on January 1,
2003.
(4) The system shall have reasonable access to facilities,
including the residents and staff of the facilities.
(5) This section is not intended to limit or overrule the
provisions of ORS 41.675 or 441.055 { - (9) - } { + (10) + }.
SECTION 166. ORS 192.519 is amended to read:
192.519. As used in ORS 192.518 to 192.529:
(1) 'Authorization' means a document written in plain language
that contains at least the following:
(a) A description of the information to be used or disclosed
that identifies the information in a specific and meaningful way;
(b) The name or other specific identification of the person or
persons authorized to make the requested use or disclosure;
(c) The name or other specific identification of the person or
persons to whom the covered entity may make the requested use or
disclosure;
(d) A description of each purpose of the requested use or
disclosure, including but not limited to a statement that the use
or disclosure is at the request of the individual;
(e) An expiration date or an expiration event that relates to
the individual or the purpose of the use or disclosure;
(f) The signature of the individual or personal representative
of the individual and the date;
(g) A description of the authority of the personal
representative, if applicable; and
(h) Statements adequate to place the individual on notice of
the following:
(A) The individual's right to revoke the authorization in
writing;
(B) The exceptions to the right to revoke the authorization;
Enrolled House Bill 2009 (HB 2009-C) Page 104
(C) The ability or inability to condition treatment, payment,
enrollment or eligibility for benefits on whether the individual
signs the authorization; and
(D) The potential for information disclosed pursuant to the
authorization to be subject to redisclosure by the recipient and
no longer protected.
(2) 'Covered entity' means:
(a) A state health plan;
(b) A health insurer;
(c) A health care provider that transmits any health
information in electronic form to carry out financial or
administrative activities in connection with a transaction
covered by ORS 192.518 to 192.529; or
(d) A health care clearinghouse.
(3) 'Health care' means care, services or supplies related to
the health of an individual.
(4) 'Health care operations' includes but is not limited to:
(a) Quality assessment, accreditation, auditing and improvement
activities;
(b) Case management and care coordination;
(c) Reviewing the competence, qualifications or performance of
health care providers or health insurers;
(d) Underwriting activities;
(e) Arranging for legal services;
(f) Business planning;
(g) Customer services;
(h) Resolving internal grievances;
(i) Creating de-identified information; and
(j) Fundraising.
(5) 'Health care provider' includes but is not limited to:
(a) A psychologist, occupational therapist, clinical social
worker, professional counselor or marriage and family therapist
licensed under ORS chapter 675 or an employee of the
psychologist, occupational therapist, clinical social worker,
professional counselor or marriage and family therapist;
(b) A physician, podiatric physician and surgeon, physician
assistant or acupuncturist licensed under ORS chapter 677 or an
employee of the physician, podiatric physician and surgeon,
physician assistant or acupuncturist;
(c) A nurse or nursing home administrator licensed under ORS
chapter 678 or an employee of the nurse or nursing home
administrator;
(d) A dentist licensed under ORS chapter 679 or an employee of
the dentist;
(e) A dental hygienist or denturist licensed under ORS chapter
680 or an employee of the dental hygienist or denturist;
(f) A speech-language pathologist or audiologist licensed under
ORS chapter 681 or an employee of the speech-language pathologist
or audiologist;
(g) An emergency medical technician certified under ORS chapter
682;
(h) An optometrist licensed under ORS chapter 683 or an
employee of the optometrist;
(i) A chiropractic physician licensed under ORS chapter 684 or
an employee of the chiropractic physician;
(j) A naturopathic physician licensed under ORS chapter 685 or
an employee of the naturopathic physician;
(k) A massage therapist licensed under ORS 687.011 to 687.250
or an employee of the massage therapist;
Enrolled House Bill 2009 (HB 2009-C) Page 105
(L) A direct entry midwife licensed under ORS 687.405 to
687.495 or an employee of the direct entry midwife;
(m) A physical therapist licensed under ORS 688.010 to 688.201
or an employee of the physical therapist;
(n) A radiologic technologist licensed under ORS 688.405 to
688.605 or an employee of the radiologic technologist;
(o) A respiratory care practitioner licensed under ORS 688.800
to 688.840 or an employee of the respiratory care practitioner;
(p) A pharmacist licensed under ORS chapter 689 or an employee
of the pharmacist;
(q) A dietitian licensed under ORS 691.405 to 691.585 or an
employee of the dietitian;
(r) A funeral service practitioner licensed under ORS chapter
692 or an employee of the funeral service practitioner;
(s) A health care facility as defined in ORS 442.015;
(t) A home health agency as defined in ORS 443.005;
(u) A hospice program as defined in ORS 443.850;
(v) A clinical laboratory as defined in ORS 438.010;
(w) A pharmacy as defined in ORS 689.005;
(x) A diabetes self-management program as defined in ORS
743A.184; and
(y) Any other person or entity that furnishes, bills for or is
paid for health care in the normal course of business.
(6) 'Health information' means any oral or written information
in any form or medium that:
(a) Is created or received by a covered entity, a public health
authority, an employer, a life insurer, a school, a university or
a health care provider that is not a covered entity; and
(b) Relates to:
(A) The past, present or future physical or mental health or
condition of an individual;
(B) The provision of health care to an individual; or
(C) The past, present or future payment for the provision of
health care to an individual.
(7) 'Health insurer' means:
(a) An insurer as defined in ORS 731.106 who offers:
(A) A health benefit plan as defined in ORS 743.730;
(B) A short term health insurance policy, the duration of which
does not exceed six months including renewals;
(C) A student health insurance policy;
(D) A Medicare supplemental policy; or
(E) A dental only policy.
(b) The Oregon Medical Insurance Pool operated by the Oregon
Medical Insurance Pool Board under ORS 735.600 to 735.650.
(8) 'Individually identifiable health information' means any
oral or written health information in any form or medium that is:
(a) Created or received by a covered entity, an employer or a
health care provider that is not a covered entity; and
(b) Identifiable to an individual, including demographic
information that identifies the individual, or for which there is
a reasonable basis to believe the information can be used to
identify an individual, and that relates to:
(A) The past, present or future physical or mental health or
condition of an individual;
(B) The provision of health care to an individual; or
(C) The past, present or future payment for the provision of
health care to an individual.
(9) 'Payment' includes but is not limited to:
(a) Efforts to obtain premiums or reimbursement;
(b) Determining eligibility or coverage;
Enrolled House Bill 2009 (HB 2009-C) Page 106
(c) Billing activities;
(d) Claims management;
(e) Reviewing health care to determine medical necessity;
(f) Utilization review; and
(g) Disclosures to consumer reporting agencies.
(10) 'Personal representative' includes but is not limited to:
(a) A person appointed as a guardian under ORS 125.305,
419B.370, 419C.481 or 419C.555 with authority to make medical and
health care decisions;
(b) A person appointed as a health care representative under
ORS 127.505 to 127.660 or a representative under ORS 127.700 to
127.737 to make health care decisions or mental health treatment
decisions;
(c) A person appointed as a personal representative under ORS
chapter 113; and
(d) A person described in ORS 192.526.
(11)(a) 'Protected health information' means individually
identifiable health information that is maintained or transmitted
in any form of electronic or other medium by a covered entity.
(b) 'Protected health information' does not mean individually
identifiable health information in:
(A) Education records covered by the federal Family Educational
Rights and Privacy Act (20 U.S.C. 1232g);
(B) Records described at 20 U.S.C. 1232g(a)(4)(B)(iv); or
(C) Employment records held by a covered entity in its role as
employer.
(12) 'State health plan' means:
(a) The state Medicaid program;
(b) The Oregon State Children's Health Insurance Program;
{ - or - }
(c) The Family Health Insurance Assistance Program established
in ORS 735.720 to 735.740 { - . - } { + ; or
(d) Any medical assistance or premium assistance program
operated by the Oregon Health Authority. + }
(13) 'Treatment' includes but is not limited to:
(a) The provision, coordination or management of health care;
and
(b) Consultations and referrals between health care providers.
SECTION 167. ORS 192.527 is amended to read:
192.527. (1) Notwithstanding ORS 179.505, a state health plan
or a prepaid managed care health services organization may
disclose the protected health information of an individual listed
in subsection (2) of this section, without obtaining an
authorization from the individual or a personal representative of
the individual, to another prepaid managed care health services
organization for treatment activities of a prepaid managed care
health services organization when the prepaid managed care health
services organization is providing behavioral or physical health
care services to the individual.
(2) The protected health information that may be disclosed
pursuant to subsection (1) of this section includes the
following, as defined by the { - Department of Human
Services - } { + Oregon Health Authority + } by rule:
(a) { - Oregon Health Plan member - } { + Medicaid
recipient + } name;
(b) Medicaid recipient number;
(c) Performing provider number;
(d) Hospital provider name;
(e) Attending physician;
(f) Diagnosis;
Enrolled House Bill 2009 (HB 2009-C) Page 107
(g) Date or dates of service;
(h) Procedure code;
(i) Revenue code;
(j) Quantity of units of service provided; or
(k) Medication prescription and monitoring.
(3) As used in this section, 'prepaid managed care health
services organization' has the meaning given that term in ORS
414.736.
SECTION 168. ORS 192.535 is amended to read:
192.535. (1) A person may not obtain genetic information from
an individual, or from an individual's DNA sample, without first
obtaining informed consent of the individual or the individual's
representative, except:
(a) As authorized by ORS 181.085 or comparable provisions of
federal criminal law relating to the identification of persons,
or for the purpose of establishing the identity of a person in
the course of an investigation conducted by a law enforcement
agency, a district attorney, a medical examiner or the Criminal
Justice Division of the Department of Justice;
(b) For anonymous research or coded research conducted under
conditions described in ORS 192.537 (2), after notification
pursuant to ORS 192.538 or pursuant to ORS 192.547 (7)(b);
(c) As permitted by rules of the { - Department of Human
Services - } { + Oregon Health Authority + } for identification
of deceased individuals;
(d) As permitted by rules of the { - Department of Human
Services - } { + Oregon Health Authority + } for newborn
screening procedures;
(e) As authorized by statute for the purpose of establishing
paternity; or
(f) For the purpose of furnishing genetic information relating
to a decedent for medical diagnosis of blood relatives of the
decedent.
(2) Except as provided in subsection (3) of this section, a
physician licensed under ORS chapter 677 shall seek the informed
consent of the individual or the individual's representative for
the purposes of subsection (1) of this section in the manner
provided by ORS 677.097. Except as provided in subsection (3) of
this section, any other licensed health care provider or facility
must seek the informed consent of the individual or the
individual's representative for the purposes of subsection (1) of
this section in a manner substantially similar to that provided
by ORS 677.097 for physicians.
(3) A person conducting research shall seek the informed
consent of the individual or the individual's representative for
the purposes of subsection (1) of this section in the manner
provided by ORS 192.547.
(4) Except as provided in ORS 746.135 (1), any person not
described in subsection (2) or (3) of this section must seek the
informed consent of the individual or the individual's
representative for the purposes of subsection (1) of this section
in the manner provided by rules adopted by the { - Department
of Human Services - } { + Oregon Health Authority + }.
(5) The { - Department of Human Services - } { + Oregon
Health Authority + } may not adopt rules under subsection (1)(d)
of this section that would require the providing of a DNA sample
for the purpose of obtaining complete genetic information used to
screen all newborns.
SECTION 169. ORS 192.537 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 108
192.537. (1) Subject to the provisions of ORS 192.531 to
192.549, 659A.303 and 746.135, an individual's genetic
information and DNA sample are private and must be protected, and
an individual has a right to the protection of that privacy. Any
person authorized by law or by an individual or an individual's
representative to obtain, retain or use an individual's genetic
information or any DNA sample must maintain the confidentiality
of the information or sample and protect the information or
sample from unauthorized disclosure or misuse.
(2)(a) A person may use an individual's DNA sample or genetic
information that is derived from a biological specimen or
clinical individually identifiable health information for
anonymous research or coded research only if the individual:
(A) Has granted informed consent for the specific anonymous
research or coded research project;
(B) Has granted consent for genetic research generally;
(C) Was notified in accordance with ORS 192.538 that the
individual's biological specimen or clinical individually
identifiable health information may be used for anonymous
research or coded research and the individual did not, at the
time of notification, request that the biological specimen or
clinical individually identifiable health information not be used
for anonymous research or coded research; or
(D) Was not notified, due to emergency circumstances, in
accordance with ORS 192.538 that the individual's biological
specimen or clinical individually identifiable health information
may be used for anonymous research or coded research and the
individual died before receiving the notice.
(b) Paragraph (a) of this subsection does not apply to
biological specimens or clinical individually identifiable health
information obtained before July 29, 2005, if an institutional
review board operating under ORS 192.547 (1)(b) meets the
requirements described in ORS 192.547 (7)(b).
(3) A person may not retain another individual's genetic
information or DNA sample without first obtaining authorization
from the individual or the individual's representative, unless:
(a) Retention is authorized by ORS 181.085 or comparable
provisions of federal criminal law relating to identification of
persons, or is necessary for the purpose of a criminal or death
investigation, a criminal or juvenile proceeding, an inquest or a
child fatality review by a county multidisciplinary child abuse
team;
(b) Retention is authorized by specific court order pursuant to
rules adopted by the Chief Justice of the Supreme Court for civil
actions;
(c) Retention is permitted by rules of the { - Department of
Human Services - } { + Oregon Health Authority + } for
identification of, or testing to benefit blood relatives of,
deceased individuals;
(d) Retention is permitted by rules of the { - Department of
Human Services - } { + authority + } for newborn screening
procedures; or
(e) Retention is for anonymous research or coded research
conducted after notification or with consent pursuant to
subsection (2) of this section or ORS 192.538.
(4) The DNA sample of an individual from which genetic
information has been obtained shall be destroyed promptly upon
the specific request of that individual or the individual's
representative, unless:
Enrolled House Bill 2009 (HB 2009-C) Page 109
(a) Retention is authorized by ORS 181.085 or comparable
provisions of federal criminal law relating to identification of
persons, or is necessary for the purpose of a criminal or death
investigation, a criminal or juvenile proceeding, an inquest or a
child fatality review by a county multidisciplinary child abuse
team;
(b) Retention is authorized by specific court order pursuant to
rules adopted by the Chief Justice of the Supreme Court for civil
actions; or
(c) Retention is for anonymous research or coded research
conducted after notification or with consent pursuant to
subsection (2) of this section or ORS 192.538.
(5) A DNA sample from an individual that is the subject of a
research project, other than an anonymous research project, shall
be destroyed promptly upon completion of the project or
withdrawal of the individual from the project, whichever occurs
first, unless the individual or the individual's representative
directs otherwise by informed consent.
(6) A DNA sample from an individual for insurance or employment
purposes shall be destroyed promptly after the purpose for which
the sample was obtained has been accomplished unless retention is
authorized by specific court order pursuant to rules adopted by
the Chief Justice of the Supreme Court for civil, criminal and
juvenile proceedings.
(7) An individual or an individual's representative, promptly
upon request, may inspect, request correction of and obtain
genetic information from the records of the individual.
(8) Subject to the provisions of ORS 192.531 to 192.549, and to
policies adopted by the person in possession of a DNA sample, an
individual or the individual's representative may request that
the individual's DNA sample be made available for additional
genetic testing for medical diagnostic purposes. If the
individual is deceased and has not designated a representative to
act on behalf of the individual after death, a request under this
subsection may be made by the closest surviving blood relative of
the decedent or, if there is more than one surviving blood
relative of the same degree of relationship to the decedent, by
the majority of the surviving closest blood relatives of the
decedent.
(9) The { - Department of Human Services - } { + Oregon
Health Authority + } shall coordinate the implementation of this
section.
(10) Subsections (3) to (8) of this section apply only to a DNA
sample or genetic information that is coded, identified or
identifiable.
(11) This section does not apply to any law, contract or other
arrangement that determines a person's rights to compensation
relating to substances or information derived from an
individual's DNA sample.
SECTION 170. ORS 192.539 is amended to read:
192.539. (1) Regardless of the manner of receipt or the source
of genetic information, including information received from an
individual or a blood relative of the individual, a person may
not disclose or be compelled, by subpoena or any other means, to
disclose the identity of an individual upon whom a genetic test
has been performed or the identity of a blood relative of the
individual, or to disclose genetic information about the
individual or a blood relative of the individual in a manner that
permits identification of the individual, unless:
Enrolled House Bill 2009 (HB 2009-C) Page 110
(a) Disclosure is authorized by ORS 181.085 or comparable
provisions of federal criminal law relating to identification of
persons, or is necessary for the purpose of a criminal or death
investigation, a criminal or juvenile proceeding, an inquest, or
a child fatality review by a county multidisciplinary child abuse
team;
(b) Disclosure is required by specific court order entered
pursuant to rules adopted by the Chief Justice of the Supreme
Court for civil actions;
(c) Disclosure is authorized by statute for the purpose of
establishing paternity;
(d) Disclosure is specifically authorized by the tested
individual or the tested individual's representative by signing a
consent form prescribed by rules of the { - Department of Human
Services - } { + Oregon Health Authority + };
(e) Disclosure is for the purpose of furnishing genetic
information relating to a decedent for medical diagnosis of blood
relatives of the decedent; or
(f) Disclosure is for the purpose of identifying bodies.
(2) The prohibitions of this section apply to any redisclosure
by any person after another person has disclosed genetic
information or the identity of an individual upon whom a genetic
test has been performed, or has disclosed genetic information or
the identity of a blood relative of the individual.
(3) A release or publication is not a disclosure if:
(a) It involves a good faith belief by the person who caused
the release or publication that the person was not in violation
of this section;
(b) It is not due to willful neglect;
(c) It is corrected in the manner described in ORS 192.541 (4);
(d) The correction with respect to genetic information is
completed before the information is read or heard by a third
party; and
(e) The correction with respect to DNA samples is completed
before the sample is retained or genetically tested by a third
party.
SECTION 171. ORS 192.547 is amended to read:
192.547. (1)(a) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules for
conducting research using DNA samples, genetic testing and
genetic information. Rules establishing minimum research
standards shall conform to the Federal Policy for the Protection
of Human Subjects, 45 C.F.R. 46, that is current at the time the
rules are adopted. The rules may be changed from time to time as
may be necessary.
(b) The rules adopted by the { - Department of Human
Services - } { + Oregon Health Authority + } shall address the
operation and appointment of institutional review boards. The
rules shall conform to the compositional and operational
standards for such boards contained in the Federal Policy for the
Protection of Human Subjects that is current at the time the
rules are adopted. The rules must require that research conducted
under paragraph (a) of this subsection be conducted with the
approval of the institutional review board.
(c) Persons proposing to conduct anonymous research, coded
research or genetic research that is otherwise thought to be
exempt from review must obtain from an institutional review board
prior to conducting such research a determination that the
proposed research is exempt from review.
Enrolled House Bill 2009 (HB 2009-C) Page 111
(2) A person proposing to conduct research under subsection (1)
of this section, including anonymous research or coded research,
must disclose to the institutional review board the proposed use
of DNA samples, genetic testing or genetic information.
(3) The { - Department of Human Services - } { + Oregon
Health Authority + } shall adopt rules requiring that all
institutional review boards operating under subsection (1)(b) of
this section register with the department. The Advisory Committee
on Genetic Privacy and Research shall use the registry to educate
institutional review boards about the purposes and requirements
of the genetic privacy statutes and administrative rules relating
to genetic research.
(4) The { - Department of Human Services - } { + Oregon
Health Authority + } shall consult with the Advisory Committee on
Genetic Privacy and Research before adopting the rules required
under subsections (1) and (3) of this section, including rules
identifying those parts of the Federal Policy for the Protection
of Human Subjects that are applicable to this section.
(5) Genetic research in which the DNA sample or genetic
information is coded shall satisfy the following requirements:
(a)(A) The subject has granted informed consent for the
specific research project;
(B) The subject has consented to genetic research generally; or
(C) The DNA sample or genetic information is derived from a
biological specimen or from clinical individually identifiable
health information that was obtained or retained in compliance
with ORS 192.537 (2).
(b) The research has been approved by an institutional review
board after disclosure by the investigator to the board of risks
associated with the coding.
(c) The code is:
(A) Not derived from individual identifiers;
(B) Kept securely and separately from the DNA samples and
genetic information; and
(C) Not accessible to the investigator unless specifically
approved by the institutional review board.
(d) Data is stored securely in password protected electronic
files or by other means with access limited to necessary
personnel.
(e) The data is limited to elements required for analysis and
meets the criteria in 45 C.F.R 164.514(e) for a limited data set.
(f) The investigator is a party to the data use agreement as
provided by 45 C.F.R. 164.514(e) for limited data set recipients.
(6) Research conducted in accordance with this section is
rebuttably presumed to comply with ORS 192.535 and 192.539.
(7)(a) Notwithstanding ORS 192.535, a person may use a DNA
sample or genetic information obtained, with blanket informed
consent, before June 25, 2001, for genetic research.
(b) Notwithstanding ORS 192.535, a person may use a DNA sample
or genetic information obtained without specific informed consent
and derived from a biological specimen or clinical individually
identifiable health information for anonymous research or coded
research if an institutional review board operating under
subsection (1)(b) of this section:
(A) Waives or alters the consent requirements pursuant to the
Federal Policy for the Protection of Human Subjects; and
(B) Waives authorization pursuant to the federal Health
Insurance Portability and Accountability Act privacy regulations,
45 C.F.R. parts 160 and 164.
Enrolled House Bill 2009 (HB 2009-C) Page 112
(c) Except as provided in subsection (5)(a) of this section or
paragraph (b) of this subsection, a person must have specific
informed consent from an individual to use a DNA sample or
genetic information of the individual obtained on or after June
25, 2001, for genetic research.
(8) Except as otherwise allowed by rule of the { - Department
of Human Services - } { + Oregon Health Authority + }, if DNA
samples or genetic information obtained for either clinical or
research purposes is used in research, a person may not recontact
the individual or the individual's physician by using research
information that is identifiable or coded. The { - Department
of Human Services - } { + Oregon Health Authority + } shall
adopt by rule criteria for recontacting an individual or an
individual's physician. In adopting the criteria, the department
shall consider the recommendations of national organizations such
as those created by executive order by the President of the
United States and the recommendations of the Advisory Committee
on Genetic Privacy and Research.
(9) The requirements for consent to, or notification of,
obtaining a DNA sample or genetic information for genetic
research are governed by the provisions of ORS 192.531 to 192.549
and the administrative rules that were in effect on the effective
date of the institutional review board's most recent approval of
the study.
SECTION 172. ORS 192.549 is amended to read:
192.549. (1) The Advisory Committee on Genetic Privacy and
Research is established consisting of 15 members. The President
of the Senate and the Speaker of the House of Representatives
shall each appoint one member and one alternate. The Director of
{ - Human Services - } { + the Oregon Health Authority + }
shall appoint one representative and one alternate from each of
the following categories:
(a) Academic institutions involved in genetic research;
(b) Physicians licensed under ORS chapter 677;
(c) Voluntary organizations involved in the development of
public policy on issues related to genetic privacy;
(d) Hospitals;
{ - (e) The Department of Human Services; - }
{ - (f) The Department of Consumer and Business Services; - }
{ - (g) Health care service contractors involved in genetic
and health services research; - }
{ - (h) The biosciences industry; - }
{ - (i) The pharmaceutical industry; - }
{ - (j) Health care consumers; - }
{ - (k) Organizations advocating for privacy of medical
information; - }
{ - (L) Public members of institutional review boards;
and - }
{ - (m) Organizations or individuals promoting public
education about genetic research and genetic privacy and public
involvement in policymaking related to genetic research and
genetic privacy. - }
{ + (e) The Department of Consumer and Business Services;
(f) The Oregon Health Authority;
(g) Health care service contractors involved in genetic and
health services research;
(h) The biosciences industry;
(i) The pharmaceutical industry;
(j) Health care consumers;
Enrolled House Bill 2009 (HB 2009-C) Page 113
(k) Organizations advocating for privacy of medical
information;
(L) Public members of institutional review boards; and
(m) Organizations or individuals promoting public education
about genetic research and genetic privacy and public involvement
in policymaking related to genetic research and genetic
privacy. + }
(2) Organizations and individuals representing the categories
listed in subsection (1) of this section may recommend nominees
for membership on the advisory committee to the President, the
Speaker and the director.
(3) Members and alternate members of the advisory committee
serve two-year terms and may be reappointed.
(4) Members and alternate members of the advisory committee
serve at the pleasure of the appointing entity.
(5) The { - Department of Human Services - } { + Oregon
Health Authority + } shall provide staff for the advisory
committee.
(6) The advisory committee shall report biennially to the
Legislative Assembly in the manner provided by ORS 192.245. The
report shall include the activities and the results of any
studies conducted by the advisory committee. The advisory
committee may make any recommendations for legislative changes
deemed necessary by the advisory committee.
(7) The advisory committee shall study the use and disclosure
of genetic information and shall develop and refine a legal
framework that defines the rights of individuals whose DNA
samples and genetic information are collected, stored, analyzed
and disclosed.
(8) The advisory committee shall create opportunities for
public education on the scientific, legal and ethical development
within the fields of genetic privacy and research. The advisory
committee shall also elicit public input on these matters. The
advisory committee shall make reasonable efforts to obtain public
input that is representative of the diversity of opinion on this
subject. The advisory committee's recommendations to the
Legislative Assembly shall take into consideration public
concerns and values related to these matters.
SECTION 173. ORS 192.630, as amended by section 21, chapter
100, Oregon Laws 2007, is amended to read:
192.630. (1) All meetings of the governing body of a public
body shall be open to the public and all persons shall be
permitted to attend any meeting except as otherwise provided by
ORS 192.610 to 192.690.
(2) A quorum of a governing body may not meet in private for
the purpose of deciding on or deliberating toward a decision on
any matter except as otherwise provided by ORS 192.610 to
192.690.
(3) A governing body may not hold a meeting at any place where
discrimination on the basis of race, color, creed, sex, sexual
orientation, national origin, age or disability is practiced.
However, the fact that organizations with restricted membership
hold meetings at the place does not restrict its use by a public
body if use of the place by a restricted membership organization
is not the primary purpose of the place or its predominate use.
(4) Meetings of the governing body of a public body shall be
held within the geographic boundaries over which the public body
has jurisdiction, or at the administrative headquarters of the
public body or at the other nearest practical location. Training
sessions may be held outside the jurisdiction as long as no
Enrolled House Bill 2009 (HB 2009-C) Page 114
deliberations toward a decision are involved. A joint meeting of
two or more governing bodies or of one or more governing bodies
and the elected officials of one or more federally recognized
Oregon Indian tribes shall be held within the geographic
boundaries over which one of the participating public bodies or
one of the Oregon Indian tribes has jurisdiction or at the
nearest practical location. Meetings may be held in locations
other than those described in this subsection in the event of an
actual emergency necessitating immediate action.
(5)(a) It is discrimination on the basis of disability for a
governing body of a public body to meet in a place inaccessible
to persons with disabilities, or, upon request of a person who is
deaf or hard of hearing, to fail to make a good faith effort to
have an interpreter for persons who are deaf or hard of hearing
provided at a regularly scheduled meeting. The sole remedy for
discrimination on the basis of disability shall be as provided in
ORS 192.680.
(b) The person requesting the interpreter shall give the
governing body at least 48 hours' notice of the request for an
interpreter, shall provide the name of the requester, sign
language preference and any other relevant information the
governing body may request.
(c) If a meeting is held upon less than 48 hours' notice,
reasonable effort shall be made to have an interpreter present,
but the requirement for an interpreter does not apply to
emergency meetings.
(d) If certification of interpreters occurs under state or
federal law, the { - Department of Human Services - } { +
Oregon Health Authority + } or other state or local agency shall
try to refer only certified interpreters to governing bodies for
purposes of this subsection.
(e) As used in this subsection, 'good faith effort ' includes,
but is not limited to, contacting the department or other state
or local agency that maintains a list of qualified interpreters
and arranging for the referral of one or more qualified
interpreters to provide interpreter services.
SECTION 174. ORS 197.660 is amended to read:
197.660. As used in ORS 197.660 to 197.670, 215.213, 215.263,
215.283, 215.284 and 443.422:
(1) 'Residential facility' means a residential care,
residential training or residential treatment facility, as those
terms are defined in ORS 443.400, { - licensed under ORS
443.400 to 443.460 or licensed under ORS 418.205 to 418.327 by
the Department of Human Services - } that provides residential
care alone or in conjunction with treatment or training or a
combination thereof for six to fifteen individuals who need not
be related. Staff persons required to meet licensing requirements
shall not be counted in the number of facility residents, and
need not be related to each other or to any resident of the
residential facility.
(2) 'Residential home' means a residential treatment or
training { - or adult foster home licensed by or under the
authority of the department, as defined in ORS 443.400, under ORS
443.400 to 443.825, - } { + home, as defined in ORS
443.400, + } a residential facility registered under ORS 443.480
to 443.500 or an adult foster home licensed under ORS 443.705 to
443.825 that provides residential care alone or in conjunction
with treatment or training or a combination thereof for five or
fewer individuals who need not be related. Staff persons required
to meet licensing requirements shall not be counted in the number
Enrolled House Bill 2009 (HB 2009-C) Page 115
of facility residents, and need not be related to each other or
to any resident of the residential home.
(3) 'Zoning requirement' means any standard, criteria,
condition, review procedure, permit requirement or other
requirement adopted by a city or county under the authority of
ORS chapter 215 or 227 that applies to the approval or siting of
a residential facility or residential home. A zoning requirement
does not include a state or local health, safety, building,
occupancy or fire code requirement.
SECTION 175. ORS 198.792 is amended to read:
198.792. (1) Proceedings may be initiated by the county board
or any other public agency in accordance with ORS 431.705 to
431.760:
(a) To annex the affected territory to a district, as defined
by ORS 431.705; or
(b) To form a metropolitan service district as authorized by
ORS chapter 268, or a county service district as authorized by
ORS chapter 451, to include the affected territory.
(2) The findings of the Director of { - Human Services - }
{ + the Oregon Health Authority + } when filed with the county
board in accordance with ORS 431.735 or 431.750 shall be
considered a petition for the purposes of ORS 198.705 to 198.955.
The county board of the principal county shall conduct
proceedings in accordance with the findings and order of the
director and with ORS 198.705 to 198.955.
(3) In proceedings described by subsection (1) of this section,
the county board shall determine whether the affected territory
shall be included in a new district or annexed to an existing
district. The county board shall not inquire into the need for
the proposed service facilities or adjust the boundaries of the
affected territory. ORS 198.805 (2), and the provisions of ORS
198.810 and 198.815 providing for an election on the formation of
or annexation to a district, do not apply to proceedings under
this section.
SECTION 176. ORS 199.461 is amended to read:
199.461. (1) When the boundary commission receives a petition
in a boundary change proceeding or an application for any
proceeding allowed under ORS 199.464, it shall:
(a) Cause a study to be made of the proposal.
(b) Conduct one or more public hearings on the proposal.
(2) After the study and hearings, the boundary commission may
alter the boundaries set out in a petition for formation or a
minor boundary change of a city or district or in a petition for
consolidation of cities so as either to include or exclude
territory. If the commission determines that any land has been
improperly omitted from the proposal and that the owner of the
land has not appeared at the hearing, in person or by a
representative designated in writing, the commission shall
continue the hearing on the petition and shall order notice given
to the nonappearing owner requiring appearance of the owner
before the commission to show cause, if any, why the land should
not be included in the proposal. For minor boundary change
modifications, notice to nonappearing owners may be given by
personal service or by letter sent by first-class mail, at least
10 days prior to the date to which the hearing has been
continued. For major boundary change modifications, notice to
nonappearing owners may be given by personal service, by letter
sent by first-class mail or by a legal advertisement in a
newspaper of general circulation in the area at least 15 days
Enrolled House Bill 2009 (HB 2009-C) Page 116
prior to the date to which the hearing has been continued. The
required notice may be waived by the nonappearing owner.
(3) After the study and hearings the boundary commission may
alter the application for extraterritorial sewer or water line
extensions to include or exclude line and connections thereto,
and may alter the application for formation of a privately owned
sewer or water system or allocation of territory to a community
water supply system to include or exclude territory. If the
commission determines that any land has been improperly omitted
from a proposal to form a private water or sewer system or
allocate territory to a community water system, or that any line
or connections have been improperly omitted from a proposal to
extend extraterritorially a water or sewer line, and that the
owner of the property to be included or to which the line is
being extended has not appeared at the hearing, in person or by a
representative designated in writing, the commission shall
continue the hearing on the proposal and shall order notice given
to the nonappearing owner requiring appearance of the owner
before the commission to show cause, if any, why the land or line
or connection should not be included in the proposal. Notice to
nonappearing owners may be given by personal service or by letter
sent by first-class mail, at least 10 days prior to the date to
which the hearing has been continued. The required notice may be
waived by the nonappearing owner.
(4) On the basis of the study and on the basis of the facts
presented at the hearing, the boundary commission shall approve
the proposed boundary change or application under ORS 199.464 as
presented or as modified by the commission or disapprove the
proposed change, by an order stating the reasons for the decision
of the commission. Jurisdiction for judicial review of such an
order is conferred upon the Court of Appeals. Except as provided
in ORS 183.315 (1), any person interested in a boundary change
may petition for judicial review of the order under ORS 183.482.
(5) Immediately after the effective date of a final order
entered under subsection (4) of this section and a proclamation
declaring a minor boundary change approved if any is entered
under ORS 199.505 (3), the commission shall file a copy of the
order and proclamation, if any, with the Secretary of State, the
Department of Revenue, the assessor and the county clerk of each
county in which the affected territory, city or district is
located, and the clerk of the affected city or district. If the
commission disapproves a minor boundary change, it shall send a
copy of the final order to the person who actually filed the
petition and to the affected city or district.
(6) Immediately after the effective date of a final order on an
application under ORS 199.464, the commission shall file a copy
of the order with the applicant, the { - Department of Human
Services - } { + Oregon Health Authority + }, the Department of
Environmental Quality and the county planning department.
SECTION 177. ORS 199.490 is amended to read:
199.490. (1) A proceeding for a minor boundary change other
than a transfer of territory may be initiated:
(a) By resolution of the governing body of the affected city or
district;
(b) By petition signed by 10 percent of the electors registered
in the affected territory;
(c) By petition signed by the owners of at least one-half the
land area in the affected territory;
(d) By resolution of a boundary commission having jurisdiction
of the affected territory; or
Enrolled House Bill 2009 (HB 2009-C) Page 117
(e) When the minor boundary change is a withdrawal of a city
from a district, by resolution of the governing body of the city,
which shall be an affected city for the purposes of ORS 199.410
to 199.534.
(2)(a)(A) An annexation proceeding may also be initiated by a
resolution adopted by the governing body of the affected city or
district upon receiving consent to annex their land in writing
from more than half of the owners of land in the territory
proposed to be annexed, who also own more than half of the land
in the territory proposed to be annexed and of real property
therein representing more than half of the assessed value of all
real property in the territory proposed to be annexed.
(B) A resolution adopted by the governing body of the affected
city or district upon receiving written consent to annexation
from a majority of the electors registered in the territory
proposed to be annexed and written consent to the annexation of
their land from the owners of more than half the land in the
territory proposed to be annexed.
(b) However, before soliciting statements of consent for the
purpose of authorizing an annexation under a proceeding initiated
as provided by this subsection, the governing body of the
affected city or district shall file a notice of intent to annex
with the boundary commission having jurisdiction of the affected
territory. The notice of intent to annex shall name the affected
city or district and generally describe the boundaries of the
territory sought to be annexed, which territory must be
contiguous to the city or district or separated from it only by a
public right of way or a stream, bay, lake or other body of
water. The notice of intent to annex shall have attached to it a
county assessor's cadastral map showing the location of the
affected territory that the city or district proposes to annex.
(c) For the purpose of this subsection, consent need not be
obtained for any land in a public way included within or
contiguous to the territory proposed to be annexed. However, land
in such a public way shall, as determined by the commission, be
considered annexed to the affected city or district if the minor
boundary change is approved, regardless of the land's ownership,
size or assessed valuation.
(d) For the purpose of this subsection, consent need not be
obtained for any real property that is publicly owned, is the
right of way for a public utility, telecommunications utility or
railroad or is exempt from ad valorem taxation unless the owner
of such property files a statement consenting to or opposing
annexation with the legislative body of the annexing city or
district on or before the date the city or district adopts the
resolution required by paragraph (a) of this subsection.
(e) As used in this subsection, 'owner' has the additional
meaning given that term in ORS 222.120 (7).
(3) A transfer of territory proceeding may be initiated:
(a) By joint resolution of the governing bodies of the affected
districts or cities;
(b) By petition signed by 10 percent of the electors registered
in the affected territory;
(c) By petition signed by the owners of at least one-half the
land area in the affected territory; or
(d) By resolution of a boundary commission having jurisdiction
of the affected territory.
(4) The petition or resolution shall:
(a) Name the affected city or district and state whether it is
proposed to annex, withdraw or transfer territory;
Enrolled House Bill 2009 (HB 2009-C) Page 118
(b) Describe the boundaries of the affected territory;
(c) If the proposal concerns a district, designate the
applicable principal Act;
(d) Have attached a county assessor's cadastral map showing the
location of the affected territory; and
(e) Be filed with the boundary commission having jurisdiction
of the affected territory.
(5) When a city annexation is initiated:
(a) As provided by ORS 222.750 the petition proposing the
annexation shall be filed with the boundary commission having
jurisdiction of the annexation.
(b) As provided by ORS 222.840 to 222.915, the findings adopted
by the Director of { - Human Services - } { + the Oregon
Health Authority + } under ORS 222.880 shall be considered the
initiatory action and a certified copy of the findings shall be
filed with the boundary commission having jurisdiction of the
annexation, at the same time a copy of the finding is filed with
the affected city.
(6) Except when a boundary change is initiated by an affected
city or district under subsection (1), (2), (3) or (5) of this
section or by the { - Director of Human Services - }
{ + director + } as provided by subsection (5)(b) of this
section, the boundary commission shall notify the affected city
or district that a petition has been filed or that the commission
has adopted a resolution. If the petition complies with the
requirements of the applicable statutes, the commission shall
proceed as provided by ORS 199.460 to 199.463 and 199.490 to
199.519.
(7) Unless the parties appearing at a hearing for a minor
boundary change or application under ORS 199.464 agree to a
postponement of the adoption of a final order, a final order
approving or disapproving a minor boundary change must be adopted
within 90 days after the date the petition, resolution or
application is filed with the commission. If a final order
approving or disapproving a minor boundary change is not adopted
within 90 days after the petition, resolution or application is
filed or within the period of postponement, the petition,
resolution or application shall be considered approved by the
commission. A postponement shall not be for a period exceeding
one year from the date the petition, resolution or application
initiating the proposal is filed with the commission.
SECTION 178. ORS 199.495 is amended to read:
199.495. In a proceeding initiated as provided by ORS 199.490
(2) and (5):
(1) If the proposed annexation is approved by the commission,
the final order shall be effective at the time specified in the
final order except that the effective date for an annexation
initiated as provided by ORS 199.490 (5) shall not be more than
one year after the date the final order is adopted and for an
annexation initiated as provided by ORS 199.490 (2) shall not be
more than 10 years after the date the final order is adopted. If
no effective date is specified in the final order, the order
shall take effect on the date the order is adopted. The order
shall not be subject to ORS 199.505.
(2) ORS 222.883 to 222.896, 222.900 (1) and (3) and 222.915 do
not apply to proceedings initiated by the findings of the
Director of { - Human Services - } { + the Oregon Health
Authority + }.
SECTION 179. ORS 199.512 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 119
199.512. (1) The findings of the Director of { - Human
Services - } { + the Oregon Health Authority + } filed with a
boundary commission in accordance with ORS 431.740 or 431.750
shall be considered a petition for the purposes of ORS 199.410 to
199.534. When the findings of the director are filed with a
commission, it shall proceed in accordance with the findings and
with ORS 199.410 to 199.534, but the commission shall not inquire
into the need for the proposed facilities or adjust the
boundaries of the affected territory.
(2) In proceedings described by subsection (1) of this section,
the boundary commission shall determine whether the affected
territory shall be included in a new city, new metropolitan
service district or new county service district or annexed to an
existing district. The final order of the commission shall
conclude the proceedings for all purposes; and the formation or
annexation approved and ordered by the commission shall take
effect 45 days after the date the commission adopts the final
order in the proceeding.
SECTION 180. ORS 222.120 is amended to read:
222.120. (1) Except when expressly required to do so by the
city charter, the legislative body of a city is not required to
submit a proposal for annexation of territory to the electors of
the city for their approval or rejection.
(2) When the legislative body of the city elects to dispense
with submitting the question of the proposed annexation to the
electors of the city, the legislative body of the city shall fix
a day for a public hearing before the legislative body at which
time the electors of the city may appear and be heard on the
question of annexation.
(3) The city legislative body shall cause notice of the hearing
to be published once each week for two successive weeks prior to
the day of hearing, in a newspaper of general circulation in the
city, and shall cause notices of the hearing to be posted in four
public places in the city for a like period.
(4) After the hearing, the city legislative body may, by an
ordinance containing a legal description of the territory in
question:
(a) Declare that the territory is annexed to the city upon the
condition that the majority of the votes cast in the territory is
in favor of annexation;
(b) Declare that the territory is annexed to the city where
electors or landowners in the contiguous territory consented in
writing to such annexation, as provided in ORS 222.125 or
222.170, prior to the public hearing held under subsection (2) of
this section; or
(c) Declare that the territory is annexed to the city where the
{ - Department of Human Services - } { + Oregon Health
Authority + }, prior to the public hearing held under subsection
(1) of this section, has issued a finding that a danger to public
health exists because of conditions within the territory as
provided by ORS 222.840 to 222.915.
(5) If the territory described in the ordinance issued under
subsection (4) of this section is a part less than the entire
area of a district named in ORS 222.510, the ordinance may also
declare that the territory is withdrawn from the district on the
effective date of the annexation or on any subsequent date
specified in the ordinance. However, if the affected district is
a district named in ORS 222.465, the effective date of the
withdrawal of territory shall be determined as provided in ORS
222.465.
Enrolled House Bill 2009 (HB 2009-C) Page 120
(6) The ordinance referred to in subsection (4) of this section
is subject to referendum.
(7) For the purpose of this section, ORS 222.125 and 222.170, '
owner' or 'landowner' means the legal owner of record or, where
there is a recorded land contract which is in force, the
purchaser thereunder. If there is a multiple ownership in a
parcel of land each consenting owner shall be counted as a
fraction to the same extent as the interest of the owner in the
land bears in relation to the interest of the other owners and
the same fraction shall be applied to the parcel's land mass and
assessed value for purposes of the consent petition. If a
corporation owns land in territory proposed to be annexed, the
corporation shall be considered the individual owner of that
land.
SECTION 181. ORS 222.850 is amended to read:
222.850. As used in ORS 222.840 to 222.915, unless the context
requires otherwise:
(1) 'Affected territory' means an area within the urban growth
boundary of a city and which is otherwise eligible for annexation
to that city and in which there exists an actual or alleged
danger to public health.
{ + (2) 'Authority' means the Oregon Health Authority. + }
{ - (2) - } { + (3) + } 'City council' means the
legislative body of a city.
{ - (3) - } { + (4) + } 'Commission' means the
Environmental Quality Commission.
{ - (4) - } { + (5) + } 'Danger to public health' means a
condition which is conducive to the propagation of communicable
or contagious disease-producing organisms and which presents a
reasonably clear possibility that the public generally is being
exposed to disease-caused physical suffering or illness,
including a condition such as:
(a) Impure or inadequate domestic water.
(b) Inadequate installations for the disposal or treatment of
sewage, garbage or other contaminated or putrefying waste.
(c) Inadequate improvements for drainage of surface water and
other fluid substances.
{ - (5) 'Department' means the Department of Human
Services. - }
(6) 'Director' means the Director of { - Human Services - }
{ + the Oregon Health Authority + }.
(7) 'District' means any one of the following:
(a) A metropolitan service district formed under ORS chapter
268.
(b) A county service district formed under ORS chapter 451.
(c) A sanitary district formed under ORS 450.005 to 450.245.
(d) A sanitary authority, water authority or joint water and
sanitary authority formed under ORS 450.600 to 450.989.
(e) A domestic water supply district formed under ORS chapter
264.
SECTION 182. ORS 222.860 is amended to read:
222.860. (1) The city council of any city shall adopt a
resolution containing a proposal for annexation without vote or
consent in the affected territory. The proposal may contain terms
of annexation as provided in ORS 222.111 and shall:
(a) Describe the boundaries of the affected territory; and
(b) Describe the conditions alleged to be causing a danger to
public health.
(2) The governing body of any district having jurisdiction over
the affected territory may adopt a resolution containing a
Enrolled House Bill 2009 (HB 2009-C) Page 121
proposal for annexation to the city without vote or consent in
the affected territory. The proposal shall:
(a) Describe the boundaries of the affected territory; and
(b) Describe the conditions alleged to be causing a danger to
public health.
(3) The local board of health having jurisdiction shall verify
the conditions alleged in the proposal to be causing a danger to
public health, based upon its knowledge of those conditions.
(4) The council or governing body shall cause a certified copy
of the resolution together with verification by the local board
of health having jurisdiction, to be forwarded to the
{ - Department of Human Services - } { + Oregon Health
Authority + } and request the { - department - }
{ + authority + } to ascertain whether conditions dangerous to
public health exist in the affected territory.
SECTION 183. ORS 222.870 is amended to read:
222.870. (1) Upon receipt of the certified copy of the
resolution, and verification by the local board of health having
jurisdiction, the { - Department of Human Services - }
{ + Oregon Health Authority + } shall review and investigate
conditions in the affected territory. If it finds substantial
evidence that a danger to public health exists in the territory,
it shall issue an order for a hearing to be held within the
affected territory, or at a place near the affected territory if
there is no suitable place within that territory at which to hold
the hearing, not sooner than 30 days from the date of the order.
(2) Upon issuance of an order for a hearing, the
{ - department - } { + authority + } shall immediately give
notice of the resolution and order by publishing them in a
newspaper of general circulation within the city and the affected
territory once each week for two successive weeks and by posting
copies of the order in four public places within the affected
territory.
SECTION 184. ORS 222.875 is amended to read:
222.875. (1) The hearing shall be for the sole purpose of
determining whether a danger to public health exists due to
conditions in the affected territory. It may be conducted by one
or more members of the staff of the { - Department of Human
Services - } { + Oregon Health Authority + } to whom authority
to conduct such a hearing is delegated. It shall proceed in
accordance with rules which may be established by the
{ - department - } { + authority + }. Any person who may be
affected by the finding, including residents of the city, may be
heard. Within 60 days following the hearing, the person
conducting the hearing shall prepare and submit to the
{ - department - } { + authority + } written findings of fact
and recommendations based thereon. The { - department - }
{ + authority + } shall publish a notice of the issuance of such
findings and recommendations in the newspaper utilized for the
notice of hearing under ORS 222.870, advising of the opportunity
for presentation of a petition under subsection (2) of this
section.
(2) Within 15 days after the publication of notice of issuance
of findings in accordance with subsection (1) of this section any
person who may be affected by the findings, including residents
of the city, or the affected city, may petition the Director of
{ - Human Services - } { + the Oregon Health Authority + }
according to rules of the { - department - }
{ + authority + } to present written or oral arguments on the
Enrolled House Bill 2009 (HB 2009-C) Page 122
proposal. If a petition is received the director may set a time
and place for receipt of argument.
SECTION 185. ORS 222.880 is amended to read:
222.880. (1) Within 30 days following the final hearing of any
arguments received by petition under the provisions of ORS
222.875 (2) the Director of { - Human Services - } { + the
Oregon Health Authority + } shall review the arguments and the
findings and recommendations of the person conducting the hearing
as provided in ORS 222.875 (2). If the director finds no danger
to public health exists because of conditions within the affected
territory, the director shall issue an order terminating the
proceedings under ORS 222.840 to 222.915 with reference to the
affected territory.
(2) If the director finds that a danger to public health exists
because of conditions within the affected territory, the director
shall file a certified copy of findings with the city and, except
where the condition causing the danger to public health is impure
or inadequate domestic water, with the Environmental Quality
Commission.
(3) If the director determines that a danger to public health
exists because of conditions within only part of the affected
territory, the director may, upon petition and hearing, reduce
the boundaries of the affected territory to that part of the
territory that presents a danger if the area to be excluded would
not be surrounded by the affected territory remaining to be
annexed and would not be directly served by the sanitary, water
or other facilities necessary to remove or alleviate the danger
to public health existing within the affected territory remaining
to be annexed. The findings shall describe the boundaries of the
affected territory as reduced by the director. The director shall
file a certified copy of findings with the city and, except where
the condition causing the danger to public health is impure or
inadequate domestic water, the commission.
(4) In determining whether to exclude any area the director may
consider whether or not such exclusion would unduly interfere
with the removal or alleviation of the danger to public health in
the affected territory remaining to be annexed and whether the
exclusion would result in an illogical boundary for the extension
of services normally provided by an incorporated city.
(5) The city shall, when requested, aid in the determinations
made under subsections (3) and (4) of this section and, if
necessary, cause a study to be made.
(6) Notwithstanding ORS 222.111 (3), the director, in
implementing an order under ORS 222.840 to 222.915, may allow the
use of the tax differential authorized by ORS 222.111 (3) for a
period not exceeding 15 years with the consent of the affected
city.
SECTION 186. ORS 222.883 is amended to read:
222.883. At any time after the Director of { - Human
Services - } { + the Oregon Health Authority + } under ORS
222.880 finds that conditions dangerous to public health exist,
the { - Department of Human Services - } { + Oregon Health
Authority + } may order further proceedings on the findings filed
under ORS 222.880 halted in order to allow a city, district or
persons affected by the findings to develop and propose an
alternative plan to annexation for the removal or alleviation of
the conditions dangerous to public health. Proceedings may be
stayed under this section for not longer than 30 days.
SECTION 187. ORS 222.885 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 123
222.885. (1) Within 60 days after the Director of { - Human
Services - } { + the Oregon Health Authority + } under ORS
222.880 finds that conditions dangerous to public health exist, a
petition, signed by not less than 51 percent of the electors
registered in the affected territory, may be filed with the
{ - Department of Human Services - } { + Oregon Health
Authority + }. Such petition shall suggest an alternative plan to
annexation to the city for removal or alleviation of the
conditions dangerous to public health. The petition shall state
the intent of the residents to seek annexation to an existing
district authorized by law to provide facilities within the
affected territory necessary to remove or alleviate the dangerous
conditions or to seek, with the approval of the city or district,
extraterritorial extension of a city's or district's sewer or
water lines. The petition shall be accompanied by a proposed plan
which shall state the type of facilities to be constructed, a
proposed means of financing the facilities, and an estimate of
the time required to construct such facilities and place them in
operation.
(2) Within 30 days after the director under ORS 222.880 finds
that conditions dangerous to public health exist, a resolution
adopted by the city council or the governing body of any district
having jurisdiction over the affected territory may be filed with
the { - department - } { + authority + }. The resolution
shall suggest an alternative plan to annexation to the city for
removal or alleviation of the conditions dangerous to public
health. The resolution shall be accompanied by a proposed plan
which shall state the type of facilities to be constructed, a
proposed means of financing the facilities, and an estimate of
the time required to construct such facilities and place them in
operation.
(3) Upon receipt of such petition or resolution adopted by a
district or city council, the { - department - }
{ + authority + } shall:
(a) Immediately forward copies of any petition or resolution to
the city or district referred to in the petition or resolution,
and, except where the condition causing the danger to public
health is impure or inadequate domestic water, to the
Environmental Quality Commission.
(b) Order further proceedings on the findings filed under ORS
222.880 stayed pending the review permitted under ORS 222.890 and
this section.
SECTION 188. ORS 222.890 is amended to read:
222.890. (1) An alternative plan referred to in ORS 222.885
shall be reviewed by the { - Department of Human Services - }
{ + Oregon Health Authority + } in cases where danger to public
health is caused by impure or inadequate domestic water and in
all other cases by the Environmental Quality Commission. The plan
shall be approved or rejected by the { - appropriate - }
authority { + or commission + }. In reviewing the alternative
plan contained in the petition, the authority { + or
commission + } shall consider whether, in its judgment, the plan
contains a preferable alternative for the alleviation or removal
of the conditions dangerous to public health. If it determines
that annexation to the city provides the best and most
expeditious method of removing or alleviating the dangerous
conditions, the alternative plan shall be rejected and further
proceedings on the finding filed under ORS 222.880 shall resume.
(2) If the { - reviewing - } authority { + or
commission + } finds that the alternative plan provides a
Enrolled House Bill 2009 (HB 2009-C) Page 124
preferable method of alleviating or removing the dangerous
conditions, the petitioners or appropriate governing body shall
have six months within which to present to
{ - such - } { + the + } authority { + or commission + }
information showing:
(a) That the territory in which the conditions dangerous to
public health exist has received approval for the extension of a
city's or district's sewer or water lines within the territory or
has annexed to a district authorized by law to provide facilities
necessary to remove or alleviate the dangerous conditions, and
that financing of the facilities for extension of such facilities
to the territory has been assured.
(b) Detailed plans and specifications for the construction of
such facilities.
(c) A time schedule for the construction of such facilities.
(d) That such facilities, if constructed, will remove or
alleviate the conditions dangerous to public health in a manner
as satisfactory and expeditious as would be accomplished by the
proposed annexation to the city.
(3) The authority { + or commission + } shall review the final
plan presented to it by the petitioners, city or district and
shall promptly certify whether the requirements of subsection (2)
of this section have been met. If the requirements have been met,
the
{ - department - } { + authority + } shall certify the
alternative plan. Further annexation proceedings on the findings
filed under ORS 222.880 shall be suspended and the city shall be
so notified. If the requirements of subsection (2) of this
section are not met by the petitioners, city or district or
whenever the { - reviewing - } authority { + or commission + }
determines that the requirements of the certified plan are not
being satisfied, further proceedings on the findings filed under
ORS 222.880 shall resume.
SECTION 189. ORS 222.897 is amended to read:
222.897. (1) Upon receipt of a certified copy of the findings
of the { - Department of Human Services - } { + Oregon Health
Authority + } under ORS 222.880, the city council shall cause a
study to be made and preliminary plans and specifications
developed for the sanitary, water or other facilities necessary
to remove or alleviate the conditions causing a danger to public
health. The council shall prepare a schedule setting out the
steps necessary to put the plan into operation and the time
required for each step in the implementation of the plan. A copy
of the plans and specifications and the time schedule shall, in
the case where the danger to public health is caused by impure or
inadequate domestic water, be submitted to the
{ - department - } { + authority + } and in all other cases to
the Environmental Quality Commission.
(2) If the city within 90 days, fails to complete the
requirements in subsection (1) of this section, the
{ - department - } { + authority + } shall conduct the
necessary studies and prepare plans and other documents required
for the consideration of the proposal and the final determination
of the proceedings. The expense of the study and preparation of
the plans and other documents shall be paid by the city upon
vouchers properly certified by the Director of { - Human
Services - } { + the Oregon Health Authority + }.
SECTION 190. ORS 222.900 is amended to read:
222.900. (1) Subject to subsection (2) of this section, upon
receipt of the certified copy of the finding as provided in ORS
Enrolled House Bill 2009 (HB 2009-C) Page 125
222.880 (2) or (3) and certification of approval of plans under
ORS 222.898, the city council shall adopt an ordinance which
shall:
(a) Contain the legal description of the territory annexed;
(b) Contain the terms of the annexation, if any, made under ORS
222.111;
(c) Adopt the plans, specifications and time schedule as
approved by the { - Department of Human Services - }
{ + Oregon Health Authority + } or Environmental Quality
Commission; and
(d) Declare the territory annexed to the city in accordance
with ORS 222.840 to 222.915.
(2) An ordinance shall not be enacted as provided in subsection
(1) of this section until the expiration of the time for appeal
under the provisions of ORS 222.896 and, in the event an appeal
is filed, following the determination of that appeal.
(3) If the { - department - } { + authority + } makes its
finding under ORS 222.880 (3), the city shall not annex a greater
area than that described in the finding. The recorder, or other
officer performing the duties of the recorder, shall transmit a
transcript to the Secretary of State, including certified copies
of the resolution required in ORS 222.860, the finding of the
Director of
{ - Human Services - } { + the Oregon Health Authority + },
and the ordinance proclaiming annexation of the territory.
(4) If the city council adopts the ordinance of annexation as
provided in subsection (1) of this section, it shall within one
year thereafter prepare plans and specifications for the
sanitary, water or other facilities proposed to be provided in
the annexed area, in compliance with ORS 448.115 to 448.285 or
468B.055 and shall then proceed in accordance with the time
schedule to construct or install these facilities. The commission
shall use its powers of enforcement under ORS 448.305, 454.010 to
454.040, 454.205 to 454.255, 454.505 to 454.535, 454.605 to
454.755, and ORS chapters 468, 468A and 468B to insure that the
facilities are constructed or installed in conformance with the
approved plans and schedule. The manner of financing the cost of
the facilities shall be determined by the city council.
SECTION 191. ORS 222.911 is amended to read:
222.911. No officer or employee of the { - Department of
Human Services - } { + Oregon Health Authority + } who owns
property or resides within affected territory that is subject to
proceedings under the provisions of ORS 222.840 to 222.915 shall
participate in an official capacity in any investigation, hearing
or recommendation relating to such proceedings. If the Director
of { - Human Services - } { + the Oregon Health Authority + }
is such a person, the director shall so inform the Governor, who
shall appoint another person to fulfill the duties of the
director in any investigation, hearing or recommendation relating
to such proceeding.
SECTION 192. ORS 244.050 is amended to read:
244.050. (1) On or before April 15 of each year the following
persons shall file with the Oregon Government Ethics Commission a
verified statement of economic interest as required under this
chapter:
(a) The Governor, Secretary of State, State Treasurer, Attorney
General, Commissioner of the Bureau of Labor and Industries,
Superintendent of Public Instruction, district attorneys and
members of the Legislative Assembly.
Enrolled House Bill 2009 (HB 2009-C) Page 126
(b) Any judicial officer, including justices of the peace and
municipal judges, except any pro tem judicial officer who does
not otherwise serve as a judicial officer.
(c) Any candidate for a public office designated in paragraph
(a) or (b) of this subsection.
(d) The Deputy Attorney General.
(e) The Legislative Administrator, the Legislative Counsel, the
Legislative Fiscal Officer, the Secretary of the Senate and the
Chief Clerk of the House of Representatives.
(f) The Chancellor and Vice Chancellors of the Oregon
University System and the president and vice presidents, or their
administrative equivalents, in each institution under the
jurisdiction of the State Board of Higher Education.
(g) The following state officers:
(A) Adjutant General.
(B) Director of Agriculture.
(C) Manager of State Accident Insurance Fund Corporation.
(D) Water Resources Director.
(E) Director of Department of Environmental Quality.
(F) Director of Oregon Department of Administrative Services.
(G) State Fish and Wildlife Director.
(H) State Forester.
(I) State Geologist.
(J) Director of Human Services.
(K) Director of the Department of Consumer and Business
Services.
(L) Director of the Department of State Lands.
(M) State Librarian.
(N) Administrator of Oregon Liquor Control Commission.
(O) Superintendent of State Police.
(P) Director of the Public Employees Retirement System.
(Q) Director of Department of Revenue.
(R) Director of Transportation.
(S) Public Utility Commissioner.
(T) Director of Veterans' Affairs.
(U) Executive Director of Oregon Government Ethics Commission.
(V) Director of the State Department of Energy.
(W) Director and each assistant director of the Oregon State
Lottery.
{ + (X) Director of the Oregon Health Authority. + }
(h) Any assistant in the Governor's office other than personal
secretaries and clerical personnel.
(i) Every elected city or county official.
(j) Every member of a city or county planning, zoning or
development commission.
(k) The chief executive officer of a city or county who
performs the duties of manager or principal administrator of the
city or county.
(L) Members of local government boundary commissions formed
under ORS 199.410 to 199.519.
(m) Every member of a governing body of a metropolitan service
district and the executive officer thereof.
(n) Each member of the board of directors of the State Accident
Insurance Fund Corporation.
(o) The chief administrative officer and the financial officer
of each common and union high school district, education service
district and community college district.
(p) Every member of the following state boards and commissions:
(A) Board of Geologic and Mineral Industries.
(B) Oregon Economic and Community Development Commission.
Enrolled House Bill 2009 (HB 2009-C) Page 127
(C) State Board of Education.
(D) Environmental Quality Commission.
(E) Fish and Wildlife Commission of the State of Oregon.
(F) State Board of Forestry.
(G) Oregon Government Ethics Commission.
(H) Oregon Health Policy { - Commission - } { + Board + }.
(I) State Board of Higher Education.
(J) Oregon Investment Council.
(K) Land Conservation and Development Commission.
(L) Oregon Liquor Control Commission.
(M) Oregon Short Term Fund Board.
(N) State Marine Board.
(O) Mass transit district boards.
(P) Energy Facility Siting Council.
(Q) Board of Commissioners of the Port of Portland.
(R) Employment Relations Board.
(S) Public Employees Retirement Board.
(T) Oregon Racing Commission.
(U) Oregon Transportation Commission.
(V) Wage and Hour Commission.
(W) Water Resources Commission.
(X) Workers' Compensation Board.
(Y) Oregon Facilities Authority.
(Z) Oregon State Lottery Commission.
(AA) Pacific Northwest Electric Power and Conservation Planning
Council.
(BB) Columbia River Gorge Commission.
(CC) Oregon Health and Science University Board of Directors.
(q) The following officers of the State Treasurer:
(A) Chief Deputy State Treasurer.
(B) Chief of staff for the office of the State Treasurer.
(C) Director of the Investment Division.
(r) Every member of the board of commissioners of a port
governed by ORS 777.005 to 777.725 or 777.915 to 777.953.
(s) Every member of the board of directors of an authority
created under ORS 441.525 to 441.595.
(2) By April 15 next after the date an appointment takes
effect, every appointed public official on a board or commission
listed in subsection (1) of this section shall file with the
Oregon Government Ethics Commission a statement of economic
interest as required under ORS 244.060, 244.070 and 244.090.
(3) By April 15 next after the filing deadline for the primary
election, each candidate for public office described in
subsection (1) of this section shall file with the commission a
statement of economic interest as required under ORS 244.060,
244.070 and 244.090.
(4) Within 30 days after the filing deadline for the general
election, each candidate for public office described in
subsection (1) of this section who was not a candidate in the
preceding primary election, or who was nominated for public
office described in subsection (1) of this section at the
preceding primary election by write-in votes, shall file with the
commission a statement of economic interest as required under ORS
244.060, 244.070 and 244.090.
(5) Subsections (1) to (4) of this section apply only to
persons who are incumbent, elected or appointed public officials
as of April 15 and to persons who are candidates for public
office on April 15. Subsections (1) to (4) of this section also
apply to persons who do not become candidates until 30 days after
the filing deadline for the statewide general election.
Enrolled House Bill 2009 (HB 2009-C) Page 128
(6) If a statement required to be filed under this section has
not been received by the commission within five days after the
date the statement is due, the commission shall notify the public
official or candidate and give the public official or candidate
not less than 15 days to comply with the requirements of this
section. If the public official or candidate fails to comply by
the date set by the commission, the commission may impose a civil
penalty as provided in ORS 244.350.
SECTION 193. ORS 247.570 is amended to read:
247.570. (1) Not later than five business days after receiving
a certificate of death under ORS 432.307, a county registrar
designated under ORS 432.035 shall furnish to the county clerk of
that county the name, age, date of birth and residence address of
the person for whom the registrar has received the certificate of
death. If the person was registered to vote in the county, the
county clerk immediately shall cancel the registration of the
person.
(2) Not later than five business days after receiving
information from the county registrar under subsection (1) of
this section, the county clerk shall furnish the information to
the Secretary of State. The Secretary of State shall furnish a
copy of the appropriate names received under this subsection to
each county clerk. Each county clerk immediately shall cancel the
registrations of those persons.
(3) The { - Department of Human Services - } { + Oregon
Health Authority + }, during the last week of each month, shall
furnish to the Secretary of State a list of the name, age, date
of birth, county of residence and residence address of each
resident of this state who has died during the preceding month
and for whom a certificate of death was not filed with a county
registrar. The Secretary of State shall furnish a copy of the
appropriate names to each county clerk. Each county clerk
immediately shall cancel registrations of those persons.
SECTION 194. ORS 276.180 is amended to read:
276.180. When vacated and no longer required for institution
uses, all or any portion of the buildings, grounds and facilities
presently operated and controlled by the Department of Human
Services, { + the + } Department of Corrections { + , the Oregon
Health Authority + } or the State Board of Education, are
transferred to the Oregon Department of Administrative Services
when so ordered by the Oregon Department of Administrative
Services. Title shall vest automatically in the Oregon Department
of Administrative Services in the name of the State of Oregon and
the department shall operate and maintain all facilities
described in this section.
SECTION 195. ORS 276.610 is amended to read:
276.610. There is established a fund in the State Treasury to
be known as the State Building Fund which shall be used for the
construction, alteration and repair of buildings required for use
of institutions and activities under the jurisdiction of the
Department of Corrections, { + the + } Department of Human
Services { + , the Oregon Health Authority + } or the State Board
of Education and the State Board of Higher Education and for the
furnishing and equipping of buildings so constructed, altered or
repaired.
SECTION 196. ORS 276.612 is amended to read:
276.612. The Department of Corrections, { + the + } Department
of Human Services { + , the Oregon Health Authority + } and the
State Board of Education each shall determine the buildings to be
constructed, altered, repaired, furnished and equipped for the
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use of institutions and activities under their respective
jurisdictions. The State Board of Higher Education shall
determine the buildings to be constructed, altered, repaired,
furnished and equipped for the use of institutions or activities
under its jurisdiction.
SECTION 197. ORS 278.315 is amended to read:
278.315. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may provide tort liability
coverage through the Oregon Department of Administrative Services
to any county or private community care provider that has
contracted with the { - Department of Human Services - }
{ + authority + } to provide supervision, care, treatment or
training of persons under the jurisdiction of the Psychiatric
Security Review Board. Counties or private community care
providers, and the officers and employees of those counties and
providers acting within the scope of their employment, may be
covered to the extent that any tort claim arises out of the
provision of supervision, care, treatment or training of persons
pursuant to the terms of the contract. Tort liability coverage
under this section must be in writing, and may be part of the
contract between the { - Department of Human Services - }
{ + authority + } and the county or private community care
provider. The coverage provided under this section shall be
self-insurance by the State of Oregon to the limits contained in
ORS 30.260 to 30.300.
(2) Counties or private community care providers that have
contracted with the { - Department of Human Services - }
{ + authority + } to provide supervision, care, treatment or
training of persons under the jurisdiction of the Psychiatric
Security Review Board, and the officers and employees of those
counties and providers, are not agents of the
{ - department - } { + authority + } for the purposes of ORS
30.260 to 30.300.
SECTION 198. ORS 279A.050 is amended to read:
279A.050. (1)(a) Except as otherwise provided in the Public
Contracting Code, a contracting agency shall exercise all
procurement authority in accordance with the provisions of the
Public Contracting Code.
(b) When a contracting agency has authority under this section
to carry out functions described in this section, or has
authority to make procurements under a provision of law other
than the Public Contracting Code, the contracting agency is not
required to exercise that authority in accordance with the
provisions of the code if, under ORS 279A.025, the code does not
apply to the contract or contracting authority.
(2) Except as otherwise provided in the Public Contracting
Code, for state agencies the Director of the Oregon Department of
Administrative Services has all the authority to carry out the
provisions of the Public Contracting Code.
(3) Except as otherwise provided in the Public Contracting
Code, the Director of Transportation has all the authority to:
(a) Procure or supervise the procurement of all services and
personal services to construct, acquire, plan, design, maintain
and operate passenger terminal facilities and motor vehicle
parking facilities in connection with any public transportation
system in accordance with ORS 184.689 (5);
(b) Procure or supervise the procurement of all goods,
services, public improvements and personal services relating to
the operation, maintenance or construction of highways, bridges
Enrolled House Bill 2009 (HB 2009-C) Page 130
and other transportation facilities that are subject to the
authority of the Department of Transportation; and
(c) Establish standards for, prescribe forms for and conduct
the prequalification of prospective bidders on public improvement
contracts related to the operation, maintenance or construction
of highways, bridges and other transportation facilities that are
subject to the authority of the Department of Transportation.
(4) Except as otherwise provided in the Public Contracting
Code, the Secretary of State has all the authority to procure or
supervise the procurement of goods, services and personal
services related to programs under the authority of the Secretary
of State.
(5) Except as otherwise provided in the Public Contracting
Code, the State Treasurer has all the authority to procure or
supervise the procurement of goods, services and personal
services related to programs under the authority of the State
Treasurer.
(6) The state agencies listed in this subsection have all the
authority to do the following in accordance with the Public
Contracting Code:
(a) The Department of Human Services to procure or supervise
the procurement of goods, services and personal services for the
construction, demolition, exchange, maintenance, operation and
equipping of housing { - : - } { + for the purpose of
providing care to individuals with mental retardation or other
developmental disabilities, subject to applicable provisions of
ORS 427.335;
(b) The Oregon Health Authority to procure or supervise the
procurement of goods, services and personal services for the
construction, demolition, exchange, maintenance, operation and
equipping of housing for persons with chronic mental illness,
subject to applicable provisions of ORS 426.504; + }
{ - (A) For persons with chronic mental illness, subject to
applicable provisions of ORS 426.504; and - }
{ - (B) For the purpose of providing care to individuals with
mental retardation or other developmental disabilities, subject
to applicable provisions of ORS 427.335; - }
{ - (b) - } { + (c) + } The State Department of Fish and
Wildlife to procure or supervise the procurement of construction
materials, equipment, supplies, services and personal services
for public improvements, public works or ordinary construction
described in ORS 279C.320 that is subject to the authority of the
State Department of Fish and Wildlife;
{ - (c) - } { + (d) + } The State Parks and Recreation
Department to procure or supervise the procurement of all goods,
services, public improvements and personal services relating to
state parks;
{ - (d) - } { + (e) + } The Oregon Department of Aviation
to procure or supervise the procurement of construction
materials, equipment, supplies, services and personal services
for public improvements, public works or ordinary construction
described in ORS 279C.320 that is subject to the authority of the
Oregon Department of Aviation;
{ - (e) - } { + (f) + } The Economic and Community
Development Department to procure or supervise the procurement of
all goods, services, personal services and public improvements
related to its foreign trade offices operating outside the state;
{ - (f) - } { + (g) + } The Housing and Community Services
Department to procure or supervise the procurement of goods,
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services and personal services as provided in ORS 279A.025
(2)(o);
{ - (g) - } { + (h) + } The Department of Corrections to
procure or supervise the procurement of construction materials,
equipment, supplies, services and personal services for public
improvements, public works or ordinary construction described in
ORS 279C.320 that is subject to the authority of the Department
of Corrections;
{ - (h) - } { + (i) + } The Department of Corrections,
subject to any applicable provisions of ORS 279A.120, 279A.125,
279A.145 and 283.110 to 283.395, to procure or supervise the
procurement of goods for its institutions;
{ - (i) - } { + (j) + } The Department of Veterans' Affairs
to procure or supervise the procurement of real estate broker and
principal real estate broker services related to programs under
the department's authority;
{ - (j) - } { + (k) + } The Oregon Military Department to
procure or supervise the procurement of construction materials,
equipment, supplies, services and personal services for public
improvements, public works or ordinary construction described in
ORS 279C.320 that is subject to the authority of the Oregon
Military Department;
{ - (k) - } { + (L) + } The Department of Education,
subject to any applicable provisions of ORS 329.075, 329.085 and
329.485 and the federal No Child Left Behind Act of 2001 (P.L.
107-110, 115 Stat. 1425), to procure or supervise the
procurement of goods, services, personal services and information
technology relating to student assessment; and
{ - (L) - } { + (m) + } Any state agency to conduct a
procurement when the agency is specifically authorized by any
provision of law other than the Public Contracting Code to enter
into a contract.
(7) Notwithstanding this section and ORS 279A.140 (1), the
Director of the Oregon Department of Administrative Services has
exclusive authority to procure or supervise the procurement of
all state agency information technology contracts and all price
agreements on behalf of the state agencies identified in
subsection (6)(a) to { - (j) - } { + (k) + } of this section
under which more than one state agency may order goods, services
or personal services unless the director delegates this
authority. This subsection does not apply to contracts under
which the contractor delivers to the state agency information
technology products or services incidental to the performance of
personal services contracts described in ORS chapter 279C or
construction contracts described in ORS chapter 279C. A state
agency identified in subsection (3) or (6)(a) to { - (j) - }
{ + (k) + } of this section may not establish a price agreement
or enter into a contract for goods, services or personal services
without the approval of the director if the director has
established a price agreement for the goods, services or personal
services.
SECTION 199. ORS 285A.213 is amended to read:
285A.213. (1) There is established in the State Treasury,
separate and distinct from the General Fund, the Safe Drinking
Water Revolving Loan Fund. All moneys in the Safe Drinking Water
Revolving Loan Fund are continuously appropriated to the Economic
and Community Development Department.
(2) The Economic and Community Development Department shall
administer the Safe Drinking Water Revolving Loan Fund in
accordance with a memorandum of understanding between the
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department and the { - Department of Human Services - }
{ + Oregon Health Authority + }.
(3) The Safe Drinking Water Revolving Loan Fund shall consist
of:
(a) Moneys transferred to the fund by the { - Department of
Human Services - } { + authority + } for purposes authorized by
the memorandum of understanding between the { - Department of
Human Services and the Economic and Community Development
Department - } { + authority and the department + }.
(b) Moneys transferred to the fund by the federal government,
other state agencies or local governments.
(c) Moneys transferred to the fund by the Legislative Assembly
or the Oregon Economic and Community Development Commission.
(d) Proceeds from the sale of revenue bonds.
(e) Repayment of financial assistance provided with moneys from
the fund.
(f) Interest and other earnings on moneys in the fund.
(4) Moneys in the Safe Drinking Water Revolving Loan Fund shall
be used to provide financial or other assistance to publicly
owned and privately owned water systems under the Safe Drinking
Water Act Amendments of 1996, P.L. 104-182, and rules of the
{ - Economic and Community Development Department. As used in
this subsection, 'assistance' includes direct purchase by the
Economic and Community Development Department of goods or
services related to a water system project to the extent
permitted by the memorandum of understanding between the Economic
and Community Development Department and the Department of Human
Services, the Safe Drinking Water Act Amendments of 1996, and as
authorized by rules of the Economic and Community Development
Department - } { + department. As used in this subsection,
'assistance' includes direct purchase by the department of goods
or services related to a water system project to the extent
permitted by the memorandum of understanding between the
department and the authority, the Safe Drinking Water Act
Amendments of 1996, and as authorized by rules of the
department + }.
(5) The owner of a water system may borrow from the Safe
Drinking Water Revolving Loan Fund by entering into a loan
agreement with the { - Economic and Community Development
Department - } { + department + }. The owner of a municipally
owned water system may enter into a loan agreement with the
department notwithstanding any restriction on indebtedness in the
charter or bylaws of the municipality or any other provision of
law. Moneys owed to the department by the borrower under a loan
agreement may be paid from:
(a) Revenue from any water system project of the borrower,
including special assessment revenue;
(b) Amounts withheld under subsection (6) of this section;
(c) The general fund of the borrower;
(d) Any combination of sources listed in paragraphs (a) to (c)
of this subsection; or
(e) Any other source.
(6) If a borrower fails to comply with a loan agreement entered
into under subsection (5) of this section, the { - Economic and
Community Development Department - } { + department + } may
seek appropriate legal remedies to secure any repayment due the
Safe Drinking Water Revolving Loan Fund. If a borrower defaults
on repayment due the fund, the State of Oregon may withhold any
amounts otherwise due to the borrower. Any amounts withheld under
Enrolled House Bill 2009 (HB 2009-C) Page 133
this subsection shall be credited toward repayment of the
borrower's indebtedness to the fund.
SECTION 200. ORS 285B.563 is amended to read:
285B.563. (1) There is established in the State Treasury,
separate and distinct from the General Fund, the Water Fund. All
moneys in the Water Fund are continuously appropriated to the
Economic and Community Development Department for the purposes
described in ORS 285B.560 to 285B.599, including the direct
project management costs.
(2)(a) Moneys in the Water Fund may be obligated to water
projects.
(b) Moneys shall be used primarily to make loans to
municipalities. The department may make a loan only if:
(A) The municipality applying for the loan certifies to the
department that adequate funds will be available to repay the
loan; and
(B) The department determines that the amount of the loan
applied for is based on a reasonable and prudent expectation of
the municipality's ability to repay the loan.
(c) The department may award a grant only if a loan is not
feasible due to:
(A) Financial hardship to the municipality, as determined by
the department, based on consideration of anticipated water
service charges or anticipated waste water service charges, the
per capita income of the municipality and any other factors as
the department by rule may establish; and
(B) Special circumstances of the water project.
(d) The department may determine the amount of grant or loan
funding on a case-by-case basis.
(3) The moneys in the fund may also be used to assist the
department in selling revenue bonds on behalf of municipalities
in order to carry out the purposes of ORS 285B.560 to 285B.599.
(4) Moneys in the Water Fund may be invested as provided by ORS
293.701 to 293.820. The earnings from the investments and other
program income shall be credited to the Water Fund.
(5) The Water Fund shall consist of:
(a) Moneys appropriated to the fund by the Legislative
Assembly.
(b) Moneys transferred to the fund by the Economic and
Community Development Department from the Special Public Works
Fund created by ORS 285B.455.
(c) Moneys transferred to the Water Fund by the Water Resources
Commission from the Water Development Fund created by Article
XI-I(1) of the Oregon Constitution.
(d) Moneys from any federal, state or other grants.
(e) Proceeds of revenue bonds issued under ORS 285B.575.
(f) Earnings on the Water Fund.
(6) The department shall administer the fund.
(7) The department shall adopt rules and policies for the
administration of the fund. The department shall coordinate its
rulemaking regarding safe drinking water projects with the Water
Resources Department and the { - Department of Human
Services - } { + Oregon Health Authority + }. The rules adopted
under this subsection for safe drinking water projects shall:
(a) Require the installation of meters on all new active
service connections from any distribution lines funded with
moneys from the fund or from the proceeds of revenue bonds issued
under ORS 285B.572 to 285B.578.
(b) Require a plan, to be adopted by a municipality receiving
financial assistance from the fund, for installation of meters on
Enrolled House Bill 2009 (HB 2009-C) Page 134
all service connections throughout the drinking water system not
later than two years after the completion of a safe drinking
water project.
(8)(a) The Economic and Community Development Department shall
manage the Water Fund and any expenditures from accounts in the
fund and transfers between accounts so that the fund provides a
continuing source of financing consistent with ORS 285B.413.
(b) If necessary to ensure repayment of bonds issued under ORS
285B.560 to 285B.599, the department may reduce the value of the
fund when the department:
(A) Finds that without a reduction in fund value, bonds secured
by the fund are likely to be in default; and
(B) Imposes a moratorium on grants until the requirements of
paragraph (a) of this subsection are satisfied.
(9)(a) The department may charge administrative costs to the
fund, but not to moneys segregated in the account created by
subsection (11) of this section, to pay for administrative costs
incurred by the department.
(b) To the extent permitted by federal law, administrative
costs of the department may be paid from bond proceeds.
(10) The department may establish other accounts within the
Water Fund for the payment of water projects costs, reserves,
debt service payments, credit enhancements, costs of issuing
revenue bonds, administrative costs and operating expenses or any
other purpose necessary to carry out ORS 285B.560 to 285B.599.
(11) There is created within the Water Fund a separate and
distinct account for the proceeds from the sale of water
development general obligation bonds issued for safe drinking
water projects and credited to the special account under this
section. Any investment earnings thereon shall be segregated in
and continuously appropriated to a special, separately accounted
for subaccount of this account. Moneys credited to this account
shall be maintained separate and distinct from moneys credited to
subaccounts created under subsection (10) of this section.
Notwithstanding ORS 285B.566 or subsection (4) of this section,
all repayments of moneys loaned from the account created by this
subsection, including interest on the moneys, shall be credited
to the Water Development Administration and Bond Sinking Fund
created by ORS 541.830.
(12) As used in this section, 'administrative costs ' include
the department's direct and indirect costs for investigating and
processing an application, developing a contract, monitoring the
use of funds by a municipality, investigating and resolving a
budget discrepancy, closing a project and providing financial and
other assistance to a municipality.
{ + NOTE: + } Section 201 was deleted by amendment.
Subsequent sections were not renumbered.
SECTION 202. ORS 291.371 is amended to read:
291.371. (1) As used in this section, 'legislative review
agency' means the Joint Committee on Ways and Means during the
period when the Legislative Assembly is in session and the
Emergency Board during the interim period between sessions.
(2) Prior to making any changes in a salary plan, the Oregon
Department of Administrative Services shall submit the proposed
changes to the legislative review agency.
(3)(a) The Oregon Department of Administrative Services may
approve the reallocation of positions or the establishment of new
positions not specifically provided for in the budget of the
affected agency if it finds that the proposed change:
Enrolled House Bill 2009 (HB 2009-C) Page 135
(A) Can be financed by the agency within the limits of its
biennial budget and legislatively approved program;
(B) Will not produce future budgetary increases; and
(C) Conforms to legislatively approved salary policies.
(b) Proposed changes not meeting the requirements of paragraph
(a) of this subsection shall be presented to the legislative
review agency.
(4) Agencies within the Department of Human Services { + , the
Oregon Health Authority + } and the Department of Corrections
shall report on a biennial basis to the legislative review
agency. Each report shall include the number of vacant budgeted
positions, including all job categories and classifications,
within the agency. The legislative review agency shall order the
reporting agency to show cause why the budgeted positions have
not been filled and shall assess fully the impact the vacancies
have on:
(a) The agency's delivery of services, accounting for any
seasonal fluctuation in the need for those services;
(b) The agency's budget due to increased use of overtime;
(c) The agency's use of temporary employees; and
(d) Employee workload.
(5) It is declared to be the policy of this state that the
total personal services, budget and full-time equivalent
positions approved for any state agency shall be the maximum
amount necessary to meet the requirements of the agency for the
biennium. Notwithstanding ORS 291.232 to 291.260, the Governor
and the Oregon Department of Administrative Services may transfer
vacant position authority among and within state agencies to
achieve maximum utilization of authorized positions within
agencies.
SECTION 203. ORS 314.840 is amended to read:
314.840. (1) The Department of Revenue may:
(a) Furnish any taxpayer, representative authorized to
represent the taxpayer under ORS 305.230 or person designated by
the taxpayer under ORS 305.193, upon request of the taxpayer,
representative or designee, with a copy of the taxpayer's income
tax return filed with the department for any year, or with a copy
of any report filed by the taxpayer in connection with the
return, or with any other information the department considers
necessary.
(b) Publish lists of taxpayers who are entitled to unclaimed
tax refunds.
(c) Publish statistics so classified as to prevent the
identification of income or any particulars contained in any
report or return.
(d) Disclose a taxpayer's name, address, telephone number,
refund amount, amount due, Social Security number, employer
identification number or other taxpayer identification number to
the extent necessary in connection with collection activities or
the processing and mailing of correspondence or of forms for any
report, return or claim required in the administration of ORS
310.630 to 310.706, any local tax under ORS 305.620, or any law
imposing a tax upon or measured by net income.
(2) The department also may disclose and give access to
information described in ORS 314.835 to:
(a) The Governor of the State of Oregon or the authorized
representative of the Governor:
(A) With respect to an individual who is designated as being
under consideration for appointment or reappointment to an office
Enrolled House Bill 2009 (HB 2009-C) Page 136
or for employment in the office of the Governor. The information
disclosed shall be confined to whether the individual:
(i) Has filed returns with respect to the taxes imposed by ORS
chapter 316 for those of not more than the three immediately
preceding years for which the individual was required to file an
Oregon individual income tax return.
(ii) Has failed to pay any tax within 30 days from the date of
mailing of a deficiency notice or otherwise respond to a
deficiency notice within 30 days of its mailing.
(iii) Has been assessed any penalty under the Oregon personal
income tax laws and the nature of the penalty.
(iv) Has been or is under investigation for possible criminal
offenses under the Oregon personal income tax laws. Information
disclosed pursuant to this paragraph shall be used only for the
purpose of making the appointment, reappointment or decision to
employ or not to employ the individual in the office of the
Governor.
(B) For use by an officer or employee of the Oregon Department
of Administrative Services duly authorized or employed to prepare
revenue estimates, or a person contracting with the Oregon
Department of Administrative Services to prepare revenue
estimates, in the preparation of revenue estimates required for
the Governor's budget under ORS 291.201 to 291.226, or required
for submission to the Emergency Board, or if the Legislative
Assembly is in session, to the Joint Committee on Ways and Means,
and to the Legislative Revenue Officer under ORS 291.342, 291.348
and 291.445. The Department of Revenue shall disclose and give
access to the information described in ORS 314.835 for the
purposes of this subparagraph only if:
(i) The request for information is made in writing, specifies
the purposes for which the request is made and is signed by an
authorized representative of the Oregon Department of
Administrative Services. The form for request for information
shall be prescribed by the Oregon Department of Administrative
Services and approved by the Director of the Department of
Revenue.
(ii) The officer, employee or person receiving the information
does not remove from the premises of the Department of Revenue
any materials that would reveal the identity of a personal or
corporate taxpayer.
(b) The Commissioner of Internal Revenue or authorized
representative, for tax administration and compliance purposes
only.
(c) For tax administration and compliance purposes, the proper
officer or authorized representative of any of the following
entities that has or is governed by a provision of law that meets
the requirements of any applicable provision of the Internal
Revenue Code as to confidentiality:
(A) A state;
(B) A city, county or other political subdivision of a state;
(C) The District of Columbia; or
(D) An association established exclusively to provide services
to federal, state or local taxing authorities.
(d) The Multistate Tax Commission or its authorized
representatives, for tax administration and compliance purposes
only. The Multistate Tax Commission may make the information
available to the Commissioner of Internal Revenue or the proper
officer or authorized representative of any governmental entity
described in and meeting the qualifications of paragraph (c) of
this subsection.
Enrolled House Bill 2009 (HB 2009-C) Page 137
(e) The Attorney General, assistants and employees in the
Department of Justice, or other legal representative of the State
of Oregon, to the extent the department deems disclosure or
access necessary for the performance of the duties of advising or
representing the department pursuant to ORS 180.010 to 180.240
and the tax laws of this state.
(f) Employees of the State of Oregon, other than of the
Department of Revenue or Department of Justice, to the extent the
department deems disclosure or access necessary for such
employees to perform their duties under contracts or agreements
between the department and any other department, agency or
subdivision of the State of Oregon, in the department's
administration of the tax laws.
(g) Other persons, partnerships, corporations and other legal
entities, and their employees, to the extent the department deems
disclosure or access necessary for the performance of such
others' duties under contracts or agreements between the
department and such legal entities, in the department's
administration of the tax laws.
(h) The Legislative Revenue Officer or authorized
representatives upon compliance with ORS 173.850. Such officer or
representative shall not remove from the premises of the
department any materials that would reveal the identity of any
taxpayer or any other person.
(i) The Department of Consumer and Business Services, to the
extent the department requires such information to determine
whether it is appropriate to adjust those workers' compensation
benefits the amount of which is based pursuant to ORS chapter 656
on the amount of wages or earned income received by an
individual.
(j) Any agency of the State of Oregon, or any person, or any
officer or employee of such agency or person to whom disclosure
or access is given by state law and not otherwise referred to in
this section, including but not limited to the Secretary of State
as Auditor of Public Accounts under section 2, Article VI of the
Oregon Constitution; the Department of Human Services pursuant to
ORS 314.860 and 412.094; the Division of Child Support of the
Department of Justice and district attorney regarding cases for
which they are providing support enforcement services under ORS
25.080; the State Board of Tax Practitioners, pursuant to ORS
673.710; and the Oregon Board of Accountancy, pursuant to ORS
673.415.
(k) The Director of the Department of Consumer and Business
Services to determine that a person complies with ORS chapter 656
and the Director of the Employment Department to determine that a
person complies with ORS chapter 657, the following employer
information:
(A) Identification numbers.
(B) Names and addresses.
(C) Inception date as employer.
(D) Nature of business.
(E) Entity changes.
(F) Date of last payroll.
(L) The Director of Human Services to determine that a person
has the ability to pay for care that includes services provided
by the { - state institutions as described in ORS 179.321 - }
{ + Eastern Oregon Training Center + } or the Department of
Human Services { - or - } to collect any unpaid cost of care
as provided by ORS chapter 179.
Enrolled House Bill 2009 (HB 2009-C) Page 138
{ + (m) The Director of the Oregon Health Authority to
determine that a person has the ability to pay for care that
includes services provided by the Blue Mountain Recovery Center
or the Oregon State Hospital or the Oregon Health Authority to
collect any unpaid cost of care as provided by ORS chapter
179. + }
{ - (m) - } { + (n) + } Employees of the Employment
Department to the extent the Department of Revenue deems
disclosure or access to information on a combined tax report
filed under ORS 316.168 is necessary to performance of their
duties in administering the tax imposed by ORS chapter 657.
{ - (n) - } { + (o) + } The State Fire Marshal to assist
the State Fire Marshal in carrying out duties, functions and
powers under ORS 453.307 to 453.414, the employer or agent name,
address, telephone number and standard industrial classification,
if available.
{ - (o) - } { + (p) + } Employees of the Department of
State Lands for the purposes of identifying, locating and
publishing lists of taxpayers entitled to unclaimed refunds as
required by the provisions of chapter 694, Oregon Laws 1993. The
information shall be limited to the taxpayer's name, address and
the refund amount.
{ - (p) - } { + (q) + } In addition to the disclosure
allowed under ORS 305.225, state or local law enforcement
agencies to assist in the investigation or prosecution of the
following criminal activities:
(A) Mail theft of a check, in which case the information that
may be disclosed shall be limited to the stolen document, the
name, address and taxpayer identification number of the payee,
the amount of the check and the date printed on the check.
(B) The counterfeiting, forging or altering of a check
submitted by a taxpayer to the Department of Revenue or issued by
the Department of Revenue to a taxpayer, in which case the
information that may be disclosed shall be limited to the
counterfeit, forged or altered document, the name, address and
taxpayer identification number of the payee, the amount of the
check, the date printed on the check and the altered name and
address.
{ - (q) - } { + (r) + } The United States Postal Inspection
Service or a federal law enforcement agency, including but not
limited to the United States Department of Justice, to assist in
the investigation of the following criminal activities:
(A) Mail theft of a check, in which case the information that
may be disclosed shall be limited to the stolen document, the
name, address and taxpayer identification number of the payee,
the amount of the check and the date printed on the check.
(B) The counterfeiting, forging or altering of a check
submitted by a taxpayer to the Department of Revenue or issued by
the Department of Revenue to a taxpayer, in which case the
information that may be disclosed shall be limited to the
counterfeit, forged or altered document, the name, address and
taxpayer identification number of the payee, the amount of the
check, the date printed on the check and the altered name and
address.
{ - (r) - } { + (s) + } The United States Financial
Management Service, for purposes of facilitating the reciprocal
offsets described in ORS 305.612.
{ - (s) - } { + (t) + } A municipal corporation of this
state for purposes of assisting the municipal corporation in the
administration of a tax of the municipal corporation that is
Enrolled House Bill 2009 (HB 2009-C) Page 139
imposed on or measured by income, wages or net earnings from
self-employment. Any disclosure under this paragraph may be made
only pursuant to a written agreement between the Department of
Revenue and the municipal corporation that ensures the
confidentiality of the information disclosed.
(3)(a) Each officer or employee of the department and each
person described or referred to in subsection (2)(a), (e) to (k)
or { - (m) to (p) - } { + (n) to (q) + } of this section to
whom disclosure or access to the tax information is given under
subsection (2) of this section or any other provision of state
law, prior to beginning employment or the performance of duties
involving such disclosure or access, shall be advised in writing
of the provisions of ORS 314.835 and 314.991, relating to
penalties for the violation of ORS 314.835, and shall as a
condition of employment or performance of duties execute a
certificate for the department, in a form prescribed by the
department, stating in substance that the person has read these
provisions of law, that the person has had them explained and
that the person is aware of the penalties for the violation of
ORS 314.835.
(b) The disclosure authorized in subsection { - (2)(q) - }
{ + (2)(r) + } of this section shall be made only after a
written agreement has been entered into between the Department of
Revenue and the person described in subsection { - (2)(q) - }
{ + (2)(r) + } of this section to whom disclosure or access to
the tax information is given, providing that:
(A) Any information described in ORS 314.835 that is received
by the person pursuant to subsection { - (2)(q) - }
{ + (2)(r) + } of this section is confidential information that
may not be disclosed, except to the extent necessary to
investigate or prosecute the criminal activities described in
subsection { - (2)(q) - } { + (2)(r) + } of this section;
(B) The information shall be protected as confidential under
applicable federal and state laws; and
(C) The United States Postal Inspection Service or the federal
law enforcement agency shall give notice to the Department of
Revenue of any request received under the federal Freedom of
Information Act, 5 U.S.C. 552, or other federal law relating to
the disclosure of information.
(4) The Department of Revenue may recover the costs of
furnishing the information described in subsection { - (2)(k),
(L) and (n) to (p) - } { + (2)(k) to (m) and (o) to (q) + } of
this section from the respective agencies.
SECTION 204. ORS 315.604 is amended to read:
315.604. (1) As used in this section:
(a) 'Bone marrow donor expense' means the sum of the amounts
paid or incurred during the tax year by an employer for the
following:
(A) Development of an employee bone marrow donation program.
(B) Employee education related to bone marrow donation,
including but not limited to the need for donors and an
explanation of the procedures used to determine tissue type and
donate bone marrow.
(C) Payments to a health care provider for determining the
tissue type of an employee who agrees to register or registers as
a bone marrow donor.
(D) Wages paid to an employee for time reasonably related to
tissue typing and bone marrow donation.
(E) Transportation of an employee to the site of a donation or
any other service which is determined by the { - Department of
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Human Services - } { + Oregon Health Authority + } by rule as
essential for a successful bone marrow donation.
(b) 'Employee' means an individual who:
(A) Is regularly employed by the taxpayer for more than 20
hours per week;
(B) Who is not a temporary or seasonal employee; and
(C) Whose wages are subject to withholding under ORS 316.162 to
316.221.
(c) 'Wages' has the meaning given the term for purposes of ORS
316.162 to 316.221.
(2) A business tax credit against the taxes otherwise due under
ORS chapter 316 for the tax year is allowed to a resident
employer, or if the employer is a corporation, to the employer
against the taxes otherwise due under ORS chapter 317. The amount
of the credit is equal to 25 percent of the bone marrow donor
expense paid or incurred during the tax year by an employer to
provide a program for employees who are potential bone marrow
donors or who actually become bone marrow donors.
(3)(a) Except as provided under paragraph (b) of this
subsection, the allowance of a credit under this section shall
not affect the computation of taxable income for purposes of ORS
chapter 316 or 317.
(b) If in determining the amount of the credit for any tax year
an amount allowed as a deduction under section 170 of the
Internal Revenue Code is included in bone marrow donation
expense, the amount allowed as a deduction shall be added to
federal taxable income.
(4) The credit allowed under this section shall be allowed to a
nonresident employer in the same manner as the credit is allowed
to a resident employer.
(5) Any tax credit otherwise allowable under this section which
is not used by the taxpayer in a particular tax year may be
carried forward and offset against the taxpayer's tax liability
for the next succeeding tax year. Any credit remaining unused in
such next succeeding tax year may be carried forward and used in
the second succeeding tax year. Any credit remaining unused in
such second succeeding tax year may be carried forward and used
in the third succeeding tax year. Any credit remaining unused in
such third succeeding tax year may be carried forward and used in
the fourth succeeding tax year. Any credit remaining unused in
such fourth succeeding tax year may be carried forward and used
in the fifth succeeding tax year, but may not be used in any tax
year thereafter.
SECTION 205. ORS 315.613 is amended to read:
315.613. (1) A resident or nonresident individual certified as
eligible under ORS 442.563, licensed under ORS chapter 677, who
is engaged in the practice of medicine, and who has a rural
practice that amounts to 60 percent of the individual's practice,
shall be allowed an annual credit against taxes otherwise due
under this chapter in the sum of $5,000 during the time in which
the individual retains such practice and membership if the
individual is actively practicing in and is a member of the
medical staff of one of the following hospitals:
(a) A type A hospital designated as such by the Office of Rural
Health;
(b) A type B hospital designated as such by the Office of Rural
Health if the hospital is:
(A) Not within the boundaries of a metropolitan statistical
area;
Enrolled House Bill 2009 (HB 2009-C) Page 141
(B) Located 30 or more highway miles from the closest hospital
within the major population center in a metropolitan statistical
area; or
(C) Located in a county with a population of less than 75,000;
(c) A type C rural hospital, if the Office of Rural Health
makes the findings required by ORS 315.619; or
(d) A rural critical access hospital.
(2) A nonresident shall be allowed the credit under this
section in the proportion provided in ORS 316.117. If a change in
the status of a taxpayer from resident to nonresident or from
nonresident to resident occurs, the credit allowed by this
section shall be determined in a manner consistent with ORS
316.117.
(3) For purposes of this section, an 'individual's practice'
shall be determined on the basis of actual time spent in practice
each week in hours or days, whichever is considered by the Office
of Rural Health to be more appropriate. In the case of a
shareholder of a corporation or a member of a partnership, only
the time of the individual shareholder or partner shall be
considered and the full amount of the credit shall be allowed to
each shareholder or partner who qualifies in an individual
capacity.
(4) As used in this section:
(a) 'Type A hospital,' 'type B hospital' and 'type C hospital'
have the meaning for those terms provided in ORS 442.470.
(b) 'Rural critical access hospital' means a facility that
meets the criteria set forth in 42 U.S.C. 1395i-4 (c)(2)(B) and
that has been designated a critical access hospital by the Office
of Rural Health and the { - Department of Human Services - }
{ + Oregon Health Authority + }.
SECTION 206. ORS 320.308 is amended to read:
320.308. The following are exempt from the state transient
lodging tax:
(1) A dwelling unit in a hospital, health care facility, long
term care facility or any other residential facility that is
licensed, registered or certified by the Department of Human
Services { + or the Oregon Health Authority + };
(2) A dwelling unit in a facility providing treatment for drug
or alcohol abuse or providing mental health treatment;
(3) A dwelling unit that is used by members of the general
public for temporary human occupancy for fewer than 30 days per
year;
(4) A dwelling unit, the consideration for which is funded
through a contract with a government agency and the purpose of
which is to provide emergency or temporary shelter;
(5) A dwelling unit at a nonprofit youth or church camp,
nonprofit conference center or other nonprofit facility; or
(6) A dwelling unit that is leased or otherwise occupied by the
same person for a consecutive period of 30 days or more during
the year. The requirements of this subsection are satisfied even
if the physical dwelling unit changes during the consecutive
period, if:
(a) All dwelling units occupied are within the same facility;
and
(b) The person paying consideration for the transient lodging
is the same person throughout the consecutive period.
SECTION 206a. ORS 323.455 is amended to read:
323.455. (1) All moneys received by the Department of Revenue
from the tax imposed by ORS 323.030 (1) shall be paid over to the
State Treasurer to be held in a suspense account established
Enrolled House Bill 2009 (HB 2009-C) Page 142
under ORS 293.445. After the payment of refunds, 89.65 percent
shall be credited to the General Fund, 3.45 percent is
appropriated to the cities of this state, 3.45 percent is
appropriated to the counties of this state and 3.45 percent is
continuously appropriated to the Department of Transportation for
the purpose of financing and improving transportation services
for elderly individuals and individuals with disabilities as
provided in ORS 391.800 to 391.830.
(2) The moneys so appropriated to cities and counties shall be
paid on a monthly basis within 35 days after the end of the month
for which a distribution is made. Each city shall receive such
share of the money appropriated to all cities as its population,
as determined under ORS 190.510 to 190.590 last preceding such
apportionment, bears to the total population of the cities of the
state, and each county shall receive such share of the money as
its population, determined under ORS 190.510 to 190.590 last
preceding such apportionment, bears to the total population of
the state.
(3) The moneys appropriated to the Department of Transportation
under subsection (1) of this section shall be distributed and
transferred to the Elderly and Disabled Special Transportation
Fund established by ORS 391.800 at the same time as the cigarette
tax moneys are distributed to cities and counties under this
section.
(4) Of the moneys credited to the General Fund under this
section 51.92 percent shall be dedicated to funding the
maintenance and expansion of the number of persons eligible for
{ + the + } medical assistance { + program + } under { - the
Oregon Health Plan - } { + ORS chapter 414 + }, or to funding
the maintenance of the benefits available under the { - Oregon
Health Plan - } { + program + }, or both, and 5.77 percent
shall be credited to the Tobacco Use Reduction Account
established under ORS 431.832.
SECTION 206b. ORS 323.625 is amended to read:
323.625. All moneys received by the Department of Revenue under
ORS 323.500 to 323.645 shall be deposited in the State Treasury
and credited to a suspense account established under ORS 293.445.
After payment of refunds or credits arising from erroneous
overpayments, the balance of the money shall be credited to the
General Fund. Of the amount credited to the General Fund under
this section 41.54 percent shall be dedicated to funding the
maintenance and expansion of the number of persons eligible for
{ + the + } medical assistance { + program + } under { - the
Oregon Health Plan - } { + ORS chapter 414 + }, or to funding
the maintenance of the benefits available under the { - Oregon
Health Plan - } { + program + }, or both, and 4.62 percent
shall be credited to the Tobacco Use Reduction Account
established under ORS 431.832.
SECTION 207. ORS 332.111 is amended to read:
332.111. A district school board in a school district may enter
into agreements to provide auxiliary services and facilities to
students, including but not limited to forms of residential care
and medical and dental services. Any facility used for
residential purposes under this section must meet the applicable
standards of the { - Department of Human Services - }
{ + Oregon Health Authority + } and the State Fire Marshal.
SECTION 208. ORS 336.222 is amended to read:
336.222. In accordance with rules adopted by the State Board of
Education in consultation with the { - Department of Human
Services - } { + Oregon Health Authority + }, each district
Enrolled House Bill 2009 (HB 2009-C) Page 143
school board shall adopt a comprehensive alcohol and drug abuse
policy and implementation plan, including but not limited to:
(1) Alcohol and drug abuse prevention curriculum and public
information programs addressing students, parents, teachers,
administrators and school board members;
(2) The nature and extent of the district's expectation of
intervention with students who appear to have drug or alcohol
abuse problems;
(3) The extent of the district's alcohol and other drug
prevention and intervention programs; and
(4) The district's strategy to gain access to federal funds
available for drug abuse prevention programs.
SECTION 209. ORS 336.227 is amended to read:
336.227. To assist school districts to formulate the programs
described in ORS 336.222 (1), the { - Department of Human
Services - } { + Oregon Health Authority + } shall:
(1) Devise a public information program directed toward
students, parents, teachers, administrators and school board
members at the school district level; and
(2) Contact advocacy associations of the target groups
described in subsection (1) of this section to facilitate
outreach programs and disseminate alcohol and drug abuse
prevention information.
SECTION 210. ORS 336.235 is amended to read:
336.235. In order to carry out the duties described in ORS
336.222 and 336.227, the State Board of Education, in
consultation with the { - Department of Human Services - }
{ + Oregon Health Authority + }, shall adopt by rule, as a
minimum, descriptions of the content of what shall be included in
the policy and plan described in ORS 336.222 and 336.227.
SECTION 211. ORS 336.245 is amended to read:
336.245. The Department of Education, the Oregon University
System and the { - Department of Human Services - }
{ + Oregon Health Authority + } shall report to regular sessions
of the Legislative Assembly and to the Governor on the progress
and effectiveness of the policies and plans described in ORS
336.222, 336.227 and 352.008 by submitting a copy of the report
to the offices of the President of the Senate and the Speaker of
the House of Representatives and to the Governor.
SECTION 212. ORS 339.333 is amended to read:
339.333. (1) The Center for School Safety shall be governed by
a board of directors. The board of directors shall consist of:
(a) The Superintendent of Public Instruction or a designee of
the superintendent;
(b) The Director of the Oregon Youth Authority or a designee of
the director;
(c) The Attorney General or a designee of the Attorney General;
(d) The Superintendent of State Police or a designee of the
superintendent;
(e) The Director of Human Services or a designee of the
director;
{ + (f) The Director of the Oregon Health Authority or a
designee of the director; + }
{ - (f) - } { + (g) + } Nine members appointed by the
Governor, as follows:
(A) One member representing the Oregon School Boards
Association;
(B) One member representing the Confederation of Oregon School
Administrators;
(C) One member representing the Oregon Education Association;
Enrolled House Bill 2009 (HB 2009-C) Page 144
(D) One member representing the Oregon School Employees
Association;
(E) One member representing the Oregon State Sheriffs'
Association;
(F) One member representing the Oregon Association Chiefs of
Police;
(G) One member representing the Oregon District Attorneys
Association;
(H) One member representing the National Resource Center for
Safe Schools on the Northwest Regional Educational Laboratory;
and
(I) One member representing the Oregon School Safety Officers
Association; and
{ - (g) - } { + (h) + } Other members that the board may
appoint.
(2) When making appointments to the board of directors, the
Governor shall solicit recommendations from professional
organizations that represent school employees, school district
boards, school administrators and other education providers.
(3) The term of office of each board member appointed by the
Governor is two years, but a member serves at the pleasure of the
Governor. Before the expiration of the term of a board member,
the Governor shall appoint a successor. A board member is
eligible for reappointment but shall not serve for more than two
consecutive terms. If there is a vacancy for any cause, the
Governor shall make an appointment to become immediately
effective for the unexpired term.
(4) A member of the board of directors is entitled to
compensation and expenses as provided in ORS 292.495.
(5) The board of directors shall meet a minimum of four times
per year.
(6) The board of directors shall annually elect a chairperson
and vice chairperson from the membership. The board of directors
may form committees as needed.
SECTION 213. ORS 339.505 is amended to read:
339.505. (1) For purposes of the student accounting system
required by ORS 339.515, the following definitions shall be used:
(a) 'Graduate' means an individual who has:
(A) Not reached 21 years of age or whose 21st birthday occurs
during the current school year;
(B) Met all state requirements and local requirements for
attendance, competence and units of credit for high school; and
(C) Received one of the following:
(i) A high school diploma issued by a school district.
(ii) An adult high school diploma issued by an authorized
community college.
(iii) A modified high school diploma.
(b) 'School dropout' means an individual who:
(A) Has enrolled for the current school year, or was enrolled
in the previous school year and did not attend during the current
school year;
(B) Is not a high school graduate;
(C) Has not received a General Educational Development (GED)
certificate; and
(D) Has withdrawn from school.
(c) 'School dropout' does not include a student described by at
least one of the following:
(A) A student who has transferred to another educational system
or institution that leads to graduation and the school district
Enrolled House Bill 2009 (HB 2009-C) Page 145
has received a written request for the transfer of the student's
records or transcripts.
(B) A student who is deceased.
(C) A student who is participating in home instruction paid for
by the district.
(D) A student who is being taught by a private teacher, parent
or legal guardian pursuant to ORS 339.030 (1)(d) or (e).
(E) A student who is participating in a Department of Education
approved public or private education program, an alternative
education program as defined in ORS 336.615 or a hospital
education program, or is residing in a Department of Human
Services { + or an Oregon Health Authority + } facility.
(F) A student who is temporarily residing in a shelter care
program certified by the Oregon Youth Authority { - or the
Department of Human Services - } or in a juvenile detention
facility.
(G) A student who is enrolled in a foreign exchange program.
(H) A student who is temporarily absent from school because of
suspension, a family emergency, or severe health or medical
problems that prohibit the student from attending school.
(I) A student who has received a General Educational
Development (GED) certificate.
(2) The State Board of Education shall prescribe by rule when
an unexplained absence becomes withdrawal, when a student is
considered enrolled in school, acceptable alternative education
programs under ORS 336.615 to 336.675 and the standards for
excused absences for purposes of ORS 339.065 for family
emergencies and health and medical problems.
SECTION 214. ORS 339.869 is amended to read:
339.869. (1) The State Board of Education, in consultation with
the { - Department of Human Services - } { + Oregon Health
Authority + }, the Oregon State Board of Nursing and the State
Board of Pharmacy, shall adopt rules for the administration of
prescription and nonprescription medication to students by
trained school personnel and for student self-medication. The
rules shall include age appropriate guidelines and training
requirements for school personnel.
(2) School district boards shall adopt policies and procedures
that provide for the administration of prescription and
nonprescription medication to students by trained school
personnel and for student self-medication. Such policies and
procedures shall be consistent with the rules adopted by the
State Board of Education under subsection (1) of this section. A
school district board shall not require school personnel who have
not received appropriate training to administer medication.
SECTION 215. ORS 343.221 is amended to read:
343.221. In order to provide special education for children
with disabilities, the district school board of any school
district in which there are school-age children who require
special education:
(1) Shall submit an annual projected activities and cost
statement to the Superintendent of Public Instruction for a
program of special education for the district's children with
disabilities. The proposed district program shall include
provisions for providing special education and related services
and be designed to meet the unique needs of all resident children
with disabilities.
(2) Shall provide special education for such children
consistent with the projected activities and cost statement.
Enrolled House Bill 2009 (HB 2009-C) Page 146
(3) May, when the board considers a contract to be economically
feasible and in the interests of the learning opportunities of
eligible children, contract for special education for such
children with another school district if the district school
boards jointly agree to provide special education.
(4) May, when the board considers a contract to be economically
feasible and in the interests of the learning opportunities of
eligible children, contract for special education for such
children with an education service district if:
(a) The contract is consistent with the local service plan of
the education service district developed pursuant to ORS 334.175
and the school districts within the education service district
approve the contract by a resolution adopted in the manner
provided in ORS 334.175.
(b) The school district contracts with an education service
district pursuant to ORS 334.185.
(5) May contract with private agencies or organizations
approved by the State Board of Education for special education.
(6) May use the services of public agencies, including
community mental health { + programs + } and { + community + }
developmental disabilities programs, which provide diagnostic,
evaluation and other related services for children.
(7) May contract for the provision of related services by a
person in private practice if that person is registered,
certified or licensed by the State of Oregon as qualified to
provide a particular related service that requires registration,
certification or licensing by the state.
SECTION 216. ORS 343.499 is amended to read:
343.499. (1)(a) There is created the State Interagency
Coordinating Council.
(b) The Governor shall appoint members of the council from a
list of eligible appointees provided by the council and agencies
described in subsection (2) of this section and shall ensure that
the membership of the council reasonably represents the
population of this state.
(c) The Governor shall designate one member of the council to
serve as the chairperson, or if the Governor chooses not to name
a chairperson, the council may elect one of its members to serve
as chairperson. However, any member of the council who represents
the Department of Education may not serve as the chairperson of
the council.
(2) The membership of the council shall be composed as follows:
(a) At least 20 percent of the council members shall be
parents, including minority parents, of preschool children with
disabilities or of children with disabilities who are 12 years of
age or younger who have knowledge of or experience with programs
for infants and toddlers with disabilities. At least one council
member shall be a parent of an infant or toddler with a
disability or of a child with a disability who is six years of
age or younger.
(b) At least 20 percent of the council members shall be public
or private providers of early intervention and early childhood
special education services.
(c) At least one council member shall be a member of the
Legislative Assembly.
(d) At least one council member shall be involved in personnel
preparation.
(e) At least one council member shall represent the Department
of Human Services.
Enrolled House Bill 2009 (HB 2009-C) Page 147
(f) At least one council member shall represent the federal
Head Start program.
(g) At least one council member shall represent the Child Care
Division of the Employment Department.
(h) At least one council member shall represent the Department
of Education.
(i) At least one council member shall represent the Department
of Consumer and Business Services.
(j) At least one council member shall represent the State
Commission on Children and Families.
(k) At least one council member shall represent the Child
Development and Rehabilitation Center of the Oregon Health and
Science University.
(L) At least one council member shall be a member of the State
Advisory Council for Special Education created under ORS 343.287.
(m) At least one council member shall be a representative
designated by the state coordinator for homeless education.
(n) At least one council member shall represent the state child
welfare agency responsible for foster care.
(o) At least one council member shall represent the state
agency responsible for children's mental health.
(p) At least one council member shall be from the { - agency
responsible for the state Medicaid program - } { + Oregon
Health Authority + }.
(q) The council may include other members appointed by the
Governor, including but not limited to one representative from
the United States Bureau of Indian Affairs or, where there is no
school operated or funded by the bureau, from the Indian Health
Service or the tribe or tribal council.
(3) An individual appointed to represent a state agency that is
involved in the provision of or payment for services for
preschool children with disabilities under subsection (2)(e) and
(h) to (k) of this section shall have sufficient authority to
engage in making and implementing policy on behalf of the agency.
(4) The State Interagency Coordinating Council shall:
(a) Advise the Superintendent of Public Instruction and the
State Board of Education on unmet needs in the early childhood
special education and early intervention programs for preschool
children with disabilities, review and comment publicly on any
rules proposed by the State Board of Education and the
distribution of funds for the programs and assist the state in
developing and reporting data on and evaluations of the programs
and services.
(b) Advise and assist the represented public agencies regarding
the services and programs they provide to preschool children with
disabilities and their families, including public comments on any
proposed rules affecting the target population and the
distribution of funds for such services, and assist each agency
in developing services that reflect the overall goals for the
target population as adopted by the council.
(c) Advise and assist the Department of Education and other
state agencies in the development and implementation of the
policies that constitute the statewide system.
(d) Assist all appropriate public agencies in achieving the
full participation, coordination and cooperation for
implementation of a statewide system that includes but is not
limited to:
(A) Seeking information from service providers, service
coordinators, parents and others about any federal, state or
local policies that impede timely service delivery; and
Enrolled House Bill 2009 (HB 2009-C) Page 148
(B) Taking steps to ensure that any policy problems identified
under subparagraph (A) of this paragraph are resolved.
(e) Advise and assist the Department of Education in
identifying the sources of fiscal and other support for preschool
services, assigning financial responsibility to the appropriate
agencies and ensuring that the provisions of interagency
agreements under ORS 343.511 are carried out.
(f) Review and comment on each agency's services and policies
regarding services for preschool children with disabilities, or
preschool children who are at risk of developing disabling
conditions, and their families to the maximum extent possible to
assure cost-effective and efficient use of resources.
(g) To the extent appropriate, assist the Department of
Education in the resolution of disputes.
(h) Advise and assist the Department of Education in the
preparation of applications and amendments thereto.
(i) Advise and assist the Department of Education regarding the
transition of preschool children with disabilities.
(j) Prepare and submit an annual report to the Governor and to
the United States Secretary of Education on the status of early
intervention programs operated within this state.
(5) The council may advise appropriate agencies about
integration of services for preschool children with disabilities
and at-risk preschool children.
(6) Terms of office for council members shall be three years,
except that:
(a) The representative from the State Advisory Council for
Special Education shall serve a one-year term; and
(b) The representatives from other state agencies and the
representative from the Legislative Assembly shall serve
indefinite terms.
(7) Subject to approval by the Governor, the council may use
federal funds appropriated for this purpose and available to the
council to:
(a) Conduct hearings and forums;
(b) Reimburse nonagency council members pursuant to ORS 292.495
for attending council meetings, for performing council duties,
and for necessary expenses, including child care for parent
members;
(c) Pay compensation to a council member if the member is not
employed or if the member must forfeit wages from other
employment when performing official council business;
(d) Hire staff; and
(e) Obtain the services of such professional, technical and
clerical personnel as may be necessary to carry out its
functions.
(8) Except as provided in subsection (7) of this section,
council members shall serve without compensation.
(9) The Department of Education shall provide clerical and
administrative support, including staff, to the council to carry
out the performance of the council's function as described in
this section.
(10) The council shall meet at least quarterly. The meetings
shall be announced publicly and, to the extent appropriate, be
open and accessible to the general public.
(11) No member of the council shall cast a vote on any matter
that would provide direct financial benefit to that member or
otherwise give the appearance of a conflict of interest under
state law.
SECTION 217. ORS 343.961 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 149
343.961. (1) The Department of Education shall be responsible
for payment of the cost of the education in programs with which
the { - Department of Human Services - } { + Oregon Health
Authority + } or Oregon Youth Authority contracts for long-term
care or treatment. Programs eligible for such education shall be
in accordance with criteria adopted by rule by the State Board of
Education.
(2) The Department of Education shall be responsible for
payment of the costs of such education by contract with the
school district, excluding transportation, care, treatment and
medical expenses. The resident district shall provide
transportation to pupils enrolled in programs under ORS 430.715
who live at home but require day treatment. The payments may be
made to the school district or, at the discretion of the school
district, to the district providing the education, as set forth
in subsection (3) of this section, from the funds appropriated
for the purpose.
(3) The school district in which the agency is located is
responsible for providing the education directly or through an
adjacent school district or through the education service
district in which the program is located or one contiguous
thereto. The instruction may be given in facilities of such
districts or in facilities provided by such agency.
(4) The school district may request the Department of Education
to combine several private agency school programs into one
contract with a school district, an adjacent school district or
an education service district.
(5) The { - Department of Human Services - } { + Oregon
Youth Authority + } shall give the school district providing the
education at a treatment program 14 days' notice before a student
is dismissed from the treatment program.
(6) The Department of Education may make advances to such
school district from funds appropriated therefor based on the
estimated agreed cost of educating the pupils per school year.
Advances equal to 25 percent of such estimated cost may be made
on September 1, December 1 and March 1 of the current year. The
balance may be paid whenever the full determination of cost is
made.
(7) School districts which provide the education described in
this section on a year-round plan may apply for 25 percent of the
funds appropriated therefor on July 1, October 1, January 1, and
15 percent on April 1. The balance may be paid whenever the full
determination of cost is made.
(8) In addition to the payment methods described in this
section, the Department of Education may:
(a) Negotiate interagency agreements to pay for the cost of
education in treatment programs operated under the auspices of
the State Board of Higher Education; and
(b) Negotiate intergovernmental agreements to pay for the cost
of education in treatment programs operated under the auspices of
the Oregon Health and Science University Board of Directors.
SECTION 218. ORS 345.535 is amended to read:
345.535. (1) In adopting criteria for the registration of
private schools, the State Board of Education shall take into
consideration the unique qualities of private education while
seeking to further the educational opportunities of students
enrolled in such schools.
(2) After consultation with the advisory committee appointed
under ORS 345.575, the State Board of Education shall establish
by rule minimum criteria for the registration of private schools.
Enrolled House Bill 2009 (HB 2009-C) Page 150
(3) In establishing standards, the State Board of Education
shall comply with the rules of the State Fire Marshal and the
{ - Department of Human Services - } { + Oregon Health
Authority + } relating to fire protection, health and sanitation.
SECTION 219. ORS 346.015 is amended to read:
346.015. (1) Prior to convening a meeting to prepare an
individual education plan for a child with mental retardation or
a developmental disability for whom placement at a school under
ORS 346.010 may be considered, the agency that is providing the
education for the child shall notify the local community
{ - mental health and - } developmental disabilities program.
The case manager responsible for programs for children with
mental retardation or developmental disabilities, in consultation
with the Department of Human Services, shall evaluate whether the
child also has needs for alternative residential care or other
support services. If the evaluation determines this to be the
case, but documents that community resources are not available to
meet these needs, the school district may proceed with the
meeting to prepare the individual education plan in which
placement at a school under ORS 346.010 may be considered.
(2) An agency providing education under subsection (1) of this
section may initiate the procedure in subsection (1) of this
section for any child who does not have mental retardation or a
developmental disability when in the agency's judgment a
treatment or residential issue is prompting proposed placement
under ORS 346.010.
(3) A child may not be placed in a school operated under ORS
346.010 unless the district superintendent or the
superintendent's designee has signed a statement declaring that
the district cannot provide a free appropriate public education
for the child commensurate with the needs of the child as
identified by the individual education plan of the child and that
the school is the least restrictive environment in which the
child can be educated.
(4) By rule, the State Board of Education shall determine
procedures to be followed by local education agencies in carrying
out this section.
SECTION 220. ORS 346.035 is amended to read:
346.035. For a child who is enrolled under ORS 346.010 and who
has mental retardation or a developmental disability, the
Department of Education shall notify the community { - mental
health and - } developmental disabilities program of the date of
the annual review of the individual education plan of the child
for the purpose of including in the review the assigned case
manager's assessment of community resources that are available
for treatment or residential needs the child might have.
SECTION 221. ORS 348.320 is amended to read:
348.320. (1) A person shall be eligible for a loan under ORS
348.310 to 348.390 if the person is:
(a) A bona fide resident of this state;
(b) Accepted for enrollment, or is a student in good standing
in the professional medical program at an accredited medical
school located in the United States or in an accredited school of
osteopathic medicine;
(c) As a result of personal financial resources, unable to
pursue a program of study in the absence of a loan or would be
unable to do so without great hardship; and
(d) Desirous of practicing medicine in a rural community in
this state, and in an area which meets the qualifications of a
medical shortage area.
Enrolled House Bill 2009 (HB 2009-C) Page 151
(2) The person desiring consideration for a loan under ORS
348.310 to 348.390 shall apply to the Oregon Student Assistance
Commission.
(3) The person desiring consideration for a loan under ORS
348.310 to 348.390 shall agree in writing to practice medicine in
a medical shortage area as defined by the { - Director of Human
Services - } { + Oregon Health Authority + }, for a period
equal to the period covered by the loan, but no less than two
years.
SECTION 222. ORS 351.105 is amended to read:
351.105. In order to carry out the duties described in ORS
352.008, the State Board of Higher Education, in consultation
with the { - Department of Human Services - } { + Oregon
Health Authority + }, shall adopt by rule, as a minimum,
descriptions of the content of what shall be included in the
policy and plan described in ORS 352.008.
SECTION 223. ORS 352.008 is amended to read:
352.008. In consultation with the { - Department of Human
Services - } { + Oregon Health Authority + }, each state
institution of higher education shall adopt a comprehensive
alcohol and drug abuse policy and implementation plan.
SECTION 224. ORS 401.259 is amended to read:
401.259. (1) The following { - departments - } { + state
agencies + } shall designate a person within each
{ - department - } { + agency + } to act as a liaison with the
Office of Emergency Management:
(a) The Department of Transportation;
(b) The State Department of Agriculture;
(c) The Department of Environmental Quality;
(d) The Department of Human Services;
(e) The State Department of Energy;
(f) The Oregon Department of Administrative Services;
(g) The Department of State Police;
(h) The State Department of Geology and Mineral Industries;
{ - and - }
{ + (i) The Oregon Health Authority; and + }
{ - (i) - } { + (j) + } The Oregon Military Department.
(2) Each person designated as a liaison under subsection (1) of
this section shall assist in the coordination of the functions of
the person's { - department - } { + agency + } that relate to
emergency preparedness and response with similar functions of the
Office of Emergency Management.
SECTION 225. ORS 401.300 is amended to read:
401.300. (1) The Director of the Office of Emergency
Management, pursuant to the authority to administer grant
programs for seismic rehabilitation provided in ORS 401.270,
shall develop a grant program for the disbursement of funds for
the seismic rehabilitation of critical public buildings,
including hospital buildings with acute inpatient care
facilities, fire stations, police stations, sheriffs' offices,
other facilities used by state, county, district or municipal law
enforcement agencies and buildings with a capacity of 250 or more
persons that are routinely used for student activities by
kindergarten through grade 12 public schools, community colleges,
education service districts and institutions of higher education.
The funds for the seismic rehabilitation of critical public
buildings under the grant program are to be provided from the
issuance of bonds pursuant to the authority provided in Articles
XI-M and XI-N of the Oregon Constitution.
Enrolled House Bill 2009 (HB 2009-C) Page 152
(2) The grant program shall include the appointment of a grant
committee. The grant committee may be composed of any number of
persons with qualifications that the director determines
necessary. However, the director shall include persons with
experience in administering state grant programs and
representatives of entities with responsibility over critical
public buildings. The director shall also include as permanent
members representatives of:
(a) The Department of Human Services;
(b) The State Department of Geology and Mineral Industries;
(c) The Seismic Safety Policy Advisory Commission;
(d) The Oregon Department of Administrative Services;
(e) The Department of Education;
{ + (f) The Oregon Health Authority; + }
{ - (f) - } { + (g) + } The Oregon Fire Chiefs'
Association;
{ - (g) - } { + (h) + } The Oregon Association Chiefs of
Police; and
{ - (h) - } { + (i) + } The Oregon Association of Hospitals
and Health Systems.
(3) The director shall determine the form and method of
applying for grants from the grant program, the eligibility
requirements for grant applicants, and general terms and
conditions of the grants. The director shall also provide that
the grant committee review grant applications and make a
determination of funding based on a scoring system that is
directly related to the statewide needs assessment performed by
the State Department of Geology and Mineral Industries.
Additionally, the grant process may:
(a) Require that the grant applicant provide matching funds for
completion of any seismic rehabilitation project.
(b) Provide authority to the grant committee to waive
requirements of the grant program based on special circumstances
such as proximity to fault hazards, community value of the
structure, emergency functions provided by the structure and
storage of hazardous materials.
(c) Allow an applicant to appeal any determination of grant
funding to the director for reevaluation.
(d) Provide that applicants release the state, the director and
the grant committee from any claims of liability for providing
funding for seismic rehabilitation.
(e) Provide separate rules for funding rehabilitation of
structural and nonstructural building elements.
(4) Subject to the grant rules established by the director and
subject to reevaluation by the director, the grant committee has
the responsibility to review and make determinations on grant
applications under the grant program established pursuant to this
section.
SECTION 226. ORS 401.347 is amended to read:
401.347. The Office of Emergency Management shall provide
technical, clerical and other necessary support services to the
Seismic Safety Policy Advisory Commission. The Department of
Consumer and Business Services, { - the Department of Human
Services, - } the State Department of Geology and Mineral
Industries, the Department of Land Conservation and Development,
the Department of Transportation, { + the Oregon Health
Authority, + } the Water Resources Department and the Oregon
University System shall provide assistance, as required, to the
commission to enable it to meet its objectives.
SECTION 227. ORS 401.654 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 153
401.654. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may establish a registry of
emergency health care providers who are available to provide
health care services during an emergency or crisis. The
{ - department - } { + authority + } may require training
related to the provision of health care services in an emergency
or crisis as a condition of registration.
(2) The { - department - } { + authority + } shall issue
identification cards to health care providers included in the
registry established under this section that:
(a) Identify the health care provider;
(b) Indicate that the health care provider is registered as an
Oregon emergency health care provider;
(c) Identify the license or certification held by the health
care provider; and
(d) Identify the health care provider's usual area of practice
if that information is available and the { - department - }
{ + authority + } determines that it is appropriate to provide
that information.
(3) The { - department - } { + authority + } by rule shall
establish a form for identification cards issued under subsection
(2) of this section.
(4) The { - department - } { + authority + } shall support
and provide assistance to the Office of Emergency Management in
emergencies or crises involving the public health or requiring
emergency medical response.
SECTION 228. ORS 401.657 is amended to read:
401.657. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may designate all or part of a
health care facility or other location as an emergency health
care center. Upon the Governor declaring a state of emergency
under ORS 401.055, or proclaiming a state of public health
emergency after determining that a threat to the public health is
imminent and likely to be widespread, life-threatening and of a
scope that requires immediate medical action to protect the
public health, emergency health care centers may be used for:
(a) Evaluation and referral of individuals affected by the
emergency;
(b) Provision of health care services; and
(c) Preparation of patients for transportation.
(2) The { - department - } { + Oregon Health Authority + }
may enter into cooperative agreements with local public health
authorities that allow local public health authorities to
designate emergency health care centers under this section.
(3) An emergency health care center designated under this
section must have an emergency operations plan and a
credentialing plan that governs the use of emergency health care
providers registered under ORS 401.654 and other health care
providers who volunteer to perform health care services at the
center under ORS 401.651 to 401.670. The emergency operations
plan and credentialing plan must comply with rules governing
those plans adopted by the { - department - } { + Oregon
Health Authority + }.
SECTION 229. ORS 401.661 is amended to read:
401.661. Upon the Governor declaring a state of emergency under
ORS 401.055, or proclaiming a state of public health emergency
after determining that a threat to the public health is imminent
and likely to be widespread, life-threatening and of a scope that
requires immediate medical action to protect the public health:
Enrolled House Bill 2009 (HB 2009-C) Page 154
(1) The { - Department of Human Services - } { + Oregon
Health Authority, in conjunction with the Department of Human
Services for facilities licensed by the department, + } may
direct emergency health care providers registered under ORS
401.654 who are willing to provide health care services on a
voluntary basis to proceed to any place in this state where
health care services are required by reason of the emergency or
crisis; and
(2) Any emergency health care provider registered under ORS
401.654 or other health care provider may volunteer to perform
health care services described in ORS 401.657 at any emergency
health care center or health care facility in the manner provided
by ORS 401.664.
SECTION 230. ORS 401.667 is amended to read:
401.667. (1) Emergency health care providers registered under
ORS 401.654 and other health care providers who volunteer to
perform health care services without compensation under ORS
401.651 to 401.670 are agents of the state under ORS 30.260 to
30.300 for the purposes of any claims arising out of those
services.
(2) Health care facilities and other persons operating
emergency health care centers designated under ORS 401.657 are
agents of the state under ORS 30.260 to 30.300 for the purposes
of any claims arising out of services provided without
compensation through those centers or facilities under ORS
401.651 to 401.670.
(3) An emergency health care provider registered under ORS
401.654 participating in training authorized by the
{ - Department of Human Services - } { + Oregon Health
Authority + } under ORS 401.651 to 401.670 is an agent of the
state under ORS 30.260 to 30.300 for the purposes of any claims
arising out of that training.
(4) The provisions of subsections (1) and (2) of this section
apply only to emergency health care centers or health care
facilities that have adopted emergency operations plans and
credentialing plans that govern the use of emergency health care
providers registered under ORS 401.654 and other health care
providers who volunteer to perform health care services under ORS
401.651 to 401.670. An emergency operations plan and a
credentialing plan must comply with rules governing those plans
adopted by the { - Department of Human Services - }
{ + authority + }.
SECTION 231. ORS 401.670 is amended to read:
401.670. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt all rules necessary
for the implementation of ORS 401.651 to 401.670.
SECTION 232. ORS 401.871 is amended to read:
401.871. (1) The State Interoperability Executive Council is
created within the Department of State Police. The membership of
the council shall consist of:
(a) Two members from the Legislative Assembly, as follows:
(A) The President of the Senate shall appoint one member from
the Senate with an interest in public safety communications
infrastructure; and
(B) The Speaker of the House of Representatives shall appoint
one member from the House of Representatives with an interest in
public safety and wireless communications infrastructure.
(b) The following members appointed by the Governor:
(A) One member from the Department of State Police;
(B) One member from the Office of Emergency Management;
Enrolled House Bill 2009 (HB 2009-C) Page 155
(C) One member from the State Forestry Department;
(D) One member from the Department of Corrections;
(E) One member from the Department of Transportation;
(F) One member from the Oregon Department of Administrative
Services;
(G) One member from the Department of Human Services;
{ + (H) One member from the Oregon Health Authority; + }
{ - (H) - } { + (I) + } One member from the Oregon Military
Department;
{ - (I) - } { + (J) + } One member from the Department of
Public Safety Standards and Training;
{ - (J) - } { + (K) + } One member of an Indian tribe as
defined in ORS 97.740;
{ - (K) - } { + (L) + } One member from a nonprofit
professional organization devoted to the enhancement of public
safety communications systems; and
{ - (L) - } { + (M) + } One member from the public.
(c) The following members appointed by the Governor with the
concurrence of the President of the Senate and the Speaker of the
House of Representatives:
(A) One member from the Oregon Fire Chiefs' Association;
(B) One member from the Oregon Association Chiefs of Police;
(C) One member from the Oregon State Sheriffs' Association;
(D) One member from the Association of Oregon Counties;
(E) One member from the League of Oregon Cities; and
(F) One member from the Special Districts Association of
Oregon.
(2) Each agency or organization identified in subsection
(1)(b)(A) to { - (I) - } { + (J) + } and (1)(c) of this
section shall recommend a person from the agency or organization
for membership on the council.
(3) Members of the council are not entitled to compensation,
but in the discretion of the Superintendent of State Police may
be reimbursed from funds available to the Department of State
Police for actual and necessary travel and other expenses
incurred by them in the performance of their official duties in
the manner and amount provided in ORS 292.495.
(4) Members of the Legislative Assembly appointed to the
council are nonvoting members and may act in an advisory capacity
only.
SECTION 233. ORS 408.305 is amended to read:
408.305. As used in ORS 408.305 to 408.340, unless the context
requires otherwise:
(1) 'Agent Blue' means the herbicide composed primarily of
cacodylic acid (organic arsenic) and inorganic arsenic.
(2) 'Agent Orange' means the herbicide composed primarily of
trichlorophenoxyacetic acid and dichlorophenoxyacetic acid.
(3) 'Agent White' means any herbicide composed primarily of 2,
4, D and picloram.
(4) 'Causative agent' includes Agent Blue, Agent Orange, Agent
White and any other combination of chemicals consisting primarily
of 2, 4, D or 2, 4, 5, T or any other chemical or biological
agent used by any government involved in the Vietnam Conflict, or
diseases endemic to Southeast Asia, including, but not limited
to, the disease known as melioidosis.
{ - (5) 'Department' means the Department of Human
Services. - }
{ - (6) - } { + (5) + } 'Veteran' means any individual who
resides in this state, who served on active duty in the Armed
Forces of the United States for a period of not less than 180
Enrolled House Bill 2009 (HB 2009-C) Page 156
days any part of which occurred between January 1, 1962, and May
7, 1975, within the borders of Vietnam, Cambodia, Laos or
Thailand, and who was either a resident of this state at the time
of enlistment, induction or other entry into the Armed Forces or
became a bona fide resident of Oregon prior to April 1, 1981.
SECTION 234. ORS 408.310 is amended to read:
408.310. (1) A physician who has primary responsibility for the
treatment of a veteran who may have been exposed to causative
agents while serving in the Armed Forces of the United States or
for the treatment of a veteran's spouse, surviving spouse or
minor child who may be exhibiting symptoms or conditions that may
be attributable to the veteran's exposure to causative agents
shall, at the request and direction of the veteran, veteran's
spouse or surviving spouse or the parent or guardian of such
minor child, submit a report to the { - Department of Human
Services - } { + Oregon Health Authority + }. The report shall
be made on a form adopted by the { - department - }
{ + authority + } and made available to physicians and hospitals
in this state.
(2) If there is no physician having primary responsibility for
the treatment of a veteran, veteran's spouse, surviving spouse or
minor child, then the senior medical supervisor of the hospital
or clinic treating the veteran, veteran's spouse, surviving
spouse or minor child shall submit the report described in this
section to the { - department - } { + authority + } at the
request and direction of the veteran, veteran's spouse or
surviving spouse or the parent or legal guardian of a veteran's
minor child.
(3) The form adopted by the { - department - } { +
authority + } under this section shall list the symptoms commonly
attributed to exposure to causative agents, and shall require the
following information:
(a) Symptoms of the patient which may be related to exposure to
causative agents.
(b) A diagnosis of the patient's condition.
(c) Methods of treatment prescribed.
(d) Any other information required by the { - department - }
{ + authority + }.
(4) The { - department - } { + authority + }, after
receiving a report from a physician, hospital or clinic under
this section, may require the veteran, veteran's spouse,
surviving spouse or minor child to provide such other information
as may be required by the
{ - department - } { + authority + }.
SECTION 235. ORS 408.320 is amended to read:
408.320. The Oregon Public Health Advisory Board created under
ORS 431.195 shall:
(1) Order the compilation of statistical data from information
obtained under ORS 408.310 and determine the use and
dissemination of that data.
(2) Make recommendations to the Director of { - Human
Services - } { + the Oregon Health Authority + } or the Director
of Veterans' Affairs concerning the implementation and operation
of programs authorized by ORS 408.300 to 408.340.
(3) Assess programs of federal agencies operating for the
benefit of veterans exposed to causative agents and their
families, and make recommendations to the appropriate agencies
for the improvement of those programs.
(4) Suspend or terminate specific programs or duties required
under ORS 408.300 to 408.340 when necessary to prevent
Enrolled House Bill 2009 (HB 2009-C) Page 157
duplication of those programs or duties by other governmental
agencies.
(5) Apply for, receive and accept any grants or contributions
available from the United States or any of its agencies for the
purpose of carrying out ORS 408.300 to 408.340.
(6) When the advisory board considers it necessary for the
health and welfare of veterans and the spouses, surviving spouses
and minor children of veterans, ask the Attorney General to
initiate proceedings as provided under ORS 408.335.
(7) Report biennially to the Legislative Assembly or to the
Emergency Board, as appropriate, as necessary to accomplish the
objectives of ORS 408.300 to 408.340 concerning the programs
instituted under ORS 408.300 to 408.340.
SECTION 236. ORS 408.325 is amended to read:
408.325. (1) The { - Department of Human Services - } { +
Oregon Health Authority + } and the Oregon Public Health Advisory
Board shall institute a cooperative program to refer veterans to
appropriate state and federal agencies for the purpose of filing
claims to remedy medical and financial problems caused by
exposure to causative agents.
(2) The Director of { - Human Services - } { + the Oregon
Health Authority + }, after receiving the recommendations of the
advisory board, shall adopt rules to provide for the
administration and operation of programs authorized by ORS
408.300 to 408.340. The director { - of Human Services - }
shall cooperate with appropriate state and federal agencies in
providing services under ORS 408.300 to 408.340.
SECTION 237. ORS 408.380 is amended to read:
408.380. (1) The Oregon Veterans' Home authorized by section 1,
chapter 591, Oregon Laws 1995, is subject to all state laws and
administrative rules and all federal laws and administrative
regulations to which long term care facilities operated by
nongovernmental entities are subject, except for the requirement
to obtain a certificate of need under ORS 442.315 from the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(2) As used in this section, 'long term care facility' has the
meaning given that term in ORS 442.015.
SECTION 238. ORS 408.570 is amended to read:
408.570. When a veteran who has been adjudged mentally ill is
eligible for treatment in a United States veterans facility and
commitment is necessary for the proper care and treatment of such
veteran, the { - Department of Human Services - } { + Oregon
Health Authority + } or community mental health { - and
developmental disabilities - } program director, as provided
under ORS 426.060, may, upon receipt of a certificate of
eligibility from the United States Department of Veterans
Affairs, assign the person to the United States Department of
Veterans Affairs for care, custody and treatment in a United
States veterans facility. Upon admission to any such facility,
the veteran shall be subject to the rules and regulations of the
United States Department of Veterans Affairs and provisions of
ORS 426.060 to 426.395 and related rules and regulations of the
{ - Department of Human Services - } { + Oregon Health
Authority + }. The chief officer of such facility shall be vested
with the same powers exercised by superintendents of state
hospitals for persons with mental illness within this state with
reference to the retention, transfer, trial visit or discharge of
the veteran so assigned. The commitment of a veteran to a
veterans facility within this state by a court of another state
Enrolled House Bill 2009 (HB 2009-C) Page 158
under a similar provision of law has the same force and effect as
if the veteran was committed to a veterans facility within that
other state.
SECTION 239. ORS 408.580 is amended to read:
408.580. Upon receipt of a certificate of eligibility and
available facilities, the { - Department of Human Services - }
{ + Oregon Health Authority + } may cause to be transferred any
veteran from any facility to which the veteran has been assigned
to a United States veterans facility. No veteran under sentence
by any court, or committed by any court after having been charged
with any crime and acquitted on the ground of mental disease or
defect, may be transferred without an order of such court
authorizing the transfer. Whenever any veteran, not a convict,
has been committed by order of a court and is transferred as
provided in this section, the order of commitment shall be held
to apply to the facility to which the veteran is transferred as
to any other facility to which the veteran could be assigned or
transferred under ORS 426.060.
SECTION 240. ORS 409.010 is amended to read:
409.010. (1) The Department of Human Services is created.
(2) The department is responsible for the delivery and
administration of programs and services relating to:
(a) Children and families, including but not limited to child
protective services, foster care, residential care for children
and adoption services;
(b) Elderly persons and persons with disabilities, including
but not limited to social, health and protective services and
promotion of hiring of otherwise qualified persons who are
certifiably disabled;
(c) Persons who, as a result of the person's or the person's
family's economic, social or health condition, require financial
assistance { - , institutional care, rehabilitation or other
social and health - } { + or other social + } services;
{ - (d) Health and health-related affairs, including but not
limited to medical assistance and services, public health
services, migrant health services, licensing of health facilities
and coordination of the activities of professional and
occupational licensing boards; - }
{ - (e) - } { + (d) + } { - Mental health and - }
Developmental disabilities;
{ - (f) - } { + (e) + } Vocational rehabilitation for
individuals with disabilities;
{ - (g) Alcohol abuse, drug abuse, addiction and chemical
dependency problems; - }
{ - (h) - } { + (f) + } Licensing and regulation of
individuals, facilities { + , institutions + } and programs
providing health and human services { + and long term care
services + }, in accordance with the provisions of state and
federal law; and
{ - (i) - } { + (g) + } { - Any - } { + All + } other
{ - health and - } human service programs and functions
delegated to the department by or in accordance with the
provisions of state and federal law.
(3) The department shall be the recipient of all federal funds
paid or to be paid to the state to enable the state to provide
the programs and services assigned to the department.
(4)(a) All personnel of the department, including those engaged
in the administration of vocational rehabilitation programs,
public assistance programs and services to families or children
in compliance with the federal Social Security laws, shall be
Enrolled House Bill 2009 (HB 2009-C) Page 159
subject to the merit system prescribed in the State Personnel
Relations Law. For purposes of the State Personnel Relations Law,
the department is the appointing authority of all employees in
the department.
(b) The Director of Human Services, in conformity with the
State Personnel Relations Law, may appoint and employ such
personnel as may be necessary for the department, and may appoint
and fix the compensation of all assistants and employees of the
department.
(c) The director may authorize reimbursement of such expenses
as are approved by the department and incurred by assistants and
employees of the department, and by volunteers or other persons
not employed by the department, in carrying out duties assigned
or authorized by the department.
(5) The director may designate employees to be custodians of
records within any of the organizational units of the department,
and persons so designated shall have the duties and powers of
custodians of public records as prescribed by law. Such
designation shall be in writing and notice thereof shall be filed
in the office of the Secretary of State, with the director and in
the organizational unit to which the authorization applies.
SECTION 241. ORS 409.320 is amended to read:
409.320. The Director of { - Human Services - } { + the
Oregon Health Authority + } shall require each { + health + }
licensing board in the
{ - Department of Human Services - } { + Oregon Health
Authority + } to maintain a register of the names and current
addresses of all persons holding valid licenses, certificates of
registration or other evidence of authority required to practice
the occupation or profession, or operate the facility within the
jurisdiction of such board and periodically, as the director may
require, to file a copy of the register at the office of the
{ - department - } { + authority + }. Any board that is
authorized or required to distribute a register described in this
section may collect a fee to cover the costs of publication, such
fee to be handled as other receipts of the board are handled.
SECTION 242. ORS 409.330 is amended to read:
409.330. The Director of { - Human Services - } { + the
Oregon Health Authority + }, or the designee of the director,
shall serve as an ex officio member of all health-related
licensing boards in the
{ - department - } { + Oregon Health Authority + }, but
without the right to vote. However, nothing in this section is
intended to authorize the director to intervene in the internal
functions and administration of the boards.
SECTION 243. ORS 409.410 is amended to read:
409.410. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall administer all alcohol and drug
abuse programs, including but not limited to programs or
components of programs described in ORS 430.397 to 430.401,
475.225, 743.557 and 743.558 and ORS chapters 430 and 801 to 822.
(2) Subject to ORS 417.300 and 417.305, the director shall:
(a) Report to the Legislative Assembly on accomplishments and
issues occurring during each biennium, and report on a new
biennial plan describing resources, needs and priorities for all
alcohol and drug abuse programs.
(b) Develop within the { - Department of Human Services - }
{ + Oregon Health Authority + } priorities for alcohol and drug
abuse programs and activities.
Enrolled House Bill 2009 (HB 2009-C) Page 160
(c) Monitor the priorities of approved alcohol and drug abuse
related programs in all other state agencies.
(d) Conduct statewide and special planning processes which
provide for participation from state and local agencies, groups
and individuals.
(e) Identify the needs of special populations including
minorities, elderly, youth, women and individuals with
disabilities.
(f) Subject to ORS chapter 183, adopt such rules as are
necessary for the performance of the duties and functions
specified by this section, ORS { - 409.010 and - } 430.255 to
430.630, or otherwise lawfully delegated.
(3) The director may apply for, receive and administer funds,
including federal funds and grants, from sources other than the
state. Subject to expenditure limitation set by the Legislative
Assembly, funds received under this subsection may be expended by
the director:
(a) For the study, prevention or treatment of alcohol and drug
abuse and dependence in this state.
(b) To provide training, both within this state and in other
states, in the prevention and treatment of alcohol and drug abuse
and dependence.
SECTION 244. ORS 409.420 is amended to read:
409.420. In addition to the Director of { - Human
Services' - } { + the Oregon Health Authority's + } other
responsibilities, the director shall place special emphasis on
all of the following:
(1) Establishing standards for both public and private alcohol
and drug abuse prevention, intervention and treatment programs.
It is the policy of the Legislative Assembly that all programs
providing alcohol and drug abuse related prevention, intervention
and treatment services in this state, with public funds, meet the
standards established under this subsection.
(2) Providing training for state employees dealing directly
with appropriate client groups to insure better recognition and
understanding of alcohol and drug abuse problems. Training is
also to be directed at increasing knowledge of appropriate and
available resources for assisting clients with alcohol and drug
abuse problems.
(3) Conducting continuing long-term evaluation of clients and
other recipients of services from all { - Department of Human
Services - } { + Oregon Health Authority + } funded programs,
for periods of up to 24 months following completion of service,
to assess service effectiveness and enable appropriate corrective
actions.
(4) Ensuring financial audits and program reviews of alcohol
and drug abuse related programs and services that receive funds,
including beer and wine tax revenues distributed under ORS
430.380 and 471.810, from any state agency.
SECTION 245. ORS 409.425 is amended to read:
409.425. (1) For purposes of this section, 'inhalant' has the
meaning given that term in ORS 167.808.
(2) The Director of { - Human Services - } { + the Oregon
Health Authority + } shall develop education resources focusing
on the problem of inhalant abuse by minors. The director shall
ensure that special emphasis is placed on the education of
parents about the risks of inhalant use. The director shall
develop tools to help parents talk to their children about the
extraordinary risks associated with even a single use of
inhalants, as well as those risks that arise from repeated use.
Enrolled House Bill 2009 (HB 2009-C) Page 161
(3) The director shall develop education resources focusing on
merchants that sell products that contain inhalants. The director
shall encourage merchants that sell products containing inhalants
to post signs that inform the public that using inhalants for the
purpose of intoxication is illegal and potentially deadly.
(4) The director shall develop and print a standard sign for
the purposes of subsection (3) of this section, and shall make
the sign available to merchants that elect to display the sign.
The sign shall:
(a) Contain the message, 'Illegal to inhale fumes for purpose
of intoxication. Fumes may cause serious injury or death! '
(b) Be at least five by seven inches in size with lettering
that is at least three-eighths of an inch in height.
(c) Contain a graphic depiction of the message to convey the
message to a person who cannot read the message. If the depiction
includes a picture of a person, the depiction of the person shall
be of a minor and shall not reflect any specific race or culture.
(5) The sign developed under subsection (4) of this section
shall be in English and in such other languages as may be
commonly used in this state. Merchants shall be encouraged to
post signs in languages other than English if English is not the
primary language of a significant number of the patrons of the
business.
SECTION 246. ORS 409.430 is amended to read:
409.430. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + }, in collaboration with county
representatives, prior to January 1, 2000, shall develop a plan
for the administration of the statewide gambling addiction
programs and delivery of program services.
(2) The { - Department of Human Services - }
{ + authority + } may appoint an advisory committee or designate
an existing advisory committee to make recommendations to the
{ - department - } { + authority + } concerning:
(a) Performance standards and evaluation methodology;
(b) Fiscal reporting and accountability;
(c) Delivery of services; and
(d) A distribution plan for use of available funds.
(3) The distribution plan for the moneys available in the
Problem Gambling Treatment Fund shall be based on performance
standards.
(4) The { - Department of Human Services - }
{ + authority + } may enter into an intergovernmental agreement
or other contract for the delivery of services related to
programs for the prevention and treatment of gambling addiction
and other emotional and behavioral problems related to gambling.
(5) Before entering into an agreement or contract under
subsection (4) of this section, the { - Department of Human
Services - } { + authority + } must consider the experience,
performance and program capacity of those organizations currently
providing services.
SECTION 247. ORS 409.435 is amended to read:
409.435. (1) There is established in the State Treasury,
separate and distinct from the General Fund, the Problem Gambling
Treatment Fund. All moneys in the Problem Gambling Treatment Fund
are continuously appropriated to the { - Department of Human
Services - } { + Oregon Health Authority + } to be expended for
programs for the prevention and treatment of gambling addiction
and other emotional and behavioral problems related to gambling
and for the administration of the programs.
(2) The Problem Gambling Treatment Fund shall consist of:
Enrolled House Bill 2009 (HB 2009-C) Page 162
(a) The net proceeds from the Oregon State Lottery allocated to
the fund under ORS 461.549;
(b) Moneys appropriated to the fund by the Legislative
Assembly; and
(c) Interest earnings on moneys in the fund.
SECTION 248. ORS 409.500 is amended to read:
409.500. (1) The Pain Management Commission is established
within the { - Department of Human Services - } { + Oregon
Health Authority + }. The commission shall:
(a) Develop pain management recommendations;
(b) Develop ways to improve pain management services through
research, policy analysis and model projects; and
(c) Represent the concerns of patients in Oregon on issues of
pain management to the Governor and the Legislative Assembly.
(2) The pain management coordinator of the { - Department of
Human Services - } { + authority + } shall serve as staff to
the commission.
SECTION 249. ORS 409.520 is amended to read:
409.520. (1) The Pain Management Commission shall consist of 19
members as follows:
(a) Seventeen members shall be appointed by the Director of
{ - Human Services - } { + the Oregon Health Authority + }.
Prior to making appointments, the director shall request and
consider recommendations from individuals and public and private
agencies and organizations with experience or a demonstrated
interest in pain management issues, including but not limited to:
(A) Physicians licensed under ORS chapter 677 or organizations
representing physicians;
(B) Nurses licensed under ORS chapter 678 or organizations
representing nurses;
(C) Psychologists licensed under ORS 675.010 to 675.150 or
organizations representing psychologists;
(D) Physician assistants licensed under ORS chapter 677 or
organizations representing physician assistants;
(E) Chiropractic physicians licensed under ORS chapter 684 or
organizations representing chiropractic physicians;
(F) Naturopaths licensed under ORS chapter 685 or organizations
representing naturopaths;
(G) Clinical social workers licensed under ORS 675.510 to
675.600 or organizations representing clinical social workers;
(H) Acupuncturists licensed under ORS 677.759;
(I) Pharmacists licensed under ORS chapter 689;
(J) Palliative care professionals or organizations representing
palliative care professionals;
(K) Mental health professionals or organizations representing
mental health professionals;
(L) Health care consumers or organizations representing health
care consumers;
(M) Hospitals and health plans or organizations representing
hospitals and health plans;
(N) Patients or advocacy groups representing patients;
(O) Dentists licensed under ORS chapter 679;
(P) Occupational therapists licensed under ORS 675.210 to
675.340;
(Q) Physical therapists licensed under ORS 688.010 to 688.201;
and
(R) Members of the public.
(b) Two members shall be members of a legislative committee
with jurisdiction over human services issues, one appointed by
the President of the Senate and one appointed by the Speaker of
Enrolled House Bill 2009 (HB 2009-C) Page 163
the House of Representatives. Both members shall be nonvoting, ex
officio members of the commission.
(2) The term of office of each member is four years, but a
member serves at the pleasure of the appointing authority. Before
the expiration of the term of a member, the appointing authority
shall appoint a successor whose term begins on July 1 next
following. A member is eligible for reappointment. If there is a
vacancy for any cause, the appointing authority shall make an
appointment to become immediately effective for the unexpired
term.
SECTION 250. ORS 409.530 is amended to read:
409.530. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall select one member of the Pain
Management Commission as chairperson and another as vice
chairperson, for such terms and with duties and powers necessary
for the performance of the functions of such offices as the
director determines.
(2) A majority of the voting members of the commission
constitutes a quorum for the transaction of business.
(3) The commission shall meet at least once every six months at
a place, day and hour determined by the director. The commission
also shall meet at other times and places specified by the call
of the chairperson or of a majority of the members of the
commission.
SECTION 251. ORS 409.540 is amended to read:
409.540. There is established the Pain Management Fund in the
{ - Department of Human Services Account established under ORS
409.060 - } { + Oregon Health Authority Fund established under
section 19 of this 2009 Act + }. All moneys credited to the Pain
Management Fund are continuously appropriated for the purposes of
ORS 409.500 to 409.570 to be expended by the Pain Management
Commission established under ORS 409.500.
SECTION 252. ORS 409.600 is amended to read:
409.600. (1) The Women, Infants and Children Program is
established in the { - Department of Human Services - }
{ + Oregon Health Authority + }. The purpose of the program is
to serve as an adjunct to health care by providing nutritious
food, nutrition education and counseling, health screening and
referral services to pregnant and breast-feeding women and to
infants and children in certain high-risk categories.
(2) The { - department - } { + authority + } shall adopt:
(a) Standards and procedures to guide administration of the
program by the state in conformity with federal requirements and
to define the rights, responsibilities and legal procedures of
program vendors; and
(b) Rules necessary to implement and carry out the provisions
of this section.
(3)(a) In addition to any other penalty provided by law, the
{ - department - } { + authority + } may assess a civil
penalty against any person for violation of any rule of the
{ - department - } { + authority + } relating to the Women,
Infants and Children Program. The
{ - department - } { + authority + } shall adopt by rule
criteria for the amount of civil penalties to be assessed under
this section.
(b) All penalties recovered under this section shall be
deposited into the { - General Fund of the State Treasury and
credited to a subaccount of the Department of Human Services
Account designated by the department - } { + Oregon Health
Authority Fund and credited to an account designated by the
Enrolled House Bill 2009 (HB 2009-C) Page 164
authority + }. Moneys deposited are appropriated continuously to
the { - department - } { + authority + } and shall be used
only for the administration and enforcement of this section.
SECTION 253. ORS 409.619 is amended to read:
409.619. (1) The Oregon Council on Health Care Interpreters is
created in the { - Department of Human Services - }
{ + Oregon Health Authority + }. The council shall consist of 25
members appointed as follows:
(a) The Governor shall appoint two members from each of the
following groups:
(A) Consumers of medical services who are persons with limited
English proficiency and who use health care interpreters;
(B) Educators who either teach interpreters or persons in
related educational fields, or who train recent immigrants and
persons with limited English proficiency;
(C) Persons with expertise and experience in administration or
policymaking related to the development and operation of
policies, programs or services related to interpreters, and who
have familiarity with the rulings of the federal Office for Civil
Rights concerning interpreter services for various institutions;
(D) Health care providers, consisting of one physician and one
registered nurse, who utilize interpreter services regularly in
their practice;
(E) Representatives of safety net clinics that predominantly
serve persons with limited English proficiency; and
(F) Representatives of hospitals, health systems and health
plans predominantly serving persons with limited English
proficiency.
(b) The Governor shall appoint one representative from each of
the following agencies and organizations after consideration of
nominations by the executive authority of each:
(A) The Commission on Asian Affairs;
(B) The Commission on Black Affairs;
(C) The Commission on Hispanic Affairs;
(D) The Commission on Indian Services;
(E) The International Refugee Center of Oregon;
(F) The Oregon Judicial Department's Certified Court
Interpreter program;
(G) The Commission for Women; and
(H) The Institute for Health Professionals of Portland
Community College.
{ - (c) The Director of Human Services shall appoint one
member from each of the following: - }
{ - (A) The Department of Human Services; - }
{ - (B) The Office of Medical Assistance Programs; - }
{ - (C) The Mental Health and Developmental Disability
Services Division; - }
{ - (D) The Senior and Disabled Services Division; and - }
{ - (E) The Health Division. - }
{ + (c) The Director of the Oregon Health Authority shall
appoint three members including:
(A) One member with responsibility for administering mental
health programs;
(B) One member with responsibility for administering medical
assistance programs; and
(C) One member with responsibility for administering public
health programs.
(d) The Director of Human Services shall appoint:
(A) One member with responsibility for administering
developmental disabilities programs; and
Enrolled House Bill 2009 (HB 2009-C) Page 165
(B) One member with responsibility for administering programs
for seniors and persons with disabilities. + }
{ - (d) - } { + (e) + } The membership of the council shall
be appointed so as to be representative of the racial, ethnic,
cultural, social and economic diversity of the people of this
state.
(2) The term of a member shall be three years. A member may be
reappointed.
(3) If there is a vacancy for any cause, the appointing
authority shall make an appointment to become immediately
effective for the unexpired term. The appointing authority may
appoint a replacement for any member of the council who misses
more than two consecutive meetings of the council. The newly
appointed member shall represent the same group as the vacating
member.
(4) The council shall select one member as chairperson and one
member as vice chairperson, for such terms and with duties and
powers as the council determines necessary for the performance of
the functions of such offices.
(5) The council may establish such advisory and technical
committees as it considers necessary to aid and advise the
council in the performance of its functions. The committees may
be continuing or temporary committees. The council shall
determine the representation, membership, terms and organization
of the committees and shall appoint committee members.
(6) A majority of the members of the council shall constitute a
quorum for the transaction of business.
(7) Members of the council are not entitled to compensation,
but at the discretion of the Director of { - Human Services - }
{ + the Oregon Health Authority + } may be reimbursed for actual
and necessary travel and other expenses incurred by them in the
performance of their official duties, subject to ORS 292.495.
(8) The council may accept contributions of funds and
assistance from the United States Government or its agencies or
from any other source, public or private, for purposes consistent
with the purposes of the council.
(9) The { - Department of Human Services - } { + Oregon
Health Authority + } shall provide the council with such services
and employees as the council requires to carry out its duties.
SECTION 254. ORS 409.621 is amended to read:
409.621. The Oregon Council on Health Care Interpreters shall
work in cooperation with the { - Department of Human
Services - } { + Oregon Health Authority + } to:
(1) Develop testing, qualification and certification standards
for health care interpreters for persons with limited English
proficiency.
(2) Coordinate with other states to develop and implement
educational and testing programs for health care interpreters.
(3) Examine operational and funding issues, including but not
limited to the feasibility of developing a central registry and
annual subscription mechanism for health care interpreters.
(4) Do all other acts as shall be necessary or appropriate
under the provisions of ORS 409.615 to 409.623.
SECTION 255. ORS 409.623 is amended to read:
409.623. (1) In consultation with the Oregon Council on Health
Care Interpreters, the { - Department of Human Services - }
{ + Oregon Health Authority + } shall by rule establish
procedures for testing, qualification and certification of health
care interpreters for persons with limited English proficiency,
including but not limited to:
Enrolled House Bill 2009 (HB 2009-C) Page 166
(a) Minimum standards for qualification and certification as a
health care interpreter, including:
(A) Oral and written language skills in English and in the
language for which health care interpreter qualification or
certification is granted; and
(B) Formal education or training in medical terminology,
anatomy and physiology, and medical ethics;
(b) Categories of expertise of health care interpreters based
on the English and non-English skills and the medical terminology
skills of the person seeking qualification or certification;
(c) Procedures for receiving applications and for examining
applicants for qualification or certification;
(d) The content and administration of required examinations;
(e) The requirements and procedures for reciprocity of
qualification and certification for health care interpreters
qualified or certified in another state or territory of the
United States; and
(f) Fees for application, examination, initial issuance,
renewal and reciprocal acceptance of qualification or
certification as a health care interpreter and for other fees
deemed necessary by the { - department - } { + authority + }.
(2) Any person seeking qualification or certification as a
health care interpreter must submit an application to the
{ - department - } { + authority + }. If the applicant meets
the requirements for qualification or certification established
by the { - department - } { + authority + } under this
section, the { - department - } { + authority + } shall issue
an annual certificate of qualification or a certification to the
health care interpreter. The { - department - }
{ + authority + } shall collect a fee for the issuance of the
certificate of qualification or the certification and for any
required examinations in the amount established pursuant to
subsection (1) of this section.
(3) The { - department - } { + authority + } shall work
with other states to develop educational and testing programs and
procedures for the qualification and certification of health care
interpreters.
(4) In addition to the requirements for qualification
established under subsection (1) of this section, a person may be
qualified as a health care interpreter only if the person:
(a) Is able to fluently interpret or translate the dialect,
slang or specialized vocabulary of the non-English language for
which qualification is sought;
(b) Has had at least 60 hours of health care interpreter
training that includes anatomy and physiology and concepts of
medical interpretation; and
(c) Has had practical experience as an intern with a practicing
health care interpreter.
(5) A person may not use the title of 'qualified health care
interpreter' unless the person has met the requirements for
qualification established under subsections (1) and (4) of this
section and has been issued a valid certificate of qualification
by the { - department - } { + authority + }.
(6) In addition to the requirements for certification
established under subsection (1) of this section, a person may be
certified as a health care interpreter only if:
(a) The person has met all the requirements established under
subsection (4) of this section; and
(b) The person has passed written and oral examinations
required by the { - department - } { + authority + } in
Enrolled House Bill 2009 (HB 2009-C) Page 167
English, in the non-English language the person wishes to
translate and in medical terminology.
(7) A person may not use the title of 'certified health care
interpreter' unless the person has met the requirements for
certification established under subsections (1) and (6) of this
section and has been issued a valid certification by the
{ - department - } { + authority + }.
SECTION 256. ORS 409.625 is amended to read:
409.625. All moneys received by the Oregon Council on Health
Care Interpreters under ORS 409.615 to 409.625 shall be paid into
the { - General Fund in the State Treasury and placed to the
credit of the Department of Human Services Account - }
{ + Oregon Health Authority Fund and credited to an account
designated by the authority + }. Such moneys { - are
appropriated continuously to the department and - } shall be
used only for the administration and enforcement of the
provisions of ORS 409.615 to 409.625.
SECTION 257. ORS 409.720 is amended to read:
409.720. (1) As used in this section:
(a) 'Adult foster home' has the meaning given that term in ORS
443.705 (1).
(b) 'Health care facility' has the meaning given that term in
ORS 442.015 { - (16) - } .
(c) 'Residential facility' has the meaning given that term in
ORS 443.400 (6).
(2) Every adult foster home, health care facility and
residential facility licensed or registered by the Department of
Human Services shall:
(a) Adopt a plan to provide for the safety of persons who are
receiving care at or are residents of the home or facility in the
event of an emergency that requires immediate action by the staff
of the home or facility due to conditions of imminent danger that
pose a threat to the life, health or safety of persons who are
receiving care at or are residents of the home or facility; and
(b) Provide training to all employees of the home or facility
about the responsibilities of the employees to implement the plan
required by this section.
(3) The department shall adopt by rule the requirements for the
plan and training required by this section. The rules adopted
shall include, but are not limited to, procedures for the
evacuation of the persons who are receiving care at or are
residents of the adult foster home, health care facility or
residential facility to a place of safety when the conditions of
imminent danger require relocation of those persons.
SECTION 258. ORS 409.740 is amended to read:
409.740. The { - Department of Human Services - }
{ + Oregon Health Authority + }, in consultation with the
appropriate professional and trade associations and licensing
boards, shall inform retired physicians and health care providers
regarding ORS 30.302 and 30.792.
SECTION 259. ORS 409.745 is amended to read:
409.745. (1) The Physician Visa Waiver Program is established
in the { - Department of Human Services - } { + Oregon Health
Authority + }. The purpose of the program is to make
recommendations to the United States Department of State for a
waiver of the foreign country residency requirement on behalf of
foreign physicians holding visas who seek employment in federally
designated shortage areas.
(2) A foreign physician who has completed a residency in the
United States may apply to the { - Department of Human
Enrolled House Bill 2009 (HB 2009-C) Page 168
Services - } { + authority + } for a recommendation for a waiver
of the foreign country residency requirement in order to obtain
employment in a federally designated shortage area in the state.
Applications shall be on the forms of and contain the information
requested by the
{ - department - } { + authority + }. Each application shall
be accompanied by the application fee.
(3) The { - department - } { + authority + } reserves the
right to recommend or decline to recommend any request for a
waiver.
(4) The { - department - } { + authority + } shall adopt
rules necessary to implement and administer the program,
including but not limited to adopting an application fee not to
exceed the cost of administering the program.
SECTION 260. ORS 409.747 is amended to read:
409.747. Notwithstanding ORS 411.760 { - and 414.095 - } ,
liquidated and delinquent debts owed to the Department of Human
Services may be set off against amounts owed by the department to
the debtors.
{ + NOTE: + } Section 261 was deleted by amendment.
Subsequent sections were not renumbered.
SECTION 262. ORS 411.620 is amended to read:
411.620. (1) The Department of Human Services may prosecute a
civil suit or action against any person who has obtained, for
personal benefit or for the benefit of any other person, any
amount or type of general assistance or public assistance, as
defined in ORS 411.010, or has aided any other person to obtain
such general assistance or public assistance, in violation of any
provision of ORS 411.630, or in violation of ORS 411.640. In such
suit or action the department may recover the amount or value of
such general assistance or public assistance so obtained in
violation of ORS 411.630, or in violation of ORS 411.640, with
interest thereon, together with costs and disbursements incurred
therein.
(2) Excepting as to bona fide purchasers for value, the
department, { + the Oregon Health Authority, + } the conservator
for the recipient or the personal representative of the estate of
a deceased recipient may prosecute a civil suit or action to set
aside the transfer, gift or other disposition of any money or
property made in violation of any provisions of ORS 411.630,
411.708 and 414.105 and the department { + or the authority + }
may recover out of such money or property, or otherwise, the
amount or value of any general assistance or public assistance
obtained as a result of such violation, with interest thereon,
together with costs and disbursements incurred therein.
SECTION 263. ORS 411.708 is amended to read:
411.708. (1) The amount of any assistance paid under ORS
411.706 is a claim against the property or interest in the
property belonging to and a part of the estate of any deceased
recipient. If the deceased recipient has no estate, the estate of
the surviving spouse of the deceased recipient, if any, shall be
charged for assistance granted under ORS 411.706 to the deceased
recipient or the surviving spouse. There shall be no adjustment
or recovery of assistance correctly paid on behalf of any
deceased recipient under ORS 411.706 except after the death of
the surviving spouse of the deceased recipient, if any, and only
at a time when the deceased recipient has no surviving child who
is under 21 years of age or who is blind or has a disability.
Transfers of real or personal property by recipients of
Enrolled House Bill 2009 (HB 2009-C) Page 169
assistance without adequate consideration are voidable and may be
set aside under ORS 411.620 (2).
(2) Except when there is a surviving spouse, or a surviving
child who is under 21 years of age or who is blind or has a
disability, the amount of any assistance paid under ORS 411.706
is a claim against the estate in any conservatorship proceedings
and may be paid pursuant to ORS 125.495.
(3) A claim under this section shall exclude benefits paid to
or on behalf of a beneficiary under a policy of qualified long
term care insurance, as defined in ORS 414.025 { - (2)(s) - }
{ + (2)(t) + }.
(4) Nothing in this section authorizes the recovery of the
amount of any assistance from the estate or surviving spouse of a
recipient to the extent that the need for assistance resulted
from a crime committed against the recipient.
SECTION 264. ORS 414.025, as amended by section 18a, chapter
861, Oregon Laws 2007, is amended to read:
414.025. As used in this chapter, unless the context or a
specially applicable statutory definition requires otherwise:
(1) 'Category of aid' means assistance provided by the Oregon
Supplemental Income Program, aid granted under ORS 412.001 to
412.069 and 418.647 or federal Supplemental Security Income
payments.
(2) 'Categorically needy' means, insofar as funds are available
for the category, a person who is a resident of this state and
who:
(a) Is receiving a category of aid.
(b) Would be eligible for { - , - } { + a category of
aid + } but is not receiving a category of aid.
(c) Is in a medical facility and, if the person left such
facility, would be eligible for a category of aid.
(d) Is under the age of 21 years and would be a dependent child
as defined in ORS 412.001 except for age and regular attendance
in school or in a course of professional or technical training.
(e)(A) Is a caretaker relative, as defined in ORS 412.001, who
cares for a child who would be a dependent child except for age
and regular attendance in school or in a course of professional
or technical training; or
(B) Is the spouse of the caretaker relative.
(f) Is under the age of 21 years, is in a foster family home or
licensed child-caring agency or institution under a purchase of
care agreement and is one for whom a public agency of this state
is assuming financial responsibility, in whole or in part.
(g) Is a spouse of an individual receiving a category of aid
and who is living with the recipient of a category of aid, whose
needs and income are taken into account in determining the cash
needs of the recipient of a category of aid, and who is
determined by the Department of Human Services to be essential to
the well-being of the recipient of a category of aid.
(h) Is a caretaker relative as defined in ORS 412.001 who cares
for a dependent child receiving aid granted under ORS 412.001 to
412.069 and 418.647 or is the spouse of the caretaker relative.
(i) Is under the age of 21 years, is in a youth care center and
is one for whom a public agency of this state is assuming
financial responsibility, in whole or in part.
(j) Is under the age of 21 years and is in an intermediate care
facility which includes institutions for persons with mental
retardation { - ; or - } { + .
(k) + } Is under the age of 22 years and is in a psychiatric
hospital.
Enrolled House Bill 2009 (HB 2009-C) Page 170
{ - (k) - } { + (L) + } Is under the age of 21 years and is
in an independent living situation with all or part of the
maintenance cost paid by the Department of Human Services.
{ - (L) - } { + (m) + } Is a member of a family that
received aid in the preceding month under ORS 412.006 or 412.014
and became ineligible for aid due to increased hours of or
increased income from employment. As long as the member of the
family is employed, such families will continue to be eligible
for medical assistance for a period of at least six calendar
months beginning with the month in which such family became
ineligible for assistance due to increased hours of employment or
increased earnings.
{ - (m) - } { + (n) + } Is an adopted person under 21 years
of age for whom a public agency is assuming financial
responsibility in whole or in part.
{ - (n) - } { + (o) + } Is an individual or is a member of
a group who is required by federal law to be included in the
state's medical assistance program in order for that program to
qualify for federal funds.
{ - (o) - } { + (p) + } Is an individual or member of a
group who, subject to the rules of the department { - and
within available funds - } , may optionally be included in the
state's medical assistance program under federal law and
regulations concerning the availability of federal funds for the
expenses of that individual or group.
{ - (p) - } { + (q) + } Is a pregnant woman who would be
eligible for aid granted under ORS 412.001 to 412.069 and
418.647, whether or not the woman is eligible for cash
assistance.
{ - (q) - } { + (r) + } Except as otherwise provided in
this section { - and to the extent of available funds - } , is
a pregnant woman or child for whom federal financial
participation is available under { - Title XIX - } { + Title
XIX or XXI + } of the federal Social Security Act.
{ - (r) - } { + (s) + } Is not otherwise categorically
needy and is not eligible for care under Title XVIII of the
federal Social Security Act or is not a full-time student in a
post-secondary education program as defined by the Department of
Human Services by rule, but whose family income is less than the
federal poverty level and whose family investments and savings
equal less than the investments and savings limit established by
the department by rule.
{ - (s) - } { + (t) + } Would be eligible for a category of
aid but for the receipt of qualified long term care insurance
benefits under a policy or certificate issued on or after January
1, 2008. As used in this paragraph, 'qualified long term care
insurance' means a policy or certificate of insurance as defined
in ORS 743.652 (6).
(3) 'Income' has the meaning given that term in ORS 411.704.
(4) 'Investments and savings' means cash, securities as defined
in ORS 59.015, negotiable instruments as defined in ORS 73.0104
and such similar investments or savings as the Department of
Human Services may establish by rule that are available to the
applicant or recipient to contribute toward meeting the needs of
the applicant or recipient.
(5) 'Medical assistance' means so much of the following medical
and remedial care and services as may be prescribed by the
{ - Department of Human Services - } { + Oregon Health
Authority + } according to the standards established pursuant to
{ - ORS 414.065 - } { + section 10 of this 2009 Act + },
Enrolled House Bill 2009 (HB 2009-C) Page 171
including payments made for services provided under an insurance
or other contractual arrangement and money paid directly to the
recipient for the purchase of medical care:
(a) Inpatient hospital services, other than services in an
institution for mental diseases;
(b) Outpatient hospital services;
(c) Other laboratory and X-ray services;
(d) Skilled nursing facility services, other than services in
an institution for mental diseases;
(e) Physicians' services, whether furnished in the office, the
patient's home, a hospital, a skilled nursing facility or
elsewhere;
(f) Medical care, or any other type of remedial care recognized
under state law, furnished by licensed practitioners within the
scope of their practice as defined by state law;
(g) Home health care services;
(h) Private duty nursing services;
(i) Clinic services;
(j) Dental services;
(k) Physical therapy and related services;
(L) Prescribed drugs, including those dispensed and
administered as provided under ORS chapter 689;
(m) Dentures and prosthetic devices; and eyeglasses prescribed
by a physician skilled in diseases of the eye or by an
optometrist, whichever the individual may select;
(n) Other diagnostic, screening, preventive and rehabilitative
services;
(o) Inpatient hospital services, skilled nursing facility
services and intermediate care facility services for individuals
65 years of age or over in an institution for mental diseases;
(p) Any other medical care, and any other type of remedial care
recognized under state law;
(q) Periodic screening and diagnosis of individuals under the
age of 21 years to ascertain their physical or mental
impairments, and such health care, treatment and other measures
to correct or ameliorate impairments and chronic conditions
discovered thereby;
(r) Inpatient hospital services for individuals under 22 years
of age in an institution for mental diseases; and
(s) Hospice services.
(6) 'Medical assistance' includes any care or services for any
individual who is a patient in a medical institution or any care
or services for any individual who has attained 65 years of age
or is under 22 years of age, and who is a patient in a private or
public institution for mental diseases. 'Medical assistance '
includes 'health services' as defined in ORS 414.705. 'Medical
assistance' does not include care or services for an inmate in a
nonmedical public institution.
(7) 'Medically needy' means a person who is a resident of this
state and who is considered eligible under federal law for
medically needy assistance.
(8) 'Resources' has the meaning given that term in ORS 411.704.
For eligibility purposes, 'resources' does not include charitable
contributions raised by a community to assist with medical
expenses.
SECTION 265. ORS 414.033 is amended to read:
414.033. The { - Department of Human Services - }
{ + Oregon Health Authority + } may:
(1) Subject to the allotment system provided for in ORS 291.234
to 291.260, expend such sums as are required to be expended in
Enrolled House Bill 2009 (HB 2009-C) Page 172
this state to provide medical assistance. Expenditures for
medical assistance include, but are not limited to, expenditures
for deductions, cost sharing, enrollment fees, premiums or
similar charges imposed with respect to hospital insurance
benefits or supplementary health insurance benefits, as
established by federal law.
(2) Enter into agreements with, join with or accept grants
from, the federal government for cooperative research and
demonstration projects for public welfare purposes, including,
but not limited to, any project which determines the cost of
providing medical assistance to the medically needy and evaluates
service delivery systems.
SECTION 266. ORS 414.034 is amended to read:
414.034. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall accept federal Centers for
Medicare and Medicaid Services billing, reimbursement and
reporting forms instead of department billing, reimbursement and
reporting forms if the federal forms contain substantially the
same information as required by the department forms.
SECTION 267. { + ORS 414.105 and 414.106 are added to and made
a part of ORS chapter 416. + }
SECTION 268. { + ORS 414.042 is added to and made a part of
ORS chapter 411. + }
SECTION 269. ORS 414.042 is amended to read:
414.042. { - (1) The need for and the amount of medical
assistance to be made available for each eligible group of
recipients of medical assistance shall be determined, in
accordance with the rules of the Department of Human Services,
taking into account: - }
{ - (a) The requirements and needs of the person, the spouse
and other dependents; - }
{ - (b) The income, resources and maintenance available to
the person but, except as provided in ORS 414.025 (2)(r),
resources shall be disregarded for those eligible by reason of
having income below the federal poverty level and who are
eligible for medical assistance only because of the enactment of
chapter 836, Oregon Laws 1989; - }
{ - (c) The responsibility of the spouse and, with respect to
a person who is blind or is permanently and totally disabled or
is under 21 years of age, the responsibility of the parents;
and - }
{ - (d) The report of the Health Services Commission as
funded by the Legislative Assembly and such other programs as the
Legislative Assembly may authorize. However, medical assistance,
including health services, shall not be provided to persons
described in ORS 414.025 (2)(r) unless the Legislative Assembly
specifically appropriates funds to provide such assistance. - }
{ - (2) Such amounts of income and resources may be
disregarded as the department may prescribe by rules, except that
the department may not require any needy person over 65 years of
age, as a condition of entering or remaining in a hospital,
nursing home or other congregate care facility, to sell any real
property normally used as such person's home. Any rule of the
department inconsistent with this section is to that extent
invalid. The amounts to be disregarded shall be within the limits
required or permitted by federal law, rules or orders applicable
thereto. - }
{ - (3) In the determination of the amount of medical
assistance available to a medically needy person, all income and
resources available to the person in excess of the amounts
Enrolled House Bill 2009 (HB 2009-C) Page 173
prescribed in ORS 414.038, within limits prescribed by the
department, shall be applied first to costs of needed medical and
remedial care and services not available under the medical
assistance program and then to the costs of benefits under the
medical assistance program. - }
{ + (1) The Department of Human Services shall determine
eligibility for medical assistance according to criteria
prescribed by rule, taking into account:
(a) The requirements and needs of the applicant and of the
spouse and dependents of the applicant;
(b) The income, resources and maintenance available to the
applicant; and
(c) The responsibility of the spouse of the applicant and, with
respect to an applicant who is blind or is permanently and
totally disabled or is under 21 years of age, the responsibility
of the parents.
(2) Rules adopted by the department under subsection (1) of
this section:
(a) Shall disregard resources for those who are eligible for
medical assistance only by reason of ORS 414.025 (2)(s), except
for the resources described in ORS 414.025 (2)(s).
(b) May disregard income and resources within the limits
required or permitted by federal law, regulations or orders.
(3) The department may not require any needy person over 65
years of age, as a condition of entering or remaining in a
hospital, nursing home or other congregate care facility, to sell
any real property normally used as such person's home. Any rule
of the department inconsistent with this section is to that
extent invalid. + }
SECTION 270. { + ORS 414.047, 414.049, 414.051, 414.055,
414.057, 414.073, 414.151, 414.420, 414.422 and 414.424 are added
to and made a part of ORS chapter 411. + }
{ + NOTE: + } Section 271 was deleted by amendment.
Subsequent sections were not renumbered.
SECTION 272. ORS 414.049 is amended to read:
414.049. For each person applying for { - health services
under ORS 414.705 to 414.750 - } { + medical assistance + },
the Department of Human Services shall fully document:
(1) The category of aid as defined in ORS 414.025 that makes
the person eligible for medical assistance or the way in which
the person qualifies as categorically needy as defined in ORS
414.025;
(2) The status of the person as a resident of this state; and
(3) The financial income and resources of the person.
SECTION 273. ORS 414.051 is amended to read:
414.051. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall approve or deny prior
authorization requests for dental services not later than 30 days
after submission thereof by the provider, and shall make payments
to providers of prior authorized dental services not later than
30 days after receipt of the invoice of the provider.
{ + NOTE: + } Sections 274 and 275 were deleted by amendment.
Subsequent sections were not renumbered.
SECTION 276. ORS 414.065 is amended to read:
414.065. (1)(a) With respect to medical and remedial care and
services to be provided in medical assistance during any period,
and within the limits of funds available therefor, the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall determine, subject to such revisions as it
may make from time to time and with respect to the 'health
Enrolled House Bill 2009 (HB 2009-C) Page 174
services' defined in ORS 414.705, subject to legislative funding
in response to the report of the Health Services Commission and
paragraph (b) of this subsection:
(A) The types and extent of medical and remedial care and
services to be provided to each eligible group of recipients of
medical assistance.
(B) Standards to be observed in the provision of medical and
remedial care and services.
(C) The number of days of medical and remedial care and
services toward the cost of which public assistance funds will be
expended in the care of any person.
(D) Reasonable fees, charges and daily rates to which public
assistance funds will be applied toward meeting the costs of
providing medical and remedial care and services to an applicant
or recipient.
(E) Reasonable fees for professional medical and dental
services which may be based on usual and customary fees in the
locality for similar services.
(F) The amount and application of any copayment or other
similar cost-sharing payment that the { - department - }
{ + authority + } may require a recipient to pay toward the cost
of medical and remedial care or services.
(b) Notwithstanding ORS 414.720 (8), the { - department - }
{ + authority + } shall adopt rules establishing timelines for
payment of health services under paragraph (a) of this
subsection.
(2) The types and extent of medical and remedial care and
services and the amounts to be paid in meeting the costs thereof,
as determined and fixed by the { - department - }
{ + authority + } and within the limits of funds available
therefor, shall be the total available for medical assistance and
payments for such medical assistance shall be the total amounts
from public assistance funds available to providers of medical
and remedial care and services in meeting the costs thereof.
(3) Except for payments under a cost-sharing plan, payments
made by the { - department - } { + authority + } for medical
assistance shall constitute payment in full for all medical and
remedial care and services for which such payments of medical
assistance were made.
(4) Medical benefits, standards and limits established pursuant
to subsection (1)(a)(A), (B) and (C) of this section for the
eligible medically needy, except for persons receiving assistance
under ORS 411.706, may be less than but may not exceed medical
benefits, standards and limits established for the eligible
categorically needy, except that, in the case of a research and
demonstration project entered into under ORS 411.135, medical
benefits, standards and limits for the eligible medically needy
may exceed those established for specific eligible groups of the
categorically needy.
SECTION 277. ORS 414.073 is amended to read:
414.073. When giving information concerning medical assistance,
the { - Department of Human Services - } { + Oregon Health
Authority + } shall make available to applicants or recipients
materials which include at least a listing of all the healing
arts licensed in this state.
SECTION 278. ORS 414.105 is amended to read:
414.105. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may recover from any person the
amounts of medical assistance incorrectly paid on behalf of such
person.
Enrolled House Bill 2009 (HB 2009-C) Page 175
(2) Medical assistance pursuant to this chapter paid on behalf
of an individual who was 55 years of age or older when the
individual received such assistance, or paid on behalf of a
person of any age who was a permanently institutionalized
inpatient in a nursing facility, intermediate care facility for
persons with mental retardation or other medical institution, may
be recovered from the estate of the individual or from any
recipient of property or other assets held by the individual at
the time of death including the estate of the surviving spouse.
Claim for such medical assistance correctly paid to the
individual may be established against the estate, but there shall
be no adjustment or recovery thereof until after the death of the
surviving spouse, if any, and only at a time when the individual
has no surviving child who is under 21 years of age or who is
blind or permanently and totally disabled. Transfers of real or
personal property by recipients of such aid without adequate
consideration are voidable and may be set aside under ORS 411.620
(2).
(3) Nothing in this section authorizes the recovery of the
amount of any aid from the estate or surviving spouse of a
recipient to the extent that the need for aid resulted from a
crime committed against the recipient.
(4) In any action or proceeding under this section to recover
medical assistance paid, it shall be the legal burden of the
person who receives the property or other assets from a Medicaid
recipient to establish the extent and value of the Medicaid
recipient's legal title or interest in the property or assets in
accordance with rules established by the { - department - }
{ + authority + }.
(5) As used in this section, 'estate' includes all real and
personal property and other assets in which the deceased
individual had any legal title or interest at the time of death
including assets conveyed to a survivor, heir or assign of the
deceased individual through joint tenancy, tenancy in common,
survivorship, life estate, living trust or other similar
arrangement.
SECTION 279. ORS 414.106 is amended to read:
414.106. (1) Subject to the requirements of subsection (2) of
this section, if 42 U.S.C. 1396p (b)(1)(B) as in effect on
January 1, 1995, is repealed without replacement or is declared
unconstitutional, the Director of { - Human Services - }
{ + the Oregon Health Authority + } shall limit the recovery of
medical assistance paid pursuant to ORS chapter 414 from the
estate of an individual or a recipient of property or other
assets held by an individual at the time of death, including a
surviving spouse of the individual, to the recovery of medical
assistance payments paid on behalf of the individual on or after
the date that the individual attained 65 years of age.
(2) The director shall limit the recovery of medical assistance
as described under subsection (1) of this section only if the
director determines, after receiving the written opinion of the
Attorney General, that the recovery limitation will not violate
any federal law in effect on the operative date of the recovery
limitation. The director may condition, limit, modify or
terminate any recovery limitation as the director considers
necessary to avoid a violation of federal law.
SECTION 280. ORS 414.109 is amended to read:
414.109. (1) The Oregon Health Plan Fund is established,
separate and distinct from the General Fund. Interest earned by
Enrolled House Bill 2009 (HB 2009-C) Page 176
the Oregon Health Plan Fund shall be retained by the Oregon
Health Plan Fund.
(2) Moneys in the Oregon Health Plan Fund are continuously
appropriated to the Department of Human Services for the purposes
of funding the maintenance and expansion of the number of persons
eligible for medical assistance under the Oregon Health Plan and
funding the maintenance of the benefits available under the
Oregon Health Plan.
{ + (3) On the effective date of this 2009 Act, all moneys in
the Oregon Health Plan Fund shall be transferred to the Oregon
Health Authority Fund established in section 19 of this 2009
Act. + }
SECTION 281. ORS 414.115 is amended to read:
414.115. (1) In lieu of providing one or more of the medical
and remedial care and services available under medical assistance
by direct payments to providers thereof and in lieu of providing
such medical and remedial care and services made available
pursuant to ORS 414.065, the { - Department of Human
Services - } { + Oregon Health Authority + } shall use
available medical assistance funds to purchase and pay premiums
on policies of insurance, or enter into and pay the expenses on
health care service contracts, or medical or hospital service
contracts that provide one or more of the medical and remedial
care and services available under medical assistance for the
benefit of the categorically needy { - or the medically needy,
or both - } . Notwithstanding other specific provisions, the use
of available medical assistance funds to purchase medical or
remedial care and services may provide the following insurance or
contract options:
(a) Differing services or levels of service among groups of
eligibles as defined by rules of the { - department - }
{ + authority + }; and
(b) Services and reimbursement for these services may vary
among contracts and need not be uniform.
(2) The policy of insurance or the contract by its terms, or
the insurer or contractor by written acknowledgment to the
{ - department - } { + authority + } must guarantee:
(a) To provide medical and remedial care and services of the
type, within the extent and according to standards prescribed
under ORS 414.065;
(b) To pay providers of medical and remedial care and services
the amount due, based on the number of days of care and the fees,
charges and costs established under ORS 414.065, except as to
medical or hospital service contracts which employ a method of
accounting or payment on other than a fee-for-service basis;
(c) To provide medical and remedial care and services under
policies of insurance or contracts in compliance with all laws,
rules and regulations applicable thereto; and
(d) To provide such statistical data, records and reports
relating to the provision, administration and costs of providing
medical and remedial care and services to the
{ - department - } { + authority + } as may be required by the
{ - department - } { + authority + } for its records, reports
and audits.
SECTION 282. ORS 414.125 is amended to read:
414.125. (1) Any payment of available medical assistance funds
for policies of insurance or service contracts shall be according
to such uniform area-wide rates as the { - Department of Human
Services - } { + Oregon Health Authority + } shall have
established and which it may revise from time to time as may be
Enrolled House Bill 2009 (HB 2009-C) Page 177
necessary or practical, except that, in the case of a research
and demonstration project entered into under ORS 411.135 special
rates may be established.
(2) No premium or other periodic charge on any policy of
insurance, health care service contract, or medical or hospital
service contract shall be paid from available medical assistance
funds unless the insurer or contractor issuing such policy or
contract is by law authorized to transact business as an
insurance company, health care service contractor or hospital
association in this state.
SECTION 283. ORS 414.135 is amended to read:
414.135. The { - Department of Human Services - }
{ + Oregon Health Authority + } may enter into nonexclusive
contracts under which funds available for medical assistance may
be administered and disbursed by the contractor to direct
providers of medical and remedial care and services available
under medical assistance in consideration of services rendered
and supplies furnished by them in accordance with the provisions
of this chapter. Payment shall be made according to the rules of
the { - department - } { + authority + } pursuant to the
number of days and the fees, charges and costs established under
ORS 414.065. The contractor must guarantee the
{ - department - } { + authority + } by written acknowledgment:
(1) To make all payments under this chapter promptly but not
later than 30 days after receipt of the proper evidence
establishing the validity of the provider's claim.
(2) To provide such data, records and reports to the
{ - department - } { + authority + } as may be required by
the { - department - } { + authority + }.
SECTION 284. ORS 414.145 is amended to read:
414.145. (1) The provisions of ORS 414.115, 414.125 or 414.135
shall be implemented whenever it appears to the
{ - Department of Human Services - } { + Oregon Health
Authority + } that such implementation will provide comparable
benefits at equal or less cost than provision thereof by direct
payments by the { - department - } { + authority + } to the
providers of medical assistance, but in no case greater than the
legislatively approved budgeted cost per eligible recipient at
the time of contracting.
(2) When determining comparable benefits at equal or less cost
as provided in subsection (1) of this section, the
{ - department - } { + authority + } must take into
consideration the recipients' need for reasonable access to
preventive and remedial care, and the contractor's ability to
assure continuous quality delivery of both routine and emergency
services.
SECTION 285. ORS 414.151 is amended to read:
414.151. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall endeavor to develop
agreements with local governments to facilitate the enrollment of
poverty level medical assistance program clients. Subject to the
availability of funds therefor, the agreement shall be structured
to allow flexibility by the state and local governments and may
allow any of the following options for enrolling clients in
poverty level medical assistance programs:
(1) Initial processing shall be done at the county health
department by employees of the county, with eligibility
determination completed at the local office of the
{ - Department of Human Services - } { + authority + };
Enrolled House Bill 2009 (HB 2009-C) Page 178
(2) Initial processing and eligibility determination shall be
done at the county health department by employees of the local
health department; or
(3) Application forms shall be made available at the county
health department with initial processing and eligibility
determination shall be done at the local office of the
{ - Department of Human Services - } { + authority + }.
SECTION 286. ORS 414.153 is amended to read:
414.153. In order to make advantageous use of the system of
public health services available through county health
departments and other publicly supported programs and to insure
access to public health services through contract under ORS
chapter 414, the state shall:
(1) Unless cause can be shown why such an agreement is not
feasible, require and approve agreements between prepaid health
plans and publicly funded providers for authorization of payment
for point of contact services in the following categories:
(a) Immunizations;
(b) Sexually transmitted diseases; and
(c) Other communicable diseases;
(2) Allow enrollees in prepaid health plans to receive from
fee-for-service providers:
(a) Family planning services;
(b) Human immunodeficiency virus and acquired immune deficiency
syndrome prevention services; and
(c) Maternity case management if the { - Department of Human
Services - } { + Oregon Health Authority + } determines that a
prepaid plan cannot adequately provide the services;
(3) Encourage and approve agreements between prepaid health
plans and publicly funded providers for authorization of and
payment for services in the following categories:
(a) Maternity case management;
(b) Well-child care;
(c) Prenatal care;
(d) School-based clinics;
(e) Health services for children provided through schools and
Head Start programs; and
(f) Screening services to provide early detection of health
care problems among low income women and children, migrant
workers and other special population groups; and
(4) Recognize the social value of partnerships between county
health departments and other publicly supported programs and
other health providers, and take appropriate measures to involve
publicly supported health care and service programs in the
development and implementation of managed health care programs in
their areas of responsibility.
SECTION 287. ORS 414.211 is amended to read:
414.211. (1) There is established a Medicaid Advisory Committee
consisting of not more than 15 members appointed by the Governor.
(2) The committee shall be composed of:
(a) A physician licensed under ORS chapter 677;
(b) Two members of health care consumer groups that include
Medicaid recipients;
(c) Two Medicaid recipients, one of whom shall be a person with
a disability;
(d) The Director of { - Human Services - } { + the Oregon
Health Authority + } or designee;
(e) Health care providers;
Enrolled House Bill 2009 (HB 2009-C) Page 179
(f) Persons associated with health care organizations,
including but not limited to managed care plans under contract to
the Medicaid program; and
(g) Members of the general public.
(3) In making appointments, the Governor shall consult with
appropriate professional and other interested organizations. All
members appointed to the committee shall be familiar with the
medical needs of low income persons.
(4) The term of office for each member shall be two years, but
each member shall serve at the pleasure of the Governor.
(5) Members of the committee shall receive no compensation for
their services but, subject to any applicable state law, shall be
allowed actual and necessary travel expenses incurred in the
performance of their duties from the { - Public Welfare
Account - } { + Oregon Health Authority Fund + }.
SECTION 288. ORS 414.221 is amended to read:
414.221. The Medicaid Advisory Committee shall advise the
Administrator of the Office for Oregon Health Policy and Research
and the Director of { - Human Services - } { + the Oregon
Health Authority + } on:
(1) Medical care, including mental health and alcohol and drug
treatment and remedial care to be provided under ORS chapter 414;
and
(2) The operation and administration of programs provided under
ORS chapter 414.
SECTION 289. ORS 414.225 is amended to read:
414.225. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall consult with the Medicaid
Advisory Committee concerning the determinations required under
ORS 414.065.
SECTION 290. ORS 414.227 is amended to read:
414.227. (1) ORS 192.610 to 192.690 apply to any meeting of an
advisory committee with the authority to make decisions for,
conduct policy research for or make recommendations to the
{ - Department of Human Services - } { + Oregon Health
Authority or the Oregon Health Policy Board + } on administration
or policy related to the medical assistance program operated
under this chapter.
(2) Subsection (1) of this section applies only to advisory
committee meetings attended by two or more advisory committee
members who are not employed by a public body.
SECTION 291. ORS 414.312 is amended to read:
414.312. (1) As used in ORS 414.312 to 414.318:
(a) 'Pharmacy benefit manager' means an entity that, in
addition to being a prescription drug claims processor,
negotiates and executes contracts with pharmacies, manages
preferred drug lists, negotiates rebates with prescription drug
manufacturers and serves as an intermediary between the Oregon
Prescription Drug Program, prescription drug manufacturers and
pharmacies.
(b) 'Prescription drug claims processor' means an entity that
processes and pays prescription drug claims, adjudicates pharmacy
claims, transmits prescription drug prices and claims data
between pharmacies and the Oregon Prescription Drug Program and
processes related payments to pharmacies.
(c) 'Program price' means the reimbursement rates and
prescription drug prices established by the administrator of the
Oregon Prescription Drug Program.
Enrolled House Bill 2009 (HB 2009-C) Page 180
(2) The Oregon Prescription Drug Program is established in the
{ - Department of Human Services - } { + Oregon Health
Authority + }. The purpose of the program is to:
(a) Purchase prescription drugs or reimburse pharmacies for
prescription drugs in order to receive discounted prices and
rebates;
(b) Make prescription drugs available at the lowest possible
cost to participants in the program; and
(c) Maintain a list of prescription drugs recommended as the
most effective prescription drugs available at the best possible
prices.
(3) The Director of { - Human Services - } { + the Oregon
Health Authority + } shall appoint an administrator of the Oregon
Prescription Drug Program. The administrator shall:
(a) Negotiate price discounts and rebates on prescription drugs
with prescription drug manufacturers;
(b) Purchase prescription drugs on behalf of individuals and
entities that participate in the program;
(c) Contract with a prescription drug claims processor to
adjudicate pharmacy claims and transmit program prices to
pharmacies;
(d) Determine program prices and reimburse pharmacies for
prescription drugs;
(e) Adopt and implement a preferred drug list for the program;
(f) Develop a system for allocating and distributing the
operational costs of the program and any rebates obtained to
participants of the program; and
(g) Cooperate with other states or regional consortia in the
bulk purchase of prescription drugs.
(4) The following individuals or entities may participate in
the program:
(a) Public Employees' Benefit Board;
(b) Local governments as defined in ORS 174.116 and special
government bodies as defined in ORS 174.117 that directly or
indirectly purchase prescription drugs;
{ - (c) Enrollees in the Senior Prescription Drug Assistance
Program created under ORS 414.342; - }
{ - (d) - } { + (c) + } Oregon Health and Science
University established under ORS 353.020;
{ - (e) - } { + (d) + } State agencies that directly or
indirectly purchase prescription drugs, including agencies that
dispense prescription drugs directly to persons in state-operated
facilities;
{ - (f) - } { + (e) + } Residents of this state who lack or
are underinsured for prescription drug coverage;
{ - (g) - } { + (f) + } Private entities; and
{ - (h) - } { + (g) + } Labor organizations.
(5) The state agency that receives federal Medicaid funds and
is responsible for implementing the state's medical assistance
program may not participate in the program.
(6) The administrator may establish different reimbursement
rates or prescription drug prices for pharmacies in rural areas
to maintain statewide access to the program.
(7) The administrator shall establish the terms and conditions
for a pharmacy to enroll in the program. A licensed pharmacy that
is willing to accept the terms and conditions established by the
administrator may apply to enroll in the program.
(8) Except as provided in subsection { - (9) - }
{ + (10) + } of this section, the administrator may not:
(a) Contract with a pharmacy benefit manager;
Enrolled House Bill 2009 (HB 2009-C) Page 181
(b) Establish a state-managed wholesale or retail drug
distribution or dispensing system; or
(c) Require pharmacies to maintain or allocate separate
inventories for prescription drugs dispensed through the program.
(9) The administrator shall contract with one or more entities
to provide the functions of a prescription drug claims processor.
The administrator may also contract with a pharmacy benefit
manager to negotiate with prescription drug manufacturers on
behalf of the administrator.
(10) Notwithstanding subsection { - (4)(f) - }
{ + (4)(e) + } of this section, individuals who are eligible for
Medicare Part D prescription drug coverage may participate in the
program.
SECTION 292. ORS 414.314 is amended to read:
414.314. (1) An individual or entity described in ORS 414.312
(4) may apply to participate in the Oregon Prescription Drug
Program. Participants shall apply on an application provided by
the { - Department of Human Services - } { + Oregon Health
Authority + }. The
{ - department - } { + authority + } may charge participants
a nominal fee to participate in the program. The
{ - department - } { + authority + } shall issue a
prescription drug identification card to participants of the
program.
(2) The { - department - } { + authority + } shall provide
a mechanism to calculate and transmit the program prices for
prescription drugs to a pharmacy. The pharmacy shall charge the
participant the program price for a prescription drug.
(3) A pharmacy may charge the participant the professional
dispensing fee set by the { - department - } { +
authority + }.
(4) Prescription drug identification cards issued under this
section must contain the information necessary for proper claims
adjudication or transmission of price data.
SECTION 293. ORS 414.316 is amended to read:
414.316. The Office for Oregon Health Policy and Research shall
develop and recommend to the { - Department of Human
Services - } { + Oregon Health Authority + } a preferred drug
list that identifies preferred choices of prescription drugs
within therapeutic classes for particular diseases and
conditions, including generic alternatives, for use in the Oregon
Prescription Drug Program. The office shall conduct public
hearings and use evidence-based evaluations on the effectiveness
of similar prescription drugs to develop the preferred drug list.
SECTION 294. ORS 414.318 is amended to read:
414.318. The Prescription Drug Purchasing Fund is established
separate and distinct from the General Fund. The Prescription
Drug Purchasing Fund shall consist of moneys appropriated to the
fund by the Legislative Assembly and moneys received by the
{ - Department of Human Services - } { + Oregon Health
Authority + } for the purposes established in this section in the
form of gifts, grants, bequests, endowments or donations. The
moneys in the Prescription Drug Purchasing Fund are continuously
appropriated to the
{ - department - } { + authority + } and shall be used to
purchase prescription drugs, reimburse pharmacies for
prescription drugs and reimburse the { - department - }
{ + authority + } for the costs of administering the Oregon
Prescription Drug Program, including contracted services costs,
computer costs, professional dispensing fees paid to retail
Enrolled House Bill 2009 (HB 2009-C) Page 182
pharmacies and other reasonable program costs. Interest earned on
the fund shall be credited to the fund.
SECTION 295. ORS 414.320 is amended to read:
414.320. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules to implement
and administer ORS 414.312 to 414.318. The rules shall include
but are not limited to establishing procedures for:
(1) Issuing prescription drug identification cards to
individuals and entities that participate in the Oregon
Prescription Drug Program; and
(2) Enrolling pharmacies in the program.
SECTION 296. ORS 414.325 is amended to read:
414.325. (1) As used in this section, 'legend drug' means any
drug requiring a prescription by a practitioner, as defined in
ORS 689.005.
(2) A licensed practitioner may prescribe such drugs under this
chapter as the practitioner in the exercise of professional
judgment considers appropriate for the diagnosis or treatment of
the patient in the practitioner's care and within the scope of
practice. Prescriptions shall be dispensed in the generic form
pursuant to ORS 689.515 and pursuant to rules of the
{ - Department of Human Services - } { + Oregon Health
Authority + } unless the practitioner prescribes otherwise and an
exception is granted by the
{ - department - } { + authority + }.
(3) Except as provided in subsections (4) and (5) of this
section, the { - department - } { + authority + } shall place
no limit on the type of legend drug that may be prescribed by a
practitioner, but the { - department - } { + authority + }
shall pay only for drugs in the generic form unless an exception
has been granted by the { - department - } { + authority + }.
(4) Notwithstanding subsection (3) of this section, an
exception must be applied for and granted before the
{ - department - } { + authority + } is required to pay for
minor tranquilizers and amphetamines and amphetamine derivatives,
as defined by rule of the { - department - } { +
authority + }.
(5)(a) Notwithstanding subsections (1) to (4) of this section
and except as provided in paragraph (b) of this subsection, the
{ - department - } { + authority + } is authorized to:
(A) Withhold payment for a legend drug when federal financial
participation is not available; and
(B) Require prior authorization of payment for drugs that the
{ - department - } { + authority + } has determined should be
limited to those conditions generally recognized as appropriate
by the medical profession.
(b) The { - department - } { + authority + } may not
require prior authorization for therapeutic classes of
nonsedating antihistamines and nasal inhalers, as defined by rule
by the
{ - department - } { + authority + }, when prescribed by an
allergist for treatment of any of the following conditions, as
described by the Health Services Commission on the funded portion
of its prioritized list of services:
(A) Asthma;
(B) Sinusitis;
(C) Rhinitis; or
(D) Allergies.
(6)(a) The { - department - } { + authority + } shall pay a
rural health clinic for a legend drug prescribed and dispensed
Enrolled House Bill 2009 (HB 2009-C) Page 183
under this chapter by a licensed practitioner at the rural health
clinic for an urgent medical condition if:
(A) There is not a pharmacy within 15 miles of the clinic;
(B) The prescription is dispensed for a patient outside of the
normal business hours of any pharmacy within 15 miles of the
clinic; or
(C) No pharmacy within 15 miles of the clinic dispenses legend
drugs under this chapter.
(b) As used in this subsection, 'urgent medical condition '
means a medical condition that arises suddenly, is not
life-threatening and requires prompt treatment to avoid the
development of more serious medical problems.
(7) Notwithstanding ORS 414.334, the { - department - }
{ + authority + } may conduct prospective drug utilization
review prior to payment for drugs for a patient whose
prescription drug use exceeded 15 drugs in the preceding
six-month period.
(8) Notwithstanding subsection (3) of this section, the
{ - department - } { + authority + } may pay a pharmacy for a
particular brand name drug rather than the generic version of the
drug after notifying the pharmacy that the cost of the particular
brand name drug, after receiving discounted prices and rebates,
is equal to or less than the cost of the generic version of the
drug.
SECTION 297. ORS 414.327 is amended to read:
414.327. { - (1) The Department of Human Services shall seek
a waiver from the federal Centers for Medicare and Medicaid
Services to allow the department to communicate prescription drug
orders by electronic means from a practitioner authorized to
prescribe drugs directly to the dispensing pharmacist. - }
{ - (2) - } The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules permitting
{ - the department - } { + a practitioner + } to communicate
prescription drug orders by electronic means { - from a
practitioner authorized to prescribe drugs - } directly to the
dispensing pharmacist.
SECTION 298. ORS 414.329 is amended to read:
414.329. (1) Notwithstanding ORS 414.705 to 414.750, the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall adopt rules modifying the prescription drug
benefits for persons who are eligible for Medicare Part D
prescription drug coverage and who receive prescription drug
benefits under the state medical assistance program or Title XIX
of the Social Security Act. The rules shall include but need not
be limited to:
(a) Identification of the Part D classes of drugs for which
federal financial participation is not available and that are not
covered classes of drugs;
(b) Identification of the Part D classes of drugs for which
federal financial participation is not available and that are
covered classes of drugs;
(c) Identification of the classes of drugs not covered under
Medicare Part D prescription drug coverage for which federal
financial participation is available and that are covered classes
of drugs; and
(d) Cost-sharing obligations related to the provision of Part D
classes of drugs for which federal financial participation is not
available.
(2) As used in this section, 'covered classes of drugs ' means
classes of prescription drugs provided to persons eligible for
Enrolled House Bill 2009 (HB 2009-C) Page 184
prescription drug coverage under the state medical assistance
program or Title XIX of the Social Security Act.
SECTION 298a. ORS 414.330 is amended to read:
414.330. The Legislative Assembly finds that:
(1) The cost of prescription drugs in the { - Oregon Health
Plan - } { + medical assistance program + } is growing and will
soon be unsustainable;
(2) The benefit of prescription drugs when appropriately used
decreases the need for other expensive treatments and improves
the health of Oregonians; and
(3) Providing the most effective drugs in the most
cost-effective manner will benefit both patients and taxpayers.
SECTION 298b. ORS 414.332 is amended to read:
414.332. It is the policy of the State of Oregon that a
Practitioner-Managed Prescription Drug Plan will ensure that:
(1) Oregonians have access to the most effective prescription
drugs appropriate for their clinical conditions;
(2) Decisions concerning the clinical effectiveness of
prescription drugs are made by licensed health practitioners, are
informed by the latest peer-reviewed research and consider the
health condition of a patient or characteristics of a patient,
including the patient's gender, race or ethnicity; and
(3) The cost of prescription drugs in the { - Oregon Health
Plan - } { + medical assistance program + } is managed through
market competition among pharmaceutical manufacturers by publicly
considering, first, the effectiveness of a given drug and,
second, its relative cost.
SECTION 299. ORS 414.334 is amended to read:
414.334. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt a
Practitioner-Managed Prescription Drug Plan for the { - Oregon
Health Plan - } { + medical assistance program + }. The purpose
of the plan is to ensure that enrollees of the { - Oregon
Health Plan - } { + medical assistance program + } receive the
most effective prescription drug available at the best possible
price.
(2) Before adopting the plan, the { - department - }
{ + authority + } shall conduct public meetings and consult with
the Health Resources Commission.
(3) The { - department - } { + authority + } shall consult
with representatives of the regulatory boards and associations
representing practitioners who are prescribers under the
{ - Oregon Health Plan - } { + medical assistance program + }
and ensure that practitioners receive educational materials and
have access to training on the Practitioner-Managed Prescription
Drug Plan.
(4) Notwithstanding the Practitioner-Managed Prescription Drug
Plan adopted by the { - department - } { + authority + }, a
practitioner may prescribe any drug that the practitioner
indicates is medically necessary for an enrollee as being the
most effective available.
(5) An enrollee may appeal to the { - department - }
{ + authority + } a decision of a practitioner or the
{ - department - } { + authority + } to not provide a
prescription drug requested by the enrollee.
(6) This section does not limit the decision of a practitioner
as to the scope and duration of treatment of chronic conditions,
including but not limited to arthritis, diabetes and asthma.
SECTION 300. ORS 414.336 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 185
414.336. The { - Department of Human Services - }
{ + Oregon Health Authority + } may not adopt or amend any rule
that requires a prescribing practitioner to contact the
{ - department - } { + authority + } to request an exception
for a medically appropriate or medically necessary drug that is
not listed on the Practitioner-Managed Prescription Drug Plan
drug list for that class of drugs adopted under ORS 414.334,
unless otherwise authorized by enabling legislation setting forth
the requirement for prior authorization.
SECTION 301. ORS 414.338 is amended to read:
414.338. (1) The Patient Prescription Drug Assistance Program
is established. The purpose of the program is to match low-income
Oregonians who lack prescription drug benefit coverage with
prescription drug assistance programs offered by pharmaceutical
companies.
(2) The program shall:
(a) Provide information on:
(A) Eligibility requirements and coverage provided by publicly
funded prescription drug benefit programs administered by the
{ - Department of Human Services - } { + Oregon Health
Authority + }; and
(B) The process for applying to receive publicly funded
prescription drug benefits;
(b) Assist a patient in applying to pharmaceutical companies
for free or discounted prescription drug medications if the
patient is not eligible for any publicly funded prescription drug
benefit program;
(c) Provide information, in an organized and easily understood
manner, to patients, physicians, pharmacists and pharmacies
regarding patient qualifications for prescription drug assistance
programs;
(d) Increase awareness of the various prescription drug
assistance programs offered by pharmaceutical companies; and
(e) Establish a toll-free hotline and Internet website to
increase public awareness of the Patient Prescription Drug
Assistance Program and to provide public access to the
information and services provided through the program.
(3)(a) The College of Pharmacy at Oregon State University shall
operate the Patient Prescription Drug Assistance Program until
June 30, 2003, and may operate the program thereafter unless the
{ - Department of Human Services - } { + authority + } enters
into a contract described in paragraph (b) of this subsection.
(b) For periods on or after July 1, 2003, the { - Department
of Human Services - } { + authority + } may contract with any
pharmacy provider to operate the Patient Prescription Drug
Assistance Program.
SECTION 302. ORS 414.350 is amended to read:
414.350. As used in ORS 414.350 to 414.415:
(1) 'Appropriate and medically necessary use' means drug
prescribing, drug dispensing and patient medication usage in
conformity with the criteria and standards developed under ORS
414.350 to 414.415.
(2) 'Board' means the Drug Use Review Board created under ORS
414.355.
(3) 'Compendia' means those resources widely accepted by the
medical profession in the efficacious use of drugs, including the
following sources:
(a) The American Hospital Formulary Services drug information.
(b) The United States Pharmacopeia drug information.
(c) The American Medical Association drug evaluations.
Enrolled House Bill 2009 (HB 2009-C) Page 186
(d) The peer-reviewed medical literature.
(e) Drug therapy information provided by manufacturers of drug
products consistent with the federal Food and Drug Administration
requirements.
(4) 'Counseling' means the effective communication of
information by a pharmacist, as defined by rules of the State
Board of Pharmacy.
(5) 'Criteria' means the predetermined and explicitly accepted
elements based on the compendia that are used to measure drug use
on an ongoing basis to determine if the use is appropriate,
medically necessary and not likely to result in adverse medical
outcomes.
(6) 'Drug-disease contraindication' means the potential for, or
the occurrence of, an undesirable alteration of the therapeutic
effect of a given prescription because of the presence, in the
patient for whom it is prescribed, of a disease condition or the
potential for, or the occurrence of, a clinically significant
adverse effect of the drug on the patient's disease condition.
(7) 'Drug-drug interaction' means the pharmacological or
clinical response to the administration of at least two drugs
different from that response anticipated from the known effects
of the two drugs when given alone, which may manifest clinically
as antagonism, synergism or idiosyncrasy. Such interactions have
the potential to have an adverse effect on the individual or lead
to a clinically significant adverse reaction, or both, that:
(a) Is characteristic of one or any of the drugs present; or
(b) Leads to interference with the absorption, distribution,
metabolizing, excretion or therapeutic efficacy of one or any of
the drugs.
(8) 'Drug use review' means the programs designed to measure
and assess on a retrospective and a prospective basis, through an
evaluation of claims data, the proper utilization, quantity,
appropriateness as therapy and medical necessity of prescribed
medication in the medical assistance program.
(9) 'Intervention' means an action taken by the
{ - Department of Human Services - } { + Oregon Health
Authority + } with a prescriber or pharmacist to inform about or
to influence prescribing or dispensing practices or utilization
of drugs.
(10) 'Overutilization' means the use of a drug in quantities or
for durations that put the recipient at risk of an adverse
medical result.
(11) 'Pharmacist' means an individual who is licensed as a
pharmacist under ORS chapter 689.
(12) 'Prescriber' means any person authorized by law to
prescribe drugs.
(13) 'Prospective program' means the prospective drug use
review program described in ORS 414.375.
(14) 'Retrospective program' means the retrospective drug use
review program described in ORS 414.380.
(15) 'Standards' means the acceptable prescribing and
dispensing methods determined by the compendia, in accordance
with local standards of medical practice for health care
providers.
(16) 'Therapeutic appropriateness' means drug prescribing based
on scientifically based and clinically relevant drug therapy that
is consistent with the criteria and standards developed under ORS
414.350 to 414.415.
(17) 'Therapeutic duplication' means the prescribing and
dispensing of two or more drugs from the same therapeutic class
Enrolled House Bill 2009 (HB 2009-C) Page 187
such that the combined daily dose puts the recipient at risk of
an adverse medical result or incurs additional program costs
without additional therapeutic benefits.
(18) 'Underutilization' means that a drug is used by a
recipient in insufficient quantity to achieve a desired
therapeutic goal.
SECTION 303. ORS 414.355 is amended to read:
414.355. (1) There is created a 12-member Drug Use Review Board
responsible for advising the { - Department of Human
Services - } { + Oregon Health Policy Board + } on the
implementation of the retrospective and prospective drug
utilization review programs.
(2) The members of the { + Drug Use Review + } Board shall be
appointed by the Director of { - Human Services - } { + the
Oregon Health Authority + } and shall serve a term of two years.
An individual appointed to the board may be reappointed upon
completion of the individual's term. The membership of the board
shall be composed of the following:
(a) Four persons licensed as physicians and actively engaged in
the practice of medicine or osteopathic medicine in Oregon, who
may be from among persons recommended by the Oregon Medical
Association, the Osteopathic Physicians and Surgeons of Oregon or
other organization representing physicians;
(b) One person licensed as a physician in Oregon who is
actively engaged in academic medicine;
(c) Three persons licensed and actively practicing pharmacy in
Oregon who may be from among persons recommended by the Oregon
State Pharmacists Association, the National Association of Chain
Drug Stores, the Oregon Society of Hospital Pharmacists, the
Oregon Society of Consultant Pharmacists or other organizations
representing pharmacists whether affiliated or unaffiliated with
any association;
(d) One person licensed as a pharmacist in Oregon who is
actively engaged in academic pharmacy;
(e) Two persons who shall represent persons receiving medical
assistance; and
(f) One person licensed and actively practicing dentistry in
Oregon who may be from among persons recommended by the Oregon
Dental Association or other organizations representing dentists.
(3) Board members must have expertise in one or more of the
following:
(a) Clinically appropriate prescribing of outpatient drugs
covered by the medical assistance program.
(b) Clinically appropriate dispensing and monitoring of
outpatient drugs covered by the medical assistance program.
(c) Drug use review, evaluation and intervention.
(d) Medical quality assurance.
(4) The director shall fill a vacancy on the board by
appointing a new member to serve the remainder of the unexpired
term based upon qualifications described in subsections (2) and
(3) of this section.
(5) A board member may be removed only by a vote of eight
members of the board and the removal must be approved by the
director. The director may remove a member, without board action,
if a member fails to attend two consecutive meetings unless such
member is prevented from attending by serious illness of the
member or in the member's family.
SECTION 304. ORS 414.360 is amended to read:
414.360. (1) The Drug Use Review Board shall advise the
Enrolled House Bill 2009 (HB 2009-C) Page 188
{ - Department of Human Services - } { + Oregon Health Policy
Board + } on:
(a) Adoption of rules to implement ORS 414.350 to 414.415 in
accordance with the provisions of ORS 183.710 to 183.725, 183.745
and 183.750 and ORS chapter 183.
(b) Implementation of the medical assistance program
retrospective and prospective programs as described in ORS
414.350 to 414.415, including the type of software programs to be
used by the pharmacist for prospective drug use review and the
provisions of the contractual agreement between the state and any
entity involved in the retrospective drug use review program.
(c) Development of and application of the criteria and
standards to be used in retrospective and prospective drug
utilization review in a manner that insures that such criteria
and standards are based on the compendia, relevant guidelines
obtained from professional groups through consensus-driven
processes, the experience of practitioners with expertise in drug
therapy, data and experience obtained from drug utilization
review program operations. The { + Drug Use Review + } Board
shall have an open professional consensus process for
establishing and revising criteria and standards. Criteria and
standards shall be available to the public. In developing
recommendations for criteria and standards, the board shall
establish an explicit ongoing process for soliciting and
considering input from interested parties. The board shall make
timely revisions to the criteria and standards based upon this
input in addition to revisions based upon scheduled review of the
criteria and standards. Further, the drug utilization review
standards shall reflect the local practices of prescribers in
order to monitor:
(A) Therapeutic appropriateness.
(B) Overutilization or underutilization.
(C) Therapeutic duplication.
(D) Drug-disease contraindications.
(E) Drug-drug interactions.
(F) Incorrect drug dosage or drug treatment duration.
(G) Clinical abuse or misuse.
(H) Drug allergies.
(d) Development, selection and application of and assessment
for interventions for medical assistance program prescribers,
dispensers and patients that are educational and not punitive in
nature.
(2) In reviewing retrospective and prospective drug use, the
{ + Drug Use Review + } Board may consider only drugs that have
received final approval from the federal Food and Drug
Administration.
SECTION 305. ORS 414.365 is amended to read:
414.365. In addition to advising the { - Department of Human
Services - } { + Oregon Health Policy Board + }, the Drug Use
Review Board shall do the following subject to the approval of
the { - Director of Human Services - } { + Oregon Health
Policy Board + }:
(1) Publish an annual report, as described in ORS 414.415.
(2) Publish and disseminate educational information to
prescribers and pharmacists regarding the { + Drug Use
Review + } Board and the drug use review programs, including
information on the following:
(a) Identifying and reducing the frequency of patterns of
fraud, abuse or inappropriate or medically unnecessary care among
prescribers, pharmacists and recipients.
Enrolled House Bill 2009 (HB 2009-C) Page 189
(b) Potential or actual severe or adverse reactions to drugs.
(c) Therapeutic appropriateness.
(d) Overutilization or underutilization.
(e) Appropriate use of generic products.
(f) Therapeutic duplication.
(g) Drug-disease contraindications.
(h) Drug-drug interactions.
(i) Drug allergy interactions.
(j) Clinical abuse and misuse.
(3) Adopt and implement procedures designed to insure the
confidentiality of any information collected, stored, retrieved,
assessed or analyzed by the { + Drug Use Review + } Board, staff
of the board or contractors to the drug use review programs that
identifies individual prescribers, pharmacists or recipients.
SECTION 306. ORS 414.375 is amended to read:
414.375. The prospective drug use review program must be based
on the guidelines established by the { - Department of Human
Services - } { + Oregon Health Policy Board + } in consultation
with the Drug Use Review Board. The program must provide that
prior to the prescription being filled or delivered a review will
be conducted by the pharmacist at the point of sale to screen for
potential drug therapy problems resulting from the following:
(1) Therapeutic duplication.
(2) Drug-drug interactions, including serious interactions with
nonprescription or over-the-counter drugs.
(3) Incorrect dosage and duration of treatment.
(4) Drug-allergy interactions.
(5) Clinical abuse and misuse.
(6) Drug-disease contraindications.
SECTION 307. ORS 414.380 is amended to read:
414.380. The retrospective drug use review program must:
(1) Be based on the guidelines established by the
{ - Department of Human Services in consultation with - }
{ + Oregon Health Policy Board based upon recommendations
from + } the Drug Use Review Board; and
(2) Use the mechanized drug claims processing and information
retrieval system to analyze claims data on drug use against
explicit predetermined standards that are based on the compendia
and other sources to monitor the following:
(a) Therapeutic appropriateness.
(b) Overutilization or underutilization.
(c) Fraud and abuse.
(d) Therapeutic duplication.
(e) Drug-disease contraindications.
(f) Drug-drug interactions.
(g) Incorrect drug dosage or duration of drug treatment.
(h) Clinical abuse and misuse.
SECTION 308. ORS 414.390 is amended to read:
414.390. (1) Information collected under ORS 414.350 to 414.415
that identifies an individual is confidential and shall not be
disclosed by the Drug Use Review Board, the retrospective drug
use review program, { - or the Department of Human Services - }
{ + the Oregon Health Policy Board or the Oregon Health
Authority + } to any person other than a health care provider
appearing on a recipient's medication profile.
(2) The staff of the { + Drug Use Review + } Board may have
access to identifying information for purposes of carrying out
intervention activities. The identifying information shall not be
released to anyone other than a staff member of the board,
retrospective drug use review program, { - Department of Human
Enrolled House Bill 2009 (HB 2009-C) Page 190
Services - } { + Oregon Health Policy Board, Oregon Health
Authority + } { - , - } or to any health care provider
appearing on a recipient's medication profile or, for purposes of
investigating potential fraud in programs administered by the
{ - Department of Human Services - } { + Oregon Health
Authority + }, to the Department of Justice.
(3) The { + Drug Use Review + } Board may release cumulative,
nonidentifying information for the purposes of legitimate
research and for educational purposes.
SECTION 309. ORS 414.410 is amended to read:
414.410. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall provide staff to the Drug
Use Review Board.
SECTION 309a. ORS 414.420 is amended to read:
414.420. (1) When a woman who is enrolled in { - the Oregon
Health Plan - } { + medical assistance + } as a pregnant woman
becomes an inmate residing in a public institution, the
Department of Human Services shall suspend medical assistance
{ - under the plan - } .
(2) The department shall continue to determine the eligibility
of the pregnant woman as categorically needy as defined in ORS
414.025.
(3) Upon notification that a pregnant woman described under
subsection (1) of this section is no longer an inmate residing in
a public institution, the department shall reinstate medical
assistance { - under the plan - } if the woman is otherwise
eligible for medical assistance.
SECTION 310. ORS 414.426 is amended to read:
414.426. The { - Department of Human Services - }
{ + Oregon Health Authority + } is hereby authorized to pay the
cost of care for patients in institutions operated under ORS
179.321 under the medical assistance program established by ORS
chapter 414.
SECTION 311. ORS 414.428 is amended to read:
414.428. (1) An individual described in ORS 414.025
{ - (2)(r) - } { + (2)(s) + } who is eligible for or receiving
medical assistance and who is an American Indian and Alaskan
Native beneficiary shall receive the benefit package of health
care services described in ORS
{ - 414.835 - } { + 414.707 (1) + } if:
(a) The { - Department of Human Services - } { + Oregon
Health Authority + } receives 100 percent federal medical
assistance percentage for payments made by the
{ - department - } { + authority + } for the health care
services provided as part of the benefit package described in ORS
{ - 414.835 that are not included in the benefit package
described in ORS 414.834 - } { + 414.707 (1) + }; or
(b) The { - department - } { + authority + } receives
funding from the Indian tribes for which federal financial
participation is available.
(2) As used in this section, 'American Indian and Alaskan
Native beneficiary' means:
(a) A member of a federally recognized Indian tribe, band or
group;
(b) An Eskimo or Aleut or other Alaskan native enrolled by the
United States Secretary of the Interior pursuant to the Alaska
Native Claims Settlement Act, 43 U.S.C. 1601; or
(c) A person who is considered by the United States Secretary
of the Interior to be an Indian for any purpose.
Enrolled House Bill 2009 (HB 2009-C) Page 191
SECTION 312. Section 2, chapter 76, Oregon Laws 2003, is
amended to read:
{ + Sec. 2. + } (1) Section 1 { + , chapter 76, Oregon Laws
2003, + } { - of this 2003 Act - } becomes operative on the
day after the date the
{ - Department of Human Services - } { + Oregon Health
Authority + } receives approval from the federal Centers for
Medicare and Medicaid Services to amend Oregon's Medicaid waiver.
(2) The { - Department of Human Services - }
{ + authority + } shall notify the Legislative Counsel upon
receipt of approval or disapproval to amend Oregon's Medicaid
waiver.
SECTION 313. ORS 414.534 is amended to read:
414.534. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall provide medical assistance
to a woman who:
(a) Is screened for breast or cervical cancer through the
Oregon Breast and Cervical Cancer Program operated by the
{ - department - } { + authority + };
(b) As a result of a screening in accordance with paragraph (a)
of this subsection, is found by a provider to be in need of
treatment for breast or cervical cancer;
(c) Does not otherwise have creditable coverage, as defined in
42 U.S.C. 300gg(c); and
(d) Is 64 years of age or younger.
(2) The period of time a woman can receive medical assistance
based on the eligibility criteria of subsection (1) of this
section:
(a) Begins:
(A) On the date the Department { + of Human Services + } makes
a formal determination that the woman is eligible for medical
assistance in accordance with subsection (1) of this section; or
(B) Up to three months prior to the month in which the woman
applied for medical assistance if on the earlier date the woman
met the eligibility criteria of subsection (1) of this section.
(b) Ends when:
(A) The woman is no longer in need of treatment; or
(B) The department determines the woman no longer meets the
eligibility criteria of subsection (1) of this section.
SECTION 314. ORS 414.536 is amended to read:
414.536. (1) { + If + } the Department of Human Services
{ - shall provide medical assistance to a woman whom the
department determines is presumptively eligible for medical
assistance. As used in this section, a woman is 'presumptively
eligible for medical assistance' if the department determines
that the - } { + determines that a + } woman likely is eligible
for medical assistance under ORS 414.534 { + , the department
shall determine her to be presumptively eligible for medical
assistance until a formal determination on eligibility is
made + }.
(2) The period of time a woman may receive medical assistance
based on presumptive eligibility is limited. The period of time:
(a) Begins on the date that the department determines the woman
likely meets the eligibility criteria under ORS 414.534; and
(b) Ends on the earlier of the following dates:
(A) If the woman applies for medical assistance following the
determination by the department that the woman is presumptively
eligible for medical assistance, the date on which a formal
determination on eligibility is made by the department in
accordance with ORS 414.534; or
Enrolled House Bill 2009 (HB 2009-C) Page 192
(B) If the woman does not apply for medical assistance
following the determination by the department that the woman is
presumptively eligible for medical assistance, the last day of
the month following the month in which presumptive eligibility
begins.
SECTION 315. ORS 414.538 is amended to read:
414.538. (1) The Department of Human Services { - shall
provide medical assistance under ORS 414.534 or 414.536 to a
woman who meets general coverage requirements applicable to
recipients of medical assistance. The department - } may not
impose income or resource limitations or a prior period of
uninsurance on a woman who otherwise qualifies for medical
assistance under ORS 414.534 or 414.536.
(2) In { - providing - } { + determining eligibility
for + } medical assistance under ORS 414.534 or 414.536, the
department { - of Human Services - } shall give priority to
low-income women.
SECTION 316. ORS 414.540 is amended to read:
414.540. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules necessary for
the implementation and administration of ORS 414.534 to 414.538.
SECTION 317. ORS 414.630 is amended to read:
414.630. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall execute prepaid capitated
health service contracts for at least hospital or physician
medical care, or both, with hospital and medical organizations,
health maintenance organizations and any other appropriate public
or private persons.
(2) For purposes of ORS 279A.025, 279A.140, 414.145 and 414.610
to 414.640, instrumentalities and political subdivisions of the
state are authorized to enter into prepaid capitated health
service contracts with the { - Department of Human Services - }
{ + Oregon Health Authority or the Oregon Health Policy
Board + } and shall not thereby be considered to be transacting
insurance.
(3) In the event that there is an insufficient number of
qualified bids for prepaid capitated health services contracts
for hospital or physician medical care, or both, in some areas of
the state, the { - department - } { + Oregon Health
Authority + } may continue a fee for service payment system.
(4) Payments to providers may be subject to contract provisions
requiring the retention of a specified percentage in an incentive
fund or to other contract provisions by which adjustments to the
payments are made based on utilization efficiency.
SECTION 318. ORS 414.640 is amended to read:
414.640. (1) Eligible persons shall select, to the extent
practicable as determined by the { - Department of Human
Services - } { + Oregon Health Authority + }, from among
available providers participating in the program.
(2) The { - department - } { + authority + } by rule shall
define the circumstances under which it may choose to reimburse
for any medical services not covered under the prepaid capitation
or costs of related services provided by or under referral from
any physician participating in the program in which the eligible
person is enrolled.
(3) The { - department - } { + authority + } shall
establish requirements as to the minimum time period that an
eligible person is assigned to specific providers in the system.
(4) Actions taken by providers, potential providers,
contractors and bidders in specific accordance with this chapter
Enrolled House Bill 2009 (HB 2009-C) Page 193
in forming consortiums or in otherwise entering into contracts to
provide medical care shall be considered to be conducted at the
direction of this state, shall be considered to be lawful trade
practices and shall not be considered to be the transaction of
insurance for purposes of ORS 279A.025, 279A.140, 414.145 and
414.610 to 414.640.
SECTION 319. ORS 414.707 is amended to read:
414.707. { - (1) Subject to funds available: - }
{ - (a) - } { + (1) + } Persons { - who are categorically
needy as described in ORS 414.025 (2)(n) and (o), and persons
under 19 years of age and pregnant women who are eligible to
receive health services under ORS 414.706, - } { + described in
ORS 414.706 (1), (2), (3) and (5) + } are eligible to receive all
the health services approved and funded by the Legislative
Assembly.
{ - (b) - } { + (2) + } Persons described in ORS 414.708
are eligible to receive the health services described in ORS
414.705 (1)(c), (f) and (g).
{ - (c) Persons 19 years of age and older who are eligible to
receive health services under ORS 414.706 are eligible to receive
the health services described in ORS 414.705 (1)(b) to (m). - }
{ - (2) Persons who are categorically needy as described in
ORS 414.025 (2)(n) and (o), and persons under 19 years of age and
pregnant women who are eligible to receive health services under
ORS 414.706, must be provided, at a minimum, the health services
described in ORS 414.705 (1)(a) to (g). - }
{ - (3) Persons 19 years of age and older who are eligible to
receive health services under ORS 414.706 must be provided, at a
minimum, health services described in ORS 414.705 (1)(b) to
(h). - }
{ - (4) Persons described in ORS 414.708 must be provided, at
a minimum, the health services described in ORS 414.705
(1)(c). - }
{ - (5) The Department of Human Services shall: - }
{ - (a) Develop at least three benefit packages of provider
services to be offered under ORS 414.705 (1)(j); and - }
{ - (b) Define by rule the services to be offered under ORS
414.705 (1)(k). - }
{ - (6) Notwithstanding ORS 414.735, the Legislative Assembly
shall adjust health services funded under ORS 414.705 (1) by
increasing or reducing benefit packages or health services and,
subject to ORS 414.709, by increasing or reducing the population
of eligible persons. - }
SECTION 320. ORS 414.708 is amended to read:
414.708. (1) A person is eligible to receive the health
services described in ORS 414.707 { - (1)(b) - } { + (2) + }
when the person is a resident of this state who:
(a) Is 65 years of age or older, or is blind or has a
disability as those terms are defined in ORS 411.704;
(b) Has a gross annual income that does not exceed the standard
established by the { - Department of Human Services - }
{ + Oregon Health Policy Board + }; and
(c) Is not covered under any public or private prescription
drug benefit program.
(2) A person receiving prescription drug services under ORS
414.707 { - (1)(b) - } { + (2) + } shall pay up to a
percentage of the Medicaid price of the prescription drug
established by the { - department - } { + authority + } by
rule and the dispensing fee.
SECTION 321. ORS 414.709 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 194
414.709. (1) Except as provided in subsection (2) of this
section, if insufficient resources are available during a
biennium, the population of eligible persons receiving health
services may not be reduced below the population of eligible
persons approved and funded in the legislatively adopted budget
for the { - Department of Human Services - } { + Oregon
Health Authority + } for the biennium.
(2) The { - Department of Human Services - } { + Oregon
Health Authority + } may periodically limit enrollment of persons
described in ORS 414.708 in order to stay within the
legislatively adopted budget for the { - department - } { +
authority + }.
SECTION 322. ORS 414.710 is amended to read:
414.710. The following services { - are available to persons
eligible for services under ORS 414.025, 414.036, 414.042,
414.065 and 414.705 to 414.750 but such services - } are not
subject to ORS 414.720:
(1) Nursing facilities { + , institutional + } and home- and
community-based waivered services funded through the Department
of Human Services; { + and + }
{ - (2) Medical assistance to eligible persons who receive
assistance under ORS 411.706 or to children described in ORS
414.025 (2)(f), (i), (j), (k) and (m), 418.001 to 418.034,
418.189 to 418.970 and 657A.020 to 657A.460; - }
{ - (3) Institutional, home- and community-based waivered
services or community mental health program care for persons with
mental retardation, developmental disabilities or severe mental
illness and for the treatment of alcohol and drug dependent
persons; and - }
{ - (4) - } { + (2) + } Services to children who are wards
of the Department of Human Services by order of the juvenile
court and services to children and families for health care or
mental health care through the department.
SECTION 323. ORS 414.712 is amended to read:
414.712. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall provide medical assistance
under ORS 414.705 to 414.750 to eligible persons who
{ - receive assistance under - } { + are determined eligible
for medical assistance by the Department of Human Services
according to + } ORS 411.706 { + . + } { - and to children
described in ORS 414.025 (2)(f), (i), (j), (k) and (m), 418.001
to 418.034, 418.189 to 418.970 and 657A.020 to 657A.460 and those
mental health and chemical dependency services recommended
according to standards of medical assistance and according to the
schedule of implementation established by the Legislative
Assembly. In providing medical assistance services described in
ORS 414.018 to 414.024, 414.042, 414.107, 414.710, 414.720 and
735.712, the Department of Human Services - } { + The Oregon
Health Authority + } shall also provide the following:
(1) Ombudsman services for eligible persons who receive
assistance under ORS 411.706. With the concurrence of the
Governor { + and the Oregon Health Policy Board + }, the
Director of { - Human Services - } { + the Oregon Health
Authority + }shall appoint ombudsmen and may terminate an
ombudsman. Ombudsmen are under the supervision and control of the
director. An ombudsman shall serve as a patient's advocate
whenever the patient or a physician or other medical personnel
serving the patient is reasonably concerned about access to,
quality of or limitations on the care being provided by a health
care provider. Patients shall be informed of the availability of
Enrolled House Bill 2009 (HB 2009-C) Page 195
an ombudsman. Ombudsmen shall report to the Governor { + and the
Oregon Health Policy Board + } in writing at least once each
quarter. A report shall include a summary of the services that
the ombudsman provided during the quarter and the ombudsman's
recommendations for improving ombudsman services and access to or
quality of care provided to eligible persons by health care
providers.
(2) Case management services in each health care provider
organization for those eligible persons who receive assistance
under ORS 411.706. Case managers shall be trained in and shall
exhibit skills in communication with and sensitivity to the
unique health care needs of people who receive assistance under
ORS 411.706. Case managers shall be reasonably available to
assist patients served by the organization with the coordination
of the patient's health care services at the reasonable request
of the patient or a physician or other medical personnel serving
the patient. Patients shall be informed of the availability of
case managers.
(3) A mechanism, established by rule, for soliciting consumer
opinions and concerns regarding accessibility to and quality of
the services of each health care provider.
(4) A choice of available medical plans and, within those
plans, choice of a primary care provider.
(5) Due process procedures for any individual whose request for
medical assistance coverage for any treatment or service is
denied or is not acted upon with reasonable promptness. These
procedures shall include an expedited process for cases in which
a patient's medical needs require swift resolution of a dispute.
SECTION 324. ORS 414.720 is amended to read:
414.720. (1) The Health Services Commission shall conduct
public hearings prior to making the report described in
subsection (3) of this section. The commission shall solicit
testimony and information from advocates representing seniors,
persons with disabilities, mental health services consumers and
low-income Oregonians, representatives of commercial carriers,
representatives of small and large Oregon employers and providers
of health care, including but not limited to physicians licensed
to practice medicine, dentists, oral surgeons, chiropractors,
naturopaths, hospitals, clinics, pharmacists, nurses and allied
health professionals.
(2) The commission shall actively solicit public involvement in
a community meeting process to build a consensus on the values to
be used to guide health resource allocation decisions.
(3) The commission shall report to the Governor a list of
health services ranked by priority, from the most important to
the least important, representing the comparative benefits of
each service to the entire population to be served. The list
submitted by the commission pursuant to this subsection is not
subject to alteration by any other state agency. The
recommendation may include practice guidelines reviewed and
adopted by the commission pursuant to subsection (4) of this
section.
(4) In order to encourage effective and efficient medical
evaluation and treatment, the commission:
(a) May include clinical practice guidelines in its prioritized
list of services. The commission shall actively solicit testimony
and information from the medical community and the public to
build a consensus on clinical practice guidelines developed by
the commission.
Enrolled House Bill 2009 (HB 2009-C) Page 196
(b) Shall consider both the clinical effectiveness and
cost-effectiveness of health services in determining their
relative importance using peer-reviewed medical literature as
defined in ORS 743A.060.
(5) The commission shall make its report by July 1 of the year
preceding each regular session of the Legislative Assembly and
shall submit a copy of its report to the Governor, the Speaker of
the House of Representatives and the President of the Senate.
(6) The commission may alter the list during interim only under
the following conditions:
(a) Technical changes due to errors and omissions; and
(b) Changes due to advancements in medical technology or new
data regarding health outcomes.
(7) If a service is deleted or added and no new funding is
required, the commission shall report to the Speaker of the House
of Representatives and the President of the Senate. However, if a
service to be added requires increased funding to avoid
discontinuing another service, the commission must report to the
Emergency Board to request the funding.
(8) The report listing services to be provided pursuant to ORS
{ - 414.036, - } 414.042, 414.065, { - 414.107, - } 414.705
to 414.725 and 414.735 to 414.750 shall remain in effect from
October 1 of the odd-numbered year through September 30 of the
next odd-numbered year.
SECTION 325. ORS 414.725 is amended to read:
414.725. (1)(a) Pursuant to rules adopted by the
{ - Department of Human Services - } { + Oregon Health
Authority + }, the { - department - } { + authority + } shall
execute prepaid managed care health services contracts for health
services funded by the Legislative Assembly. The contract must
require that all services are provided to the extent and scope of
the Health Services Commission's report for each service provided
under the contract. The contracts are not subject to ORS chapters
279A and 279B, except ORS 279A.250 to 279A.290 and 279B.235.
Notwithstanding ORS 414.720 (8), the rules adopted by the
{ - department - } { + authority + } shall establish timelines
for executing the contracts described in this paragraph.
(b) It is the intent of ORS 414.705 to 414.750 that the state
use, to the greatest extent possible, prepaid managed care health
services organizations to provide physical health, dental, mental
health and chemical dependency services under ORS 414.705 to
414.750.
(c) The { - department - } { + authority + } shall solicit
qualified providers or plans to be reimbursed for providing the
covered services. The contracts may be with hospitals and medical
organizations, health maintenance organizations, managed health
care plans and any other qualified public or private prepaid
managed care health services organization. The
{ - department - } { + authority + } may not discriminate
against any contractors that offer services within their
providers' lawful scopes of practice.
(d) The { - department - } { + authority + } shall
establish annual financial reporting requirements for prepaid
managed care health services organizations. The
{ - department - } { + authority + } shall prescribe a
reporting procedure that elicits sufficiently detailed
information for the { - department - } { + authority + } to
assess the financial condition of each prepaid managed care
health services organization and that includes information on the
Enrolled House Bill 2009 (HB 2009-C) Page 197
three highest executive salary and benefit packages of each
prepaid managed care health services organization.
(e) The { - department - } { + authority + } shall require
compliance with the provisions of paragraph (d) of this
subsection as a condition of entering into a contract with a
prepaid managed care health services organization.
(2) The { - department - } { + authority + } may institute
a fee-for-service case management system or a fee-for-service
payment system for the same physical health, dental, mental
health or chemical dependency services provided under the health
services contracts for persons eligible for health services under
ORS 414.705 to 414.750 in designated areas of the state in which
a prepaid managed care health services organization is not able
to assign an enrollee to a person or entity that is primarily
responsible for coordinating the physical health, dental, mental
health or chemical dependency services provided to the enrollee.
In addition, the { - department - } { + authority + } may
make other special arrangements as necessary to increase the
interest of providers in participation in the state's managed
care system, including but not limited to the provision of
stop-loss insurance for providers wishing to limit the amount of
risk they wish to underwrite.
(3) As provided in subsections (1) and (2) of this section, the
aggregate expenditures by the { - department - }
{ + authority + } for health services provided pursuant to ORS
414.705 to 414.750 may not exceed the total dollars appropriated
for health services under ORS 414.705 to 414.750.
(4) Actions taken by providers, potential providers,
contractors and bidders in specific accordance with ORS 414.705
to 414.750 in forming consortiums or in otherwise entering into
contracts to provide health care services shall be performed
pursuant to state supervision and shall be considered to be
conducted at the direction of this state, shall be considered to
be lawful trade practices and may not be considered to be the
transaction of insurance for purposes of the Insurance Code.
(5) Health care providers contracting to provide services under
ORS 414.705 to 414.750 shall advise a patient of any service,
treatment or test that is medically necessary but not covered
under the contract if an ordinarily careful practitioner in the
same or similar community would do so under the same or similar
circumstances.
(6) A prepaid managed care health services organization shall
provide information on contacting available providers to an
enrollee in writing within 30 days of assignment to the health
services organization.
(7) Each prepaid managed care health services organization
shall provide upon the request of an enrollee or prospective
enrollee annual summaries of the organization's aggregate data
regarding:
(a) Grievances and appeals; and
(b) Availability and accessibility of services provided to
enrollees.
(8) A prepaid managed care health services organization may not
limit enrollment in a designated area based on the zip code of an
enrollee or prospective enrollee.
SECTION 326. ORS 414.727 is amended to read:
414.727. (1) A prepaid managed care health services
organization, as defined in ORS 414.736, that contracts with the
{ - Department of Human Services - } { + Oregon Health
Authority + } under ORS 414.725 (1) to provide prepaid managed
Enrolled House Bill 2009 (HB 2009-C) Page 198
care health services, including hospital services, shall
reimburse Type A and Type B hospitals and rural critical access
hospitals, as described in ORS 442.470 and identified by the
Office of Rural Health as rural hospitals, fully for the cost of
covered services based on the cost-to-charge ratio used for each
hospital in setting the capitation rates paid to the prepaid
managed care health services organization for the contract
period.
(2) The { - department - } { + authority + } shall base the
capitation rates described in subsection (1) of this section on
the most recent audited Medicare cost report for Oregon hospitals
adjusted to reflect the Medicaid mix of services.
(3) This section may not be construed to prohibit a prepaid
managed care health services organization and a hospital from
mutually agreeing to reimbursement other than the reimbursement
specified in subsection (1) of this section.
(4) Hospitals reimbursed under subsection (1) of this section
are not entitled to any additional reimbursement for services
provided.
SECTION 327. ORS 414.728 is amended to read:
414.728. For services provided to persons who are entitled to
receive medical assistance and whose medical assistance benefits
are not administered by a prepaid managed care health services
organization, as defined in ORS 414.736, the { - Department of
Human Services - } { + Oregon Health Authority + } shall
reimburse Type A and Type B hospitals and rural critical access
hospitals, as described in ORS 442.470 and identified by the
Office of Rural Health as rural hospitals, fully for the cost of
covered services based on the most recent audited Medicare cost
report for Oregon hospitals adjusted to reflect the Medicaid mix
of services.
SECTION 328. ORS 414.735 is amended to read:
414.735. (1) If insufficient resources are available during a
contract period:
(a) The population of eligible persons determined by law shall
not be reduced.
(b) The reimbursement rate for providers and plans established
under the contractual agreement shall not be reduced.
(2) In the circumstances described in subsection (1) of this
section, reimbursement shall be adjusted by reducing the health
services for the eligible population by eliminating services in
the order of priority recommended by the Health Services
Commission, starting with the least important and progressing
toward the most important.
(3) The { - Department of Human Services - } { + Oregon
Health Policy Board + } shall obtain the approval of the
Legislative Assembly or Emergency Board, if the Legislative
Assembly is not in session, before instituting the reductions. In
addition, providers contracting to provide health services under
ORS 414.705 to 414.750 must be notified at least two weeks prior
to any legislative consideration of such reductions. Any
reductions made under this section shall take effect no sooner
than 60 days following final legislative action approving the
reductions.
SECTION 329. ORS 414.736 is amended to read:
414.736. As used in this section and ORS 414.725, 414.737,
414.738, 414.739, 414.740, 414.741, 414.742 { - , - }
{ + and + } 414.743 { - and 414.744 - } :
(1) 'Designated area' means a geographic area of the state
defined by the { - Department of Human Services - }
Enrolled House Bill 2009 (HB 2009-C) Page 199
{ + Oregon Health Authority + } by rule that is served by a
prepaid managed care health services organization.
(2) 'Fully capitated health plan' means an organization that
contracts with the { - Department of Human Services - }
{ + Oregon Health Authority or the Oregon Health Policy
Board + } on a prepaid capitated basis under ORS 414.725 to
provide an adequate network of providers to ensure that the
health services provided under the contract are reasonably
accessible to enrollees.
(3) 'Physician care organization' means an organization that
contracts with the { - Department of Human Services - }
{ + Oregon Health Authority or the Oregon Health Policy
Board + } on a prepaid capitated basis under ORS 414.725 to
provide an adequate network of providers to ensure that the
health services described in ORS 414.705 (1)(b), (c), (d), (e),
(g) and (j) are reasonably accessible to enrollees. A physician
care organization may also contract with the { - department - }
{ + authority or the board + } on a prepaid capitated basis to
provide the health services described in ORS 414.705 (1)(k) and
(L).
(4) 'Prepaid managed care health services organization ' means
a managed physical health, dental, mental health or chemical
dependency organization that contracts with the { - Department
of Human Services - } { + authority or the board + } on a
prepaid capitated basis under ORS 414.725. A prepaid managed care
health services organization may be a dental care organization,
fully capitated health plan, physician care organization, mental
health organization or chemical dependency organization.
SECTION 330. ORS 414.737 is amended to read:
414.737. (1) Except as provided in subsections (2) and (3) of
this section, a person who is eligible for or receiving physical
health, dental, mental health or chemical dependency services
under ORS 414.705 to 414.750 must be enrolled in the prepaid
managed care health services organizations to receive the health
services for which the person is eligible.
(2) Subsection (1) of this section does not apply to:
(a) A person who is a noncitizen and who is eligible only for
labor and delivery services and emergency treatment services;
(b) A person who is an American Indian and Alaskan Native
beneficiary; and
(c) A person whom the { - department - } { + Oregon Health
Authority + } may by rule exempt from the mandatory enrollment
requirement of subsection (1) of this section, including but not
limited to:
(A) A person who is also eligible for Medicare;
(B) A woman in her third trimester of pregnancy at the time of
enrollment;
(C) A person under 19 years of age who has been placed in
adoptive or foster care out of state;
(D) A person under 18 years of age who is medically fragile and
who has special health care needs; and
(E) A person with major medical coverage.
(3) Subsection (1) of this section does not apply to a person
who resides in a designated area in which a prepaid managed care
health services organization providing physical health, dental,
mental health or chemical dependency services is not able to
assign an enrollee to a person or entity that is primarily
responsible for coordinating the physical health, dental, mental
health or chemical dependency services provided to the enrollee.
Enrolled House Bill 2009 (HB 2009-C) Page 200
(4) As used in this section, 'American Indian and Alaskan
Native beneficiary' means:
(a) A member of a federally recognized Indian tribe, band or
group;
(b) An Eskimo or Aleut or other Alaskan Native enrolled by the
United States Secretary of the Interior pursuant to the Alaska
Native Claims Settlement Act, 43 U.S.C. 1601; or
(c) A person who is considered by the United States Secretary
of the Interior to be an Indian for any purpose.
SECTION 331. ORS 414.737, as amended by section 8, chapter 751,
Oregon Laws 2007, is amended to read:
414.737. (1) Except as provided in subsections (2) and (3) of
this section, a person who is eligible for or receiving physical
health, dental, mental health or chemical dependency services
under ORS 414.705 to 414.750 must be enrolled in the prepaid
managed care health services organizations to receive the health
services for which the person is eligible.
(2) Subsection (1) of this section does not apply to:
(a) A person who is a noncitizen and who is eligible only for
labor and delivery services and emergency treatment services;
(b) A person who is an American Indian and Alaskan Native
beneficiary; and
(c) A person whom the { - department - } { + Oregon Health
Authority + } may by rule exempt from the mandatory enrollment
requirement of subsection (1) of this section, including but not
limited to:
(A) A person who is also eligible for Medicare;
(B) A woman in her third trimester of pregnancy at the time of
enrollment;
(C) A person under 19 years of age who has been placed in
adoptive or foster care out of state;
(D) A person under 18 years of age who is medically fragile and
who has special health care needs;
(E) A person receiving services under the Medically Involved
Home-Care Program created by ORS 417.345 (1); and
(F) A person with major medical coverage.
(3) Subsection (1) of this section does not apply to a person
who resides in a designated area in which a prepaid managed care
health services organization providing physical health, dental,
mental health or chemical dependency services is not able to
assign an enrollee to a person or entity that is primarily
responsible for coordinating the physical health, dental, mental
health or chemical dependency services provided to the enrollee.
(4) As used in this section, 'American Indian and Alaskan
Native beneficiary' means:
(a) A member of a federally recognized Indian tribe, band or
group;
(b) An Eskimo or Aleut or other Alaskan Native enrolled by the
United States Secretary of the Interior pursuant to the Alaska
Native Claims Settlement Act, 43 U.S.C. 1601; or
(c) A person who is considered by the United States Secretary
of the Interior to be an Indian for any purpose.
SECTION 332. ORS 414.738 is amended to read:
414.738. (1) If the { - Department of Human Services - }
{ + Oregon Health Authority + } has not been able to contract
with the fully capitated health plan or plans in a designated
area, the
{ - department - } { + authority + } may contract with a
physician care organization in the designated area.
Enrolled House Bill 2009 (HB 2009-C) Page 201
(2) The Office for Oregon Health Policy and Research shall
develop criteria that the { - department - }
{ + authority + } shall consider when determining the
circumstances under which the { - department - }
{ + authority + } may contract with a physician care
organization. The criteria developed by the office shall include
but not be limited to the following:
(a) The physician care organization must be able to assign an
enrollee to a person or entity that is primarily responsible for
coordinating the physical health services provided to the
enrollee;
(b) The contract with a physician care organization does not
threaten the financial viability of other fully capitated health
plans in the designated area; and
(c) The contract with a physician care organization must be
consistent with the legislative intent of using prepaid managed
care health services organizations to provide services under ORS
414.705 to 414.750.
SECTION 333. ORS 414.739 is amended to read:
414.739. (1) A fully capitated health plan may apply to the
{ - Department of Human Services - } { + Oregon Health
Authority + } to contract with the { - department - }
{ + authority + } as a physician care organization rather than
as a fully capitated health plan to provide services under ORS
414.705 to 414.750.
(2) The Office for Oregon Health Policy and Research shall
develop the criteria that the { - department - }
{ + authority + } must use to determine the circumstances under
which the { - department - } { + authority + } may accept an
application by a fully capitated health plan to contract as a
physician care organization. The criteria developed by the office
shall include but not be limited to the following:
(a) The fully capitated health plan must show documented losses
due to hospital risk and must show due diligence in managing
those risks; and
(b) Contracting as a physician care organization is financially
viable for the fully capitated health plan.
SECTION 334. ORS 414.740 is amended to read:
414.740. (1) Notwithstanding ORS 414.738 (1), the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall contract under ORS 414.725 with a prepaid
group practice health plan that serves at least 200,000 members
in this state and that has been issued a certificate of authority
by the Department of Consumer and Business Services as a health
care service contractor to provide health services as described
in ORS 414.705 (1)(b), (c), (d), (e), (g) and (j). A health plan
may also contract with the { - Department of Human Services - }
{ + authority + } on a prepaid capitated basis to provide the
health services described in ORS 414.705 (1)(k) and (L). The
{ - Department of Human Services - } { + authority + } may
accept financial contributions from any public or private entity
to help implement and administer the contract. The
{ - Department of Human Services - } { + authority + } shall
seek federal matching funds for any financial contributions
received under this section.
(2) In a designated area, in addition to the contract described
in subsection (1) of this section, the { - Department of Human
Services - } { + authority + } shall contract with prepaid
managed care health services organizations to provide health
services under ORS 414.705 to 414.750.
Enrolled House Bill 2009 (HB 2009-C) Page 202
SECTION 335. ORS 414.741 is amended to read:
414.741. (1) The Health Services Commission shall retain an
actuary to determine the benchmark for setting per capita rates
necessary to reimburse prepaid managed care health services
organizations and fee-for-service providers for the cost of
providing health services under ORS 414.705 to 414.750.
(2) The actuary retained by the commission shall use the
following information to determine the benchmark for setting per
capita rates:
(a) For hospital services, the most recently available Medicare
cost reports for Oregon hospitals;
(b) For services of physicians licensed under ORS chapter 677
and other health professionals using procedure codes, the
Medicare Resource Based Relative Value system conversion rates
for Oregon;
(c) For prescription drugs, the most recent payment
methodologies in the fee-for-service payment system for the
{ - Oregon Health Plan - } { + medical assistance
program + };
(d) For durable medical equipment and supplies, 80 percent of
the Medicare allowable charge for purchases and rentals;
(e) For dental services, the most recent payment rates obtained
from dental care organization encounter data; and
(f) For all other services not listed in paragraphs (a) to (e)
of this subsection:
(A) The Medicare maximum allowable charge, if available; or
(B) The most recent payment rates obtained from the data
available under subsection (3) of this section.
(3) The actuary shall use the most current encounter data and
the most current fee-for-service data that is available,
reasonable trends for utilization and cost changes to the
midpoint of the next biennium, appropriate differences in
utilization and cost based on geography, state and federal
mandates and other factors that, in the professional judgment of
the actuary, are relevant to the fair and reasonable estimation
of costs. The Department of Human Services shall provide the
actuary with the data and information in the possession of the
department or contractors of the department reasonably necessary
to develop a benchmark for setting per capita rates.
(4) The commission shall report the benchmark per capita rates
developed under this section to the Director of the Oregon
Department of Administrative Services, the Director of
{ - Human Services - } { + the Oregon Health Authority + } and
the Legislative Fiscal Officer no later than August 1 of every
even-numbered year.
(5) The { - Department of Human Services - } { + Oregon
Health Authority + } shall retain an actuary to determine:
(a) Per capita rates for health services that the
{ - department - } { + authority + } shall use to develop the
{ - department's - } { + authority's + } proposed biennial
budget; and
(b) Capitation rates to reimburse physician care organizations
for the cost of providing health services under ORS 414.705 to
414.750 using the same methodologies used to develop capitation
rates for fully capitated health plans. The rates may not
advantage or disadvantage fully capitated health plans for
similar services.
(6) The { - Department of Human Services - } { + Oregon
Health Authority + } shall submit to the Legislative Assembly no
later than February 1 of every odd-numbered year a report
Enrolled House Bill 2009 (HB 2009-C) Page 203
comparing the per capita rates for health services on which the
proposed budget of the { - department - } { + authority + }
is based with the rates developed by the actuary retained by the
Health Services Commission. If the rates differ, the
{ - department - } { + authority + } shall disclose, by
provider categories described in subsection (2) of this section,
the amount of and reason for each variance.
SECTION 336. ORS 414.742 is amended to read:
414.742. The { - Department of Human Services - }
{ + Oregon Health Authority + } may not establish capitation
rates that include payment for mental health drugs. The
{ - department - } { + authority + } shall reimburse pharmacy
providers for mental health drugs only on a fee-for-service
payment basis.
SECTION 337. ORS 414.743 is amended to read:
414.743. (1) As used in this section, 'fully capitated health
plan' means an organization that contracts with the
{ - Department of Human Services - } { + Oregon Health
Authority + } on a prepaid capitated basis under ORS 414.725 to
provide an adequate network of providers to ensure that all
health services described in ORS 414.705 are reasonably
accessible to enrollees.
(2) A fully capitated health plan that does not have a contract
with a hospital to provide inpatient or outpatient hospital
services under ORS 414.705 to 414.750 must pay for hospital
services at 80 percent of the Medicare rate for the
noncontracting hospital.
(3) A hospital that does not have a contract with a fully
capitated health plan to provide inpatient or outpatient hospital
services under ORS 414.705 to 414.750 must accept as payment in
full the rates described in subsection (2) of this section.
(4) This section does not apply to type A and type B hospitals,
as described in ORS 442.470, and rural critical access hospitals,
as defined in ORS 315.613.
(5) The { - Department of Human Services - } { + Oregon
Health Authority + } shall adopt rules to implement and
administer this section.
SECTION 338. ORS 414.743, as amended by section 2, chapter 886,
Oregon Laws 2007, is amended to read:
414.743. (1) As used in this section, 'fully capitated health
plan' means an organization that contracts with the
{ - Department of Human Services - } { + Oregon Health
Authority + } on a prepaid capitated basis under ORS 414.725 to
provide an adequate network of providers to ensure that all
health services described in ORS 414.705 are reasonably
accessible to enrollees.
(2) A fully capitated health plan that does not have a contract
with a hospital to provide inpatient or outpatient hospital
services under ORS 414.705 to 414.750 must pay for hospital
services as follows:
(a) For inpatient hospital services, based on the capitation
rates developed for the budget period, at the level of the
statewide average unit cost, multiplied by the geographic factor,
the payment discount factor and an adjustment factor of 0.925.
(b) For outpatient hospital services, based on the capitation
rates developed for the budget period, at the level of charges
multiplied by the statewide average cost-to-charge ratio, the
geographic factor, the payment discount factor and an adjustment
factor of 0.925.
Enrolled House Bill 2009 (HB 2009-C) Page 204
(3) A hospital that does not have a contract with a fully
capitated health plan to provide inpatient or outpatient hospital
services under ORS 414.705 to 414.750 must accept as payment in
full for hospital services, rates:
(a) For inpatient hospital services, based on the capitation
rates developed for the budget period, at the level of the
statewide average unit cost, multiplied by the geographic factor,
the payment discount factor and an adjustment factor of 0.925.
(b) For outpatient hospital services, based on the capitation
rates developed for the budget period, at the level of charges
multiplied by the statewide average cost-to-charge ratio, the
geographic factor, the payment discount factor and an adjustment
factor of 0.925.
(4) This section does not apply to type A and type B hospitals,
as described in ORS 442.470, and rural critical access hospitals,
as defined in ORS 315.613.
(5) The { - Department of Human Services - } { + Oregon
Health Authority + } shall adopt rules to implement and
administer this section.
SECTION 339. Section 18, chapter 810, Oregon Laws 2003, is
amended to read:
{ + Sec. 18. + } { - (1) - } Except as provided in section
19 { - of this 2003 Act - } , { + chapter 810, Oregon Laws
2003, + } sections 2, 3, 5, 5a, 11, 12, 12a, 14 and 15 { - of
this 2003 Act - } , { + chapter 810, Oregon Laws 2003, + } and
the amendments to ORS 414.705 and 414.725 by sections 4 and 7
{ - of this 2003 Act - } { + , chapter 810, Oregon Laws
2003, + } become operative on October 1, 2003.
{ - (2) Sections 10 and 13 of this 2003 Act become operative
on the day after the date the Department of Human Services
receives the necessary waivers from the Centers for Medicare and
Medicaid Services. - }
{ - (3) The Director of Human Services shall notify the
Legislative Counsel upon receipt of the waivers or denial of the
waiver request. - }
SECTION 340. ORS 414.750 is amended to read:
414.750. Nothing in ORS { - 414.036 and - } 414.705 to
414.750 is intended to limit the authority of the Legislative
Assembly to authorize services for persons whose income exceeds
100 percent of the federal poverty level for whom federal medical
assistance matching funds are available if state funds are
available therefor.
SECTION 341. ORS 414.751 is amended to read:
414.751. (1) There is established in the { - Office for
Oregon Health Policy and Research - } { + Oregon Health
Authority + } the Office for Oregon Health Policy and Research
Advisory Committee composed of members appointed by the Governor.
Members shall include:
(a) Representatives of managed care health services
organizations under contract with the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
414.725 and serving primarily rural areas of the state;
(b) Representatives of managed care health services
organizations under contract with the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
414.725 and serving primarily urban areas of the state;
(c) Representatives of medical organizations representing
health care providers under contract with managed care health
services organizations pursuant to ORS 414.725 who serve patients
in both rural and urban areas of the state; { + and + }
Enrolled House Bill 2009 (HB 2009-C) Page 205
(d) One representative from Type A hospitals and one
representative from Type B hospitals { + . + } { - ; and - }
{ - (e) Representatives of the Department of Human
Services. - }
(2) Members of the advisory committee shall not be entitled to
compensation or per diem.
SECTION 342. ORS 414.805 is amended to read:
414.805. (1) An individual who receives medical services while
in the custody of a law enforcement officer is liable:
(a) To the provider of the medical services for the charges and
expenses therefor; and
(b) To the { - Department of Human Services - } { + Oregon
Health Authority + } for any charges or expenses paid by the
{ - Department of Human Services - } { + authority + } out of
the Law Enforcement Medical Liability Account for the medical
services.
(2) A person providing medical services to an individual
described in subsection (1)(a) of this section shall first make
reasonable efforts to collect the charges and expenses thereof
from the individual before seeking to collect them from the
{ - Department of Human Services - } { + authority + } out of
the Law Enforcement Medical Liability Account.
(3)(a) If the provider has not been paid within 45 days of the
date of the billing, the provider may bill the { - Department
of Human Services - } { + authority + } who shall pay the
account out of the Law Enforcement Medical Liability Account.
(b) A bill submitted to the { - Department of Human
Services - } { + authority + } under this subsection must be
accompanied by evidence documenting that:
(A) The provider has billed the individual or the individual's
insurer or health care service contractor for the charges or
expenses owed to the provider; and
(B) The provider has made a reasonable effort to collect from
the individual or the individual's insurer or health care service
contractor the charges and expenses owed to the provider.
(c) If the provider receives payment from the individual or the
insurer or health care service contractor after receiving payment
from the { - Department of Human Services - }
{ + authority + }, the provider shall repay the
{ - department - } { + authority + } the amount received from
the public agency less any difference between payment received
from the individual, insurer or contractor and the amount of the
billing.
(4) As used in this section:
(a) 'Law enforcement officer' means an officer who is
commissioned and employed by a public agency as a peace officer
to enforce the criminal laws of this state or laws or ordinances
of a public agency.
(b) 'Public agency' means the state, a city, port, school
district, mass transit district or county.
SECTION 343. ORS 414.807 is amended to read:
414.807. (1)(a) When charges and expenses are incurred for
medical services provided to an individual for injuries related
to law enforcement activity and subject to the availability of
funds in the account, the cost of such services shall be paid by
the
{ - Department of Human Services - } { + Oregon Health
Authority + } out of the Law Enforcement Medical Liability
Account established in ORS 414.815 if the provider of the medical
services has made all reasonable efforts to collect the amount,
Enrolled House Bill 2009 (HB 2009-C) Page 206
or any part thereof, from the individual who received the
services.
(b) When a law enforcement agency involved with an injury
certifies that the injury is related to law enforcement activity,
the { - Department of Human Services - } { + Oregon Health
Authority + } shall pay the provider:
(A) If the provider is a hospital, in accordance with current
fee schedules established by the Director of the Department of
Consumer and Business Services for purposes of workers'
compensation under ORS 656.248; or
(B) If the provider is other than a hospital, 75 percent of the
customary and usual rates for the services.
(2) After the injured person is incarcerated and throughout the
period of incarceration, the { - Department of Human
Services - } { + Oregon Health Authority + } shall continue to
pay, out of the Law Enforcement Medical Liability Account,
charges and expenses for injuries related to law enforcement
activities as provided in subsection (1) of this section. Upon
release of the injured person from actual physical custody, the
Law Enforcement Medical Liability Account is no longer liable for
the payment of medical expenses of the injured person.
(3) If the provider of medical services has filed a medical
services lien as provided in ORS 87.555, the { - Department of
Human Services - } { + Oregon Health Authority + } shall be
subrogated to the rights of the provider to the extent of
payments made by the
{ - Department of Human Services - } { + authority + } to the
provider for the medical services. The { - Department of Human
Services - } { + authority + } may foreclose the lien as
provided in ORS 87.585.
(4) The { - Department of Human Services - }
{ + authority + } shall deposit in the Law Enforcement Medical
Liability Account all moneys received by the { - department - }
{ + authority + } from:
(a) Providers of medical services as repayment;
(b) Individuals whose medical expenses were paid by the
{ - department - } { + authority + } under this section; and
(c) Foreclosure of a lien as provided in subsection (3) of this
section.
(5) As used in this section:
(a) 'Injuries related to law enforcement activity' means
injuries sustained prior to booking, citation in lieu of arrest
or release instead of booking that occur during and as a result
of efforts by a law enforcement officer to restrain or detain, or
to take or retain custody of, the individual.
(b) 'Law enforcement officer' has the meaning given that term
in ORS 414.805.
SECTION 344. ORS 414.815 is amended to read:
414.815. (1) The Law Enforcement Medical Liability Account is
established separate and distinct from the General Fund. Interest
earned, if any, shall inure to the benefit of the account. The
moneys in the Law Enforcement Medical Liability Account are
appropriated continuously to the { - Department of Human
Services - } { + Oregon Health Authority + } to pay expenses in
administering the account and paying claims out of the account as
provided in ORS 414.807.
(2) The liability of the Law Enforcement Medical Liability
Account is limited to funds accrued to the account from
assessments collected under ORS 137.309 (6), (8) or (9), or
collected from individuals under ORS 414.805.
Enrolled House Bill 2009 (HB 2009-C) Page 207
(3) The { - Department of Human Services - }
{ + authority + } may contract with persons experienced in
medical claims processing to provide claims processing for the
account.
(4) The { - Department of Human Services - }
{ + authority + } shall adopt rules to implement administration
of the Law Enforcement Medical Liability Account including, but
not limited to, rules that establish reasonable deadlines for
submission of claims.
(5) Each biennium, the { - Department of Human Services - }
{ + Oregon Health Authority + } shall submit a report to the
Legislative Assembly regarding the status of the Law Enforcement
Medical Liability Account. Within 30 days of the convening of
each regular legislative session, the { - department - }
{ + authority + } shall submit the report to the chair of the
Senate Judiciary Committee and the chair of the House Judiciary
Committee. The report shall include, but is not limited to, the
number of claims submitted and paid during the biennium and the
amount of money in the fund at the time of the report.
SECTION 344a. ORS 414.839 is amended to read:
414.839. (1) Subject to funds available, the { - Department
of Human Services - } { + Oregon Health Authority + } may
provide public subsidies for the purchase of health insurance
coverage provided by public programs or private insurance,
including but not limited to the Family Health Insurance
Assistance Program, for currently uninsured individuals based on
incomes up to 200 percent of the federal poverty level. The
objective is to create a transition from dependence on public
programs to privately financed health insurance.
(2) Public subsidies shall apply only to health benefit plans
that meet or exceed the basic benchmark health benefit plan or
plans established under ORS 735.733.
(3) Cost sharing shall be permitted and structured in such a
manner to encourage appropriate use of preventive care and
avoidance of unnecessary services.
(4) Cost sharing shall be based on an individual's ability to
pay and may not exceed the cost of purchasing a plan.
(5) The state may pay a portion of the cost of the subsidy,
based on the individual's income and other resources.
SECTION 344b. Section 27, chapter 697, Oregon Laws 2007 is
amended to read:
{ + Sec. 27. + } Sections 1 to 13, chapter 697, Oregon Laws
2007, { - of this 2007 Act - } are repealed { - on January
2, 2010 - } .
SECTION 344c. { + The balance of moneys remaining in the
Oregon Health Fund on the effective date of this 2009 Act shall
be transferred to the Oregon Health Authority Fund established in
section 18 of this 2009 Act. + }
SECTION 345. ORS 416.430 is amended to read:
416.430. (1) The administrator may establish paternity of a
child in the course of a support proceeding under ORS 416.400 to
416.465 when both parents sign statements that paternity has not
been legally established and that the male parent is the father
of the child. The administrator may enter an order which
establishes paternity.
(2) If the parent fails to file a response denying paternity
and requesting a hearing within the time period allowed in ORS
416.415 (2), then the administrator, without further notice to
the parent, may enter an order, in accordance with ORS 416.415
Enrolled House Bill 2009 (HB 2009-C) Page 208
(7), which declares and establishes the parent as the legal
father of the child.
(3) Any order entered pursuant to subsection (1) or (2) of this
section establishes legal paternity for all purposes. The Center
for Health Statistics of the { - Department of Human
Services - } { + Oregon Health Authority + } shall prepare a new
birth certificate in the new name, if any, of the child. The
original birth certificate shall be sealed and filed and may be
opened only upon order of a court of competent jurisdiction.
(4)(a) If paternity is alleged under ORS 416.415 (3) and a
written response denying paternity and requesting a hearing is
received within the time period allowed in ORS 416.415 (2), or if
the administrator determines that there is a valid issue with
respect to paternity of the child, the administrator, subject to
the provisions of subsections (5) and (6) of this section, shall
certify the matter to the circuit court for a determination based
upon the contents of the file and any evidence which may be
produced at trial. The proceedings in court shall for all
purposes be deemed suits in equity. The provisions of ORS 109.145
to 109.230 apply to proceedings certified to court by the
administrator pursuant to this section.
(b) Any response denying paternity and requesting a hearing
shall be sent by the enforcement office to the obligee by regular
mail.
(5) An action to establish paternity initiated under ORS
416.400 to 416.465 shall not be certified to court for trial
unless all of the following have occurred:
(a) Blood tests have been conducted;
(b) The results of the blood tests have been served upon the
parties and notice has been given that an order establishing
paternity will be entered unless a written objection is received
within 30 days; and
(c) A written objection to the entry of an order has been
timely received from a party.
(6) Notwithstanding the provisions of subsection (5) of this
section, the administrator:
(a) Shall certify the matter to court:
(A) Within 30 days of receipt by the administrator of a timely
written objection to the entry of an order by a party under
subsection (5)(c) of this section;
(B) When a party requests certification in writing after the
administrator has received a party's written denial of paternity
if at least 120 days have elapsed from receipt of the denial; or
(C) Upon receipt of blood test results with a cumulative
paternity index of less than 99; and
(b) May certify the matter to court at any time under any other
circumstances.
(7) If the blood tests conducted under ORS 109.250 to 109.262
result in a cumulative paternity index of 99 or greater, evidence
of the tests, together with the testimony of the parent, shall be
a sufficient basis upon which to establish paternity and the
administrator may enter an order declaring the alleged father as
the legal father of the child unless a party objects in writing
to the entry of the order. The testimony of the parent may be
presented by affidavit.
(8) Prior to certification to court, the administrator may
attempt to resolve the issue of paternity by discovery conducted
under the Oregon Rules of Civil Procedure. Unless otherwise
specifically provided by statute, the proceedings shall be
conducted under the Oregon Rules of Civil Procedure.
Enrolled House Bill 2009 (HB 2009-C) Page 209
(9) When, in accordance with subsection (6)(a)(A) of this
section, a party objects to the entry of an order and the blood
tests conducted under ORS 109.250 to 109.262 result in a
cumulative paternity index of 99 or greater, notwithstanding the
party's objection, evidence of the tests, together with the
testimony of a parent, is a sufficient basis upon which to
presume paternity for purposes of establishing temporary support
under this section. The court shall, upon motion of any party,
enter a temporary order requiring the alleged father to provide
support pending the determination of parentage by the court. In
determining the amount of support, the court shall use the
formula established under ORS 25.275.
SECTION 346. ORS 416.510 is amended to read:
416.510. As used in ORS 416.510 to 416.610, unless the context
requires otherwise:
(1) 'Action' means an action, suit or proceeding.
(2) 'Applicant' means an applicant for assistance.
(3) 'Assistance' means moneys paid by the Department of Human
Services to persons directly and moneys paid by the
{ - department - } { + Oregon Health Authority + } or by a
prepaid managed care health services organization for services
provided under contract pursuant to ORS 414.725 to others for the
benefit of such persons.
{ + (4) 'Authority' means the Oregon Health Authority. + }
{ - (4) - } { + (5) + } 'Claim' means a claim of a
recipient of assistance for damages for personal injuries against
any person or public body, agency or commission other than the
State Accident Insurance Fund Corporation or Workers'
Compensation Board.
{ - (5) - } { + (6) + } 'Compromise' means a compromise
between a recipient and any person or public body, agency or
commission against whom the recipient has a claim.
{ - (6) 'Department' means the Department of Human
Services. - }
(7) 'Judgment' means a judgment in any action or proceeding
brought by a recipient to enforce the claim of the recipient.
(8) 'Prepaid managed care health services organization ' means
a managed health, dental or mental health care organization that
contracts with the { - Department of Human Services - }
{ + authority + } on a prepaid capitated basis { - under the
Oregon Health Plan - } pursuant to ORS 414.725. Prepaid managed
care health services organizations may be dental care
organizations, fully capitated health plans, mental health
organizations or chemical dependency organizations.
(9) 'Recipient' means a recipient of assistance.
(10) 'Settlement' means a settlement between a recipient and
any person or public body, agency or commission against whom the
recipient has a claim.
SECTION 347. ORS 416.530 is amended to read:
416.530. { - When - } { + (1) If + } any applicant or
recipient makes a claim or, without making a claim, begins an
action to enforce such claim, the applicant or recipient, or the
attorney for the applicant or the recipient, shall immediately
notify the Department of Human Services { + or the Oregon Health
Authority + } and the recipient's prepaid managed care health
services organization, if the recipient is receiving services
from the organization. If an applicant or recipient, or the
attorney for the applicant or the recipient, has given notice
that the applicant or recipient has made a claim, it shall not be
necessary for the applicant or recipient, or the attorney for the
Enrolled House Bill 2009 (HB 2009-C) Page 210
applicant or the recipient, to give notice that the applicant or
recipient has begun an action to enforce such claim. The
notification shall include the name and address of each person or
public body, agency or commission against whom claim is made or
action is brought. If claim is made or action is brought against
a corporation, the address given in such notification shall be
that of its principal place of business. If the applicant or
recipient is a minor, the parents, legal guardian or foster
parents of the minor shall give the notification required by this
section.
{ + (2) The notification required by subsection (1) of this
section shall be provided to:
(a) The Oregon Health Authority by applicants for or recipients
of assistance provided by the authority; and
(b) The Department of Human Services for assistance provided by
the department. + }
SECTION 348. ORS 416.540 is amended to read:
416.540. (1) Except as provided in subsection (2) of this
section and in ORS 416.590, the Department of Human Services
{ + and the Oregon Health Authority + } shall have a lien upon
the amount of any judgment in favor of a recipient or amount
payable to the recipient under a settlement or compromise for all
assistance received by such recipient from the date of the injury
of the recipient to the date of satisfaction of such judgment or
payment under such settlement or compromise.
(2) The lien does not attach to the amount of any judgment,
settlement or compromise to the extent of attorney's fees, costs
and expenses incurred by a recipient in securing such judgment,
settlement or compromise and to the extent of medical, surgical
and hospital expenses incurred by the recipient on account of the
personal injuries for which the recipient had a claim.
(3) The { - department - } { + authority + } may assign the
lien described in subsection (1) of this section to a prepaid
managed care health services organization for medical costs
incurred by a recipient:
(a) During a period for which the { - department - }
{ + authority + } paid a capitation or enrollment fee; and
(b) On account of the personal injury for which the recipient
had a claim.
(4) A prepaid managed care health services organization to
which the { - department - } { + authority + } has assigned a
lien shall notify the { - department - } { + authority + } no
later than 10 days after filing notice of a lien.
(5) For the purposes of ORS 416.510 to 416.610, the
{ - department - } { + authority + } may designate the
prepaid managed care health services organization to which a lien
is assigned as its designee.
(6) If the { - department - } { + authority + } and a
prepaid managed care health services organization both have filed
a lien, the
{ - department's - } { + authority's + } lien shall be
satisfied first.
SECTION 349. ORS 416.550 is amended to read:
416.550. (1) Upon receiving notice under ORS 416.530, to
perfect its lien the Department of Human Services { + or the
Oregon Health Authority + } shall:
(a) File a notice of lien, substantially in the form prescribed
in ORS 416.560, with the recording officer of the county in which
the person against whom claim is made or action is brought
resides. If the claim or action is against a corporation, the
Enrolled House Bill 2009 (HB 2009-C) Page 211
notice of lien shall be filed with the recording officer of the
county within the state in which such corporation has its
principal place of business. If the claim or action is against a
public body, agency or commission, the notice of lien shall be
filed with the recording officer of the county in which the
public body, agency or commission has its main offices; and
(b) Prior to the date of satisfaction of the judgment or
payment under the settlement or compromise, send a certified copy
of the notice of lien by registered mail or by certified mail
with return receipt to each person or public body, agency or
commission against whom claim is made or action is brought by the
recipient.
(2) Upon the filing of a notice of lien by the department
{ + or the authority + }, the recording officer shall enter the
name of the injured person, the approximate date of the injury
and the name of the department { + or the authority + } as
lienor in the hospital lien docket provided for in ORS 87.575 and
shall make an index thereto in the names of the injured persons
and the department { + or the authority + }.
SECTION 350. ORS 416.560 is amended to read:
416.560. The form of the notice required by ORS 416.550 (1)
shall be substantially as follows:
_________________________________________________________________
Notice is hereby given that the { - Department of Human
Services - } { + _____ + } has rendered assistance to
________, a person who was injured on or about the __ day of ____
in the city of ____ and State of ____, and the { - Department
of Human Services - } { + _____ + } hereby asserts a lien to
the extent provided in ORS 416.510 to 416.610, for the amount of
such assistance upon any amount due and owing _____ (name of
injured person) under a judgment, settlement or compromise from
____ alleged to have caused such injuries and from any other
person or public body, agency or commission liable for the injury
or obligated to compensate the injured person on account of such
injuries.
Department of Human Services { + /Oregon Health Authority + }
by ________,
Director of { - Human Services - } { + _____ + } or
designee.
____NOTE_TO_WEB_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
State of Oreg)n,
) ss.
County of ____
)
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
I, ________, being first duly sworn on oath say: That I am the
Director of { - Human Services - } { + _____ + } or
designee; that I have read the foregoing notice of lien and know
the contents thereof and believe the same to be true.
________
Subscribed and sworn to before me this __ day of ____, ____.
Enrolled House Bill 2009 (HB 2009-C) Page 212
________, Notary Public.
_________________________________________________________________
SECTION 351. ORS 416.570 is amended to read:
416.570. Immediately after a judgment has been rendered in
favor of a recipient or a settlement or compromise has been
agreed upon, the person or public body, agency or commission
bound by such judgment, settlement or compromise shall notify the
Department of Human Services { + or the Oregon Health
Authority + }. After such notification the department { + or the
authority + } shall send a statement of the amount of its lien to
such person or public body, agency or commission by registered
mail or by certified mail with return receipt.
SECTION 352. ORS 416.580 is amended to read:
416.580. (1) After a notice of lien is filed in the manner
provided in ORS 416.550 (2), any person or public body, agency or
commission who makes any payment to the injured recipient, the
heirs, personal representatives or assigns of the recipient, or
their attorneys, under a judgment, settlement or compromise
without previously having paid to the Department of Human
Services { + or the Oregon Health Authority + } the amount of
its lien, shall be liable to the State of Oregon, for the use and
benefit of the department { + or the authority + } for a period
of 180 days after the date of such payment for the amount of such
payment to the extent that the lien attached thereto under ORS
416.540.
(2) Any amount paid to the department { + or the authority + }
in satisfaction of its lien shall be distributed by the
department { + or the authority + } to the United States
Government and the Public Welfare Account, as their interests may
appear.
(3) If the recipient is a minor, no payments to the department
{ + or the authority + } in satisfaction of its lien and, except
to the extent of the fees, costs and expenses specified in ORS
416.540 (2), no payments to the recipient under a judgment,
settlement or compromise shall be made until a hearing has taken
place and the court has issued its order under ORS 416.590.
SECTION 353. ORS 416.590 is amended to read:
416.590. (1) If the recipient is a minor, after the date on
which a judgment in favor of the recipient is rendered or
settlement or compromise is agreed upon, the guardian of the
minor or the conservator of the estate of the minor shall
petition the court having probate jurisdiction in the county in
which the guardian or conservator was appointed to determine the
sum that will be needed for the minor's complete physical
rehabilitation. If the guardian or the conservator of the
minor's estate fails to petition the court, any other interested
person or public body, agency or commission may file the
petition. The lien of the Department of Human Services { + or
the Oregon Health Authority + } provided for in ORS 416.510 to
416.610 shall not attach to the amount of the judgment,
settlement or compromise to the extent of the sum needed for the
rehabilitation. Among other data, the petition shall contain the
name and address of each person or public body, agency or
commission liable to the minor under the judgment, settlement or
compromise.
(2) The court shall conduct a hearing to determine the sum that
will be needed by the minor and at least 10 days prior to the
date of the hearing, the clerk of the court shall notify the
conservator of the minor's estate, the department { + or the
Enrolled House Bill 2009 (HB 2009-C) Page 213
authority + } and the person who filed the petition, if the
person is someone other than the guardian or the conservator of
the minor's estate, of the date on which the hearing will be
held. At the hearing any interested person as well as witnesses
for the minor and for the department { + or the authority + }
may testify on the question before the court. Upon reaching a
decision, the court shall issue an order setting forth the
decision and the clerk of the court shall enter the order in an
appropriate record book. The clerk shall also send a copy of the
order to the guardian or the conservator of the minor's estate,
the person who filed the petition if the person is someone other
than the guardian or the conservator of the minor's estate, the
department { + or the authority + } and to each person or public
body, agency or commission liable to the minor under the
judgment, settlement or compromise.
SECTION 354. ORS 416.600 is amended to read:
416.600. When the Department of Human Services { + or the
Oregon Health Authority + } determines that a recipient will
incur additional medical, surgical or hospital expenses or that
additional assistance will have to be given to the recipient
after the date of satisfaction of judgment or payment under a
settlement or compromise, the department { + or the
authority + } may release any portion of its lien to the extent
of such anticipated expenses and assistance.
SECTION 355. ORS 416.610 is amended to read:
416.610. The { - Department of Human Services - }
{ + Oregon Health Authority + } or the recipient's prepaid
managed care health services organization, if the recipient is
receiving services from the organization, shall have a cause of
action against any recipient who fails to give the notification
required by ORS 416.530 for amounts received by the recipient
pursuant to a judgment, settlement or compromise to the extent
that the department { + or the authority + } or the prepaid
managed care health services organization could have had a lien
against such amounts had such notice been given.
SECTION 356. ORS 416.990 is amended to read:
416.990. Any person who makes, renders, signs or verifies any
false or fraudulent statement, or supplies any false or
fraudulent information with intent to evade any lawful
requirement of the Department of Human Services { + or the
Oregon Health Authority + } is guilty of a misdemeanor.
{ + NOTE: + } Section 357 was deleted by amendment.
Subsequent sections were not renumbered.
SECTION 358. ORS 417.346 is amended to read:
417.346. Subject to the availability of funds therefor, the
Director of Human Services { + , in consultation with the
Director of the Oregon Health Authority, + } shall:
(1) Identify current programs and potential resources available
to families providing care for a family member with a disability
or chronic illness.
(2) Develop a biennial plan for adequate funding and recommend
budgetary priorities for family support services.
(3) Develop a biennial cooperative plan for assuring a
statewide interagency system of family support services.
(4) Adopt rules for family support services that are guided by
the goals and principles set forth in ORS 417.340 to 417.348.
These rules shall contain a grievance procedure.
(5) Make a biennial report to the Legislative Assembly on the
state of the family support system, including strengths,
deficiencies, cost savings and recommendations. This report shall
Enrolled House Bill 2009 (HB 2009-C) Page 214
include a comprehensive statement of the efforts of the
Department of Human Services to carry out the policies and
principles set forth in this legislation. The report shall
include but not be limited to a list of family support services,
a summary of costs and the number of clients served.
(6) Establish a Family Support Advisory Council whose purpose
is to review and comment on plans and services provided or
contracted for family support by state agencies and advise the
director on the state plans for coordinated family support
services.
(a) The council shall meet a minimum of four times per year.
(b) The membership of the council shall be 51 percent consumers
of family support services.
(c) The remaining membership shall be composed of
representatives of agencies providing family support services and
representatives of advocacy groups. One member shall be a
representative of the Department of Education.
SECTION 359. ORS 417.728 is amended to read:
417.728. (1) The State Commission on Children and Families, the
Department of Education, the Employment Department { + , + }
{ - and - } the Department of Human Services { + and the
Oregon Health Authority + } shall lead a joint effort with other
state and local early childhood partners to establish the
policies necessary for a voluntary statewide early childhood
system that shall be incorporated into the local coordinated
comprehensive plan.
(2) The voluntary statewide early childhood system shall be
designed to achieve:
(a) The appropriate early childhood benchmarks jointly
identified by the State Commission on Children and Families, the
Department of Education, the Employment Department { + , + }
{ - and - } the Department of Human Services { + and the
Oregon Health Authority + }, with input from early childhood
partners, as the appropriate benchmarks; and
(b) Any other early childhood benchmark or intermediate outcome
jointly identified by the State Commission on Children and
Families, the Department of Education, the Employment
Department { + , + }
{ - and - } the Department of Human Services { + and the
Oregon Health Authority + }, with input from early childhood
partners, as an appropriate benchmark or outcome.
(3) The voluntary statewide early childhood system shall
include the following components:
(a) A process to identify as early as possible children and
families who would benefit from early childhood services;
(b) A plan to support the identified needs of the child and
family that coordinates case management personnel and the
delivery of services to the child and family; and
(c) Services to support children who are zero through eight
years of age and their families who give their express written
consent, including:
(A) Screening, assessment and home visiting services pursuant
to ORS 417.795;
(B) Specialized or targeted home visiting services;
(C) Community-based services such as relief nurseries, family
support programs and parent education programs;
(D) High quality child care, as defined by the Commission for
Child Care;
(E) Preschool and other early education services;
(F) Health services for children and pregnant women;
Enrolled House Bill 2009 (HB 2009-C) Page 215
(G) Mental health services;
(H) Alcohol and drug treatment programs that meet the standards
promulgated by the { - Department of Human Services - }
{ + Oregon Health Authority + } pursuant to ORS 430.357;
(I) Developmental disability services; and
(J) Other state and local services.
(4) The State Commission on Children and Families, the
Department of Education, the Employment Department { + , + }
{ - and - } the Department of Human Services { + and the
Oregon Health Authority + } shall jointly:
(a) Consolidate administrative functions relating to the
voluntary statewide early childhood system, to the extent
practicable, including but not limited to training and technical
assistance, planning and budgeting. This paragraph does not apply
to the administrative functions of the Department of Education
relating to education programs;
(b) Adopt policies to establish training and technical
assistance programs to ensure that personnel have skills in
appropriate areas, including screening, family assessment,
competency-based home visiting skills, cultural and gender
differences and other areas as needed;
(c) Identify research-based age-appropriate and culturally and
gender appropriate screening and assessment tools that would be
used as appropriate in programs and services of the voluntary
statewide early childhood system;
(d) Develop a plan for the implementation of a common data
system for voluntary early childhood programs as provided in
section 7, chapter 831, Oregon Laws 2001;
(e) Coordinate existing and new early childhood programs to
provide a range of community-based supports;
(f) Establish a common set of quality assurance standards to
guide local implementation of all elements of the voluntary
statewide early childhood system, including voluntary universal
screening and assessment, home visiting, staffing, evaluation and
community-based services;
(g) Ensure that all plans for voluntary early childhood
services are coordinated and consistent with federal and state
law, including but not limited to plans for Oregon
prekindergarten programs, federal Head Start programs, early
childhood special education services, early intervention services
and public health services;
(h) Identify how the voluntary statewide early childhood system
for children who are zero through eight years of age will link
with systems of support for older children and their families;
(i) Contract for an evaluation of the outcomes of the voluntary
statewide early childhood system; and
(j) During January of each odd-numbered year, report to the
Governor and the Legislative Assembly on the voluntary statewide
early childhood system. The report shall include the evaluation
described in paragraph (i) of this subsection.
(5) The State Commission on Children and Families, the State
Board of Education, the Employment Department { + , + }
{ - and - } the Department of Human Services { + and the
Oregon Health Authority + } when adopting rules to administer
voluntary early childhood programs under their individual
authority shall adopt rules that are consistent with the
requirements of the voluntary statewide early childhood system
created under this section.
Enrolled House Bill 2009 (HB 2009-C) Page 216
(6) Information gathered in conjunction with the voluntary
comprehensive screening and assessment of children and their
families may be used only for the following purposes:
(a) Providing services to children and families who give their
express written consent;
(b) Providing statistical data that are not personally
identifiable;
(c) Accomplishing other purposes for which the family has given
express written consent; and
(d) Meeting the requirements of mandatory state and federal
disclosure laws.
SECTION 360. ORS 417.730 is amended to read:
417.730. (1) There is established a State Commission on
Children and Families consisting of:
(a) The Director of Human Services;
(b) The Superintendent of Public Instruction;
(c) The Director of the Employment Department or, at the
Governor's direction, the chairperson of the Commission for Child
Care;
{ + (d) The Director of the Oregon Health Authority; + }
{ - (d) - } { + (e) + } One member appointed by the
President of the Senate, who shall be a member of the Senate and
who shall be a nonvoting, advisory member;
{ - (e) - } { + (f) + } One member appointed by the Speaker
of the House of Representatives, who shall be a member of the
House of Representatives and who shall be a nonvoting, advisory
member; and
{ - (f) - } { + (g) + } Twelve members appointed by the
Governor.
(2) The appointments made by the Governor shall reflect the
state's diverse populations and regions and shall include
representatives with expertise along the full developmental
continuum of a child from the prenatal stage through 18 years of
age. The members appointed by the Governor shall include:
(a) One representative from the Oregon Juvenile Department
Directors' Association, from which the Governor may solicit
suggestions for appointment;
(b) Six public members who have demonstrated interest in
children, with consideration given to a youth member and persons
from the education community;
(c) Two members from local commissions on children and
families, one from a rural area and one from an urban area;
(d) One social service professional; and
(e) Two members from the business community who have
demonstrated interest in children.
(3) The term of office of each member appointed by the Governor
is four years. Before the expiration of the term of an appointed
member, the Governor shall appoint a successor whose term begins
on October 1. An appointed member is eligible for reappointment.
If there is a vacancy in an appointed position for any cause, the
Governor shall make an appointment to become immediately
effective for the unexpired term.
(4) The appointments by the Governor to the state commission
are subject to confirmation by the Senate in the manner
prescribed in ORS 171.562 and 171.565.
(5) An appointed member of the state commission who is not a
member of the Legislative Assembly is entitled to compensation
and expenses as provided in ORS 292.495. Members who are members
of the Legislative Assembly shall be paid compensation and
Enrolled House Bill 2009 (HB 2009-C) Page 217
expense reimbursement as provided in ORS 171.072, payable from
funds appropriated to the Legislative Assembly.
(6)(a) The majority of the members of the state commission
shall be laypersons.
(b) As used in this subsection, 'layperson' means a person
whose primary income is not derived from either offering direct
service to children and youth or being an administrator for a
program for children and youth.
SECTION 361. ORS 417.735 is amended to read:
417.735. (1) The State Commission on Children and Families
shall promote the wellness of children and families at the state
level and shall act in accordance with the principles,
characteristics and values identified in ORS 417.708 to 417.725.
The state commission shall provide no direct services.
(2)(a) Funds for local commissions shall consist of payments
from moneys appropriated for local commissions to the State
Commission on Children and Families by the Legislative Assembly.
The state commission shall develop an equitable formula for the
distribution of funds to counties or regions for services for
children and families, and a minimum annual grant shall be
provided to each county or region.
(b) The state commission shall provide technical assistance and
research-based information to local commissions to support the
development of county goals, performance measures and outcomes
for services and programs.
(c) The state commission may withhold funds from a local
commission if services and programs funded through the local
commission do not meet appropriate performance measures and
outcomes.
(3) The state commission shall:
(a) Set guidelines for the planning, coordination and delivery
of services by local commissions in partnership with other
planning bodies and agencies providing services for children and
families. The guidelines shall be consistent with the key
elements of the service system developed and implemented under
ORS 417.705 to 417.801. In conjunction with other planning bodies
and agencies providing social supports, the state commission
shall use the local coordinated comprehensive plans to advise
agencies, the Legislative Assembly and the Governor;
(b) Advise the Legislative Assembly and the Governor concerning
possible solutions to problems facing children and families;
(c) In consultation with other agencies, identify high-level
and intermediate outcomes relating to children and families and
monitor the progress of local coordinated comprehensive plans in
meeting intermediate outcome targets;
(d) Encourage the development of innovative projects, based on
proven practices of effectiveness, that benefit children and
families;
(e) Ensure that all services for children and families are
integrated and evaluated according to their outcomes;
(f) Compile, analyze and distribute information that informs
and supports statewide coordinated planning;
(g) Establish a uniform system of reporting and collecting
statistical data from counties and other agencies serving
children and families;
(h) Provide a process whereby the Department of Human Services,
{ + Oregon Health Authority, + } Juvenile Crime Prevention
Advisory Committee, Oregon Youth Authority, Department of
Education, Department of Community Colleges and Workforce
Development, Employment Department, Housing and Community
Enrolled House Bill 2009 (HB 2009-C) Page 218
Services Department and Economic and Community Development
Department review all findings from data collected by the local
commissions through the local coordinated comprehensive plans.
The information gathered in this review shall be considered by
those agencies in designing future economic resources and
services and in the coordination of services;
(i) Make recommendations to the Commission for Child Care for
the development of the state's biennial child care plan; and
(j) Communicate information and policy advice on current
research and proven practices of effectiveness, from both inside
and outside the state, including successful local strategies, to
local commissions, the Governor, the Legislative Assembly, state
agencies and the public. The information shall include progress
in meeting intermediate outcome targets identified in the local
coordinated comprehensive plans.
(4)(a) The state commission shall develop a review and approval
process for local coordinated comprehensive plans that includes:
(A) A requirement that the local plan has been approved by the
board or boards of county commissioners;
(B) Assurance that the local plan meets essential criteria and
approval required by appropriate entities and meets appropriate
systems and planning connections; and
(C) Review of state expenditures of resources allocated to the
local commissions on children and families.
(b) The state commission shall develop the process under this
subsection in consultation with other entities involved in the
review and approval process.
(c) The state commission shall act on any waiver request from a
local commission within 90 days after receipt of the request.
(d) The state commission may disapprove a local plan for
failure to address the elements described in paragraph (a) of
this subsection within 90 days after receipt of the request.
(5) The state commission, in coordination with the local
commissions on children and families, shall:
(a) Assist the local commissions in the development and
implementation of performance measures and outcomes for
evaluating services at the local level;
(b) Monitor the progress in meeting intermediate outcome
targets in the local coordinated comprehensive plans;
(c) In conjunction with the Department of Human Services and
using the staff resources and other resources of the state
commission, educate, inform and provide technical assistance to
local commissions, including but not limited to technical
assistance with:
(A) Federal and state laws, regulations and rules, and changes
therein, governing the use of federal and state funds;
(B) Facilitation;
(C) Planning;
(D) Policy development;
(E) Proven practices of effectiveness;
(F) Local systems development;
(G) Community problem solving and mobilization; and
(H) Other services, as appropriate;
(d) Conduct research and disseminate information to local
commissions on children and families;
(e) Negotiate federal waivers in consultation with the
Department of Human Services; and
(f) Develop a process for reviewing requests for waivers from
requirements of the state commission. Requests for waivers shall
be granted or denied as a part of the approval process for a
Enrolled House Bill 2009 (HB 2009-C) Page 219
local coordinated comprehensive plan. The state commission shall
not grant a request for waiver that allows funds to be used for
any purpose other than early childhood prevention, intervention
and treatment programs.
(6) The state commission shall employ a staff director who
shall be responsible for hiring and supervising any additional
personnel necessary to assist the state commission in performing
its duties. The staff director shall be responsible for
management functions of the state commission subject to policy
direction by the state commission.
(7) To the extent that federal funding is not jeopardized, the
State Commission on Children and Families shall enter into an
interagency agreement with the Department of Human Services in
which they agree on a system to:
(a) Distribute all Title XX Social Services Block Grant funds;
(b) Ensure that federal and state requirements are met for
federal funds administered by the state commission; and
(c) Carry out the necessary auditing, monitoring and
information requirements for federal funds distributed by the
state commission.
(8) In addition to the authority under subsection (5)(e) of
this section, the state commission may direct the Department of
Human Services or the appropriate state department providing
services for children and families to negotiate federal waivers.
If the Department of Human Services or any other state agency
does not pursue a federal waiver recommended by the state
commission, the state commission may ask the Governor to direct
the Department of Human Services or other state agency to apply
for and negotiate the waiver.
(9) If the Department of Human Services or any other state
agency refuses to distribute state or federal funds as requested
by the state commission, the state commission may ask the
Governor to direct the Department of Human Services or other
state agency to distribute the funds.
(10) The programs shall be funded as fully as possible by Title
XX of the federal Social Security Act, consistent with the terms
and conditions of the block grant program and the local
coordinated comprehensive plans that reflect community priorities
established by the local planning process.
(11) In conjunction with the Department of Human Services, the
state commission, as soon as possible, shall develop a plan to
re-engineer and integrate the data processing systems related to
children's programs with the objective of making management
information more accessible. The state commission shall make
regular presentations to the Joint Legislative Committee on
Information Management and Technology on its progress in
developing and implementing the plan.
(12) Before each regular session of the Legislative Assembly,
the state commission shall report, to the Governor and to the
appropriate joint interim committee as determined by the Speaker
of the House of Representatives and the President of the Senate,
the following:
(a) Any additional proposals contained in 'A Positive Future
for Oregon's Children and Families' by the 1991-1992 Oregon
Children's Care Team Interim Task Force that should be
undertaken;
(b) The status in all counties of local service systems related
to the health and wellness of children and the adequacy of
financial resources to deliver services;
Enrolled House Bill 2009 (HB 2009-C) Page 220
(c) The progress in achieving desired outcomes, including but
not limited to the statewide guidelines set by the state
commission under ORS 417.710 (1);
(d) Barriers to achieving intermediate and high-level outcome
targets as identified in local coordinated comprehensive plans;
(e) Proposed solutions to barriers identified under paragraph
(d) of this subsection, including proven, effective and
innovative strategies; and
(f) County and community mobilization to increase public
awareness and involvement and funding of community determined
priorities.
(13)(a) The state commission may solicit, accept and receive
federal moneys or moneys or other property from persons or
corporations, public or private, for the purpose of carrying out
the provisions of ORS 417.705 to 417.801 and 419A.170.
(b) All federal moneys collected or received under paragraph
(a) of this subsection shall be accepted and transferred or
expended by the state commission upon such terms and conditions
as are prescribed by the federal government.
(c) All moneys and other property accepted by the state
commission under this subsection shall be transferred, expended
or used upon such terms and conditions as are prescribed by the
donor in a manner consistent with applicable law.
(14) The state commission shall:
(a) Implement the recommendations of the Juvenile Crime
Prevention Advisory Committee, as approved by the Governor; and
(b) In cooperation with other state and federal agencies,
coordinate technical assistance efforts on a statewide and
county-specific basis relating to juvenile crime prevention
programs and services.
(15) The state commission may contract with local governments
or other entities to administer juvenile crime prevention
programs and services. In accordance with the applicable
provisions of ORS chapter 183, the state commission may adopt
rules necessary for the administration of juvenile crime
prevention programs and services.
SECTION 362. ORS 417.795 is amended to read:
417.795. (1) The State Commission on Children and Families
established under ORS 417.730 shall establish Healthy Start
Family Support Services programs through contracts entered into
by local commissions on children and families in all counties of
this state as funding becomes available.
(2) These programs shall be nonstigmatizing, voluntary and
designed to achieve the appropriate early childhood benchmarks
and shall:
(a) Ensure that express written consent is obtained from the
family prior to any release of information that is protected by
federal or state law and before the family receives any services;
(b) Ensure that services are voluntary and that, if a family
chooses not to accept services or ends services, there are no
adverse consequences for those decisions;
(c) Offer a voluntary comprehensive screening and risk
assessment of all newly born children and their families;
(d) Ensure that the disclosure of information gathered in
conjunction with the voluntary comprehensive screening and risk
assessment of children and their families is limited pursuant to
ORS 417.728 (6) to the following purposes:
(A) Providing services under the programs to children and
families who give their express written consent;
Enrolled House Bill 2009 (HB 2009-C) Page 221
(B) Providing statistical data that are not personally
identifiable;
(C) Accomplishing other purposes for which the family has given
express written consent; and
(D) Meeting the requirements of mandatory state and federal
disclosure laws;
(e) Ensure that risk factors used in the risk assessment are
limited to those risk factors that have been shown by research to
be associated with poor outcomes for children and families;
(f) Identify, as early as possible, families that would benefit
most from the programs;
(g) Provide parenting education and support services, including
but not limited to community-based home visiting services and
primary health care services;
(h) Provide other supports, including but not limited to
referral to and linking of community and public services for
children and families such as mental health services, alcohol and
drug treatment programs that meet the standards promulgated by
the
{ - Department of Human Services - } { + Oregon Health
Authority + } pursuant to ORS 430.357, child care, food, housing
and transportation;
(i) Coordinate services for children consistent with the
voluntary local early childhood system plan developed pursuant to
ORS 417.777;
(j) Provide follow-up services and supports from birth through
five years of age;
(k) Integrate data with any common data system for early
childhood programs implemented pursuant to section 7, chapter
831, Oregon Laws 2001;
(L) Be included in a statewide independent evaluation to
document:
(A) Level of screening and assessment;
(B) Incidence of child abuse and neglect;
(C) Change in parenting skills; and
(D) Rate of child development;
(m) Be included in a statewide training program in the dynamics
of the skills needed to provide early childhood services, such as
assessment and home visiting; and
(n) Meet voluntary statewide and local early childhood system
quality assurance and quality improvement standards.
(3) The Healthy Start Family Support Services programs, local
health departments and other providers of prenatal and perinatal
services in counties, as part of the voluntary local early
childhood system, shall:
(a) Identify existing services and describe and prioritize
additional services necessary for a voluntary home visit system;
(b) Build on existing programs;
(c) Maximize the use of volunteers and other community
resources that support all families;
(d) Target, at a minimum, all first birth families in the
county; and
(e) Ensure that home visiting services provided by local health
departments for children and pregnant women support and are
coordinated with local Healthy Start Family Support Services
programs.
(4) Through a Healthy Start Family Support Services program, a
trained family support worker or nurse shall be assigned to each
family assessed as at risk that consents to receive services
through the worker or nurse. The worker or nurse shall conduct
Enrolled House Bill 2009 (HB 2009-C) Page 222
home visits and assist the family in gaining access to needed
services.
(5) The services required by this section shall be provided by
hospitals, public or private entities or organizations, or any
combination thereof, capable of providing all or part of the
family risk assessment and the follow-up services. In granting a
contract, a local commission may utilize collaborative
contracting or requests for proposals and shall take into
consideration the most effective and consistent service delivery
system.
(6) The family risk assessment and follow-up services for
families at risk shall be provided by trained family support
workers or nurses organized in teams supervised by a manager and
including a family services coordinator who is available to
consult.
(7) Each Healthy Start Family Support Services program shall
adopt disciplinary procedures for family support workers, nurses
and other employees of the program. The procedures shall provide
appropriate disciplinary actions for family support workers,
nurses and other employees who violate federal or state law or
the policies of the program.
SECTION 363. ORS 417.845 is amended to read:
417.845. (1) The Juvenile Crime Prevention Advisory Committee
is created within the State Commission on Children and Families.
(2) The committee shall have the following members:
(a) The Director of the Oregon Youth Authority or a designee of
the director;
(b) The staff director of the State Commission on Children and
Families or a designee of the staff director;
(c) The Director of { - Human Services - } { + the Oregon
Health Authority + } or one or more designees of the director,
one of whom has expertise in treatment and prevention of
substance abuse;
(d) The executive director of the Oregon Criminal Justice
Commission or a designee of the executive director;
(e) The Superintendent of Public Instruction or a designee of
the superintendent;
(f) The Superintendent of State Police or a designee of the
superintendent;
(g) The Director of the Department of Corrections or a designee
of the director;
(h) One designee of the Governor;
(i) One member appointed by the President of the Senate, who
shall be a member of the Senate and who shall be a nonvoting,
advisory member;
(j) One member appointed by the Speaker of the House of
Representatives, who shall be a member of the House of
Representatives and who shall be a nonvoting, advisory member;
and
(k) One designee of the Chief Justice of the Supreme Court from
the Judicial Department who serves as a nonvoting member to
provide information and support the partnership role of the
courts in an effective comprehensive statewide approach to
high-risk youth and their families.
(3) In addition to the members listed in subsection (2) of this
section, the Governor shall appoint the following members who
shall be representative of the geographic and cultural diversity
of the state:
(a) To represent local public and private entities:
(A) A county commissioner;
Enrolled House Bill 2009 (HB 2009-C) Page 223
(B) A local juvenile director;
(C) A director of a local commission on children and families;
(D) Two law enforcement officials;
(E) A county mental health director;
(F) An alcohol and drug abuse professional;
(G) A school superintendent;
(H) A private youth service provider; and
(I) An elected city official;
(b) A researcher;
(c) A citizen member; and
(d) Other members as determined by the Governor.
(4) Each member of the committee appointed by the Governor
under subsection (3) of this section shall serve a term of four
years. Members appointed by the Governor shall serve at the
pleasure of the Governor. A vacancy in the office of any member
appointed by the Governor under subsection (3) of this section
shall be filled by the Governor by appointment for the unexpired
term.
(5) The Governor shall select one of the members of the
committee as chairperson and one of its members as vice
chairperson.
(6) The committee shall meet at times, places and intervals
deemed advisable by a majority of the members.
(7) The State Commission on Children and Families shall provide
staff support to the committee.
SECTION 363a. ORS 418.704 is amended to read:
418.704. There is established a Youth Suicide Prevention
Coordinator within the { - Department of Human Services - }
{ + Oregon Health Authority + }. The coordinator shall:
(1) Facilitate the development of a statewide strategic plan to
address youth suicide;
(2) Improve outreach to special populations of youth that are
at risk for suicide; and
(3) Provide technical assistance to state and local partners
and coordinate interagency efforts to establish prevention and
intervention strategies.
SECTION 363b. ORS 418.706 is amended to read:
418.706. The State Technical Assistance Team for child
fatalities is established in the { - Department of Human
Services - } { + Oregon Health Authority + }. The purpose of
the State Technical Assistance Team is to provide staff support
for the statewide interdisciplinary team, as described in ORS
418.748, and, upon request, to provide technical assistance to
the child fatality review teams established under ORS 418.785.
The duties of the State Technical Assistance Team shall include
but are not limited to:
(1) Designing, implementing and maintaining an information
management system for child fatalities;
(2) Providing training assistance and support for identified
individuals on county multidisciplinary child abuse teams in
accurate data collection and input;
(3) Compiling and analyzing data on child fatalities;
(4) Using data concerning child deaths to identify strategies
for the prevention of child fatalities and serving as a resource
center to promote the use of the strategies at the county level;
and
(5) Upon request of a county multidisciplinary child abuse
team, providing technical assistance and consultation services on
a variety of issues related to child fatalities including
Enrolled House Bill 2009 (HB 2009-C) Page 224
interagency agreements, team building, case review and prevention
strategies.
SECTION 364. ORS 419B.005 is amended to read:
419B.005. As used in ORS 419B.005 to 419B.050, unless the
context requires otherwise:
(1)(a) 'Abuse' means:
(A) Any assault, as defined in ORS chapter 163, of a child and
any physical injury to a child which has been caused by other
than accidental means, including any injury which appears to be
at variance with the explanation given of the injury.
(B) Any mental injury to a child, which shall include only
observable and substantial impairment of the child's mental or
psychological ability to function caused by cruelty to the child,
with due regard to the culture of the child.
(C) Rape of a child, which includes but is not limited to rape,
sodomy, unlawful sexual penetration and incest, as those acts are
defined in ORS chapter 163.
(D) Sexual abuse, as defined in ORS chapter 163.
(E) Sexual exploitation, including but not limited to:
(i) Contributing to the sexual delinquency of a minor, as
defined in ORS chapter 163, and any other conduct which allows,
employs, authorizes, permits, induces or encourages a child to
engage in the performing for people to observe or the
photographing, filming, tape recording or other exhibition which,
in whole or in part, depicts sexual conduct or contact, as
defined in ORS 167.002 or described in ORS 163.665 and 163.670,
sexual abuse involving a child or rape of a child, but not
including any conduct which is part of any investigation
conducted pursuant to ORS 419B.020 or which is designed to serve
educational or other legitimate purposes; and
(ii) Allowing, permitting, encouraging or hiring a child to
engage in prostitution, as defined in ORS chapter 167.
(F) Negligent treatment or maltreatment of a child, including
but not limited to the failure to provide adequate food,
clothing, shelter or medical care that is likely to endanger the
health or welfare of the child.
(G) Threatened harm to a child, which means subjecting a child
to a substantial risk of harm to the child's health or welfare.
(H) Buying or selling a person under 18 years of age as
described in ORS 163.537.
(I) Permitting a person under 18 years of age to enter or
remain in or upon premises where methamphetamines are being
manufactured.
(J) Unlawful exposure to a controlled substance, as defined in
ORS 475.005, that subjects a child to a substantial risk of harm
to the child's health or safety.
(b) 'Abuse' does not include reasonable discipline unless the
discipline results in one of the conditions described in
paragraph (a) of this subsection.
(2) 'Child' means an unmarried person who is under 18 years of
age.
(3) 'Public or private official' means:
(a) Physician, including any intern or resident.
(b) Dentist.
(c) School employee.
(d) Licensed practical nurse or registered nurse.
(e) Employee of the Department of Human Services, { + Oregon
Health Authority, + } State Commission on Children and Families,
Child Care Division of the Employment Department, the Oregon
Enrolled House Bill 2009 (HB 2009-C) Page 225
Youth Authority, a county health department, a community mental
health
{ - and - } { + program, a community + } developmental
disabilities program, a county juvenile department, a licensed
child-caring agency or an alcohol and drug treatment program.
(f) Peace officer.
(g) Psychologist.
(h) Member of the clergy.
(i) Licensed clinical social worker.
(j) Optometrist.
(k) Chiropractor.
(L) Certified provider of foster care, or an employee thereof.
(m) Attorney.
(n) Naturopathic physician.
(o) Licensed professional counselor.
(p) Licensed marriage and family therapist.
(q) Firefighter or emergency medical technician.
(r) A court appointed special advocate, as defined in ORS
419A.004.
(s) A child care provider registered or certified under ORS
657A.030 and 657A.250 to 657A.450.
(t) Member of the Legislative Assembly.
(4) 'Law enforcement agency' means:
(a) Any city or municipal police department.
(b) Any county sheriff's office.
(c) The Oregon State Police.
(d) A county juvenile department.
SECTION 365. ORS 419B.839 is amended to read:
419B.839. (1) Summons in proceedings to establish jurisdiction
under ORS 419B.100 must be served on:
(a) The parents of the child without regard to who has legal or
physical custody of the child;
(b) The legal guardian of the child;
(c) A putative father of the child who satisfies the criteria
set out in ORS 419B.875 (1)(a)(C), except as provided in
subsection (4) of this section;
(d) A putative father of the child if notice of the initiation
of filiation or paternity proceedings was on file with the Center
for Health Statistics of the { - Department of Human
Services - } { + Oregon Health Authority + } prior to the
initiation of the juvenile court proceedings, except as provided
in subsection (4) of this section;
(e) The person who has physical custody of the child, if the
child is not in the physical custody of a parent; and
(f) The child, if the child is 12 years of age or older.
(2) If it appears to the court that the welfare of the child or
of the public requires that the child immediately be taken into
custody, the court may indorse an order on the summons directing
the officer serving it to take the child into custody.
(3) Summons may be issued requiring the appearance of any
person whose presence the court deems necessary.
(4) Summons under subsection (1) of this section is not
required to be given to a putative father whom a court of
competent jurisdiction has found not to be the child's legal
father or who has filed a petition for filiation that was
dismissed if no appeal from the judgment or order is pending.
(5) If a guardian ad litem has been appointed for a parent
under ORS 419B.231, a copy of a summons served on the parent
under this section must be provided to the guardian ad litem.
SECTION 366. ORS 419C.239 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 226
419C.239. (1) A formal accountability agreement shall:
(a) Be completed within a period of time not to exceed one
year;
(b) Be voluntarily entered into by all parties;
(c) Be revocable by the youth at any time by a written
revocation;
(d) Be revocable by the juvenile department in the event the
department has reasonable cause to believe the youth has failed
to carry out the terms of the formal accountability agreement or
has committed a subsequent offense;
(e) Not be used as evidence against the youth at any
adjudicatory hearing;
(f) Be executed in writing and expressed in language
understandable to the persons involved;
(g) Be signed by the juvenile department, the youth, the
youth's parent or parents or legal guardian, and the youth's
counsel, if any;
(h) Become part of the youth's juvenile department record; and
(i) When the youth has been charged with having committed the
youth's first violation of a provision under ORS 475.860 (3)(b)
or 475.864 (3) and unless the juvenile department determines that
it would be inappropriate in the particular case:
(A) Require the youth to participate in a diagnostic assessment
and an information or treatment program as recommended by the
assessment. The agencies or organizations providing assessment or
programs of information or treatment must be the same as those
designated by the court under ORS 419C.443 (1) and must meet the
standards set by the Director of { - Human Services - }
{ + the Oregon Health Authority + }. The parent of the youth
shall pay the cost of the youth's participation in the program
based upon the ability of the parent to pay.
(B) Monitor the youth's progress in the program which shall be
the responsibility of the diagnostic assessment agency or
organization. It shall make a report to the juvenile department
stating the youth's successful completion or failure to complete
all or any part of the program specified by the diagnostic
assessment. The form of the report shall be determined by
agreement between the juvenile department and the diagnostic
assessment agency or organization. The juvenile department shall
make the report a part of the record of the case.
(2) Notwithstanding any other provision of law, the following
information contained in a formal accountability agreement under
ORS 419C.230 is not confidential and is not exempt from
disclosure:
(a) The name and date of birth of the youth;
(b) The act alleged; and
(c) The portion of the agreement providing for the disposition
of the youth.
SECTION 367. ORS 419C.443 is amended to read:
419C.443. (1) Except when otherwise provided in subsection (3)
of this section, when a youth offender has been found to be
within the jurisdiction of the court under ORS 419C.005 for a
first violation of the provisions under ORS 475.860 (3)(b) or
475.864 (3), the court shall order an evaluation and designate
agencies or organizations to perform diagnostic assessment and
provide programs of information and treatment. The designated
agencies or organizations must meet the standards set by the
Director of { - Human Services - } { + the Oregon Health
Authority + }. Whenever possible, the court shall designate
agencies or organizations to perform the diagnostic assessment
Enrolled House Bill 2009 (HB 2009-C) Page 227
that are separate from those that may be designated to carry out
a program of information or treatment. The parent of the youth
offender shall pay the cost of the youth offender's participation
in the program based upon the ability of the parent to pay. The
petition shall be dismissed by the court upon written
certification of the youth offender's successful completion of
the program from the designated agency or organization providing
the information and treatment.
(2) Monitoring the youth offender's progress in the program
shall be the responsibility of the diagnostic assessment agency
or organization. The agency or organization shall make a report
to the court stating the youth offender's successful completion
or failure to complete all or any part of the program specified
by the diagnostic assessment. The form of the report shall be
determined by agreement between the court and the diagnostic
assessment agency or organization. The court shall make the
report a part of the record of the case.
(3) The court is not required to make the disposition required
by subsection (1) of this section if the court determines that
the disposition is inappropriate in the case or if the court
finds that the youth offender has previously entered into a
formal accountability agreement under ORS 419C.239 (1)(i).
SECTION 368. ORS 419C.507 is amended to read:
419C.507. The court may, in lieu of or in addition to any
disposition under this chapter, direct that a youth offender be
examined or treated by a physician, psychiatrist or psychologist,
or receive other special care or treatment in a hospital or other
suitable facility. If the court determines that mental health
examination and treatment should be provided by services
delivered through the { - Department of Human Services, the
department - } { + Oregon Health Authority, the Department of
Human Services + } shall determine the appropriate placement or
services in consultation with the court, the Oregon Youth
Authority and other affected agencies. If the youth authority or
another affected agency objects to the type of placement or
services, the court shall determine the appropriate type of
placement or service. During the examination or treatment of the
youth offender, the department may, if appropriate, be appointed
guardian of the youth offender.
SECTION 369. ORS 419C.529 is amended to read:
419C.529. (1) After the entry of a jurisdictional order under
ORS 419C.411 (2), if the court finds by a preponderance of the
evidence that the young person, at the time of disposition, has a
serious mental condition or has a mental disease or defect other
than a serious mental condition and presents a substantial danger
to others, requiring conditional release or commitment to a
hospital or facility designated on an individual case basis by
the Department of Human Services { + or the Oregon Health
Authority + } as provided in subsection (6) of this section, the
court shall order the young person placed under the jurisdiction
of the Psychiatric Security Review Board.
(2) The court shall determine whether the young person should
be committed to a hospital or facility designated on an
individual case basis by the department { + or the
authority + }, as provided in subsection (6) of this section, or
conditionally released pending a hearing before the juvenile
panel of the Psychiatric Security Review Board as follows:
(a) If the court finds that the young person is not a proper
subject for conditional release, the court shall order the young
person committed to a secure hospital or a secure intensive
Enrolled House Bill 2009 (HB 2009-C) Page 228
community inpatient facility designated on an individual case
basis by the department { + or the authority + }, as provided in
subsection (6) of this section, for custody, supervision and
treatment pending a hearing before the juvenile panel in
accordance with ORS 419C.532, 419C.535, 419C.538, 419C.540 and
419C.542 and shall order the young person placed under the
jurisdiction of the board.
(b) If the court finds that the young person can be adequately
controlled with supervision and treatment services if
conditionally released and that necessary supervision and
treatment services are available, the court may order the young
person conditionally released, subject to those supervisory
orders of the court that are in the best interests of justice and
the young person. The court shall designate a qualified mental
health or developmental disabilities treatment provider or state,
county or local agency to supervise the young person on release,
subject to those conditions as the court directs in the order for
conditional release. Prior to the designation, the court shall
notify the qualified mental health or developmental disabilities
treatment provider or agency to whom conditional release is
contemplated and provide the qualified mental health or
developmental disabilities treatment provider or agency an
opportunity to be heard before the court. After receiving an
order entered under this paragraph, the qualified mental health
or developmental disabilities treatment provider or agency
designated shall assume supervision of the young person subject
to the direction of the juvenile panel. The qualified mental
health or developmental disabilities treatment provider or agency
designated as supervisor shall report in writing no less than
once per month to the juvenile panel concerning the supervised
young person's compliance with the conditions of release.
(c) For purposes of determining whether to order commitment to
a hospital or facility or conditional release, the primary
concern of the court is the protection of society.
(3) In determining whether a young person should be
conditionally released, the court may order examinations or
evaluations deemed necessary.
(4) Upon placing a young person on conditional release and
ordering the young person placed under the jurisdiction of the
board, the court shall notify the juvenile panel in writing of
the court's conditional release order, the supervisor designated
and all other conditions of release pending a hearing before the
juvenile panel in accordance with ORS 419C.532, 419C.535,
419C.538, 419C.540 and 419C.542.
(5) When making an order under this section, the court shall:
(a) Determine whether the parent or guardian of the young
person is able and willing to assist the young person in
obtaining necessary mental health or developmental disabilities
services and is willing to acquiesce in the decisions of the
juvenile panel. If the court finds that the parent or guardian:
(A) Is able and willing to do so, the court shall order the
parent or guardian to sign an irrevocable consent form in which
the parent agrees to any placement decision made by the juvenile
panel.
(B) Is unable or unwilling to do so, the court shall order that
the young person be placed in the legal custody of the Department
of Human Services for the purpose of obtaining necessary
{ - mental health or - } developmental disabilities services
{ + or the Oregon Health Authority for the purpose of obtaining
necessary mental health services + }.
Enrolled House Bill 2009 (HB 2009-C) Page 229
(b) Make specific findings on whether there is a victim and, if
so, whether the victim wishes to be notified of any board
hearings concerning the young person and of any conditional
release, discharge or escape of the young person.
(c) Include in the order a list of the persons who wish to be
notified of any board hearing concerning the young person.
(d) Determine on the record the act committed by the young
person for which the young person was found responsible except
for insanity.
(e) State on the record the mental disease or defect on which
the young person relied for the responsible except for insanity
defense.
(6) When the department designates { + a facility for the
commitment of a developmentally disabled young person under this
section, or the authority designates + } a hospital or facility
for commitment of a { + mentally ill + } young person under this
section, the department { + and the authority + } shall take
into account the care and treatment needs of the young person,
the resources { - of the department - } { + available to the
department or the authority + } and the safety of the public.
SECTION 370. ORS 419C.530 is amended to read:
419C.530. The juvenile panel of the Psychiatric Security Review
Board exercises continuing jurisdiction over a young person
committed to, or retained in, a hospital or facility designated
by the Department of Human Services { + or the Oregon Health
Authority + } under ORS 419C.529. If the board determines after
review that the placement of a young person in the particular
hospital or facility is so inappropriate as to create a
substantial danger to others, the board may direct the department
{ + or the authority + } to place the young person in a specific
type of facility or direct specific care or supervision, but the
actual placement of the young person is the responsibility of the
department { + or the authority + }.
SECTION 371. ORS 419C.532 is amended to read:
419C.532. (1) The juvenile panel of the Psychiatric Security
Review Board shall conduct hearings on an application for
discharge, conditional release, commitment or modification filed
under or required by ORS 419C.538, 419C.540 and 419C.542, and
shall make findings on the issues before the juvenile panel.
(2) In every hearing before the juvenile panel, the juvenile
panel shall determine whether the young person:
(a) Has a serious mental condition; or
(b) Has a mental disease or defect other than a serious mental
condition and presents a substantial danger to others.
(3) The juvenile panel shall order a young person discharged
from commitment or conditional release if the juvenile panel
finds that the young person:
(a) No longer has a mental disease or defect; or
(b) Has a mental disease or defect other than a serious mental
condition but no longer presents a substantial danger to others.
(4) The juvenile panel shall order a young person conditionally
released subject to ORS 419C.538 if the juvenile panel finds
that:
(a) The young person:
(A) Has a serious mental condition; or
(B) Has a mental disease or defect other than a serious mental
condition and presents a substantial danger to others;
(b) The young person can be adequately controlled with
treatment services as a condition of release; and
(c) Necessary supervision and treatment services are available.
Enrolled House Bill 2009 (HB 2009-C) Page 230
(5) The juvenile panel shall order a young person committed to,
or retained in, a hospital or facility designated by the
Department of Human Services { + or the Oregon Health
Authority + } for custody, supervision and treatment subject to
ORS 419C.540 if the juvenile panel finds that the young person:
(a)(A) Has a serious mental condition; or
(B) Has a mental disease or defect other than a serious mental
condition and presents a substantial danger to others; and
(b) Cannot be adequately controlled if conditionally released.
(6) In determining whether a young person should be committed
to or retained in a hospital or facility, conditionally released
or discharged, the primary concern of the juvenile panel is the
protection of society.
(7) In a hearing before the juvenile panel, a young person who
has a mental disease or defect in a state of remission is
considered to have a mental disease or defect if the mental
disease or defect may, with reasonable medical probability,
occasionally become active.
(8) At any time, the juvenile panel may appoint a psychiatrist
certified, or eligible to be certified, by the Oregon Medical
Board in child psychiatry or a licensed psychologist with
expertise in child psychology to examine the young person and
submit a written report to the juvenile panel. Reports filed with
the juvenile panel pursuant to the examination must include, but
need not be limited to, an opinion as to whether the young
person:
(a)(A) Has a serious mental condition; or
(B) Has a mental disease or defect other than a serious mental
condition and presents a substantial danger to others; and
(b) Could be adequately controlled with treatment services as a
condition of release.
(9) The juvenile panel may make a determination regarding
discharge or conditional release based upon the written report
submitted under subsection (8) of this section or ORS 419C.540
(3). If a member of the juvenile panel desires further
information from the examining psychiatrist or licensed
psychologist who submitted the report, the juvenile panel shall
summon the psychiatrist or psychologist to give testimony.
(10) The juvenile panel shall consider all available evidence
that is material, relevant and reliable regarding the issues
before the juvenile panel. Evidence may include, but is not
limited to, the record of the juvenile court adjudication,
information supplied by the attorney representing the state or by
any other interested person, including the young person,
information concerning the young person's mental condition and
the entire psychiatric and juvenile court history of the young
person. All evidence of a type commonly relied upon by
reasonably prudent persons in the conduct of their serious
affairs is admissible at the hearings. Testimony must be taken
upon oath or affirmation of the witness from whom received. The
officer presiding at the hearing shall administer oaths and
affirmations to witnesses.
(11) The standard of proof on all issues at a hearing of the
juvenile panel is by a preponderance of the evidence.
(12)(a) The juvenile panel shall furnish written notice of any
hearing pending under this section within a reasonable time prior
to the hearing to:
(A) The young person about whom the hearing is being conducted;
(B) The attorney representing the young person;
(C) The young person's parents or guardians, if known;
Enrolled House Bill 2009 (HB 2009-C) Page 231
(D) The person having legal custody of the young person;
(E) The Attorney General or other attorney representing the
state, if any; and
(F) The district attorney and the court or juvenile department
of the county in which the young person was adjudicated.
(b) The juvenile panel shall include in the notice required by
paragraph (a) of this subsection:
(A) The time, place and location of the hearing;
(B) The nature of the hearing, the specific action for which
the hearing has been requested, the issues to be considered at
the hearing and a reference to the particular sections of the
statutes and rules involved;
(C) A statement of the authority and jurisdiction under which
the hearing is to be held; and
(D) A statement of all rights under subsection (13) of this
section.
(13) A young person about whom a hearing is being held has the
right:
(a) To appear at all proceedings held under this section,
except juvenile panel deliberations.
(b) To cross-examine all witnesses appearing to testify at the
hearing.
(c) To subpoena witnesses and documents as provided in ORS
161.395.
(d) To be represented by suitable legal counsel possessing
skills and experience commensurate with the nature and complexity
of the case, to consult with counsel prior to the hearing and, if
financially eligible, to have suitable counsel appointed at state
expense.
(e) To examine all information, documents and reports that the
juvenile panel considers and, if the information, documents and
reports are available to the juvenile panel before the hearing,
to examine them prior to the hearing.
(14) Except for deliberations of the juvenile panel, the
juvenile panel shall keep a record of all hearings before the
juvenile panel.
(15) Upon request of a person listed in subsection (12)(a) of
this section or on its own motion, the juvenile panel may
continue a hearing for a reasonable period not to exceed 60 days
to obtain additional information or testimony or for other good
cause shown.
(16) Within 15 days after the conclusion of the hearing, the
juvenile panel shall provide written notice of the juvenile
panel's decision to the young person, the attorney representing
the young person, the young person's parents or guardians, if
known, the person having legal custody of the young person, the
district attorney of the county in which the young person was
adjudicated and the Attorney General or other attorney
representing the state, if any.
(17) The juvenile panel shall maintain and keep current the
medical, social and delinquency history of all young persons. The
juvenile panel shall determine the confidentiality of records
maintained by the juvenile panel pursuant to ORS 192.501 to
192.505.
SECTION 372. ORS 419C.533 is amended to read:
419C.533. (1) The juvenile panel of the Psychiatric Security
Review Board, by rule pursuant to ORS 183.325 to 183.410 and not
inconsistent with law, may implement its policies and set out its
procedure and practice requirements and may promulgate such
Enrolled House Bill 2009 (HB 2009-C) Page 232
interpretive rules as the panel deems necessary or appropriate to
carry out its statutory responsibilities.
(2) The juvenile panel of the Psychiatric Security Review Board
shall adopt rules defining the type of dangerous behavior that
requires the temporary placement of a young person with mental
retardation in a secure hospital or facility.
(3) The juvenile panel of the Psychiatric Security Review Board
shall consult with the Department of Human Services { + about
proposed rules relating to developmental disabilities and the
Oregon Health Authority about proposed rules relating to mental
illness + } before issuing proposed rules for public comment and
before adopting rules under this section.
SECTION 373. ORS 419C.538 is amended to read:
419C.538. (1) When the juvenile panel of the Psychiatric
Security Review Board orders a young person conditionally
released under ORS 419C.532 (4), the juvenile panel may designate
a qualified mental health or developmental disabilities treatment
provider or state, county or local agency to supervise the young
person on release subject to those conditions as the juvenile
panel directs in the order for conditional release. Prior to the
designation, the juvenile panel shall notify the qualified mental
health or developmental disabilities treatment provider or agency
to whom conditional release is contemplated and provide the
qualified mental health or developmental disabilities treatment
provider or agency an opportunity to be heard before the juvenile
panel. After receiving an order entered under ORS 419C.532 (4),
the qualified mental health or developmental disabilities
treatment provider or agency designated shall assume supervision
of the young person pursuant to the direction of the juvenile
panel.
(2) Conditions of release contained in orders entered under ORS
419C.532 (4) may be modified from time to time and conditional
release may be terminated by order of the juvenile panel as
provided in ORS 419C.532 and 419C.542.
(3)(a) As a condition of release, the juvenile panel may
require the young person to report to any state, county or local
mental health or developmental disabilities facility for
evaluation. Whenever medical, psychiatric or psychological
treatment is recommended, the juvenile panel may order the young
person, as a condition of release, to cooperate with and accept
the treatment of the facility.
(b) The facility to which the young person has been referred
for evaluation shall perform the evaluation and submit a written
report of its findings to the juvenile panel. If the facility
finds that treatment of the young person is appropriate, the
facility shall include its recommendations for treatment in the
report to the juvenile panel.
(c) Whenever treatment is provided by the facility, the
facility shall furnish reports to the juvenile panel on a regular
basis concerning the progress of the young person.
(d) The facility shall comply with any other conditions of
release prescribed by order of the juvenile panel.
(4) If at any time it appears to the juvenile panel or the
chairperson of the juvenile panel that a young person has
violated the terms of conditional release or that the mental
health of the young person has changed, the juvenile panel or the
chairperson of the juvenile panel may order the young person
returned to a hospital or facility designated by the Department
of Human Services { + or the Oregon Health Authority + } for
evaluation and treatment. A written order of the juvenile panel,
Enrolled House Bill 2009 (HB 2009-C) Page 233
or the chairperson of the juvenile panel on behalf of the
juvenile panel, is sufficient warrant for any peace officer to
take the young person into custody and transport the young person
accordingly. A peace officer shall execute the order, and the
young person shall be returned as soon as practicable to a
facility designated by the department { + or the authority + }.
Within 20 days following the return of the young person to the
facility designated by the department { + or the authority + },
the juvenile panel shall conduct a hearing. At a hearing required
by this subsection, the state has the burden of proving the young
person's lack of fitness for conditional release.
(5) The community mental health { - and - } { + program
director, the community + } developmental disabilities program
director, the director of the facility providing treatment for
the young person on conditional release, a peace officer or a
person responsible for the supervision of a young person on
conditional release may take a young person into custody or
request that the young person be taken into custody if there is
reasonable cause to believe the young person presents a
substantial danger to others and that the young person is in need
of immediate custody, supervision and treatment. A young person
taken into custody under this subsection must immediately be
transported to a hospital or facility designated by the
department { + or the authority + }. Within 20 days following
the return of the young person to the facility designated by the
department { + or the authority + }, the juvenile panel shall
conduct a hearing. At a hearing required by this subsection, the
state has the burden of proving the young person's lack of
fitness for conditional release.
(6)(a) A young person conditionally released under ORS 419C.532
(4) may apply to the juvenile panel for discharge from or
modification of an order of conditional release on the ground
that the young person no longer has a mental disease or defect
or, if affected by a mental disease or defect other than a
serious mental condition, no longer presents a substantial danger
to others and no longer requires supervision or treatment
services. Within 60 days after receiving an application under
this paragraph, the juvenile panel shall conduct a hearing. At a
hearing required by this paragraph, the young person has the
burden of proving the young person's fitness for discharge or
modification of the order of conditional release. A young person
may not apply for discharge or modification of conditional
release more often than once every six months.
(b) Upon application by any qualified mental health or
developmental disabilities treatment provider or state, county or
local agency responsible for supervision or treatment services
pursuant to an order of conditional release, the juvenile panel
shall conduct a hearing to determine if the conditions of release
should be continued, modified or terminated. The application must
be accompanied by a report setting forth the facts supporting the
application. At a hearing required by this paragraph, the state
has the burden of proving the young person's lack of fitness for
discharge or modification of the order of conditional release.
SECTION 374. ORS 419C.542 is amended to read:
419C.542. (1) A young person committed by the court under ORS
419C.529 to a hospital or facility designated by the Department
of Human Services { + or the Oregon Health Authority + } may not
be held in the hospital or facility for more than 90 days from
the date of the court's commitment order without an initial
hearing before the juvenile panel of the Psychiatric Security
Enrolled House Bill 2009 (HB 2009-C) Page 234
Review Board to determine whether the young person should be
discharged or conditionally released.
(2) A young person may not be held pursuant to an order under
ORS 419C.532 (5) for a period of time exceeding one year without
a hearing before the juvenile panel to determine whether the
young person should be discharged or conditionally released.
(3) When a young person has spent three years on conditional
release, the juvenile panel shall bring the young person before
the juvenile panel no later than 30 days after the expiration of
the three-year period. The juvenile panel shall review the young
person's status and determine whether the young person should be
discharged from the jurisdiction of the board.
(4) Notwithstanding the fact that a young person who is brought
before the juvenile panel under subsection (3) of this section
continues to have a serious mental condition, the juvenile panel
may discharge the young person if the young person did not
exhibit behaviors that presented a substantial danger to others
during the period of conditional release and no longer requires
supervision by the juvenile panel.
SECTION 375. ORS 420.505 is amended to read:
420.505. (1) A youth offender at a youth correction facility
may apply for admission to a hospital or facility designated by
the Department of Human Services { + or the Oregon Health
Authority + }. The application may be made on behalf of the
youth offender by the parents or legal guardian of the youth
offender. However, the superintendent shall not be required to
cause the examination of a youth offender who applies under this
section more often than once in six months.
(2) Within five working days after receipt of the application,
the superintendent of the youth correction facility shall cause
the youth offender to be examined by one or more qualified
persons at the facility and shall request the examination of the
youth offender by one or more qualified persons employed or
designated by the department { + or the Oregon Health
Authority + }. The examination conducted or authorized by the
department { + or the Oregon Health Authority + } shall take
place within five working days after receipt of the request from
the superintendent. The examiners shall prepare separate reports
and shall submit such reports to the superintendent. A copy of
the reports shall be given to the applicant.
(3) If the superintendent finds that there is a probable cause
to believe that the youth offender has a mental illness and that
it would be in the best interests of the youth offender to be
admitted to a hospital or facility designated by the
department { + or the Oregon Health Authority + }, the
superintendent shall notify the department { + or the Oregon
Health Authority + } and shall order the youth offender
transferred pursuant to ORS 179.473.
(4) No youth offender at a youth correction facility
voluntarily admitted to a hospital or facility designated by the
department { + or the Oregon Health Authority + } shall be
detained therein more than 72 hours after the youth offender is
of the age specified in ORS 420A.010 (5) setting the age limits
for which the Oregon Youth Authority may retain legal and
physical custody of the youth offender and has given notice in
writing of the desire of the youth offender to be released. If
the youth offender is under the age specified in ORS 420A.010 (5)
setting the age limits for which the Oregon Youth Authority may
retain legal and physical custody of the youth offender, the
youth offender may be returned to the youth correction facility
Enrolled House Bill 2009 (HB 2009-C) Page 235
after notice in writing has been given by the parent or legal
guardian of the youth offender, that such parent or guardian
desires that the youth offender be discharged from the hospital
or facility designated by the department { + or the Oregon
Health Authority + }.
SECTION 376. ORS 420.870 is amended to read:
420.870. Approval of the youth care center by the Oregon Youth
Authority, required by ORS 420.865, shall be based on reasonable
and satisfactory assurance that:
(1) Adequate physical facilities exist which comply with
applicable rules of the Department of Human Services { + , the
Oregon Health Authority + } and the State Fire Marshal.
(2) There is employment of capable and trained or experienced
personnel.
(3) The youth care programs include educational, vocational,
recreational and counseling opportunities that will be in the
best interests of the youth.
(4) A county must demonstrate that an adequate probation system
for youths exists in the county in order to be eligible for state
support for a youth care center.
SECTION 377. ORS 420A.135 is amended to read:
420A.135. (1) The Oregon Youth Authority may establish up to
five secure regional youth facilities.
(2) A secure regional youth facility shall:
(a) Provide secure incarceration;
(b) Provide education and job and life skills training
including, but not limited to, anger management and self-control;
and
(c) Include a drug and alcohol treatment component that meets
the standards promulgated by the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
430.357.
(3) The Director of the Oregon Youth Authority is solely
responsible for determining which persons committed to, or placed
in the custody of, the youth authority are eligible to
participate in, and are accepted for placement in, a secure
regional youth facility. The juvenile court may recommend to the
Oregon Youth Authority that a youth offender be placed in a
secure regional youth facility, but the recommendation is not
binding on the youth authority.
SECTION 378. ORS 420A.145 is amended to read:
420A.145. (1) The Oregon Youth Authority may establish up to
eight regional youth accountability camps.
(2) A regional youth accountability camp shall:
(a) Be based on a military basic training model that includes
discipline, physical work, physical exercise and military drill;
(b) Provide for cognitive restructuring in conformance with
generally accepted rehabilitative standards; and
(c) Include a drug and alcohol treatment component that meets
the standards promulgated by the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
430.357.
(3) The youth authority may contract with all of the governing
bodies of the counties in a region to administer cooperatively a
regional youth accountability camp subject to the provisions of
ORS 420.011, 420.014, 420A.108 and 420A.111 (5).
(4) The youth authority may contract with any private agency to
administer a regional youth accountability camp subject to the
provisions of ORS 420A.108 and 420A.111 (5).
SECTION 379. ORS 420A.155 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 236
420A.155. (1) The Oregon Youth Authority may establish up to
four regional residential academies.
(2) A regional residential academy shall:
(a) Provide a secure, closed residential campus;
(b) Provide year-round education, job and life skills training,
vocational training and apprenticeship programs; and
(c) Include a drug and alcohol treatment component that meets
the standards promulgated by the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
430.357.
(3) The youth authority may contract with all of the governing
bodies of the counties in a region to administer cooperatively a
regional residential academy subject to the provisions of ORS
420.011, 420.014, 420A.108 and 420A.111 (5).
(4) The youth authority may contract with any private agency to
administer a regional residential academy subject to the
provisions of ORS 420A.108 and 420A.111 (5).
(5) The Director of the Oregon Youth Authority is solely
responsible for determining which persons committed to, or placed
in the physical custody of, the youth authority are eligible to
participate in, and are accepted for, a regional residential
academy. The juvenile court may recommend to the Oregon Youth
Authority that a youth offender be placed in a regional
residential academy, but the recommendation is not binding on the
youth authority.
SECTION 380. ORS 421.504 is amended to read:
421.504. (1) The Department of Corrections, in consultation
with the Oregon Criminal Justice Commission, shall establish a
special alternative incarceration program stressing a highly
structured and regimented routine. The program:
(a) Shall reflect evidence-based practices;
(b) Shall include a component of intensive self-discipline,
physical work and physical exercise;
(c) Shall provide for cognitive restructuring in conformance
with generally accepted rehabilitative standards;
(d) May include a drug and alcohol treatment component that
meets the standards promulgated by the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
430.357; and
(e) Shall be at least 270 days' duration.
(2) The department shall provide capital improvements and
capital construction necessary for the implementation of the
program.
(3) Notwithstanding subsection (1) of this section, the
department may convert the special alternative incarceration
program required by this section into an intensive alternative
incarceration addiction program as described in ORS 421.506 if
the department determines that the needs of offenders in the
department's custody would be better served by an intensive
alternative incarceration addiction program than by the special
alternative incarceration program.
SECTION 381. ORS 426.005 is amended to read:
426.005. (1) As used in ORS 426.005 to 426.390, unless the
context requires otherwise:
(a) { - ' Department' means the Department of Human
Services - } { + ' Authority' means the Oregon Health
Authority + }.
(b) 'Director of the facility' means a superintendent of a
state mental hospital, the chief of psychiatric services in a
Enrolled House Bill 2009 (HB 2009-C) Page 237
community hospital or the person in charge of treatment and
rehabilitation programs at other treatment facilities.
(c) 'Facility' means a state mental hospital, community
hospital, residential facility, detoxification center, day
treatment facility or such other facility as the
{ - department - } { + authority + } determines suitable, any
of which may provide diagnosis and evaluation, medical care,
detoxification, social services or rehabilitation for committed
mentally ill persons.
(d) 'Mentally ill person' means a person who, because of a
mental disorder, is one or more of the following:
(A) Dangerous to self or others.
(B) Unable to provide for basic personal needs and is not
receiving such care as is necessary for health or safety.
(C) A person:
(i) With a chronic mental illness, as defined in ORS 426.495;
(ii) Who, within the previous three years, has twice been
placed in a hospital or approved inpatient facility by the
{ - department - } { + authority + } under ORS 426.060;
(iii) Who is exhibiting symptoms or behavior substantially
similar to those that preceded and led to one or more of the
hospitalizations or inpatient placements referred to in
sub-subparagraph (ii) of this subparagraph; and
(iv) Who, unless treated, will continue, to a reasonable
medical probability, to physically or mentally deteriorate so
that the person will become a person described under either
subparagraph (A) or (B) of this paragraph or both.
(e) 'Nonhospital facility' means any facility, other than a
hospital, that is approved by the { - department - } { +
authority + } to provide adequate security, psychiatric, nursing
and other services to persons under ORS 426.232 or 426.233.
(f) 'Prehearing period of detention' means a period of time
calculated from the initiation of custody during which a person
may be detained under ORS 426.228, 426.231, 426.232 or 426.233.
(2) Whenever a community mental health { - and developmental
disabilities program - } director, director of the facility,
superintendent of a state hospital or administrator of a facility
is referred to, the reference includes any designee such person
has designated to act on the person's behalf in the exercise of
duties.
SECTION 382. ORS 426.010 is amended to read:
426.010. Except as otherwise ordered by the { - Department of
Human Services - } { + Oregon Health Authority + } pursuant to
ORS 179.325, the Oregon State Hospital in Salem, Marion County,
and the Blue Mountain Recovery Center in Pendleton, Umatilla
County, shall be used as state hospitals for the care and
treatment of mentally ill persons who are assigned to the care of
such institutions by the
{ - department - } { + authority + } or who have previously
been committed to such institutions.
SECTION 383. ORS 426.020 is amended to read:
426.020. The superintendent of a hospital referred to in ORS
426.010 shall be a person the { - Department of Human
Services - } { + Oregon Health Authority + } considers
qualified to administer the hospital. If the superintendent of
any hospital is a physician licensed by the Oregon Medical Board,
the superintendent shall serve as chief medical officer. If the
superintendent is not a physician, the Director of { - Human
Services - } { + the Oregon Health Authority + } or the
Enrolled House Bill 2009 (HB 2009-C) Page 238
designee of the director shall appoint a physician to serve as
chief medical officer who shall be in the unclassified service.
SECTION 384. ORS 426.060 is amended to read:
426.060. (1) Commitments to the { - Department of Human
Services - } { + Oregon Health Authority + } shall be made only
by the judge of a circuit court in a county of this state.
(2) The following is a nonexclusive list of powers the
{ - department - } { + authority + } may exercise concerning
the placement of persons committed or persons receiving emergency
care and treatment under ORS 426.070, 426.228 to 426.235 or
426.237:
(a) In its discretion and for reasons which are satisfactory to
the { - department - } { + authority + }, the
{ - department - } { + authority + } may direct any
court-committed person to the facility best able to treat the
person. The { - authority of the department - } { + decision
of the authority + } on such matters shall be final.
(b) At any time, for good cause and in the best interest of the
mentally ill person, the { - department - } { + authority + }
may transfer a committed person from one facility to another.
When transferring a person under this paragraph, the
{ - department - } { + authority + } shall make the transfer:
(A) If the transfer is from a facility in one class to a
facility of the same class, as provided by rule of the
{ - department - } { + authority + };
(B) If the transfer is from a facility in one class to a
facility in a less restrictive class, by following the procedures
for trial visits under ORS 426.273; and
(C) If the transfer is from a facility in one class to a
facility in a more restrictive class, by following the procedures
under ORS 426.275.
(c) At any time, for good cause and in the best interest of the
mentally ill person, the { - department - } { + authority + }
may transfer a person receiving emergency care and treatment
under ORS 426.070 or 426.228 to 426.235, or intensive treatment
under ORS 426.237, between hospitals and nonhospital facilities
approved by the
{ - department - } { + authority + } to provide emergency
care or treatment as defined by rule of the { - department - }
{ + authority + }.
(d) Pursuant to its rules, the { - department - } { +
authority + } may delegate to a community mental health { - and
developmental disabilities - } program director the
responsibility for assignment of mentally ill persons to suitable
facilities or transfer between such facilities under conditions
which the { - department - } { + authority + } may define.
SECTION 385. ORS 426.070 is amended to read:
426.070. (1) Any of the following may initiate commitment
procedures under this section by giving the notice described
under subsection (2) of this section:
(a) Two persons;
(b) The county health officer; or
(c) Any magistrate.
(2) For purposes of subsection (1) of this section, the notice
must comply with the following:
(a) It must be in writing under oath;
(b) It must be given to the community mental health { - and
developmental disabilities - } program director or a designee of
the director in the county where the allegedly mentally ill
person resides;
Enrolled House Bill 2009 (HB 2009-C) Page 239
(c) It must state that a person within the county other than
the person giving the notice is a mentally ill person and is in
need of treatment, care or custody;
(d) If the commitment proceeding is initiated by two persons
under subsection (1)(a) of this section, it may include a request
that the court notify the two persons:
(A) Of the issuance or nonissuance of a warrant under this
section; or
(B) Of the court's determination under ORS 426.130 (1); and
(e) If the notice contains a request under paragraph (d) of
this subsection, it must also include the addresses of the two
persons making the request.
(3) Upon receipt of a notice under subsections (1) and (2) of
this section or when notified by a circuit court that the court
received notice under ORS 426.234, the community mental health
{ - and developmental disabilities - } program director, or
designee of the director, shall:
(a) Immediately notify the judge of the court having
jurisdiction for that county under ORS 426.060 of the
notification described in subsections (1) and (2) of this
section.
(b) Immediately notify the { - Department of Human
Services - } { + Oregon Health Authority + } if commitment is
proposed because the person appears to be a mentally ill person,
as defined in ORS 426.005 (1)(d)(C). When such notice is
received, the { - department - } { + authority + } may verify,
to the extent known by the { - department - }
{ + authority + }, whether or not the person meets the criteria
described in ORS 426.005 (1)(d)(C)(i) and (ii) and so inform the
community mental health { - and developmental disabilities - }
program director or designee of the director.
(c) Initiate an investigation under ORS 426.074 to determine
whether there is probable cause to believe that the person is in
fact a mentally ill person.
(4) Upon completion, a recommendation based upon the
investigation report under ORS 426.074 shall be promptly
submitted to the court. If the community mental health { - and
developmental disabilities - } program director determines that
probable cause does not exist to believe that a person released
from detention under ORS 426.234 (2)(c) or (3)(b) is a mentally
ill person, the community mental health { - and developmental
disabilities - } program director shall not submit a
recommendation to the court.
(5) When the court receives notice under subsection (3) of this
section:
(a) If the court, following the investigation, concludes that
there is probable cause to believe that the person investigated
is a mentally ill person, it shall, through the issuance of a
citation as provided in ORS 426.090, cause the person to be
brought before it at a time and place as it may direct, for a
hearing under ORS 426.095 to determine whether the person is
mentally ill. The person shall be given the opportunity to appear
voluntarily at the hearing unless the person fails to appear or
unless the person is detained pursuant to paragraph (b) of this
subsection.
(b)(A) The judge may cause the allegedly mentally ill person to
be taken into custody pending the investigation or hearing by
issuing a warrant of detention under this subsection. A judge may
only issue a warrant under this subsection if the court finds
that there is probable cause to believe that failure to take the
Enrolled House Bill 2009 (HB 2009-C) Page 240
person into custody would pose serious harm or danger to the
person or to others.
(B) To cause the custody of a person under this paragraph, the
judge must issue a warrant of detention to the community mental
health { - and developmental disabilities - } program director
or designee, the sheriff of the county or designee, directing
that person to take the allegedly mentally ill person into
custody and produce the person at the time and place stated in
the warrant.
(C) At the time the person is taken into custody, the person
shall be informed by the community mental health { - and
developmental disabilities - } program director, the sheriff or
a designee of the following:
(i) The person's rights with regard to representation by or
appointment of counsel as described in ORS 426.100;
(ii) The warning under ORS 426.123; and
(iii) The person's right, if the community mental health
{ - and developmental disabilities - } program director,
sheriff or designee reasonably suspects that the person is a
foreign national, to communicate with an official from the
consulate of the person's country. A community mental health
{ - and developmental disabilities - } program director,
sheriff or designee is not civilly or criminally liable for
failure to provide the information required by this
sub-subparagraph. Failure to provide the information required by
this sub-subparagraph does not in itself constitute grounds for
the exclusion of evidence that would otherwise be admissible in a
proceeding.
(D) The court may make any orders for the care and custody of
the person prior to the hearing as it considers necessary.
(c) If the notice includes a request under subsection (2)(d)(A)
of this section, the court shall notify the two persons of the
issuance or nonissuance of a warrant under this subsection.
SECTION 386. ORS 426.072 is amended to read:
426.072. (1) A hospital or nonhospital facility and a treating
physician must comply with the following when an allegedly
mentally ill person is placed in custody at the hospital or
nonhospital facility:
(a) By a warrant of detention under ORS 426.070;
(b) By a peace officer under ORS 426.228 or other person
authorized under ORS 426.233; or
(c) By a physician under ORS 426.232.
(2) In circumstances described under subsection (1) of this
section, the hospital or nonhospital facility and treating
physician must comply with the following:
(a) The person shall receive the care, custody and treatment
required for mental and physical health and safety;
(b) The treating physician shall report any care, custody and
treatment to the court as required in ORS 426.075;
(c) All methods of treatment, including the prescription and
administration of drugs, shall be the sole responsibility of the
treating physician. However, the person shall not be subject to
electroshock therapy or unduly hazardous treatment and shall
receive usual and customary treatment in accordance with medical
standards in the community;
(d) The treating physician shall be notified immediately of any
use of mechanical restraints on the person. Every use of a
mechanical restraint and the reasons therefor shall be made a
part of the clinical record of the person over the signature of
the treating physician; and
Enrolled House Bill 2009 (HB 2009-C) Page 241
(e) The treating physician shall give the person the warning
under ORS 426.123 at times the treating physician determines the
person will reasonably understand the notice. This paragraph only
requires the notice to be given as often as the physician
determines is necessary to assure that the person is given an
opportunity to be aware of the notice.
(3) The { - Department of Human Services - } { + Oregon
Health Authority + } shall adopt rules necessary to carry out
this section, including rules regarding the content of the
medical record compiled during the current period of custody.
SECTION 387. ORS 426.074 is amended to read:
426.074. The following is applicable to an investigation
initiated by a community mental health { - and developmental
disabilities - } program director, or a designee of the
director, as part of commitment procedures under ORS 426.070 and
426.228 to 426.235:
(1) If the allegedly mentally ill person is held in custody
before the hearing the investigation shall be completed at least
24 hours before the hearing under ORS 426.095, otherwise the
investigation shall comply with the following time schedule:
(a) If the allegedly mentally ill person can be located, the
investigator shall contact the person within three judicial days
from the date the community mental health { - and developmental
disabilities - } program director or a designee receives a
notice under ORS 426.070 alleging that the person is mentally
ill.
(b) Within 15 days from the date the community mental health
{ - and developmental disabilities - } program director or a
designee receives a notice under ORS 426.070 alleging that a
person is mentally ill, one of the following shall occur:
(A) The investigation shall be completed and submitted to the
court.
(B) An application for extension shall be made to the court
under paragraph (c) of this subsection.
(c) The community mental health { - and developmental
disabilities - } program director, a designee or the
investigator may file for an extension of the time under
paragraph (b) of this subsection only if one of the following
occurs:
(A) A treatment option less restrictive than involuntary
in-patient commitment is actively being pursued.
(B) The allegedly mentally ill person cannot be located.
(d) A court may grant an extension under paragraph (c) of this
subsection for a time and upon the terms and conditions the court
considers appropriate.
(2) This subsection establishes a nonexclusive list of
provisions applicable to the content of the investigation, as
follows:
(a) The investigation conducted should, where appropriate,
include an interview or examination of the allegedly mentally ill
person in the home of the person or other place familiar to the
person.
(b) Whether or not the allegedly mentally ill person consents,
the investigation should include interviews with any persons that
the investigator has probable cause to believe have pertinent
information regarding the investigation. If the allegedly
mentally ill person objects to the contact with any person, the
objection shall be noted in the investigator's report.
(c) The investigator shall be allowed access to physicians,
nurses or social workers and to medical records compiled during
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the current involuntary prehearing period of detention to
determine probable cause and to develop alternatives to
commitment. If commitment is proposed because the person appears
to be a mentally ill person as defined in ORS 426.005 (1)(d)(C),
the investigator shall be allowed access to medical records
necessary to verify the existence of criteria described in ORS
426.005 (1)(d)(C). The investigator shall include pertinent parts
of the medical record in the investigation report. Records and
communications described in this paragraph and communications
related thereto are not privileged under ORS 40.230, 40.235,
40.240 or 40.250.
(3) A copy of the investigation report shall be provided as
soon as possible, but in no event later than 24 hours prior to
the hearing, to the allegedly mentally ill person and to that
person's counsel. Copies shall likewise be provided to counsel
assisting the court, to the examiners and to the court for use in
questioning witnesses.
SECTION 388. ORS 426.075 is amended to read:
426.075. This section establishes procedures that are required
to be followed before the hearing if a court, under ORS 426.070,
orders a hearing under ORS 426.095. The following apply as
described:
(1) The court shall be fully advised of all drugs and other
treatment known to have been administered to the allegedly
mentally ill person that may substantially affect the ability of
the person to prepare for or function effectively at the hearing.
The following shall advise the court as required by this
subsection:
(a) When not otherwise provided by paragraph (b) of this
subsection, the community mental health { - and developmental
disabilities - } program director or designee.
(b) When the person has been detained by a warrant of detention
under ORS 426.070, 426.180, 426.228, 426.232 or 426.233, the
treating physician.
(2) The court shall appoint examiners under ORS 426.110
sufficiently long before the hearing so that they may begin their
preparation for the hearing. The records established by the
{ - Department of Human Services - } { + Oregon Health
Authority + } by rule and the investigation report shall be made
available to the examiners at least 24 hours before the hearing
in order that the examiners may review the medical record and
have an opportunity to inquire of the medical personnel
concerning the treatment of the allegedly mentally ill person
relating to the detention period prior to the hearing.
(3) The medical record described in subsection (2) of this
section shall be made available to counsel for the allegedly
mentally ill person at least 24 hours prior to the hearing.
(4) When requested by a party to the action, the party's
attorney shall subpoena physicians who are or have been treating
the allegedly mentally ill person. Any treating physician
subpoenaed under this subsection shall be subpoenaed as an expert
witness.
SECTION 389. ORS 426.095 is amended to read:
426.095. The following is applicable to a commitment hearing
held by a court under ORS 426.070:
(1) The hearing may be held in a hospital, the person's home or
in some other place convenient to the court and the allegedly
mentally ill person.
(2) The court shall hold the hearing at the time established
according to the following:
Enrolled House Bill 2009 (HB 2009-C) Page 243
(a) Except as provided by paragraph (b) or (c) of this
subsection, a hearing shall be held five judicial days from the
day a court under ORS 426.070 issues a citation provided under
ORS 426.090.
(b) Except as provided by paragraph (c) of this subsection, if
a person is detained by a warrant of detention under ORS 426.070,
a hearing shall be held within five judicial days of the
commencement of detention.
(c) If requested under this paragraph, the court, for good
cause, may postpone the hearing for not more than five judicial
days in order to allow preparation for the hearing. The court may
make orders for the care and custody of the person during a
postponement as it deems necessary. If a person is detained
before a hearing under ORS 426.070, 426.180, 426.228, 426.232 or
426.233 and the hearing is postponed under this paragraph, the
court, for good cause, may allow the person to be detained during
the postponement if the postponement is requested by the person
or the legal counsel of the person. Any of the following may
request a postponement under this paragraph:
(A) The allegedly mentally ill person.
(B) The legal counsel or guardian of the allegedly mentally ill
person.
(C) The person representing the state's interest.
(3) The allegedly mentally ill person and the person
representing the state's interest shall have the right to
cross-examine all the following:
(a) Witnesses.
(b) The person conducting the investigation.
(c) The examining physicians or other qualified persons
recommended by the { - Department of Human Services - } { +
Oregon Health Authority + } who have examined the person.
(4) The provisions of ORS 40.230, 40.235, 40.240 and 40.250
shall not apply to and the court may consider as evidence any of
the following:
(a) Medical records for the current involuntary prehearing
period of detention.
(b) Statements attributed by the maker of the medical records
or the investigation report to witnesses concerning their own
observations in the absence of objection or if such persons are
produced as witnesses at the hearing available for
cross-examination.
(c) The testimony of any treating physicians, nurses or social
workers for the prehearing period of detention. Any treating
physician, nurse or social worker who is subpoenaed as a witness
for the proceeding shall testify as an expert witness under the
provisions of ORS 40.410, 40.415, 40.420 and 40.425 and is
subject to treatment as an expert witness in the payment of
witness fees and costs.
(d) The investigation report prepared under ORS 426.074.
Subject to the following, the investigation report shall be
introduced in evidence:
(A) Introduction of the report under this paragraph does not
require the consent of the allegedly mentally ill person.
(B) Upon objection by any party to the action, the court shall
exclude any part of the investigation report that may be excluded
under the Oregon Evidence Code on grounds other than those set
forth in ORS 40.230, 40.235, 40.240 or 40.250.
(C) Neither the investigation report nor any part thereof shall
be introduced into evidence under this paragraph unless the
investigator is present during the proceeding to be
Enrolled House Bill 2009 (HB 2009-C) Page 244
cross-examined or unless the presence of the investigator is
waived by the allegedly mentally ill person or counsel for the
allegedly mentally ill person.
SECTION 390. ORS 426.110 is amended to read:
426.110. The following requirements relating to the appointment
of examiners for purposes of a hearing under ORS 426.095 apply as
described:
(1) The judge shall appoint one qualified examiner. If
requested, the judge shall appoint one additional qualified
examiner. A request for an additional examiner under this
subsection must be made in writing and must be made by the
allegedly mentally ill person or the attorney for the allegedly
mentally ill person.
(2) To be qualified for purposes of this section, an examiner
must meet all of the following qualifications:
(a) The person must agree to be an examiner.
(b) The person must be one of the following:
(A) A physician licensed by the Oregon Medical Board who is
competent to practice psychiatry as provided by the
{ - Department of Human Services - } { + Oregon Health
Authority + } by rule.
(B) Certified as a mental health examiner qualified to make
examinations for involuntary commitment proceedings by the
{ - department - } { + authority + }. The { - department
has authority to - } { + authority may + }establish, by rule,
requirements for certification as a mental health examiner for
purposes of this subparagraph.
(3) The cost of examiners under this section shall be paid as
provided under ORS 426.250.
SECTION 391. ORS 426.120 is amended to read:
426.120. (1) Persons appointed under ORS 426.110 to conduct the
examination shall do the following:
(a) Examine the person as to mental condition;
(b) Initiate the examination process prior to the hearing. Any
failure to comply with this paragraph shall not, in itself,
constitute sufficient grounds to challenge the examination
conducted by an examiner;
(c) Make their separate reports in writing, under oath, to the
court; and
(d) Upon completion of the hearing, file the reports with the
clerk of the court.
(2) The following is a nonexclusive list of requirements
relating to the content of examination reports prepared under
subsection (1) of this section:
(a) If the examining persons find, and show by their reports,
that the person examined is a mentally ill person, the reports
shall include a recommendation as to the type of treatment
facility best calculated to help the person recover from mental
illness.
(b) Each report shall also advise the court whether in the
opinion of the examiner the mentally ill person would cooperate
with and benefit from a program of voluntary treatment.
(c) Reports shall contain the information required by the
{ - Department of Human Services - } { + Oregon Health
Authority + } by rule. The { - department - } { +
authority + } shall adopt rules necessary to carry out this
paragraph.
(3) The examiner shall be allowed access to physicians, nurses
or social workers and to medical records compiled during the
current involuntary prehearing period of detention and the
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investigation report. Records and communications described in
this subsection and communications related thereto are not
privileged under ORS 40.230, 40.235, 40.240 or 40.250.
SECTION 392. ORS 426.127 is amended to read:
426.127. The following provisions are applicable to outpatient
commitment under ORS 426.130 as described:
(1) The { - Department of Human Services - } { + Oregon
Health Authority + } may only place a person in an outpatient
commitment if an adequate treatment facility is available.
(2) Conditions for the outpatient commitment shall be set at
the time of the hearing under ORS 426.095 by the community mental
health { - and developmental disabilities - } program
director, or a designee for the director, for the county in which
the hearing takes place. The conditions shall include, but not be
limited to, the following:
(a) Provision for outpatient care.
(b) A designation of a facility, service or other provider to
provide care or treatment.
(3) A copy of the conditions shall be given to all of the
persons described in ORS 426.278.
(4) Any outpatient commitment ordered under this section is
subject to the provisions under ORS 426.275.
(5) The community mental health { - and developmental
disabilities - } program director or designee, for the county
where a person is on outpatient commitment, may modify the
conditions for outpatient commitment when a modification is in
the best interest of the person. The community mental health
{ - and developmental disabilities - } program director or
designee shall send notification of such changes and the reasons
for the changes to all those who received a copy of the original
conditions under ORS 426.278.
SECTION 393. ORS 426.130 is amended to read:
426.130. (1) After hearing all of the evidence, and reviewing
the findings of the examining persons, the court shall determine
whether the person is mentally ill. If, in the opinion of the
court, the person is:
(a) Not mentally ill, the person shall be discharged forthwith.
(b) Mentally ill based upon clear and convincing evidence, the
court:
(A) Shall order the release of the individual and dismiss the
case if:
(i) The mentally ill person is willing and able to participate
in treatment on a voluntary basis; and
(ii) The court finds that the person will probably do so.
(B) May order conditional release under this subparagraph
subject to the qualifications and requirements under ORS 426.125.
If the court orders conditional release under this subparagraph,
the court shall establish a period of commitment for the
conditional release.
(C) May order commitment of the individual to the
{ - Department of Human Services - } { + Oregon Health
Authority + } for treatment if, in the opinion of the court,
subparagraph (A) or (B) of this paragraph is not in the best
interest of the mentally ill person. If the court orders
commitment under this subparagraph:
(i) The court shall establish a period of commitment.
(ii) The { - department - } { + authority + } may place the
committed person in outpatient commitment under ORS 426.127.
(D) Shall order that the person be prohibited from purchasing
or possessing a firearm if, in the opinion of the court, there is
Enrolled House Bill 2009 (HB 2009-C) Page 246
a reasonable likelihood the person would constitute a danger to
self or others or to the community at large as a result of the
person's mental or psychological state as demonstrated by past
behavior or participation in incidents involving unlawful
violence or threats of unlawful violence, or by reason of a
single incident of extreme, violent, unlawful conduct. When a
court makes an order under this subparagraph, the court shall
cause a copy of the order to be delivered to the sheriff of the
county who will enter the information into the Law Enforcement
Data System.
(2) A court that orders a conditional release or a commitment
under this section shall establish a period of commitment for the
person subject to the order. Any period of commitment ordered for
commitment or conditional release under this section shall be for
a period of time not to exceed 180 days.
(3) If the commitment proceeding was initiated under ORS
426.070 (1)(a) and if the notice included a request under ORS
426.070 (2)(d)(B), the court shall notify the two persons of the
court's determination under subsection (1) of this section.
SECTION 394. ORS 426.140 is amended to read:
426.140. (1) No person, not incarcerated upon a criminal
charge, who has been adjudged a mentally ill person or one
against whom commitment proceedings have been instituted shall be
confined in any prison, jail or other enclosure where those
charged with a crime or a violation of a municipal ordinance are
incarcerated, unless the person represents an immediate and
serious danger to staff or physical facilities of a hospital or
other facility approved by the { - Department of Human
Services - } { + Oregon Health Authority + } for the care,
custody and treatment of the person.
(2) No allegedly mentally ill person who has been taken into
custody shall be confined, either before or after the commitment
hearing, without an attendant in direct charge of the person;
and, if not confined in a community hospital, the sheriff or
community mental health { - and developmental disabilities - }
program director having the person in custody shall select some
suitable person to act as attendant in quarters suitable for the
comfortable, safe and humane confinement of the person and
approved by the
{ - department - } { + authority + }.
SECTION 395. ORS 426.150 is amended to read:
426.150. (1) Upon receipt of the order of commitment, the
{ - Department of Human Services - } { + Oregon Health
Authority + } or its designee shall take the mentally ill person
into its custody, and insure the safekeeping and proper care of
the person until delivery is made to an assigned treatment
facility or its representative. The representative of the
treating facility to which the person has been assigned,
accompanied by any assistants the { - department - } { +
authority + } or its designee may deem necessary, shall proceed
to the place where the person is to be delivered into custody,
and upon demand shall be given custody of the mentally ill
person, together with the certified record required by ORS
426.170. The representative shall issue appropriate receipts
therefor and immediately proceed to transport the committed
mentally ill person safely to the facility to which the person
has been assigned by the { - department - } { + authority + }
and there make delivery of the person and the record to the
director or a designated employee of the facility. In taking
custody of the person, the { - department - } { +
Enrolled House Bill 2009 (HB 2009-C) Page 247
authority + }, its designee, or the representative of the
facility has all the powers provided by ORS 133.225 and 161.255
and may require the assistance of any peace officer or other
person.
(2) The committing judge, upon approval of the examining
physicians or other qualified persons as recommended by the
{ - department - } { + authority + } and upon request of a
guardian, friend or relative of the mentally ill person, may
authorize the guardian, friend or relative to transport the
person to the designated facility when the committing judge
determines that means of transportation would not be detrimental
to the welfare of the mentally ill person or to the public.
SECTION 396. ORS 426.170 is amended to read:
426.170. If any person is adjudged mentally ill and ordered
committed to the { - Department of Human Services - } { +
Oregon Health Authority + }, a copy of the complete record in the
case, certified to by the court clerk or court administrator,
shall be given to the health officer of the county, or to the
sheriff, for delivery to the director of the facility to which
such mentally ill person is assigned. The record shall include
the name, residence, nativity, sex and age of such mentally ill
person and all other information that may be required by the
rules and regulations promulgated by the { - department - }
{ + authority + }.
SECTION 397. ORS 426.180 is amended to read:
426.180. (1) This section applies to commitments of a person
from a reservation for land-based tribes of Native Americans
when, under federal law, the state does not have jurisdiction of
commitments on the reservation.
(2) When this section is applicable as provided under
subsection (1) of this section, a person alleged to be mentally
ill by affidavit of two other persons may be admitted to a state
hospital for persons with mental illness for emergency treatment,
care and custody, provided such affidavit includes or is
accompanied by all of the following:
(a) The circumstances constituting the emergency.
(b) Written application for admission to the hospital, executed
in duplicate.
(c) A certificate to the effect that the person is so mentally
ill as to be in need of immediate hospitalization.
(d) A medical history, including the name, condition, sex and
age of the person.
(e) The name and address of the nearest relative or legal
guardian, if any, of the person.
(3) The certificates, applications and medical histories shall
be made upon forms prescribed by the { - Department of Human
Services - } { + Oregon Health Authority + } and shall be
executed by the county health officer or by two physicians
licensed by the Oregon Medical Board, none of whom shall be
related to the person by blood or marriage.
(4) When a person is admitted to a state hospital under this
section, any physician treating the person shall give the person
the warning under ORS 426.123.
(5) This section may be applied as provided by agreement with
the ruling body of the reservation. Payment of costs for a
commitment made under this section shall be as provided under ORS
426.250.
SECTION 398. ORS 426.217 is amended to read:
426.217. At any time after commitment by the court, the person,
with the approval of the { - Department of Human Services - }
Enrolled House Bill 2009 (HB 2009-C) Page 248
{ + Oregon Health Authority + } or its designee, may change the
status of the person to that of a voluntary
patient. Notwithstanding ORS 426.220, any person who alters
status to that of a voluntary patient under this section shall be
released from the treating facility within 72 hours of the
request of the person for release.
SECTION 399. ORS 426.220 is amended to read:
426.220. (1) Pursuant to rules and regulations promulgated by
the { - Department of Human Services - } { + Oregon Health
Authority + }, the superintendent of any state hospital for the
treatment and care of persons with mental illness may admit and
hospitalize therein as a patient, any person who may have a
nervous disorder or a mental illness, and who voluntarily has
made written application for such admission. No person under the
age of 18 years shall be admitted as a patient to any such state
hospital unless an application therefor in behalf of the person
has been executed by the parent, adult next of kin or legal
guardian of the person. Except when a period of longer
hospitalization has been imposed as a condition of admission,
pursuant to rules and regulations of the
{ - department - } { + authority + }, no person voluntarily
admitted to any state hospital shall be detained therein more
than 72 hours after the person, if at least 18 years of age, has
given notice in writing of a desire to be discharged therefrom,
or, if the patient is under the age of 18 years, after notice in
writing has been given by the parent, adult next of kin or legal
guardian of the person that such parent, adult next of kin or
legal guardian desires that such person be discharged therefrom.
(2) Any person voluntarily admitted to a state hospital
pursuant to this section may upon application and notice to the
superintendent of the hospital concerned, be granted a temporary
leave of absence from the hospital if such leave, in the opinion
of the superintendent, will not interfere with the successful
treatment or examination of the applicant for leave.
(3) Upon admission or discharge of a minor to or from a state
hospital the superintendent shall immediately notify the parent
or guardian.
SECTION 400. ORS 426.223 is amended to read:
426.223. In retaking custody of a mentally ill person who has
been committed to the { - Department of Human Services - }
{ + Oregon Health Authority + } under ORS 426.130 and who has,
without lawful authority, left the custody of the facility to
which the person has been assigned under ORS 426.060, or in the
case of an allegedly mentally ill person who is in custody under
ORS 426.070, 426.095, 426.228 to 426.235 or 426.237 at a hospital
or nonhospital facility and who has, without lawful authority,
left the hospital or nonhospital facility, the facility director
or designee has all the powers provided by ORS 133.225 and
161.255 and may require the assistance of any peace officer or
other person.
SECTION 401. ORS 426.225 is amended to read:
426.225. (1) If any person who has been committed to the
{ - Department of Human Services - } { + Oregon Health
Authority + } under ORS 426.127 or 426.130 (1)(b)(B) or (C)
requests, during this period of commitment, voluntary admission
to a state hospital, the superintendent shall cause the person to
be examined immediately by a physician. If the physician finds
the person to be in need of immediate care or treatment for
mental illness, the person shall be voluntarily admitted upon
request of the person.
Enrolled House Bill 2009 (HB 2009-C) Page 249
(2) If any person who has been committed to the
{ - department - } { + authority + } under ORS 426.127 or
426.130 (1)(b)(B) or (C) requests, during this period of
commitment, voluntary admission to a facility approved by the
{ - department - } { + authority + }, the administrator of the
facility shall cause the person to be examined immediately by a
physician. If the physician finds the person to be in need of
immediate care or treatment for mental illness, and the
{ - department - } { + authority + } grants approval, the
person shall be voluntarily admitted upon request of the person.
SECTION 402. ORS 426.228 is amended to read:
426.228. (1) A peace officer may take into custody a person who
the officer has probable cause to believe is dangerous to self or
to any other person and is in need of immediate care, custody or
treatment for mental illness. As directed by the community mental
health { - and developmental disabilities - } program
director, a peace officer shall remove a person taken into
custody under this section to the nearest hospital or nonhospital
facility approved by the { - Department of Human Services - }
{ + Oregon Health Authority + }. The officer shall prepare a
written report and deliver it to the treating physician. The
report shall state:
(a) The reason for custody;
(b) The date, time and place the person was taken into custody;
and
(c) The name of the community mental health { - and
developmental disabilities - } program director and a telephone
number where the director may be reached at all times.
(2) A peace officer shall take a person into custody when the
community mental health { - and developmental disabilities - }
program director, pursuant to ORS 426.233, notifies the peace
officer that the director has probable cause to believe that the
person is imminently dangerous to self or to any other person. As
directed by the community mental health { - and developmental
disabilities - } program director, the peace officer shall remove
the person to a hospital or nonhospital facility approved by the
{ - department - } { + authority + }. The community mental
health { - and developmental disabilities - } program director
shall prepare a written report that the peace officer shall
deliver to the treating physician. The report shall state:
(a) The reason for custody;
(b) The date, time and place the person was taken into custody;
and
(c) The name of the community mental health { - and
developmental disabilities - } program director and a telephone
number where the director may be reached at all times.
(3) If more than one hour will be required to transport the
person to the hospital or nonhospital facility from the location
where the person was taken into custody, the peace officer shall
obtain, if possible, a certificate from a physician licensed by
the Oregon Medical Board stating that the travel will not be
detrimental to the person's physical health and that the person
is dangerous to self or to any other person and is in need of
immediate care or treatment for mental illness. The physician
shall have personally examined the allegedly mentally ill person
within 24 hours prior to signing the certificate.
(4) When a peace officer or other authorized person, acting
under this section, delivers a person to a hospital or
nonhospital facility, a physician licensed by the Oregon Medical
Board shall examine the person immediately. If the physician
Enrolled House Bill 2009 (HB 2009-C) Page 250
finds the person to be in need of emergency care or treatment for
mental illness, the physician shall proceed under ORS 426.232,
otherwise the person shall not be retained in custody. If the
person is to be released from custody, the peace officer or the
community mental health { - and developmental disabilities - }
program director shall return the person to the place where the
person was taken into custody unless the person declines that
service.
(5) A peace officer may transfer a person in custody under this
section to the custody of a person authorized by the county
governing body under ORS 426.233 (3). The peace officer may meet
the authorized person at any location that is in accordance with
ORS 426.140 to effect the transfer. When transferring a person in
custody to an authorized person, the peace officer shall deliver
the report required under subsections (1) and (2) of this section
to the authorized person.
(6) A person authorized under ORS 426.233 (3) shall take a
person into custody when directed to do so by a peace officer or
by a community mental health { - and developmental
disabilities - } program director under ORS 426.233.
(7) A person authorized under ORS 426.233 (3) shall perform the
duties of the peace officer or the community mental health
{ - and developmental disabilities - } program director
required by this section and ORS 426.233 if the peace officer or
the director has not already done so.
(8) A person authorized under ORS 426.233 (3) may transfer a
person in custody under this section to the custody of another
person authorized under ORS 426.233 (3) or a peace officer. The
authorized person transferring custody may meet another
authorized person or a peace officer at any location that is in
accordance with ORS 426.140 to effect the transfer.
(9)(a) When a peace officer takes a person into custody under
this section, and the peace officer reasonably suspects that the
person is a foreign national, the peace officer shall inform the
person of the person's right to communicate with an official from
the consulate of the person's country.
(b) A peace officer is not civilly or criminally liable for
failure to provide the information required by this subsection.
Failure to provide the information required by this subsection
does not in itself constitute grounds for the exclusion of
evidence that would otherwise be admissible in a proceeding.
SECTION 403. ORS 426.231 is amended to read:
426.231. (1) A physician licensed by the Oregon Medical Board
may hold a person for transportation to a treatment facility for
up to 12 hours in a health care facility licensed under ORS
chapter 431 and approved by the { - Department of Human
Services - } { + Oregon Health Authority + } if:
(a) The physician believes the person is dangerous to self or
to any other person and is in need of emergency care or treatment
for mental illness;
(b) The physician is not related to the person by blood or
marriage; and
(c) An admitting physician at the receiving facility consents
to the transporting.
(2) Before transporting the person, the physician shall prepare
a written statement that:
(a) The physician has examined the person within the preceding
12 hours;
Enrolled House Bill 2009 (HB 2009-C) Page 251
(b) An admitting physician at the receiving facility has
consented to the transporting of the person for examination and
admission if appropriate; and
(c) The physician believes the person is dangerous to self or
to any other person and is in need of emergency care or treatment
for mental illness.
(3) The written statement required by subsection (2) of this
section authorizes a peace officer, a person authorized under ORS
426.233 or the designee of a community mental health { - and
developmental disabilities - } program director to transport a
person to the treatment facility indicated on the statement.
SECTION 404. ORS 426.232 is amended to read:
426.232. (1) When a physician licensed to practice medicine by
the Oregon Medical Board believes a person who is brought to a
hospital or nonhospital facility by a peace officer under ORS
426.228, a person authorized under ORS 426.233 or a person who is
at a hospital or nonhospital facility is dangerous to self or to
any other person and is in need of emergency care or treatment
for mental illness, the physician may do one of the following:
(a) After consulting with a physician or a qualified mental
health professional, as defined by rule of the { - Department
of Human Services - } { + Oregon Health Authority + }, detain
the person and cause the person to be admitted or, if the person
is already admitted, cause the person to be retained in a
hospital where the physician has admitting privileges or is on
staff. Neither the physician nor the qualified mental health
professional may be related by blood or marriage to the person.
(b) Approve the person for emergency care or treatment at a
nonhospital facility approved by the { - department - }
{ + authority + }.
(2) When approving a person for emergency care or treatment at
a nonhospital facility under this section, the physician shall
notify immediately the community mental health { - and
developmental disabilities - } program director in the county
where the person was taken into custody and maintain the person,
if the person is being held at a hospital, for as long as is
feasible given the needs of the person for mental or physical
health or safety. However, under no circumstances may the person
be held for longer than five judicial days.
SECTION 405. ORS 426.233 is amended to read:
426.233. (1)(a) A community mental health { - and
developmental disabilities - } program director operating under
ORS 430.610 to 430.695 or a designee thereof, under authorization
of a county governing body, may take one of the actions listed in
paragraph (b) of this subsection when the community mental health
{ - and developmental disabilities - } program director or
designee has probable cause to believe a person:
(A) Is dangerous to self or to any other person and is in need
of immediate care, custody or treatment for mental illness; or
(B)(i) Is a mentally ill person placed on conditional release
under ORS 426.125, outpatient commitment under ORS 426.127 or
trial visit under ORS 426.273; and
(ii) Is dangerous to self or to any other person or is unable
to provide for basic personal needs and is not receiving the care
that is necessary for health and safety and is in need of
immediate care, custody or treatment for mental illness.
(b) The community mental health { - and developmental
disabilities - } program director or designee under the
circumstances set out in paragraph (a) of this subsection may:
Enrolled House Bill 2009 (HB 2009-C) Page 252
(A) Notify a peace officer to take the person into custody and
direct the officer to remove the person to a hospital or
nonhospital facility approved by the { - Department of Human
Services - } { + Oregon Health Authority + };
(B) Authorize involuntary admission of, or, if already
admitted, cause to be involuntarily retained in a nonhospital
facility approved by the { - department - }
{ + authority + }, a person approved for care or treatment at a
nonhospital facility by a physician under ORS 426.232;
(C) Notify a person authorized under subsection (3) of this
section to take the person into custody and direct the authorized
person to remove the person in custody to a hospital or
nonhospital facility approved by the { - department - }
{ + authority + };
(D) Direct a person authorized under subsection (3) of this
section to transport a person in custody from a hospital or a
nonhospital facility approved by the { - department - }
{ + authority + } to another hospital or nonhospital facility
approved by the
{ - department - } { + authority + } as provided under ORS
426.235; or
(E) Direct a person authorized under subsection (3) of this
section to transport a person in custody from a facility approved
by the { - department - } { + authority + } to another
facility approved by the
{ - department - } { + authority + } as provided under ORS
426.060.
(2) A designee under subsection (1) of this section must be
recommended by the community mental health { - and
developmental disabilities - } program director, meet the
standards established by rule of the { - department - }
{ + authority + } and be approved by the county governing body
before assuming the authority permitted under subsection (1) of
this section.
(3) The county governing body may, upon recommendation by the
community mental health { - and developmental disabilities - }
program director, authorize any person to provide custody and
secure transportation services for a person in custody under ORS
426.228. In authorizing a person under this subsection, the
county governing body shall grant the person the authority to do
the following:
(a) Accept custody from a peace officer of a person in custody
under ORS 426.228;
(b) Take custody of a person upon notification by the community
mental health { - and developmental disabilities - } program
director under the provisions of this section;
(c) Remove a person in custody to an approved hospital or
nonhospital facility as directed by the community mental health
{ - and developmental disabilities - } program director;
(d) Transfer a person in custody to another person authorized
under this subsection or a peace officer;
(e) Transfer a person in custody from a hospital or nonhospital
facility to another hospital facility or nonhospital facility
when directed to do so by the community mental health
{ - and developmental disabilities - } program director; and
(f) Retain a person in custody at the approved hospital or
nonhospital facility until a physician makes a determination
under ORS 426.232.
(4) A person authorized under subsection (3) of this section
must be recommended by the community mental health { - and
Enrolled House Bill 2009 (HB 2009-C) Page 253
developmental disabilities - } program director, meet the
standards established by rule of the { - department - }
{ + authority + } and be approved by the governing body before
assuming the authority granted under this section.
(5) The costs of transporting a person as authorized under ORS
426.060, 426.228 or 426.235 by a person authorized under
subsection (3) of this section shall be the responsibility of the
county whose peace officer or community mental health { - and
developmental disabilities - } program director directs the
authorized person to take custody of a person and to transport
the person to a facility approved by the { - department - }
{ + authority + }, but the county shall not be responsible for
costs that exceed the amount provided by the state for that
transportation. A person authorized to act under subsection (3)
of this section shall charge the cost of emergency medical
transportation to, and collect that cost from, the person, third
party payers or otherwise legally responsible persons or agencies
in the same manner that costs for the transportation of other
persons are charged and collected.
SECTION 406. ORS 426.234 is amended to read:
426.234. (1) At the time a person is admitted to or retained in
a hospital or nonhospital facility under ORS 426.232 or 426.233,
a physician, nurse or qualified mental health professional at the
hospital or nonhospital facility shall:
(a) Inform the person of the person's right to representation
by or appointment of counsel as described in ORS 426.100;
(b) Give the person the warning under ORS 426.123;
(c) Immediately examine the allegedly mentally ill person;
(d) Set forth, in writing, the condition of the person and the
need for emergency care or treatment; and
(e) If the physician, nurse or qualified mental health
professional reasonably suspects that the person is a foreign
national, inform the person of the person's right to communicate
with an official from the consulate of the person's country. A
physician, nurse or qualified mental health professional is not
civilly or criminally liable for failure to provide the
information required by this paragraph. Failure to provide the
information required by this paragraph does not in itself
constitute grounds for the exclusion of evidence that would
otherwise be admissible in a proceeding.
(2)(a) At the time the person is admitted to or retained in a
hospital under ORS 426.232, the physician shall contact the
community mental health { - and developmental disabilities - }
program director of the county in which the person resides, if
the county of residence is different from the county in which the
hospital is located. The community mental health { - and
developmental disabilities - } program director may request that
the physician notify the circuit court in the county in which the
person resides. If the community mental health { - and
developmental disabilities - } program director does not make
the request authorized by this paragraph, the physician shall
notify, immediately and in writing, the circuit court in the
county in which the person is hospitalized.
(b) At the time the person is admitted to a hospital under ORS
426.232 after being brought to the hospital by a peace officer
under ORS 426.228, the physician shall contact the community
mental health { - and developmental disabilities - } program
director of the county in which the person is hospitalized. The
community mental health { - and developmental disabilities - }
program director of the county in which the person is
Enrolled House Bill 2009 (HB 2009-C) Page 254
hospitalized may request that the physician notify the circuit
court in the county in which the person is hospitalized. If the
community mental health { - and developmental disabilities - }
program director does not make the request authorized by this
paragraph, the physician shall notify, immediately and in
writing, the circuit court in the county in which the person was
taken into custody.
(c) If, at any time prior to the hearing under ORS 426.070 to
426.130, the physician responsible for a person admitted or
retained under ORS 426.232 determines that the person is not
dangerous to self or others and is not in need of emergency care
or treatment for mental illness, the physician may release the
person from the detention authorized by ORS 426.232. The
physician shall immediately notify the circuit court notified
under this subsection and the community mental health { - and
developmental disabilities - } program director of the person's
release from detention.
(3)(a) At the time the person is admitted to or retained in a
nonhospital facility under ORS 426.233, the community mental
health { - and developmental disabilities - } program director
in the county where the person was taken into custody shall
contact the community mental health { - and developmental
disabilities - } program director of the county in which the
person resides, if the county of residence is different from the
county in which the person was taken into custody. The community
mental health { - and developmental disabilities - } program
director of the county in which the person resides may request
that the community mental health { - and developmental
disabilities - } program director of the county in which the
person was taken into custody notify the circuit court in the
county where the person resides. Otherwise, the community mental
health { - and developmental disabilities - } program director
of the county in which the person was taken into custody shall
notify, immediately and in writing, the circuit court in the
county in which the person was taken into custody.
(b) If, at any time prior to the hearing under ORS 426.070 to
426.130, a community mental health { - and developmental
disabilities - } program director, after consultation with a
physician, determines that a person admitted or retained under
ORS 426.233 is not dangerous to self or others and is not in need
of immediate care, custody or treatment for mental illness, the
community mental health { - and developmental disabilities - }
program director may release the person from detention. The
community mental health { - and developmental disabilities - }
program director shall immediately notify the circuit court
originally notified under paragraph (a) of this subsection of the
person's release from detention.
(4) When the judge of the circuit court receives notice under
subsection (2) or (3) of this section, the judge immediately
shall commence proceedings under ORS 426.070 to 426.130. In a
county having a population of 100,000 or more, and when feasible
in a county with a lesser population, the community mental health
{ - and developmental disabilities - } program director or
designee who directs the peace officer or other authorized person
to take a person into custody under ORS 426.233 shall not also
conduct the investigation as provided for under ORS 426.074.
Except when a person is being held under ORS 426.237 (1)(b), a
person shall not be held under ORS 426.232 or 426.233 for more
than five judicial days without a hearing being held under ORS
426.070 to 426.130.
Enrolled House Bill 2009 (HB 2009-C) Page 255
(5) When the judge of the circuit court receives notice under
subsection (2)(c) or (3)(b) of this section that a person has
been released, and unless the court receives the recommendation
required by ORS 426.070 (4), the judge shall dismiss the case no
later than 14 days after the date the person was initially
detained.
SECTION 407. ORS 426.235 is amended to read:
426.235. (1) The community mental health { - and
developmental disabilities - } program director may transfer a
person in custody under ORS 426.232, 426.233 or 426.237 (1)(b) to
a hospital or nonhospital facility approved by the
{ - Department of Human Services - } { + Oregon Health
Authority + } at any time during the period of detention.
(2) A person in custody at a hospital may be transferred from
the hospital only with the consent of the treating physician and
when the director of a nonhospital facility approved by the
{ - department - } { + authority + } agrees to admit the
person.
(3) A person in custody at a nonhospital facility approved by
the { - department - } { + authority + } may be transferred
to a hospital approved by the { - department - }
{ + authority + } only when a physician with admitting
privileges agrees to admit the person.
(4) In transporting a person between a hospital and nonhospital
facility under this section, the community mental health
{ - and developmental disabilities - } program director has all
the powers provided in ORS 133.225 and 161.255 and may compel the
assistance of any peace officer or other person.
(5) When a person is transferred under this section, the
community mental health { - and developmental disabilities - }
program director shall notify immediately the court notified
under ORS 426.234 (2) or (3) of the fact of the transfer and of
the location of the person.
SECTION 408. ORS 426.236 is amended to read:
426.236. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules necessary to
carry out the provisions of ORS 426.155 and 426.228 to 426.238.
SECTION 409. ORS 426.237 is amended to read:
426.237. (1) During a prehearing period of detention as
provided in ORS 426.070, 426.140, 426.232 or 426.233, the
community mental health { - and developmental disabilities - }
program director shall do one of the following:
(a) Recommend, in an investigation report as provided in ORS
426.074, that the circuit court not proceed further in the matter
if the community mental health { - and developmental
disabilities - } program director does not believe the person is
a mentally ill person.
(b) No later than three judicial days after initiation of a
prehearing period of detention as provided in ORS 426.070,
426.140, 426.232 or 426.233, certify the detained person for a
14-day period of intensive treatment if:
(A) The community mental health { - and developmental
disabilities - } program director and a psychiatrist, as defined
by rule by the { - Department of Human Services - }
{ + Oregon Health Authority + }, have probable cause to believe
the person is a mentally ill person;
(B) The community mental health { - and developmental
disabilities - } program director in the county where the person
resides verbally approves the arrangements for payment for the
services at the hospital or nonhospital facility; and
Enrolled House Bill 2009 (HB 2009-C) Page 256
(C) The community mental health { - and developmental
disabilities - } program director locates a hospital or
nonhospital facility that:
(i) Is approved by the { - department - } { + authority + }
and the community mental health { - and developmental
disabilities - } program director in the county where the person
resides; and
(ii) Can, in the opinion of the community mental health
{ - and developmental disabilities - } program director and the
psychiatrist, provide intensive care or treatment for mental
illness necessary and sufficient to meet the emergency
psychiatric needs of the person.
(c) Recommend, in an investigation report as provided in ORS
426.074, that the circuit court hold a hearing under ORS 426.070
to 426.130 if the community mental health { - and developmental
disabilities - } program director has probable cause to believe
the person is a mentally ill person.
(2)(a) If the circuit court adopts the recommendation of the
community mental health { - and developmental disabilities - }
program director under subsection (1)(a) of this section, the
circuit court shall enter an order releasing the person and
dismissing the case. Unless the person agrees to voluntary
treatment, if the person is being detained in a:
(A) Nonhospital facility, the community mental health { - and
developmental disabilities - } program director shall make
discharge plans and insure the discharge of the person.
(B) Hospital, the treating physician shall make discharge plans
and discharge the person.
(b) Upon release of the person, the community mental health
{ - and developmental disabilities - } program director shall
attempt to notify the person's next of kin if the person consents
to the notification.
(3)(a) If the detained person is certified for treatment under
subsection (1)(b) of this section, the community mental health
{ - and developmental disabilities - } program director shall:
(A) Deliver immediately a certificate to the court having
jurisdiction under ORS 426.060; and
(B) Orally inform the person of the certification and deliver a
copy of the certificate to the person.
(b) The certificate required by paragraph (a) of this
subsection shall include:
(A) A written statement under oath by the community mental
health { - and developmental disabilities - } program director
and the psychiatrist that they have probable cause to believe the
person is a mentally ill person in need of care or treatment for
mental illness;
(B) A treatment plan that describes, in general terms, the
types of treatment and medication to be provided to the person
during the 14-day period of intensive treatment;
(C) A notice of the person's right to an attorney and that an
attorney will be appointed by the court or as otherwise obtained
under ORS 426.100 (3);
(D) A notice that the person has a right to request and be
provided a hearing under ORS 426.070 to 426.130 at any time
during the 14-day period; and
(E) The date and time the copy of the certificate was delivered
to the person.
(c) Immediately upon receipt of a certificate under paragraph
(a) of this subsection, the court shall notify the person's
attorney or appoint an attorney for the person if the person
Enrolled House Bill 2009 (HB 2009-C) Page 257
cannot afford one. Within 24 hours of the time the certificate is
delivered to the court, the person's attorney shall review the
certificate with the person. If the person and the person's
attorney consent to the certification within one judicial day of
the time the certificate is delivered to the circuit court and,
except as provided in subsection (4) of this section, the court
shall postpone the hearing required by ORS 426.070 to 426.130 for
14 days.
(d) When a person is certified for treatment under subsection
(1)(b) of this section and accepts the certification:
(A) Except as otherwise provided in this paragraph, all methods
of treatment, including the prescription and administration of
drugs, shall be the sole responsibility of the treating
physician. However, the person shall not be subject to
electroshock therapy or unduly hazardous treatment and shall
receive usual and customary treatment in accordance with medical
standards in the community.
(B) Except when the person expressly refuses treatment, the
treating physician shall treat the person within the scope of the
treatment plan provided the person under paragraph (b) of this
subsection. The person's refusal of treatment constitutes
sufficient grounds for the community mental health { - and
developmental disabilities - } program director to request a
hearing as provided in subsection (4)(a) of this section.
(C) If the person is in a hospital and the community mental
health { - and developmental disabilities - } program director
locates a nonhospital facility, approved by the
{ - department - } { + authority + }, that, in the opinion of
the community mental health { - and developmental
disabilities - } program director and the treating physician,
can provide care or treatment for mental illness necessary and
sufficient to meet the emergency psychiatric needs of the person,
the treating physician shall discharge the person from the
hospital and the community mental health { - and developmental
disabilities - } program director shall remove the person to the
nonhospital facility for the remainder of the 14-day intensive
treatment period. If, however, in the opinion of the treating
physician, the person's condition requires the person to receive
medical care or treatment, the physician shall retain the person
in the hospital.
(D) If the person is in a nonhospital facility, the community
mental health { - and developmental disabilities - } program
director shall transfer the person to a hospital approved by the
{ - department - } { + authority + } under the following
conditions:
(i) If, in the opinion of a physician, the person's condition
requires the person to receive medical care or treatment in a
hospital; and
(ii) The physician agrees to admit the person to a hospital,
approved by the { - department - } { + authority + }, where
the physician has admitting privileges.
(E) If the person is transferred as provided in subparagraph
(C) or (D) of this paragraph, the community mental health
{ - and developmental disabilities - } program director shall
notify the circuit court, in the county where the certificate was
filed, of the location of the person. The person may appeal the
transfer as provided by rules of the { - department - }
{ + authority + }.
Enrolled House Bill 2009 (HB 2009-C) Page 258
(e) If the person is in a hospital, the treating physician may
discharge the person at any time during the 14-day period. The
treating physician shall confer with the community mental health
{ - and developmental disabilities - } program director and
the person's next of kin, if the person consents to the
consultation, prior to discharging the person. Immediately upon
discharge of the person, the treating physician shall notify the
court in the county in which the certificate was filed initially.
(f) If the person is in a nonhospital facility, the community
mental health { - and developmental disabilities - } program
director may discharge the person at any time during the 14-day
period. The community mental health { - and developmental
disabilities - } program director shall consult with the
treating physician and the person's next of kin, if the person
consents to the consultation, prior to discharging the person.
Immediately upon discharge of the person, the community mental
health { - and developmental disabilities - } program director
shall notify the court in the county in which the certificate was
filed initially.
(g) The person may agree to voluntary treatment at any time
during the 14-day period. When a person agrees to voluntary
treatment under this paragraph, the community mental health
{ - and developmental disabilities - } program director
immediately shall notify the court in the county in which the
certificate was filed initially.
(h) A person consenting to 14 days of treatment under
subsection (3)(c) of this section shall not be held longer than
14 days from the time of consenting without a hearing as provided
in ORS 426.070 to 426.130.
(i) When the court receives notification under paragraph (e),
(f) or (g) of this subsection, the court shall dismiss the case.
(4) The judge of the circuit court shall immediately commence
proceedings under ORS 426.070 to 426.130 when:
(a) The person consenting to 14 days of treatment or the
community mental health { - and developmental disabilities - }
program director requests a hearing. The hearing shall be held
without unreasonable delay. In no case shall the person be held
in a hospital or nonhospital facility longer than five judicial
days after the request for a hearing is made without a hearing
being held under ORS 426.070 to 426.130.
(b) The community mental health { - and developmental
disabilities - } program director acts under subsection (1)(c)
of this section. In no case shall the person be held longer than
five judicial days without a hearing under this subsection.
SECTION 410. ORS 426.238 is amended to read:
426.238. The { - Department of Human Services - }
{ + Oregon Health Authority + } may assign classifications, as
defined by rule of the
{ - department - } { + authority + }, to facilities that
provide care and treatment for persons committed to the
{ - department - } { + authority + } under ORS 426.130 or
provide emergency care or treatment for persons pursuant to ORS
426.070, 426.228 to 426.235 or 426.237. The { - department - }
{ + authority + } may authorize a facility to retake custody of
a person who unlawfully leaves a facility as provided in ORS
426.223.
SECTION 411. ORS 426.241 is amended to read:
426.241. (1) The cost of emergency psychiatric care, custody
and treatment related to or resulting from such psychiatric
condition, provided by a hospital or other facility approved by
Enrolled House Bill 2009 (HB 2009-C) Page 259
the { - Department of Human Services - } { + Oregon Health
Authority + } and the community mental health { - and
developmental disabilities - } program director of the county in
which the facility is located, except a state mental hospital,
for an allegedly mentally ill person admitted or detained under
ORS 426.070, 426.140, 426.228, 426.232 or 426.233, or for a
mentally ill person admitted or detained under ORS 426.150,
426.223, 426.273, 426.275 or 426.292, shall be paid by the county
of which the person is a resident from state funds provided it
for this purpose. The county is responsible for the cost when
state funds available therefor are exhausted. The hospital or
other facility shall charge to and collect from the person, third
party payers or other persons or agencies otherwise legally
responsible therefor, the costs of the emergency care, custody
and treatment, as it would for any other patient, and any funds
received shall be applied as an offset to the cost of the
services provided under this section.
(2) If any person is admitted to or detained in a state mental
hospital under ORS 426.070, 426.140, 426.180 to 426.210, 426.228,
426.232 or 426.233 for emergency care, custody or treatment, the
{ - department - } { + authority + } shall charge to and
collect from the person, third party payers or other persons or
agencies otherwise legally responsible therefor, the costs as it
would for other patients of the state mental hospitals under the
provisions of ORS 179.610 to 179.770.
(3) If any person is adjudged mentally ill under the provisions
of ORS 426.130, and the person receives care and treatment in a
state mental hospital, the person, third party payers or other
persons or agencies otherwise legally responsible therefor, shall
be required to pay for the costs of the hospitalization at the
state hospital, as provided by ORS 179.610 to 179.770, if
financially able to do so.
(4) For purposes of this section and ORS 426.310 'resident '
means resident of the county in which the person maintains a
current mailing address or, if the person does not maintain a
current mailing address within the state, the county in which the
person is found, or the county in which a court-committed
mentally ill person has been conditionally released.
(5)(a) The { - department - } { + authority + } may deny
payment for part or all of the emergency psychiatric services
provided by a hospital or nonhospital facility under ORS 426.232,
426.233 or 426.237 when the { - department - }
{ + authority + } finds, upon review, that the allegedly
mentally ill person's condition did not meet the admission
criteria in ORS 426.232 (1), 426.233 (1) or 426.237 (1)(b)(A).
The payer responsible under this section shall make a request for
denial of payment for emergency psychiatric services provided
under ORS 426.232, 426.233 or 426.237 in writing to the
{ - department - } { + authority + }.
(b) The { - department - } { + authority + } may require
the following to provide { - the department with any
information the department determines - } { + the authority
with any information that the authority determines is + }
necessary to review a request for denial of payment made under
this subsection { - and to make a finding, - } or to conduct
{ + a + } review of emergency psychiatric services for the
purpose of planning or defining { - standards in department
rule - } { + authority rules + }:
(A) A hospital or nonhospital facility approved under ORS
426.228 to 426.235 or 426.237.
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(B) A physician or a person providing emergency psychiatric
services under ORS 426.228 to 426.235 or 426.237.
(c) The { - department - } { + authority + } shall adopt
rules necessary to carry out the purposes of this subsection.
SECTION 412. ORS 426.250 is amended to read:
426.250. The following is a nonexclusive list of
responsibilities for payment of various costs related to
commitment proceedings under this chapter and ORS 430.397 to
430.401 as described:
(1) Any physician or qualified person recommended by the
{ - Department of Human Services - } { + Oregon Health
Authority + } who is employed under ORS 426.110 to make an
examination as to the mental condition of a person alleged to be
mentally ill shall be allowed a fee as the court in its
discretion determines reasonable for the examination.
(2) Witnesses subpoenaed to give testimony shall receive the
same fees as are paid in criminal cases, and are subject to
compulsory attendance in the same manner as provided in ORS
136.567 to 136.603. The attendance of out-of-state witnesses may
be secured in the same manner as provided in ORS 136.623 to
136.637. The party who subpoenas the witness or requests the
court to subpoena the witness is responsible for payment of the
cost of the subpoena and payment for the attendance of the
witness at a hearing. When the witness has been subpoenaed on
behalf of an allegedly mentally ill person who is represented by
appointed counsel, the fees and costs allowed for that witness
shall be paid pursuant to ORS 135.055. If the costs of witnesses
subpoenaed by the allegedly mentally ill person are paid as
provided under this subsection, the procedure for subpoenaing
witnesses shall comply with ORS 136.570.
(3) If a person with a right to a counsel under ORS 426.100 is
determined to be financially eligible for appointed counsel at
state expense, the public defense services executive director
shall determine and pay, as provided in ORS 135.055, the
reasonable expenses related to the representation of the person
and compensation for legal counsel. The expenses and compensation
so allowed shall be paid by the public defense services executive
director from funds available for the purpose.
(4) The { - department - } { + authority + } shall pay the
costs of expenses incurred under ORS 426.100 by the Attorney
General's office. Any costs for district attorneys or other
counsel appointed to assume responsibility for presenting the
state's case shall be paid by the county where the commitment
hearing is held, subject to reimbursement under ORS 426.310.
(5) All costs incurred in connection with a proceeding under
ORS 426.200, including the costs of transportation, commitment
and delivery of the person, shall be paid by the county of which
the person is a resident; or, if the person is not a resident of
this state, then by the county from which the emergency admission
was made.
(6) All costs incurred in connection with a proceeding under
ORS 426.180 for the commitment of a person from a reservation for
land-based tribes of Native Americans, including the cost of
transportation, commitment and delivery of the person, shall be
paid by the ruling body of the reservation of which the person is
a resident.
SECTION 413. ORS 426.273 is amended to read:
426.273. (1) During a period of commitment of a patient under
ORS 426.130, the { - Department of Human Services - }
{ + Oregon Health Authority + } may grant a trial visit to the
Enrolled House Bill 2009 (HB 2009-C) Page 261
patient for a period of time and under any conditions the
{ - department - } { + authority + } shall establish. The
{ - department - } { + authority + } shall only grant a trial
visit under this section if the trial visit is agreed to by the
community mental health { - and developmental disabilities - }
program director, or the designee of the director, for the county
in which the person would reside.
(2) When in the opinion of the { - department - }
{ + authority + }, the committed person can be appropriately
served by outpatient care during the period of commitment, the
outpatient care may be required as a condition for trial visit
for a period which, when added to the inpatient treatment period,
shall not exceed the period of commitment. If outpatient care is
required as a condition for a trial visit, the conditions shall
include a designation of a facility, service or other provider to
provide care or treatment.
(3) A copy of the conditions for trial visit shall be given to
all of the persons listed in ORS 426.278.
(4) Any trial visit granted under this section is subject to
the provisions under ORS 426.275.
(5) The director of the community mental health { - and
developmental disabilities - } program, or designee, of the
county in which a person who is on trial visit lives while on
trial visit may modify the conditions for continued trial visit
when such modification is in the best interest of the person. The
director shall send notification of such changes and the reasons
for the changes to all those who received a copy of the original
conditions under ORS 426.278.
SECTION 414. ORS 426.275 is amended to read:
426.275. The following are applicable to placements of mentally
ill persons that are made as conditional release under ORS
426.125, outpatient commitments under ORS 426.127 or trial visits
under ORS 426.273 as described:
(1) If the person responsible under this subsection determines
that the mentally ill person is failing to adhere to the terms
and conditions of the placement, the responsible person shall
notify the court having jurisdiction that the mentally ill person
is not adhering to the terms and conditions of the placement. If
the placement is an outpatient commitment under ORS 426.127 or a
trial visit under ORS 426.273, the notifications shall include a
copy of the conditions for the placement. The person responsible
for notifying the court under this subsection is as follows:
(a) For conditional releases under ORS 426.125, the guardian,
relative or friend in whose care the mentally ill person is
conditionally released.
(b) For outpatient commitments under ORS 426.127, the community
mental health { - and developmental disabilities - } program
director, or designee of the director, of the county in which the
person on outpatient commitment lives.
(c) For trial visits under ORS 426.273, the community mental
health { - and developmental disabilities - } program
director, or designee of the director, of the county in which the
person on trial visit is to receive outpatient treatment.
(2) On its own motion, the court with jurisdiction of a
mentally ill person on such placement may cause the person to be
brought before it for a hearing to determine whether the person
is or is not adhering to the terms and conditions of the
placement. The person shall have the same rights with respect to
notice, detention stay, hearing and counsel as for a hearing held
under ORS 426.095. The court shall hold the hearing within five
Enrolled House Bill 2009 (HB 2009-C) Page 262
judicial days of the date the mentally ill person receives notice
under this section. The court may allow postponement and
detention during postponement as provided under ORS 426.095.
(3) Pursuant to the determination of the court upon hearing
under this section, a person on placement shall either continue
the placement on the same or modified conditions or shall be
returned to the { - Department of Human Services - }
{ + Oregon Health Authority + } for involuntary care and
treatment on an inpatient basis subject to discharge at the end
of the commitment period or as otherwise provided under this
chapter and ORS 430.397 to 430.401.
(4) If the person on placement is living in a county other than
the county of the court that established the current period of
commitment under ORS 426.130 during which the trial visit,
conditional release or outpatient commitment takes place, the
court establishing the current period of commitment shall
transfer jurisdiction to the appropriate court of the county in
which the person is living while on the placement and the court
receiving the transfer shall accept jurisdiction.
(5) The court may proceed as provided in ORS 426.307 or this
section when the court:
(a) Receives notice under ORS 426.070 or 426.228 to 426.235;
and
(b) Determines that the person is a mentally ill person on
conditional release under ORS 426.125, outpatient commitment
under ORS 426.127 or trial visit under ORS 426.273.
SECTION 415. ORS 426.278 is amended to read:
426.278. The following persons shall be given a copy of the
conditions of a placement of a mentally ill person that is made
as an outpatient commitment under ORS 426.127 or as a trial visit
under ORS 426.273:
(1) The committed person;
(2) The community mental health { - and developmental
disabilities - } program director, or designee of the director,
of the county in which the committed person is to receive
outpatient treatment;
(3) The director of any facility, service or other provider
designated to provide care or treatment;
(4) The court of current commitment; and
(5) The appropriate court of the county in which the committed
person lives during the commitment period if the person is living
in a different county than the county of the court that made the
current commitment.
SECTION 416. ORS 426.292 is amended to read:
426.292. Nothing in this chapter and ORS 430.397 to 430.401
prohibits the { - Department of Human Services - } { + Oregon
Health Authority + } from releasing a person from a hospital or
other facility in which the person is being treated prior to the
expiration of the period of commitment under ORS 426.130 when, in
the opinion of the director of the facility or treating
physician, the person is no longer mentally ill.
SECTION 417. ORS 426.300 is amended to read:
426.300. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall, by filing a written
certificate with the last committing court and the court of
residence, discharge any patient from court commitment, except
one held upon an order of a court or judge having criminal
jurisdiction in an action or proceeding arising out of criminal
offense when in its opinion the individual is no longer a
mentally ill person or when in its opinion the transfer of the
Enrolled House Bill 2009 (HB 2009-C) Page 263
individual to a voluntary status is in the best interest of the
treatment of the patient.
(2) The { - department - } { + authority + } may sign
applications for public assistance on behalf of those patients
who may be eligible for public assistance.
SECTION 418. ORS 426.301 is amended to read:
426.301. (1) At the end of the 180-day period of commitment,
any person whose status has not been changed to voluntary shall
be released unless the { - Department of Human Services - }
{ + Oregon Health Authority + } certifies to the court in the
county where the treating facility is located that the person is
still mentally ill and in need of further treatment. The
{ - department - } { + authority + }, pursuant to its rules,
may delegate to the director of the treating facility the
responsibility for making the certification. The director of the
treating facility shall consult with the community mental health
{ - and developmental disabilities - } program director of the
county of residence prior to making the certification. If the
certification is made, the person will not be released, but the
director of the treating facility shall immediately issue a copy
of the certification to the person and to the community mental
health { - and developmental disabilities - } program director
of the county of residence.
(2) The certification shall be served upon the person by the
director of the facility wherein the person is confined or the
designee of the director. The director of the facility shall
inform the court in writing that service has been made and the
date thereof.
(3) The certification shall advise the person of all the
following:
(a) That the { - department - } { + authority + } or
facility has requested that commitment be continued for an
additional period of time.
(b) That the person may consult with legal counsel and that
legal counsel will be provided for the person without cost if the
person is unable to afford legal counsel.
(c) That the person may protest this further commitment within
14 days, and if the person does not commitment will be continued
for an indefinite period of time up to 180 days.
(d) That if the person does protest a further period of
commitment, the person is entitled to a hearing before the court
on whether commitment should be continued.
(e) That the person may protest either orally or in writing by
signing the form accompanying the certification; that the person
is entitled to have a physician or other qualified person as
recommended by the { - department - } { + authority + },
other than a member of the staff at the facility where the person
is confined, examine the person and report to the court the
results of the examination.
(f) That the person may subpoena witnesses and offer evidence
on behalf of the person at the hearing.
(g) That if the person is without funds to retain legal counsel
or an examining physician or qualified person as recommended by
the { - department - } { + authority + }, the court will
appoint legal counsel, a physician or other qualified person.
(4) Nothing in subsection (3) of this section requires the
giving of the warning under ORS 426.123.
(5) The person serving the certification shall read and deliver
the certification to the person and ask whether the person
protests a further period of commitment. The person may protest
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further commitment either orally or by signing a simple protest
form to be given to the person with the certification. If the
person does not protest a further period of commitment within 14
days of service of the certification, the { - department - }
{ + authority + } or facility shall so notify the court and the
court shall, without further hearing, order the commitment of the
person for an additional indefinite period of time up to 180
days.
SECTION 419. ORS 426.303 is amended to read:
426.303. When the person protests a further period of
commitment the { - Department of Human Services - }
{ + Oregon Health Authority + } or facility designated in
accordance with ORS 426.301 shall immediately notify the court
and the court shall have the person brought before it and shall
again advise the person that the { - department - }
{ + authority + } or facility has requested that commitment be
continued for an additional period of time and that if the person
does not protest this commitment the commitment will be continued
for an indefinite period of time up to 180 days. The person shall
also be informed of the rights set forth in ORS 426.301.
SECTION 420. ORS 426.307 is amended to read:
426.307. If the person requests a hearing under ORS 426.301 or
if the court proceeds under ORS 426.275 (5), the following
provisions apply as described:
(1) The hearing shall be conducted as promptly as possible and
at a time and place as the court may direct.
(2) If the person requests a continuance in order to prepare
for the hearing or to obtain legal counsel to represent the
person, the court may grant postponement and detention during
postponement as provided under ORS 426.095.
(3) The person has the right to representation by or
appointment of counsel as provided under ORS 426.100 subject to
ORS 135.055, 151.216 and 151.219.
(4) If the person requests an examination by a physician or
other qualified person as recommended by the { - Department of
Human Services - } { + Oregon Health Authority + } and is
without funds to retain a physician or other qualified person for
purposes of the examination, the court shall appoint a physician
or other qualified person, other than a member of the staff from
the facility where the person is confined, to examine the person
at no expense to the person and to report to the court the
results of the examination.
(5) The provisions of ORS 40.230, 40.235, 40.240 and 40.250 do
not apply to the use of medical records from the current period
of commitment or to testimony related to such records or period
of commitment in connection with hearings under this section. The
court may consider as evidence such reports and testimony.
(6) The court shall then conduct a hearing and after hearing
the evidence and reviewing the recommendations of the treating
and examining physicians or other qualified persons, the court
shall determine whether the person is still a mentally ill person
and in need of further treatment. If in the opinion of the court
the individual is still a mentally ill person by clear and
convincing evidence and in need of further treatment, the court
may order commitment to the { - department - }
{ + authority + } for an additional indefinite period of time up
to 180 days.
(7) At the end of the 180-day period, the person shall be
released unless the { - department - } { + authority + } or
facility again certifies to the committing court that the person
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is still a mentally ill person and in need of further treatment,
in which event the procedures set forth in ORS 426.301 to 426.307
shall be followed.
SECTION 421. ORS 426.330 is amended to read:
426.330. { + (1) + } The special funds authorized for the use
of the superintendents of the Oregon State Hospital, the Blue
Mountain Recovery Center and the Eastern Oregon Training Center
to better enable them promptly to meet the advances and expenses
necessary in the matter of transferring patients to the state
hospitals are continued in existence. The superintendents shall
present their claims monthly with { - proper vouchers attached,
showing - } { + vouchers that show + } the expenditures from
the special funds during the preceding month { - , which
claims, when approved by the Department of Human Services, shall
be paid by warrant upon the State Treasurer against the fund
appropriated to cover the cost of transporting these
patients. - } { + to:
(a) The Oregon Health Authority for the transfer of patients to
the Oregon State Hospital or the Blue Mountain Recovery Center;
and
(b) The Department of Human Services for the transfer of
patients to the Eastern Oregon Training Center.
(2) Against the fund appropriated to cover the cost of
transporting patients, the State Treasurer shall pay:
(a) The claims of the superintendents of the Oregon State
Hospital and the Blue Mountain Recovery Center that have been
approved by the Oregon Health Authority; and
(b) The claims of the superintendent of the Eastern Oregon
Training Center that have been approved by the Department of
Human Services. + }
SECTION 422. ORS 426.335 is amended to read:
426.335. The following limitations on liability and
circumstances are applicable to situations within this chapter
and ORS 430.397 to 430.401:
(1) None of the following shall in any way be held criminally
or civilly liable for the making of the notification under ORS
426.070, provided the person acts in good faith, on probable
cause and without malice:
(a) The community mental health { - and developmental
disabilities - } program director or designee of the director.
(b) The two petitioning persons.
(c) The county health officer.
(d) Any magistrate.
(e) Any peace officer or parole and probation officer.
(f) Any physician attending the allegedly mentally ill person.
(g) The physician attached to a hospital or institution wherein
the allegedly mentally ill person is a patient.
(2) The person conducting the investigation under ORS 426.070
and 426.074 shall not be held criminally or civilly liable for
conducting the investigation, provided the investigator acts in
good faith, on probable cause and without malice.
(3) The person representing the state's interest under ORS
426.100 shall not be held criminally or civilly liable for
performing responsibilities under ORS 426.100 as long as the
person acts in good faith and without malice.
(4) No person appointed under ORS 426.110 to conduct an
examination under ORS 426.120 shall be held criminally or civilly
liable for actions pursuant to ORS 426.120 if the examiner acts
in good faith and without malice.
Enrolled House Bill 2009 (HB 2009-C) Page 266
(5) No physician, hospital or judge shall be held criminally or
civilly liable for actions pursuant to ORS 426.228, 426.231,
426.232, 426.234 or 426.235 if the physician, hospital or judge
acts in good faith, on probable cause and without malice.
(6) No peace officer, person authorized under ORS 426.233,
community mental health director or designee, hospital or other
facility, physician or judge shall in any way be held criminally
or civilly liable for actions pursuant to ORS 426.228 to 426.235
if the individual or facility acts in good faith, on probable
cause and without malice.
(7) Any guardian, relative or friend of a mentally ill person
who assumes responsibility for the mentally ill person under a
conditional release under ORS 426.125 shall not be liable for any
damages that are sustained by any person on account of the
misconduct of the mentally ill person while on conditional
release if the guardian, relative or friend acts in good faith
and without malice.
(8) The persons designated in this subsection shall not be
liable for damages that are sustained by any person or property
on account of the misconduct of a mentally ill person while the
mentally ill person is on outpatient commitment under ORS 426.127
if the designated person acts without willful and wanton neglect
of duty. This subsection is applicable to all of the following:
(a) The community mental health { - and developmental
disabilities - } program director and the designee of the
director for the county in which the committed person resides.
(b) The superintendent or director of any staff of any facility
where the mentally ill person receives treatment during the
outpatient commitment.
(c) The Director of { - Human Services - } { + the Oregon
Health Authority + }.
(d) The physician and the facility granting an outpatient
commitment to a patient.
(9) For trial visits granted under ORS 426.273 and 426.275:
(a) None of the following shall be liable for a patient's
expenses while on trial visit:
(A) The physician and the facility granting a trial visit to a
patient;
(B) The superintendent or director of the facility granting a
trial visit;
(C) The Director of { - Human Services - } { + the Oregon
Health Authority + }; and
(D) The chief medical officer of the facility.
(b) The following persons shall not be liable for damages that
are sustained by any person on account of the misconduct of such
patient while on trial visit if the person acts without willful
and wanton neglect of duty:
(A) The community mental health { - and developmental
disabilities - } program director for the county in which the
person resides;
(B) The superintendent, director or chief medical officer of
any facility granting a trial visit to a patient;
(C) The physician responsible for the patient's trial visit;
(D) The Director of { - Human Services - } { + the Oregon
Health Authority + }; or
(E) The employees and agents of persons listed in this
paragraph.
SECTION 423. ORS 426.370 is amended to read:
426.370. A community mental health { - and developmental
disabilities - } program director or designee may withhold
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information obtained during an investigation under ORS 426.070,
426.228, 426.232, 426.233 or 426.234 if the community mental
health { - and developmental disabilities - } program director
determines:
(1) That information was not included in its investigation
report or otherwise used in a material way to support a
determination by the community mental health { - and
developmental disabilities - } program director that there was
probable cause to believe a person was a mentally ill person; and
(2) Release of the information would constitute a clear and
immediate danger to any person.
SECTION 424. ORS 426.385 is amended to read:
426.385. (1) Every mentally ill person committed to the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall have the right to:
(a) Communicate freely in person and by reasonable access to
telephones;
(b) Send and receive sealed mail, except that this right may be
limited for security reasons in state institutions as described
in ORS 426.010;
(c) Wear the clothing of the person;
(d) Keep personal possessions, including toilet articles;
(e) Religious freedom;
(f) A private storage area with free access thereto;
(g) Be furnished with a reasonable supply of writing materials
and stamps;
(h) A written treatment plan, kept current with the progress of
the person;
(i) Be represented by counsel whenever the substantial rights
of the person may be affected;
(j) Petition for a writ of habeas corpus;
(k) Not be required to perform routine labor tasks of the
facility except those essential for treatment;
(L) Be given reasonable compensation for all work performed
other than personal housekeeping duties;
(m) Daily access to fresh air and the outdoors, except that
this right may be limited when it would create significant risk
of harm to the person or others;
(n) Such other rights as may be specified by rule; and
(o) Exercise all civil rights in the same manner and with the
same effect as one not admitted to the facility, including, but
not limited to, the right to dispose of real property, execute
instruments, make purchases, enter contractual relationships, and
vote, unless the person has been adjudicated incompetent and has
not been restored to legal capacity. Disposal of personal
property in possession of the person in a state institution
described in ORS 426.010 is subject to limitation for security
reasons.
(2)(a) A person must be immediately informed, verbally and in
writing, of any limitation:
(A) Of the right to send or receive sealed mail under
subsection (1)(b) of this section;
(B) Regarding the disposal of personal property under
subsection (1)(o) of this section; and
(C) Of the right to daily access to fresh air and the outdoors
under subsection (1)(m) of this section.
(b) Any limitation under this subsection and the reasons for
the limitation must be stated in the person's written treatment
plan.
Enrolled House Bill 2009 (HB 2009-C) Page 268
(c) The person has the right to challenge any limitation under
this subsection pursuant to rules adopted by the
{ - department - } { + authority + }. The person must be
informed, verbally and in writing, of this right.
(3) Mentally ill persons committed to the { - department - }
{ + authority + } shall have the right to be free from
potentially unusual or hazardous treatment procedures, including
convulsive therapy, unless they have given their express and
informed consent or authorized the treatment pursuant to ORS
127.700 to 127.737. This right may be denied to such persons for
good cause as defined in administrative rule only by the director
of the facility in which the person is confined, but only after
consultation with and approval of an independent examining
physician. Any denial shall be entered into the patient's
treatment record and shall include the reasons for the denial. No
patient shall be subjected to psychosurgery, as defined in ORS
677.190 (22)(b).
(4) Mechanical restraints shall not be applied to a person
admitted to a facility unless it is determined by the chief
medical officer of the facility or designee to be required by the
medical needs of the person. Every use of a mechanical restraint
and the reasons therefor shall be made a part of the clinical
record of the person over the signature of the chief medical
officer of the facility or designee.
(5) Nothing in this section prevents the { - department - }
{ + authority + } from acting to exclude contraband from its
facilities and to prevent possession or use of contraband in its
facilities.
(6) As used in this section:
(a) 'Contraband' has the meaning given that term in ORS
162.135.
(b) 'Security reasons' means the protection of the mentally ill
person from serious and immediate harm and the protection of
others from threats or harassment as defined by rule of the
{ - department - } { + authority + }.
SECTION 425. ORS 426.395 is amended to read:
426.395. A simple and clear statement of rights guaranteed to
patients committed to the { - Department of Human Services - }
{ + Oregon Health Authority + } shall be prominently posted in
each room frequented by patients in all facilities housing such
patients. A copy of the statement shall be given to each patient
upon admission and sent, upon request, to the legal counsel,
guardian, relative or friend of the patient. The statement shall
include the name, address and telephone number of the system
described in ORS 192.517 (1).
SECTION 426. ORS 426.415 is amended to read:
426.415. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } may adopt rules establishing
requirements and procedures for licensing persons who may order,
monitor and evaluate the use of restraint and seclusion in
facilities providing intensive mental health treatment services
to individuals under 21 years of age.
(2) A license may not be issued or renewed under rules adopted
under this section unless the person applying for the license or
renewal:
(a) Is employed by or providing services under contract with a
provider that is certified by the { - Department of Human
Services - } { + Oregon Health Authority + } to provide
intensive mental health treatment services for individuals under
21 years of age;
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(b) Has successfully completed an emergency safety intervention
training program approved by the director;
(c) Provides documented evidence of the person's ability to
assess the psychological and physical well-being of individuals
under 21 years of age;
(d) Meets other qualifications established by the director by
rule for qualified mental health professionals; and
(e) Demonstrates knowledge of federal and state rules governing
the use of restraint and seclusion in intensive mental health
treatment programs for individuals under 21 years of age.
(3) The rules described in subsection (1) of this section
shall:
(a) Specify procedures for issuing and renewing licenses;
(b) Establish a term of licensure;
(c) Require a person issued a license to satisfy annual
training requirements relating to emergency safety intervention
procedures;
(d) Specify grounds for denial, suspension or revocation of a
license;
(e) Set any license or renewal fees the director determines are
necessary; and
(f) Specify any other licensing provisions the director
determines are necessary to comply with federal law or
regulations or to operate a licensing system described in this
section.
SECTION 427. ORS 426.495 is amended to read:
426.495. (1) As used in ORS 426.490 to 426.500, unless the
context requires otherwise:
(a) 'Case manager' means a person who works on a continuing
basis with a person with a chronic mental illness and is
responsible for assuring the continuity of the various services
called for in the discharge plan of the person with a chronic
mental illness including services for basic personal maintenance,
mental and personal treatment, and appropriate education and
employment.
(b) 'Discharge plan' means a written plan prepared jointly with
the person with a chronic mental illness, mental health staff and
case manager prior to discharge, prescribing for the basic and
special needs of the person upon release from the hospital.
(c) 'Person with a chronic mental illness' means an individual
who is:
(A) Eighteen years of age or older; and
(B) Diagnosed by a psychiatrist, a licensed clinical
psychologist or a nonmedical examiner certified by the
{ - Department of Human Services - } { + Oregon Health
Authority + } as having chronic schizophrenia, a chronic major
affective disorder, a chronic paranoid disorder or another
chronic psychotic mental disorder other than those caused by
substance abuse.
(2) For purposes of providing services in the community, the
{ - department - } { + authority + } may adopt rules
consistent with accepted professional practices in the fields of
psychology and psychiatry to specify other criteria for
determining who is a person with a chronic mental illness.
SECTION 428. ORS 426.500 is amended to read:
426.500. For the purpose of carrying out the policy and intent
of ORS 426.490 to 426.500, the { - Department of Human
Services - } { + Oregon Health Authority + } shall:
(1) Adopt rules for the administration of ORS 426.490 to
426.500;
Enrolled House Bill 2009 (HB 2009-C) Page 270
(2) Prepare a written discharge plan for each person with a
chronic mental illness who is a patient at a state mental
institution or who is committed to the { - department - }
{ + authority + } pursuant to ORS 426.005 to 426.223 and 426.241
to 426.380;
(3) Ensure that case managers are provided for each person with
a chronic mental illness described in subsection (2) of this
section; and
(4) Disburse from any available funds:
(a) Funds for one LINC model in the area served by F. H.
Dammasch State Hospital and one LINC model in the area served by
the Oregon State Hospital licensed under ORS 443.415;
(b) Discretionary funds for services necessary to implement a
discharge plan, including but not limited to transportation,
medication, recreation and socialization; and
(c) Funds to provide day treatment services, community
psychiatric inpatient services, and work activity services for
persons with chronic mental illness when needed.
SECTION 429. ORS 426.502 is amended to read:
426.502. As used in ORS 426.502 to 426.508:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'Community housing' means property
and related equipment that are used or could be used to house
persons with chronic mental illness and their care providers.
'Community housing' includes single-family housing and
multiple-unit residential housing.
{ - (2) - } { + (3) + } 'Construct' means to build,
install, assemble, expand, alter, convert, replace or relocate.
'Construct ' includes to install equipment and to prepare a site.
{ - (3) 'Department' means the Department of Human
Services. - }
(4) 'Equipment' means furnishings, fixtures or appliances that
are used or could be used to provide care in community housing.
(5) 'Multiple-unit residential housing' means housing that
provides two or more living units and spaces for common use by
the occupants in social and recreational activities.
'Multiple-unit residential housing' may include nonhousing
facilities incidental or appurtenant to the housing that, in the
determination of the
{ - department - } { + authority + }, improve the quality of
the housing.
(6) 'Person with a chronic mental illness' has the meaning
given that term in ORS 426.495.
(7) 'Single-family housing' means a detached living unit with
common living room and dining facilities for at least three
occupants with chronic mental illness. 'Single-family housing '
may include nonhousing facilities incidental or appurtenant to
the housing that, in the determination of the
{ - department - } { + authority + }, improve the quality of
the housing.
SECTION 430. ORS 426.504 is amended to read:
426.504. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may, through contract or
otherwise, acquire, purchase, receive, hold, exchange, demolish,
construct, lease, maintain, repair, replace, improve and equip
community housing for the purpose of housing persons with chronic
mental illness.
(2) The { - department - } { + authority + } may dispose of
community housing acquired under subsection (1) of this section
Enrolled House Bill 2009 (HB 2009-C) Page 271
in a public or private sale, upon such terms and conditions as
the
{ - department - } { + authority + } considers advisable to
increase the quality and quantity of community housing available
for persons with chronic mental illness. Except as provided in
subsection (3) of this section, in any instrument conveying fee
title to community housing, the { - department - }
{ + authority + } shall include language that restricts the use
of the community housing to housing for persons with chronic
mental illness. Such restriction is not a violation of ORS
93.270.
(3) If the { - department - } { + authority + } determines
that community housing acquired under subsection (1) of this
section is no longer suitable for use as community housing, the
{ - department - } { + authority + } may sell or otherwise
dispose of the community housing without including in any
instrument conveying fee title to the community housing any
language that restricts the use of the community housing.
Proceeds from the sale or disposition of community housing under
this subsection are considered proceeds described in ORS 426.506
(4)(c).
(4) When exercising the { - authority - } { + power + }
granted to the
{ - department - } { + authority + } under this section, the
{ - department - } { + authority + } is not subject to ORS
chapter 273 or ORS 270.100 to 270.190, 276.900 to 276.915 or
279A.250 to 279A.290.
SECTION 431. ORS 426.506 is amended to read:
426.506. (1) There is created in the State Treasury, separate
and distinct from the General Fund, the Community Mental Health
Housing Fund. All earnings on investments of moneys in the
Community Mental Health Housing Fund shall accrue to the fund.
Interest earned on moneys in the fund shall be credited to the
fund. All moneys in the fund are continuously appropriated to the
{ - Department of Human Services - } { + Oregon Health
Authority + } to carry out the provisions of ORS 426.504.
(2) The Community Mental Health Housing Fund shall be
administered by the { - department - } { + authority + } to
provide housing for persons with chronic mental illness. As used
in this subsection, ' housing' may include acquisition,
maintenance, repair, furnishings and equipment.
(3)(a) There is established within the Community Mental Health
Housing Fund a Community Housing Trust Account. With approval of
the State Treasurer and upon request of the Director of
{ - Human Services - } { + the Oregon Health Authority + },
moneys in the account may be invested as provided in ORS 293.701
to 293.820.
(b) Notwithstanding the provisions of ORS 270.150, the
{ - department - } { + authority + } shall deposit into the
Community Housing Trust Account the proceeds, less costs to the
state, received by the { - department - } { + authority + }
from the sale of F. H. Dammasch State Hospital property under ORS
426.508. The { - department - } { + authority + } may expend,
for the purposes set forth in ORS 426.504, any earnings credited
to the account, including any interest earned on moneys deposited
in the account, and up to five percent of the sale proceeds
initially credited to the account by the Oregon Department of
Administrative Services. At least 95 percent of the sale proceeds
shall remain in the account in perpetuity. Proceeds deposited in
the account may not be commingled with proceeds from the sale of
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any surplus real property owned, operated or controlled by the
{ - Department of Human Services - } { + authority + } and
used as a state training center.
(c) Interest earned on moneys in the Community Housing Trust
Account may be expended in the following manner:
(A) Seventy percent of interest earned on deposits in the
account shall be expended for community housing purposes; and
(B) Thirty percent of interest earned on deposits in the
account shall be expended for institutional housing purposes.
(d) Interest earned on deposits in the Community Housing Trust
Account shall not be used to support operating expenses of the
{ - department - } { + authority + }.
(4) The Community Mental Health Housing Fund shall consist of:
(a) Moneys appropriated to the fund by the Legislative
Assembly;
(b) Sale proceeds and earnings from the account under
subsection (3) of this section;
(c) Proceeds from the sale, transfer or lease of any surplus
real property owned, operated or controlled by the
{ - department - } { + authority + } and used as community
housing;
(d) Moneys reallocated from other areas of the
{ - department's - } { + authority's + } budget;
(e) Interest and earnings credited to the fund; and
(f) Gifts of money or other property from any source, to be
used for the purposes of developing housing for persons with
chronic mental illness.
(5) The { - department - } { + authority + } shall adopt
policies:
(a) To establish priorities for the use of moneys in the
Community Mental Health Housing Fund for the sole purpose of
developing housing for persons with chronic mental illness;
(b) To match public and private moneys available from other
sources for developing housing for persons with chronic mental
illness; and
(c) To administer the fund in a manner that will not exceed the
State Treasury's maximum cost per transaction.
(6) The { - Department of Human Services - }
{ + authority + } shall collaborate with the Housing and
Community Services Department to ensure the highest return and
best value for community housing from the Community Mental Health
Housing Fund.
(7) The { - Department of Human Services - }
{ + authority + } shall provide a report of revenues to and
expenditures from the Community Mental Health Housing Fund as
part of its budget submission to the Governor and Legislative
Assembly under ORS chapter 291.
SECTION 432. ORS 426.508 is amended to read:
426.508. (1) Notwithstanding ORS 421.611 to 421.630 or any
actions taken under ORS 421.611 to 421.630, the Department of
Corrections shall transfer the real property known as the F. H.
Dammasch State Hospital and all improvements to the Oregon
Department of Administrative Services to be sold for the benefit
of the { - Department of Human Services - } { + Oregon Health
Authority + }.
(2)(a) Notwithstanding ORS 270.100 to 270.190, and except as
provided in subsection (4) of this section, the Oregon Department
of Administrative Services shall sell or otherwise convey the
real property known as the F. H. Dammasch State Hospital in a
manner consistent with the provisions of this section. Conveyance
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shall not include transfer to a state agency. The sale price of
the real property shall equal or exceed the fair market value of
the real property. The Oregon Department of Administrative
Services shall engage the services of a licensed real estate
broker or principal real estate broker to facilitate the sale of
the real property.
(b) The Oregon Department of Administrative Services shall
retain from the sale or other conveyance of the real property
those costs incurred by the state in selling or conveying the
real property, including costs incurred by the Department of
Corrections in transferring the real property to the Oregon
Department of Administrative Services. The remaining proceeds
from the sale or other conveyance shall be transferred to the
Community Housing Trust Account created under ORS 426.506 (3).
(3) Redevelopment of the real property formerly occupied by the
F. H. Dammasch State Hospital shall be consistent with the
Dammasch Area Transportation Efficient Land Use Plan developed by
Clackamas County, the City of Wilsonville, the Oregon Department
of Administrative Services, the Department of Land Conservation
and Development, the Department of Transportation, the State
Housing Council, the { - Department of Human Services - }
{ + Oregon Health Authority + } and the Department of State
Lands.
(4) The Oregon Department of Administrative Services shall
reserve from the sale of the real property under subsection (2)
of this section not more than 10 acres. The real property
reserved from sale shall be transferred to the { - Department
of Human Services for use by the Department of Human Services to
develop community housing for persons with chronic mental
illness. The Oregon Department of Administrative Services and the
Department of Human Services shall jointly coordinate with the
City of Wilsonville to identify the real property reserved from
sale under this subsection - } { + Oregon Health Authority for
use by the authority to develop community housing for persons
with chronic mental illness. The department and the authority
shall jointly coordinate with the City of Wilsonville to identify
the real property reserved from sale under this subsection + }.
SECTION 433. ORS 426.650 is amended to read:
426.650. (1) Pursuant to rules promulgated by the
{ - Department of Human Services - } { + Oregon Health
Authority + }, the superintendent of any state hospital for the
treatment and care of persons with mental illness may admit and
hospitalize therein as a patient any person in need of medical or
mental therapeutic treatment as a sexually dangerous person who
voluntarily has made written application for such admission. No
person under the age of 18 years shall be admitted as a patient
to any such state hospital unless an application therefor in
behalf of the person has been executed by the parent, adult next
of kin or legal guardian of the person. Pursuant to rules and
regulations of the { - department - } { + authority + }, no
person voluntarily admitted to any state hospital shall be
detained therein more than 72 hours after the person, if at least
18 years of age, has given notice in writing of desire to be
discharged therefrom, or, if the patient is under the age of 18
years, after notice in writing has been given by the parent,
adult next of kin or legal guardian of the person that such
parent, adult next of kin or legal guardian desires that such
person be discharged therefrom.
(2) Any person voluntarily admitted to a state facility
pursuant to this section may upon application and notice to the
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superintendent of the institution concerned, be granted a
temporary leave of absence from the institution if such leave, in
the opinion of the chief medical officer, will not interfere with
the successful treatment or examination of the applicant.
SECTION 434. ORS 426.670 is amended to read:
426.670. The { - Department of Human Services - }
{ + Oregon Health Authority + } hereby is directed and
authorized to establish and operate treatment programs, either
separately within an existing state Department of Corrections
institution, as part of an existing program within { - a
Department of Human Services - } { + an Oregon Health
Authority + } institution, or in specified and approved sites in
the community to receive, treat, study and retain in custody, as
required, such sexually dangerous persons as are committed under
ORS 426.510 to 426.670.
SECTION 435. ORS 426.675 is amended to read:
426.675. (1) When a defendant has been convicted of a sexual
offense under ORS 163.305 to 163.467 or 163.525 and there is
probable cause to believe the defendant is a sexually dangerous
person, the court prior to imposing sentence may continue the
time for sentencing and commit the defendant to a facility
designated under ORS 426.670 for a period not to exceed 30 days
for evaluation and report.
(2) If the facility reports to the court that the defendant is
a sexually dangerous person and that treatment available may
reduce the risk of future sexual offenses, the court shall hold a
hearing to determine by clear and convincing evidence that the
defendant is a sexually dangerous person. The state and the
defendant shall have the right to call and cross-examine
witnesses at such hearing. The defendant may waive the hearing
required by this subsection.
(3) If the court finds that the defendant is a sexually
dangerous person and that treatment is available which will
reduce the risk of future sexual offenses, it may, in its
discretion at the time of sentencing:
(a) Sentence the defendant to probation on the condition that
the person participate in and successfully complete a treatment
program for sexually dangerous persons pursuant to ORS 426.670;
(b) Impose a sentence of imprisonment with the order that the
defendant be assigned by the Director of the Department of
Corrections to participate in a treatment program for sexually
dangerous persons pursuant to ORS 426.670. The Department of
Corrections and { - Department of Human Services - } { + the
Oregon Health Authority + } shall jointly adopt administrative
rules to coordinate assignment and treatment of prisoners under
this subsection; or
(c) Impose any other sentence authorized by law.
SECTION 436. ORS 426.680 is amended to read:
426.680. (1) The superintendent of the facility designated
under ORS 426.670 to receive commitments for medical or mental
therapeutic treatment of sexually dangerous persons may grant a
trial visit to a defendant committed as a condition of probation
where:
(a) The trial visit is not inconsistent with the terms and
conditions of probation; and
(b) The trial visit is agreed to by the community mental health
{ - and developmental disabilities - } program director for the
county in which the person would reside.
(2) Trial visit here shall correspond to trial visit as
described in ORS 426.273 to 426.292 and 426.335, except that the
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length of a trial visit may be for the duration of the period of
probation, subject to the consent of the sentencing court.
SECTION 437. ORS 427.104 is amended to read:
427.104. The Department of Human Services with funds
appropriated for that purpose by the legislature, shall establish
and operate a Developmental Disability Diagnosis and Evaluation
Service for people with mental retardation or developmental
disabilities. The Developmental Disability Diagnosis and
Evaluation Service shall provide all or part of diagnostic
evaluations, as defined in ORS 427.105, when complete evaluations
are not available through community { - mental health and - }
developmental disabilities programs, and the Developmental
Disability Diagnosis and Evaluation Service shall:
(1) Provide consultation and training to community { - mental
health and - } developmental disabilities programs in the
development of local diagnosis and evaluation services;
(2) Develop and periodically revise department standards and
procedures for diagnosis and evaluation services;
(3) Coordinate diagnostic evaluations statewide to minimize
duplication of tests and examinations;
(4) Approve applications for admission to the training center;
(5) Provide necessary information to the State Training Center
Review Board when a decision of the Developmental Disability
Diagnosis and Evaluation Service regarding admission to the state
training center is appealed by the person, the parents or legal
guardian of the person;
(6) Provide consultation to appropriate agencies and
individuals regarding persons evaluated; and
(7) Process and coordinate all placements of residents from the
state training center.
SECTION 437a. ORS 427.108 is amended to read:
427.108. The Department of Human Services shall establish fee
schedules for services under ORS 427.104. All fees collected
under this section shall be deposited in the { - Mental Health
and Developmental Disability - } { + Department of Human + }
Services Account.
SECTION 438. ORS 427.112 is amended to read:
427.112. A general hospital, community { - mental health
and - } developmental disabilities program, or other facility,
except a state training center, providing diagnostic evaluations
under ORS 427.105 shall charge to and collect from the person,
third party payers, or other persons or agencies otherwise
legally responsible therefor, the costs of the diagnostic
evaluation or emergency care, custody and treatment, as the
facility would for any other client or resident.
SECTION 439. ORS 427.180 is amended to read:
427.180. (1) A person shall be admitted to a state training
center only after:
(a) The person has either been committed to the Department of
Human Services as a mentally retarded person under ORS 427.290,
or an application for admission has been filed either by the
person or by another in the manner set forth in ORS 427.185;
(b) The person has undergone a diagnostic evaluation as defined
in ORS 427.105 and the completed evaluation has been provided to
the Developmental Disability Diagnosis and Evaluation Service
established under ORS 427.104; and
(c) Either the Developmental Disability Diagnosis and
Evaluation Service or, upon appeal, the Director of Human
Services finds that the person meets the requirements set out in
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subsection (2) of this section and approves the person for
admission.
(2) A person shall be approved for admission under subsection
(1)(c) of this section if the following conditions exist:
(a) The person is mentally retarded;
(b) Programs and services needed by the person are available in
a training center and comparable services are not available in
community { - mental health and - } developmental disabilities
programs or other human service agencies;
(c) Admission to a state training center is the best available
plan and in the best interest of the person, family of the person
and the community; and
(d) Space is available or may become available within a
reasonable time in an appropriate unit of a state training
center.
SECTION 440. ORS 427.185 is amended to read:
427.185. (1) A person seeking admission to a state training
center shall apply on forms and in the manner established by the
Department of Human Services, to the community { - mental
health and - } developmental disabilities program serving the
area in which the applicant currently resides. If the person
seeking admission is a minor or is incapacitated, the application
shall be made by the person's parents or guardian or by the
person entitled to custody.
(2) Upon receipt of an application, the community { - mental
health and - } developmental disabilities program shall provide
or arrange a diagnostic evaluation, meeting the requirements set
forth in ORS 427.105, of the person on whose behalf the
application for admission is made at a facility approved by the
department. The community { - mental health and - }
developmental disabilities program or its designee shall schedule
a date for the diagnostic evaluation and notify the applicant or
person having custody. No person shall be kept in residence in a
training center for a diagnostic evaluation longer than 10
business days.
(3) The costs of transportation to the community { - mental
health and - } developmental disabilities program or designated
facility shall be paid by the applicant. The cost of maintenance
for any period of residence in a training center shall be
determined as provided for in ORS 179.610 to 179.770 and paid by
the applicant or other persons or agencies legally responsible.
SECTION 441. ORS 427.190 is amended to read:
427.190. (1) Upon receipt of a completed diagnostic evaluation,
the community { - mental health and - } developmental
disabilities program shall forward the completed application and
the completed diagnostic evaluation to the Developmental
Disability Diagnosis and Evaluation Service.
(2) Upon receipt of a completed application and diagnostic
evaluation from the community { - mental health and - }
developmental disabilities program, the Developmental Disability
Diagnosis and Evaluation Service shall promptly determine the
eligibility and priority for admission in accordance with ORS
427.180 and 427.195.
(3) When space in an appropriate unit of a training center
becomes available for a person otherwise eligible for admission
under ORS 427.180, the Developmental Disability Diagnosis and
Evaluation Service shall notify the applicant or, if the person
is committed, the director of the community { - mental health
and - } developmental disabilities program in the county of the
person's residence that the person has been accepted for
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admission. The notice shall establish the date when the admission
is to be made. If the person does not appear at the designated
training center within 15 days after the date established for
admission, the application of the person may be canceled by the
Developmental Disability Diagnosis and Evaluation Service.
(4) A person applying for admission to a state training center
or, if the person is a minor or incapacitated, the person
applying for admission on behalf of the minor or incapacitated
person may appeal any decision of the Developmental Disability
Diagnosis and Evaluation Service regarding admission to the
Director of Human Services. The appeal shall be filed within 30
days of receipt of notice of the decision and shall set forth the
reasons for the appeal. The director shall convene the State
Training Center Review Board, established under ORS 427.205,
within 30 days of receipt of the appeal. The board shall advise
the director regarding disposition of the appeal, and the
director shall make a decision on the appeal within 30 days of
the meeting of the board. The decision of the director shall be
final.
SECTION 442. ORS 427.235 is amended to read:
427.235. (1) Any two persons may notify the judge of the court
having probate jurisdiction for the county or the circuit court,
if it is not the probate court but its jurisdiction has been
extended to include commitment of the mentally retarded under ORS
3.275, that a person within the county is a mentally retarded
person in need of commitment for residential care, treatment and
training. Such notice shall be in writing and sworn to before an
officer qualified to administer an oath and shall set forth the
facts sufficient to show the need for investigation. The circuit
court shall forward notice to the community { - mental health
and - } developmental disabilities program director in the county
if it finds the notice sufficient to show the need for
investigation. The director or the designee of the director
shall immediately investigate to determine whether the person is
in fact a mentally retarded person. However, if the petition for
commitment is from a state training center, the duties of the
community { - mental health and - } developmental disabilities
program director under ORS 427.235 to 427.270, 427.280 and
427.285 shall be the responsibility of the superintendent of the
state training center or the designee of the superintendent.
(2) Any person who acts in good faith shall not be held civilly
liable for making of the notification under subsection (1) of
this section.
(3) Any investigation conducted by the community { - mental
health and - } developmental disabilities program director or
the designee of the director under subsection (1) of this section
shall commence with an interview or examination of the allegedly
mentally retarded person, where possible, in the home of the
allegedly mentally retarded person or other place familiar to the
allegedly mentally retarded person. Further investigation if
warranted shall include a diagnostic evaluation as defined in ORS
427.105 and may also include interviews with the allegedly
mentally retarded person's relatives, neighbors, teachers and
physician. The investigation shall also determine if any
alternatives to commitment are available. The investigator shall
also determine and recommend to the court whether the person is
incapacitated and in need of a guardian or conservator.
(4) The investigation report shall be submitted to the court
within 30 days of receipt of notice from the court. A copy of the
investigation report and diagnostic evaluation, if any, shall
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also be made available to the Developmental Disability Diagnosis
and Evaluation Service and to the allegedly mentally retarded
person and, where the allegedly mentally retarded person is a
minor or incapacitated, to the parents of the allegedly mentally
retarded person or guardian as soon as possible after its
completion but in any case prior to a hearing held under ORS
427.245.
(5) Any person conducting an evaluation or investigation under
this section shall in no way be held civilly liable for
conducting the investigation or performing the diagnostic
evaluation.
(6) If requested by a person conducting an investigation under
this section, a physician who has examined the allegedly mentally
retarded person may, with patient authorization or in response to
a court order, provide any relevant information the physician has
regarding the allegedly mentally retarded person.
SECTION 443. ORS 427.245 is amended to read:
427.245. (1) If the court, following receipt of an
investigation report under ORS 427.235, concludes that there is
probable cause to believe that the subject of the investigation
is in fact a mentally retarded person, it shall, through the
issuance of a citation as provided in subsection (2) of this
section, cause the person to be brought before it at such time
and place as it may direct for a hearing to determine whether the
person is mentally retarded. The person shall be given the
opportunity to appear at the hearing. If the person is detained
pursuant to ORS 427.255, the court shall hold the hearing within
seven judicial days.
(2) Upon a determination under subsection (1) of this section
that probable cause exists to believe that the person is in fact
a mentally retarded person, the judge shall cause a citation to
issue to the person or, if the person is a minor or
incapacitated, to the parent or legal guardian of the person. The
citation shall state the specific reasons the person is believed
to be mentally retarded. The citation shall also contain a notice
of the time and place of the commitment hearing, the right to
legal counsel, the right to have legal counsel appointed if the
person is unable to afford legal counsel, the right to have legal
counsel appointed immediately if so requested, the right to
subpoena witnesses in behalf of the person to testify at the
hearing, the right to cross-examine all witnesses and such other
information as the court may direct. The citation shall be served
on the person by the community { - mental health and - }
developmental disabilities program director or the designee of
the director delivering a duly certified copy of the original to
the person prior to the hearing. The person, the parents of the
person or the legal guardian of the person shall have the
opportunity to consult with legal counsel prior to being brought
before the court. The community { - mental health and - }
developmental disabilities program director or the designee of
the director shall advise the person of the purpose of the
citation and the possible consequences of the proceeding.
SECTION 444. ORS 427.255 is amended to read:
427.255. (1) If the court finds that there is probable cause to
believe that failure to take an allegedly mentally retarded
person into custody pending an investigation or hearing would
pose an imminent and serious danger to the person or to others,
the judge may issue a warrant of detention to either the
community
Enrolled House Bill 2009 (HB 2009-C) Page 279
{ - mental health and - } developmental disabilities program
director or the sheriff of the county directing that the person
or the designee of the person take the allegedly mentally
retarded person into custody and produce the mentally retarded
person at the time and place stated in the warrant. At the time
the person is taken into custody, the person taking the person
into custody shall advise the allegedly mentally retarded person
or, if the allegedly mentally retarded person is incapacitated or
a minor, the parents or guardian of the allegedly mentally
retarded person of the person's right to counsel, to have legal
counsel appointed if the allegedly mentally retarded person is
unable to afford legal counsel, and, if requested, to have legal
counsel appointed immediately.
(2) A person taken into custody under subsection (1) of this
section shall be provided all care, custody, evaluation and
treatment required for the mental and physical health and safety
of the person and the director of the facility retaining custody
shall report any care, custody, evaluation or treatment provided
the person to the court as required by ORS 427.280. Any
diagnostic evaluation performed on such person shall be
consistent with Department of Human Services rules and ORS
427.105. Any prescription or administration of drugs shall be the
sole responsibility of the treating physician. The allegedly
mentally retarded person shall have the right to the least
hazardous treatment procedures while in custody, and the treating
physician shall be notified immediately of the use of any
mechanical restraints on the person. A note of each use of
mechanical restraint and the reasons therefor shall be made a
part of the person's clinical record over the signature of the
treating physician.
SECTION 445. ORS 427.275 is amended to read:
427.275. (1) Any physician or psychologist employed by the
judge to make a diagnostic evaluation of a person alleged to be
mentally retarded shall be allowed a fee as the court in its
discretion determines reasonable for the evaluation. The costs of
the evaluation shall be paid by the county of residence of the
person or, if the person has no residence within the state, by
the county in which the person is taken into custody. The county
shall not be held responsible for the costs of prior examinations
or tests reported to the court, or of diagnostic evaluations
performed or arranged by the community { - mental health
and - } developmental disabilities program or Department of Human
Services.
(2) Witnesses subpoenaed to give testimony shall receive the
same fees as are paid in criminal cases and are subject to
compulsory attendance in the same manner as provided in ORS
136.567 to 136.603. The attendance of out-of-state witnesses may
be secured in the same manner as provided in ORS 136.623 to
136.637. The party who subpoenas the witness or requests the
court to subpoena the witness is responsible for payment of the
cost of the subpoena and payment for the attendance of the
witness at a hearing. When the witness has been subpoenaed on
behalf of an allegedly mentally retarded person who is
represented by appointed counsel, the fees and costs allowed for
that witness shall be paid pursuant to ORS 135.055.
SECTION 446. ORS 427.280 is amended to read:
427.280. The court shall be fully advised by the community
{ - mental health and - } developmental disabilities program
director or, when the person has been detained under ORS 427.255,
by the director of the facility retaining custody of all
Enrolled House Bill 2009 (HB 2009-C) Page 280
treatment known to have been administered to the allegedly
mentally retarded person after a citation has been issued to the
person.
SECTION 447. ORS 427.300 is amended to read:
427.300. (1) The Department of Human Services may, at its
discretion, direct any court-committed mentally retarded person
to the facility best able to treat and train the person. The
authority of the department on such matters shall be final.
(2) At any time, for good cause and in the best interest of the
mentally retarded person, the department may decide to transfer a
resident from one facility to another or discharge a resident as
no longer in need of residential care, treatment or training in a
state training center. Fifteen days prior to department action,
the department shall notify the resident and the parent, guardian
or person entitled to custody of the resident by certified mail
of its decision. The notice shall indicate the right of the
aforementioned parties to appeal this decision to the State
Training Center Review Board in writing within 10 days after
receipt of notice. Within 30 days from the date the appeal is
received by the department, the State Training Center Review
Board shall hold a hearing at which the department and the person
having filed the appeal shall present their case and shall
communicate its recommendation to the Director of Human Services
pursuant to ORS 427.205 (4)(b); and the director shall
communicate the decision of the director by certified mail to the
appealing party.
(3) The department, pursuant to its rules, may delegate to a
community { - mental health and - } developmental disabilities
program director the responsibility for assignment of mentally
retarded persons to suitable facilities or transfer between such
facilities under conditions which the department may define. Any
voluntary client or resident shall be released from the treating
or training facility within 15 business days of the request of
the client or resident for release, unless commitment procedures
are initiated under ORS 427.235.
SECTION 448. ORS 427.306 is amended to read:
427.306. (1) No person, not incarcerated upon a criminal
charge, who has been alleged or adjudged a mentally retarded
person shall be confined in any prison, jail or other enclosure
where those charged with a crime or a violation of a municipal
ordinance are incarcerated.
(2) No person alleged or adjudged a mentally retarded person,
not incarcerated on a criminal charge, shall be confined without
an attendant in charge of the person. If not confined in a
community hospital, the community { - mental health and - }
developmental disabilities program director or sheriff having the
person in custody shall select some suitable person to act as
attendant in quarters suitable for the comfortable, safe and
humane confinement of the person. The person shall be detained in
the least restrictive setting consistent with the person's
emotional and physical needs and the protection of others.
SECTION 449. ORS 428.210 is amended to read:
428.210. As used in ORS 428.210 to 428.270:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'Department' means the Department
of Human Services.
{ - (2) - } { + (3) + } 'Foreign hospital' means an
institution in any other state which corresponds to the
institutions defined in subsection { - (7) - } { + (8) + } of
this section.
Enrolled House Bill 2009 (HB 2009-C) Page 281
{ - (3) - } { + (4) + } 'Nonresident' means any person who
is not a resident of this state as defined in subsection
{ - (6) - } { + (7) + } of this section.
{ - (4) - } { + (5) + } 'Other state' includes all the
states, territories, possessions, commonwealths and agencies of
the United States and the District of Columbia, with the
exception of the State of Oregon.
{ - (5) - } { + (6) + } 'Patient' means any person who has
been committed by a court of competent jurisdiction to a state
hospital, except a person committed to a state hospital pursuant
to ORS 136.150 (1969 Replacement Part), 136.160 (1969 Replacement
Part), 161.341 or 161.370.
{ - (6) - } { + (7) + } 'Resident of this state' means a
person who has lived in this state continuously for a period of
one year and who has not acquired legal residence in any other
state by living continuously therein for at least one year
subsequent to the residence of the person in this state. However,
a service man or woman on active duty in the Armed Forces of the
United States who was domiciled in Oregon upon entry into active
duty and who has acquired no other domicile shall be entitled to
have his or her children considered a resident of this state so
long as no other domicile is acquired by the service man or
woman.
{ - (7) - } { + (8) + } 'State hospital' means any
institution listed in ORS 426.010 or 427.010.
SECTION 450. ORS 428.220 is amended to read:
428.220. (1) In determining whether or not any person committed
by a court of competent jurisdiction to a state hospital or
foreign hospital is a resident of this state:
(a) The time spent in a state hospital or foreign hospital or
on parole therefrom shall not be counted in determining the
residence of such person in this or any other state.
(b) The residence of such person at the time of commitment
shall remain the residence of the person for the duration of the
commitment of the person.
(2) The Department of Human Services may give written
authorization for the admission to { - a state hospital
whenever - } { + the Eastern Oregon Training Center
whenever + }:
(a) The residence of any person cannot be established after
reasonable and diligent investigation and effort.
(b) The peculiar circumstances of a case, in the judgment of
the department, provide a sufficient reason for the suspension of
the residence requirement provided by ORS 428.210 { - (6) - }
{ + (7) + }.
{ + (3) The Oregon Health Authority may give written
authorization for the admission to the Blue Mountain Recovery
Center or the Oregon State Hospital whenever:
(a) The residence of any person cannot be established after
reasonable and diligent investigation and effort.
(b) The peculiar circumstances of a case, in the judgment of
the authority, provide a sufficient reason for the suspension of
the residence requirement provided by ORS 428.210 (7). + }
SECTION 451. ORS 428.230 is amended to read:
428.230. (1) Except as provided in ORS 428.205, 428.220 and
428.330, the Department of Human Services { + and the Oregon
Health Authority + } shall return nonresident patients to any
other state in which they may have legal residence.
(2) The department may give written authorization for the
return to { - a state hospital - } { + the Eastern Oregon
Enrolled House Bill 2009 (HB 2009-C) Page 282
Training Center + } of a resident of Oregon who has been
committed by a court of competent jurisdiction to a foreign
hospital.
(3) The superintendent of { - any state hospital - }
{ + the Eastern Oregon Training Center + } shall admit and care
for any person eligible for admission pursuant to subsection (2)
of this section or ORS 428.220 (2) upon receipt of a certified
copy of the commitment papers and the written authorization of
the department.
{ + (4) The authority may give written authorization for the
return to the Blue Mountain Recovery Center or the Oregon State
Hospital of a resident of Oregon who has been committed by a
court of competent jurisdiction to a foreign hospital.
(5) The superintendent of the Blue Mountain Recovery Center or
the Oregon State Hospital shall admit and care for any person
eligible for admission pursuant to subsection (4) of this section
or ORS 428.220 (3) upon receipt of a certified copy of the
commitment papers and the written authorization of the
authority. + }
SECTION 452. ORS 428.240 is amended to read:
428.240. (1) For the purpose of facilitating the return of
nonresident patients, the Department of Human Services may enter
into a reciprocal agreement with any other state for the mutual
exchange of persons committed by a court of competent
jurisdiction to { - any state hospital or - } { + the Eastern
Oregon Training Center or a + } foreign hospital, whose legal
residence is in the other's jurisdiction.
{ + (2) For the purpose of facilitating the return of
nonresident patients, the Oregon Health Authority may enter into
a reciprocal agreement with any other state for the mutual
exchange of persons committed by a court of competent
jurisdiction to the Blue Mountain Recovery Center, the Oregon
State Hospital or a foreign hospital, whose legal residence is in
the other's jurisdiction. + }
{ - (2) - } { + (3) + } In such agreements, the department
{ + or authority + } may:
(a) Only for purposes of mutual exchange with the other state,
vary the period of residence required by ORS 428.210
{ - (6) - } { + (7) + }.
(b) Provide for the arbitration of disputes arising out of the
mutual exchange of such persons between this state and any other
state.
SECTION 453. ORS 428.260 is amended to read:
428.260. (1) For the purpose of carrying out the provisions of
ORS 428.210 to 428.270, the Department of Human Services { + or
the Oregon Health Authority + } may employ all help necessary in
arranging for and transporting nonresident patients.
(2) The cost and expense of providing such assistance and all
expenses incurred in effecting the transportation of such
patients shall be paid from funds appropriated for that purpose
upon vouchers approved by the { - department and the
superintendent of the state hospital from which such patients are
transported - } { + department, the authority or the
superintendent of the Eastern Oregon Training Center, the Blue
Mountain Recovery Center or the Oregon State Hospital + }.
SECTION 454. ORS 428.270 is amended to read:
428.270. (1) Any person, except an officer, agent or employee
of a common carrier acting in the line of duty, who brings or in
any way aids in bringing into this state any patient without the
written authorization of the Department of Human Services { + or
Enrolled House Bill 2009 (HB 2009-C) Page 283
the Oregon Health Authority + }, shall be liable to this state
for all expenses incurred in the care of such patient and in the
transportation of such patient to the other state where the
patient legally resides.
(2) Hospitals and sanitariums, other than state hospitals, that
care for and treat persons with mental illness or mental
retardation shall be responsible for the return of those persons
to their places of residence or domicile outside the state if
they are brought into this state for treatment and care and are
discharged from such institutions without being fully recovered.
(3) Failure to comply with the provisions of subsection (2) of
this section shall render the person operating the hospital or
sanitarium liable to reimburse the state for all expenses
incurred in the care, maintenance and return of the persons with
mental illness or mental retardation to their places of residence
or domicile outside the state.
SECTION 455. ORS 428.310 is amended to read:
428.310. The Department of Human Services { + or the Oregon
Health Authority + } may execute and terminate a compact on
behalf of the State of Oregon with any state, territory or
possession of the United States, the District of Columbia and the
Commonwealth of Puerto Rico joining therein, in the form
substantially as follows:
_________________________________________________________________
The contracting states solemnly agree that:
ARTICLE I
The party states find that the proper and expeditious treatment
of the mentally ill and mentally deficient can be facilitated by
cooperative action, to the benefit of the patients, their
families, and society as a whole. Further, the party states find
that the necessity of and desirability for furnishing such care
and treatment bears no primary relation to the residence or
citizenship of the patient but that, on the contrary, the
controlling factors of community safety and humanitarianism
require that facilities and services be made available for all
who are in need of them. Consequently, it is the purpose of this
compact and of the party states to provide the necessary legal
basis for the institutionalization or other appropriate care and
treatment of the mentally ill and mentally deficient under a
system that recognizes the paramount importance of patient
welfare and to establish the responsibilities of the party states
in terms of such welfare.
ARTICLE II
As used in this compact:
(a) 'Sending state' shall mean a party state from which a
patient is transported pursuant to the provisions of the compact
or from which it is contemplated that a patient may be so sent.
(b) 'Receiving state' shall mean a party state to which a
patient is transported pursuant to the provisions of the compact
or to which it is contemplated that a patient may be so sent.
(c) 'Institution' shall mean any hospital or other facility
maintained by a party state or political subdivision thereof for
the care and treatment of mental illness or mental deficiency.
(d) 'Patient' shall mean any person subject to or eligible as
determined by the laws of the sending state, for
institutionalization or other care, treatment or supervision
pursuant to the provisions of this compact.
Enrolled House Bill 2009 (HB 2009-C) Page 284
(e) 'After-care' shall mean care, treatment and services
provided a patient, as defined herein, on convalescent status or
conditional release.
(f) 'Mental illness' shall mean mental disease to such extent
that a person so afflicted requires care and treatment for his
own welfare, or the welfare of others, or of the community.
(g) 'Mental deficiency' shall mean mental deficiency as defined
by appropriate clinical authorities to such extent that a person
so afflicted is incapable of managing himself and his affairs,
but shall not include mental illness as defined herein.
(h) 'State' shall mean any state, territory or possession of
the United States, the District of Columbia and the Commonwealth
of Puerto Rico.
ARTICLE III
(a) Whenever a person physically present in any party state
shall be in need of institutionalization by reason of mental
illness or mental deficiency, the person shall be eligible for
care and treatment in an institution in that state irrespective
of the residence, settlement or citizenship qualifications of the
person.
(b) The provisions of paragraph (a) of this article to the
contrary notwithstanding, any patient may be transferred to an
institution in another state whenever there are factors based
upon clinical determinations indicating that the care and
treatment of said patient would be facilitated or improved
thereby. Any such institutionalization may be for the entire
period of care and treatment or for any portion or portions
thereof. The factors referred to in this paragraph shall include
the patient's full record with due regard for the location of the
patient's family, character of the illness and probable duration
thereof, and such other factors as shall be considered
appropriate.
(c) No state shall be obliged to receive any patient pursuant
to the provisions of paragraph (b) of this article unless the
sending state has given advance notice of its intention to send
the patient; furnished all available medical and other pertinent
records concerning the patient; given the qualified medical or
other appropriate clinical authorities of the receiving state an
opportunity to examine the patient if said authorities so wish;
and unless the receiving state shall agree to accept the patient.
(d) In the event that the laws of the receiving state establish
a system of priorities for the admission of patients, an
interstate patient under this compact shall receive the same
priority as a local patient and shall be taken in the same order
and at the same time that the patient would be taken if the
patient were a local patient.
(e) Pursuant to this compact, the determination as to the
suitable place of institutionalization for a patient may be
reviewed at any time and such further transfer of the patient may
be made as seems likely to be in the best interest of the
patient.
ARTICLE IV
(a) Whenever, pursuant to the laws of the state in which a
patient is physically present, it shall be determined that the
patient should receive after-care or supervision, such care or
supervision may be provided in a receiving state. If the medical
or other appropriate clinical authorities having responsibility
for the care and treatment of the patient in the sending state
shall have reason to believe that after-care in another state
would be in the best interest of the patient and would not
Enrolled House Bill 2009 (HB 2009-C) Page 285
jeopardize the public safety, they shall request the appropriate
authorities in the receiving state to investigate the
desirability of affording the patient such after-care in said
receiving state, and such investigation shall be made with all
reasonable speed. The request for investigation shall be
accompanied by complete information concerning the patient's
intended place of residence and the identity of the person in
whose charge it is proposed to place the patient, the complete
medical history of the patient, and such other documents as may
be pertinent.
(b) If the medical or other appropriate clinical authorities
having responsibility for the care and treatment of the patient
in the sending state and the appropriate authorities in the
receiving state find that the best interest of the patient would
be served thereby, and if the public safety would not be
jeopardized thereby, the patient may receive after-care or
supervision in the receiving state.
(c) In supervising, treating or caring for a patient on
after-care pursuant to the terms of this article, a receiving
state shall employ the same standards of visitation, examination,
care and treatment that it employs for similar local patients.
ARTICLE V
Whenever a dangerous or potentially dangerous patient escapes
from an institution in any party state, that state shall promptly
notify all appropriate authorities within and without the
jurisdiction of the escape in a manner reasonably calculated to
facilitate the speedy apprehension of the escapee. Immediately
upon the apprehension and identification of any such dangerous or
potentially dangerous patient, the patient shall be detained in
the state where found pending disposition in accordance with law.
ARTICLE VI
The duly accredited officers of any state party to this
compact, upon the establishment of their authority and the
identity of the patient, shall be permitted to transport any
patient being moved pursuant to this compact through any and all
states party to this compact, without interference.
ARTICLE VII
(a) No person shall be deemed a patient of more than one
institution at any given time. Completion of transfer of any
patient to an institution in a receiving state shall have the
effect of making the person a patient of the institution in the
receiving state.
(b) The sending state shall pay all costs of and incidental to
the transportation of any patient pursuant to this compact, but
any two or more party states may, by making a specific agreement
for that purpose, arrange for a different allocation of costs as
among themselves.
(c) No provision of this compact shall be construed to alter or
affect any internal relationships among the departments, agencies
and officers of and in the government of a party state, or
between a party state and its subdivisions, as to the payment of
costs, or responsibilities therefor.
(d) Nothing in this compact shall be construed to prevent any
party state or subdivision thereof from asserting any right
against any person, agency or other entity in regard to costs for
which such party state or subdivision thereof may be responsible
pursuant to any provision of this compact.
(e) Nothing in this compact shall be construed to invalidate
any reciprocal agreement between a party state and a nonparty
state relating to institutionalization, care or treatment of the
Enrolled House Bill 2009 (HB 2009-C) Page 286
mentally ill or mentally deficient, or any statutory authority
pursuant to which such agreements may be made.
ARTICLE VIII
(a) Nothing in this compact shall be construed to abridge,
diminish, or in any way impair the rights, duties and
responsibilities of any patient's guardian on the guardian's own
behalf or in respect of any patient for whom the guardian may
serve, except that where the transfer of any patient to another
jurisdiction makes advisable the appointment of a supplemental or
substitute guardian, any court of competent jurisdiction in the
receiving state may make such supplemental or substitute
appointment and the court which appointed the previous guardian
shall upon being duly advised of the new appointment, and upon
the satisfactory completion of such accounting and other acts as
such court may by law require, relieve the previous guardian of
power and responsibility to whatever extent shall be appropriate
in the circumstances; provided, however, that in the case of any
patient having settlement in the sending state, the court of
competent jurisdiction in the sending state shall have the sole
discretion to relieve a guardian appointed by it or continue the
power and responsibility of the guardian, whichever it shall deem
advisable. The court in the receiving state may, in its
discretion, confirm or reappoint the person or persons previously
serving as guardian in the sending state in lieu of making a
supplemental or substitute appointment.
(b) The term 'guardian' as used in paragraph (a) of this
article shall include any guardian, trustee, legal committee,
conservator or other person or agency however denominated who is
charged by law with responsibility for the property of a patient.
ARTICLE IX
(a) No provision of this compact except Article V shall apply
to any person institutionalized while under sentence in a penal
or correctional institution or while subject to trial on a
criminal charge, or whose institutionalization is due to the
commission of an offense for which, in the absence of mental
illness or mental deficiency, said person would be subject to
incarceration in a penal or correctional institution.
(b) To every extent possible, it shall be the policy of states
party to this compact that no patient shall be placed or detained
in any prison, jail or lockup, but such patient shall, with all
expedition, be taken to a suitable institutional facility for
mental illness or mental deficiency.
ARTICLE X
(a) Each party state shall appoint a 'compact administrator'
who, on behalf of the state of the compact administrator, shall
act as general coordinator of activities under the compact in the
state of the compact administrator and who shall receive copies
of all reports, correspondence, and other documents relating to
any patient processed under the compact by the state of the
compact administrator either in the capacity of sending or
receiving state. The compact administrator or the duly designated
representative of the compact administrator shall be the official
with whom other party states shall deal in any matter relating to
the compact or any patient processed thereunder.
(b) The compact administrators of the respective party states
shall have power to promulgate reasonable rules and regulations
to carry out more effectively the terms and provisions of this
compact.
ARTICLE XI
Enrolled House Bill 2009 (HB 2009-C) Page 287
The duly constituted administrative authorities of any two or
more party states may enter into supplementary agreements for the
provision of any service or facility or for the maintenance of
any institution on a joint or cooperative basis whenever the
states concerned shall find that such agreements will improve
services, facilities, or institutional care and treatment in the
fields of mental illness or mental deficiency. No such
supplementary agreement shall be construed so as to relieve any
party state of any obligation which it otherwise would have under
other provisions of this compact.
ARTICLE XII
This compact shall enter into full force and effect as to any
state when entered into according to law and such state shall
thereafter be a party thereto with any and all states legally
joining therein.
ARTICLE XIII
(a) A state party to this compact may withdraw therefrom as
provided by law and such renunciation shall be by the same
authority which executed it. Such withdrawal shall take effect
one year after notice thereof has been communicated officially
and in writing to the governors and compact administrators of all
other party states. However, the withdrawal of any state shall
not change the status of any patient who has been sent to said
state or sent out of said state pursuant to the provisions of the
compact.
(b) Withdrawal from any agreement permitted by Article VII (b)
as to costs or from any supplementary agreement made pursuant to
Article XI shall be in accordance with the terms of such
agreement.
ARTICLE XIV
This compact shall be liberally construed so as to effectuate
the purposes thereof. The provisions of this compact shall be
severable and if any phrase, clause, sentence or provision of
this compact is declared to be contrary to the constitution of
any party state or of the United States or the applicability
thereof to any government, agency, person or circumstance is held
invalid, the validity of the remainder of this compact and the
applicability thereof to any government, agency, person or
circumstance shall not be affected thereby. If this compact shall
be held contrary to the constitution of any state party thereto,
the compact shall remain in full force and effect as to the
remaining states and in full force and effect as to the state
affected as to all severable matters.
_________________________________________________________________
SECTION 456. ORS 428.320 is amended to read:
428.320. { + (1) + } { - The - } { + When the person who
is the subject of the compact is being transported to or from the
Eastern Oregon Training Center, the + } Department of Human
Services shall carry out the duties of compact administrator, may
promulgate rules and regulations to carry out more effectively
the terms of the compact, and may enter into supplementary
agreements with appropriate officials of other states pursuant to
Articles VII and XI of the compact. The power of termination of
the compact formerly vested in the Board of Control under ORS
428.310 is vested in the department.
{ + (2) When the person who is the subject of the compact is
being transported to or from the Blue Mountain Recovery Center or
the Oregon State Hospital, the Oregon Health Authority shall
carry out the duties of compact administrator, may promulgate
Enrolled House Bill 2009 (HB 2009-C) Page 288
rules and regulations to carry out more effectively the terms of
the compact, and may enter into supplementary agreements with
appropriate officials of other states pursuant to Articles VII
and XI of the compact. The power of termination of the compact
formerly vested in the Board of Control under ORS 428.310 is
vested in the authority. + }
SECTION 457. ORS 428.330 is amended to read:
428.330. (1) The Department of Human Services { + or the
Oregon Health Authority + } may comply with the terms of the
Interstate Compact on Mental Health in dealing with a state which
is not a party of the interstate compact.
(2) When the department { + or the authority + } acts under
subsection (1) of this section, the term 'party state,' as used
in the Interstate Compact on Mental Health, includes states which
are not parties of the interstate compact.
SECTION 458. ORS 430.010 is amended to read:
430.010. As used in ORS 430.010 to 430.050, 430.140 to 430.170,
430.265, 430.270 and 430.610 to 430.695:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'Department' means the Department
of Human Services.
{ - (2) - } { + (3) + } 'Health facility' means a facility
licensed as required by ORS 441.015 or a facility accredited by
the Joint Commission on Accreditation of Hospitals, either of
which provides full-day or part-day acute treatment for
alcoholism, drug addiction or mental or emotional disturbance,
and is licensed to admit persons requiring 24-hour nursing care.
{ - (3) - } { + (4) + } 'Residential facility' or 'day or
partial hospitalization program' means a program or facility
providing an organized full-day or part-day program of treatment.
Such a program or facility shall be licensed, approved,
established, maintained, contracted with or operated by the
{ - department - } { + authority + } under:
(a) ORS 430.265 to 430.380 and 430.610 to 430.880 for
alcoholism;
(b) ORS 430.265 to 430.380, 430.405 to 430.565 and 430.610 to
430.880 for drug addiction; or
(c) ORS 430.610 to 430.880 for mental or emotional
disturbances.
{ - (4) - } { + (5) + } 'Outpatient service' means:
(a) A program or service providing treatment by appointment and
by medical or osteopathic physicians licensed by the Oregon
Medical Board under ORS 677.010 to 677.450; psychologists
licensed by the State Board of Psychologist Examiners under ORS
675.010 to 675.150; nurse practitioners registered by the Oregon
State Board of Nursing under ORS 678.010 to 678.410; or clinical
social workers licensed by the State Board of Clinical Social
Workers under ORS 675.510 to 675.600; or
(b) A program or service providing treatment by appointment
that is licensed, approved, established, maintained, contracted
with or operated by the { - department - } { + authority + }
under:
(A) ORS 430.265 to 430.380 and 430.610 to 430.880 for
alcoholism;
(B) ORS 430.265 to 430.380, 430.405 to 430.565 and 430.610 to
430.880 for drug addiction; or
(C) ORS 430.610 to 430.880 for mental or emotional
disturbances.
SECTION 459. ORS 430.021 is amended to read:
430.021. Subject to ORS 417.300 and 417.305:
Enrolled House Bill 2009 (HB 2009-C) Page 289
(1) The Department of Human Services shall:
(a) Direct, promote, correlate and coordinate all the
activities, duties and direct services for persons with
{ - mental or emotional disturbances, mental retardation,
developmental disabilities, alcoholism or drug dependence - }
{ + mental retardation or developmental disabilities + } { - ;
and - } { + . + }
(b) Promote, correlate and coordinate the { - mental health
and - } developmental disabilities activities of all governmental
organizations throughout the state in which there is any direct
contact with { - mental health and - } developmental
disabilities programs.
{ + (c) Establish, coordinate, assist and direct a community
developmental disabilities program in cooperation with local
government units and integrate such a program with the state
developmental disabilities program.
(d) Promote public education in this state concerning
developmental disabilities and act as the liaison center for work
with all interested public and private groups and agencies in the
field of developmental disabilities services.
(2) The Oregon Health Authority shall:
(a) Direct, promote, correlate and coordinate all the
activities, duties and direct services for persons with mental or
emotional disturbances, alcoholism or drug dependence.
(b) Promote, correlate and coordinate the mental health
activities of all governmental organizations throughout the state
in which there is any direct contact with mental health programs.
(c) Establish, coordinate, assist and direct a community mental
health program in cooperation with local government units and
integrate such a program with the state mental health program.
(d) Promote public education in this state concerning mental
health and act as the liaison center for work with all interested
public and private groups and agencies in the field of mental
health services. + }
{ - (2) - } { + (3) + } The department { + and the
authority + } shall develop cooperative programs with interested
private groups throughout the state to effect better community
awareness and action in the
{ - field - } { + fields + } of mental health and
developmental disabilities, and encourage and assist in all
necessary ways community general hospitals to establish
psychiatric services.
{ - (3) - } { + (4) + } To the greatest extent possible,
the least costly settings for treatment, outpatient services and
residential facilities shall be widely available and utilized
except when contraindicated because of individual health care
needs. State agencies that purchase treatment for mental or
emotional disturbances shall develop criteria consistent with
this policy. In reviewing applications for certificates of need,
the Director of { - Human Services - } { + the Oregon Health
Authority + } shall take this policy into account.
{ - (4) The department shall establish, coordinate, assist
and direct a community mental health and developmental
disabilities program in cooperation with local government units
and integrate such a program with the total state mental and
developmental disabilities health program. - }
{ - (5) The department shall promote public education in the
state concerning mental health and developmental disabilities and
act as the liaison center for work with all interested public and
Enrolled House Bill 2009 (HB 2009-C) Page 290
private groups and agencies in the field of mental health and
developmental disabilities services. - }
{ - (6) - } { + (5) + } The department { + and the
authority + } shall accept the custody of persons committed to
its care by the courts of this state.
{ - (7) - } { + (6) + } The { - department - }
{ + authority + } shall adopt rules to require a facility and a
nonhospital facility as those terms are defined in ORS 426.005,
and a provider that employs a person described in ORS 426.415, if
subject to { - department - } { + authority + } rules
regarding the use of restraint or seclusion during the course of
mental health treatment of a child or adult, to report to the
{ - department - } { + authority + } each calendar quarter the
number of incidents involving the use of restraint or seclusion.
The aggregate data shall be made available to the public.
SECTION 460. ORS 430.030 is amended to read:
430.030. The enumeration of duties, functions and powers under
ORS 430.021 shall not be deemed exclusive nor construed as a
limitation on the powers and authority vested in the Department
of Human Services { + or the Oregon Health Authority + } by
other provisions of law.
SECTION 461. ORS 430.050 is amended to read:
430.050. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + }, with the approval of the Governor,
shall appoint at least 15 but not more than 20 members of a
Mental Health Advisory Board, composed of both lay and
professionally trained individuals, qualified by training or
experience to study the problems of mental health and make
recommendations for the development of policies and procedures
with respect to the state mental health programs. The membership
shall provide balanced representation of program areas and shall
include persons who represent the interests of children. At least
four members of the board shall be persons with disabilities who
shall serve as the Disability Issues Advisory Committee which is
hereby established. The members of the board shall serve for
terms of four years and are entitled to compensation and expenses
as provided in ORS 292.495. The director may remove any member of
the board for misconduct, incapacity or neglect of duty.
(2) The { - Department of Human Services - } { + Oregon
Health Authority + } shall adopt rules specifying the duties of
the board. In addition to those duties assigned by rule, the
board shall assist the { - department - } { + authority + }
in planning and preparation of administrative rules for the
assumption of responsibility for psychiatric care in state and
community hospitals by community mental health { - and
developmental disabilities - } programs, in accordance with ORS
430.630 (3)(e).
(3) The board shall meet at least once each quarter.
(4) The director may make provision for technical and clerical
assistance to the Mental Health Advisory Board and for the
expenses of such assistance.
(5) The Disability Issues Advisory Committee shall meet at
least once annually to make recommendations to the Mental Health
Advisory Board.
(6) As used in this section, 'person with a disability ' means
any person who:
(a) Has a physical or mental impairment which substantially
limits one or more major life activities;
(b) Has a record of such an impairment; or
(c) Is regarded as having such an impairment.
Enrolled House Bill 2009 (HB 2009-C) Page 291
SECTION 462. ORS 430.071 is amended to read:
430.071. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt a policy that
supports and promotes self-determination for persons receiving
mental health services. The policy shall be designed to remove
barriers that:
(1) Segregate persons with disabilities from full participation
in the community in the most integrated setting in accordance
with the United States Supreme Court decision in Olmstead v.
L.C., 527 U.S. 581 (1999); and
(2) Prevent persons with disabilities from enjoying a
meaningful life, the benefits of community involvement and
citizen rights guaranteed by law.
SECTION 463. ORS 430.073 is amended to read:
430.073. (1) As used in this section and ORS 430.075, '
consumer' means a person who has received or is receiving mental
health or addiction services.
(2) The Director of { - Human Services - } { + the Oregon
Health Authority + } shall establish a Consumer Advisory Council
to advise the director on the provision of mental health services
by the
{ - Department of Human Services - } { + Oregon Health
Authority + }. The council may review, evaluate and provide
feedback on all site reviews related to mental health services
provided by the
{ - department - } { + authority + }.
(3) The director shall appoint 15 to 25 consumers to the
council. In making appointments, the director shall strive to
balance the representation according to geographic areas of the
state and age.
(4) The { - department - } { + authority + } shall provide
administrative support to the council.
(5) Members of the council are not entitled to compensation or
reimbursement of expenses under ORS 292.495.
SECTION 464. ORS 430.078 is amended to read:
430.078. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules to implement
ORS 430.071 to 430.075.
SECTION 465. ORS 430.140 is amended to read:
430.140. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } is designated as the state
agency to apply to and receive from the federal government or any
agency thereof such grants for promoting mental health, including
grants for mental hygiene programs, as may be available to this
state or any of its political subdivisions or agencies.
(2) For the purposes of subsection (1) of this section, the
{ - department is designated the Mental Health Authority for
the State of Oregon and - } { + authority + } shall:
(a) Disburse or supervise the disbursement of all funds made
available at any time by the federal government or this state for
those purposes, except the funds made available by the state for
the care of dependent or delinquent children in public or private
institutions.
(b) Adopt, carry out and administer plans for those purposes.
Plans so adopted shall be made statewide in application insofar
as reasonably feasible, possible or permissible, and shall be so
devised as to meet the approval of the federal government or any
of its agencies, not inconsistent with the laws of the state.
SECTION 466. ORS 430.160 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 292
430.160. All funds { - applied for and received by the
Department of Human Services and - } allotted to the state by
the Surgeon General, the Treasury Department, or other agency of
the United States for the construction and operation of community
facilities in carrying out the state plan for the promotion of
mental health { - and retardation - } { + or developmental
disability + } services, shall be deposited with the State
Treasurer and shall be credited to a special account in the State
Treasury, separate from the General Fund, to be used as a
depository for such federal funds. Such funds hereby are
continuously appropriated and shall be expended solely for the
purpose of construction and operation of community facilities and
in accordance with the plan upon which the allotment to the state
was based.
SECTION 467. ORS 430.165 is amended to read:
430.165. The { - Department of Human Services - }
{ + Oregon Health Authority + } may prescribe fee schedules for
any of the programs that it establishes and operates under ORS
430.265, 430.306 to 430.375, 430.405, 430.415, 430.850 to
430.880, 813.500 and 813.510. The fees shall be charged and
collected by the { - department - } { + authority + } in the
same manner as charges are collected under ORS 179.610 to
179.770. When the { - department - } { + authority + } acts
under this section, ' person in a state institution' or 'person
at a state institution' or any similar phrase, as defined in ORS
179.610, includes a person who receives services from a program
for which fee schedules are established under this section.
SECTION 468. ORS 430.170 is amended to read:
430.170. (1) On request of the Department of Human Services,
the Oregon Department of Administrative Services shall draw on
amounts appropriated to the Department of Human Services for
operating expenses for use by the Department of Human Services as
a revolving fund. { + Claims for reimbursement of amounts paid
from the revolving fund shall be submitted to the Department of
Human Services and the Oregon Department of Administrative
Services for approval. When such claims have been approved by the
Department of Human Services and the Oregon Department of
Administrative Services, a payment covering them shall be drawn
in favor of the Department of Human Services and charged against
the appropriate fund or account, and shall be used to reimburse
the revolving fund.
(2) On request of the Oregon Health Authority, the Oregon
Department of Administrative Services shall draw on amounts
appropriated to the authority for operating expenses for use by
the authority as a revolving fund. Claims for reimbursement of
amounts paid from the revolving fund shall be submitted to the
authority and the Oregon Department of Administrative Services
for approval. When such claims have been approved by the
authority and the Oregon Department of Administrative Services, a
payment covering them shall be drawn in favor of the authority
and charged against the appropriate fund or account, and shall be
used to reimburse the revolving fund. + }
{ + (3) + } { - The revolving fund - } { + A revolving
fund established under subsection (1) or (2) of this section + }
shall not exceed the aggregate sum of $25,000 including
unreimbursed advances. The revolving fund shall be deposited with
the State Treasurer to be held in a special account against which
the Department of Human Services { + or the Oregon Health
Authority + } may draw checks. The Department of Human Services
{ + or the authority + } may establish petty cash funds within
Enrolled House Bill 2009 (HB 2009-C) Page 293
the revolving fund by drawing checks upon the revolving fund
payable to the custodians of the petty cash funds.
{ - (2) - } { + (4) + } { - The revolving fund - }
{ + A revolving fund established under subsections (1) or (2) of
this section + } may be used by the Department of Human Services
{ + or the authority + } to pay incidental expenses for which
the Department { + of Human Services or the authority + } has
appropriated funds.
{ - (3) Claims for reimbursement of amounts paid from the
revolving fund shall be submitted to the Department of Human
Services and the Oregon Department of Administrative Services for
approval. When such claims have been approved by the Department
of Human Services and the Oregon Department of Administrative
Services, a payment covering them shall be drawn in favor of the
Department of Human Services and charged against the appropriate
fund or account, and shall be used to reimburse the revolving
fund. - }
SECTION 469. ORS 430.195 is amended to read:
430.195. (1) The Department of Human Services may receive funds
that are the property of the department's clients or are
contributed for the use of the department's clients. The
department shall deposit such funds in trust accounts established
under ORS 293.445. Interest earned by a trust account shall be
credited to the account.
{ + (2) The Oregon Health Authority may receive funds that
are the property of the authority's clients or are contributed
for the use of the authority's clients. The authority shall
deposit such funds in trust accounts established under ORS
293.445. Interest earned by a trust account shall be credited to
the account. + }
{ - (2) - } { + (3) + } Disbursements from a trust account
shall be made for purposes for which the contributions or
payments were made to the department { + or the authority + }.
When such purposes include the care or maintenance of a client,
the department { - may reimburse itself - } { + or the
authority may draw reimbursements from the account to pay + } for
care and services provided to the client.
{ - (3) - } { + (4) + } The department { + or the
authority + } may by interagency agreement authorize another
state agency to exercise the authority granted under this
section. Any system of accounts used for purposes of this
subsection shall provide detailed accountability for each receipt
and disbursement of funds for each client. The department
{ + and the authority + } shall remain accountable for the
proper handling of the trust accounts authorized by this section.
SECTION 470. ORS 430.205 is amended to read:
430.205. As used in this section and ORS 430.210:
(1) 'Facility' means any of the following { - which - }
{ + that + } are licensed or certified by the Department of
Human Services { + or the Oregon Health Authority + } or
{ - which - } { + that + } contract with { - that department
or a program - } { + the department or authority + } for the
provision of services:
(a) A health care facility as defined in ORS 442.015;
(b) A domiciliary care facility as defined in ORS 443.205;
(c) A residential facility as defined in ORS 443.400; or
(d) An adult foster home as defined in ORS 443.705.
(2) 'Person' means an individual who has a mental illness or
developmental disability and receives services from a program or
facility.
Enrolled House Bill 2009 (HB 2009-C) Page 294
(3) 'Program' means a community mental health { - and - }
{ + program or a community + } developmental disabilities
program as described in ORS 430.610 to 430.695 and agencies with
which { - it - } { + the program + } contracts to provide
services.
(4) 'Services' means mental health { - and - } { + services
or + } developmental disabilities services provided under ORS
430.630.
SECTION 471. ORS 430.210 is amended to read:
430.210. (1) While receiving services, every person shall have
the right to:
(a) Choose from available services those which are appropriate,
consistent with the plan developed in accordance with paragraphs
(b) and (c) of this subsection and provided in a setting and
under conditions that are least restrictive to the person's
liberty, that are least intrusive to the person and that provide
for the greatest degree of independence.
(b) An individualized written service plan, services based upon
that plan and periodic review and reassessment of service needs.
(c) Ongoing participation in planning of services in a manner
appropriate to the person's capabilities, including the right to
participate in the development and periodic revision of the plan
described in paragraph (b) of this subsection, and the right to
be provided with a reasonable explanation of all service
considerations.
(d) Not receive services without informed voluntary written
consent except in a medical emergency or as otherwise permitted
by law.
(e) Not participate in experimentation without informed
voluntary written consent.
(f) Receive medication only for the person's individual
clinical needs.
(g) Not be involuntarily terminated or transferred from
services without prior notice, notification of available sources
of necessary continued services and exercise of a grievance
procedure.
(h) A humane service environment that affords reasonable
protection from harm, reasonable privacy and daily access to
fresh air and the outdoors, except that such access may be
limited when it would create significant risk of harm to the
person or others.
(i) Be free from abuse or neglect and to report any incident of
abuse without being subject to retaliation.
(j) Religious freedom.
(k) Not be required to perform labor, except personal
housekeeping duties, without reasonable and lawful compensation.
(L) Visit with family members, friends, advocates and legal and
medical professionals.
(m) Exercise all rights set forth in ORS { - 426.385 and - }
427.031 if the individual is committed to the Department of Human
Services.
{ + (n) Exercise all rights set forth in ORS 426.385 if the
individual is committed to the Oregon Health Authority. + }
{ - (n) - } { + (o) + } Be informed at the start of
services and periodically thereafter of the rights guaranteed by
this section and the procedures for reporting abuse, and to have
these rights and procedures, including the name, address and
telephone number of the system described in ORS 192.517 (1),
prominently posted in a location readily accessible to the person
Enrolled House Bill 2009 (HB 2009-C) Page 295
and made available to the person's guardian and any
representative designated by the person.
{ - (o) - } { + (p) + } Assert grievances with respect to
infringement of the rights described in this section, including
the right to have such grievances considered in a fair, timely
and impartial grievance procedure.
{ - (p) - } { + (q) + } Have access to and communicate
privately with any public or private rights protection program or
rights advocate.
{ - (q) - } { + (r) + } Exercise all rights described in
this section without any form of reprisal or punishment.
(2) An individual who is receiving developmental disability
services under ORS 430.630 has the right to be informed and have
the individual's guardian and any representative designated by
the individual be informed that a family member has contacted the
{ - department - } { + Department of Human Services + } to
determine the location of the individual, and to be informed of
the name and contact information, if known, of the family member.
(3) The rights described in this section are in addition to,
and do not limit, all other statutory and constitutional rights
which are afforded all citizens including, but not limited to,
the right to vote, marry, have or not have children, own and
dispose of property, enter into contracts and execute documents.
(4) The rights described in this section may be asserted and
exercised by the person, the person's guardian and any
representative designated by the person.
(5) Nothing in this section may be construed to alter any legal
rights and responsibilities between parent and child.
SECTION 472. ORS 430.215 is amended to read:
430.215. { + (1) + } The Department of Human Services shall be
responsible for { - : - }
{ - (1) - } planning, policy development, administration and
delivery of services to children with developmental disabilities
and their families. Services to children with developmental
disabilities may include, but are not limited to, case
management, family support, crisis and diversion services,
intensive in-home services, and residential and foster care
services { + . + } { - ; and - }
(2) { + The Oregon Health Authority shall be responsible
for + } psychiatric residential and day treatment services for
children with mental or emotional disturbances.
SECTION 473. ORS 430.240 is amended to read:
430.240. The { - Department of Human Services - }
{ + Oregon Health Authority + } in developing treatment programs
for drug-dependent persons shall develop programs that assist
drug-dependent persons to become persons who are able to live
healthy and productive lives without the use of any natural or
synthetic opiates.
SECTION 474. ORS 430.255 is amended to read:
430.255. (1)(a) There is created in the office of the Governor
the Governor's Council on Alcohol and Drug Abuse Programs. The
council shall consist of not more than 11 members who are
appointed by the Governor for terms of four years. Members are
eligible for one reappointment. Members must be without
conflicting interests and as representative as possible of:
(A) Geographic regions of the state;
(B) At-risk populations, including among others, youth, the
elderly, minorities and women;
(C) Knowledgeable professionals, such as pharmacists,
physicians, attorneys and the like who are not necessarily
Enrolled House Bill 2009 (HB 2009-C) Page 296
representatives of professional organizations, but who may be
recovering;
(D) Knowledgeable nonprofessionals who may represent advocate
groups and who may be recovering; and
(E) Local advisory groups.
(b) In addition to the members appointed to the council under
paragraph (a) of this subsection, the council shall include:
(A) One member appointed by the President of the Senate, who
shall be a member of the Senate and who shall be a nonvoting,
advisory member; and
(B) One member appointed by the Speaker of the House of
Representatives, who shall be a member of the House of
Representatives and who shall be a nonvoting, advisory member.
(2) The duties of the Governor's Council on Alcohol and Drug
Abuse Programs are to:
(a) Assess the economic and social impact of alcohol and drug
abuse on the State of Oregon and report the findings and
recommendations to the Governor by January 1 of each
even-numbered year.
(b) Review and make recommendations to the Governor on the
goals, financing, priorities and a state plan for prevention,
intervention and treatment of alcohol and drug abuse problems,
which encompasses all appropriate state agencies and is
consistent with ORS 430.258, by January 1 of each even-numbered
year.
(c) Review alcohol and drug abuse programs and make
recommendations to the Governor on the effectiveness and
priorities for improvements of all such prevention and treatment
programs for alcohol and drug problems engaged in or financed
through state agencies by January 1 of each even-numbered year.
(d) Review and approve the components of the local coordinated
comprehensive plan created pursuant to ORS 417.775 that address
alcohol and other drug prevention and treatment plans developed
under ORS 430.258.
(e) Work to ensure broad-based citizen involvement in the
planning and execution of the alcohol and drug prevention and
treatment plans at both the state and local level.
(3) Members of the council are entitled to compensation and
expenses as provided under ORS 292.495.
(4) The Governor may remove any member for misconduct,
incapacity or neglect of duty.
(5) The Director of { - Human Services - } { + the Oregon
Health Authority + } shall provide the technical and financial
support as is required and authorized by the Legislative Assembly
and as is necessary to carry out this section and ORS
{ - 409.010, - } 430.250, 430.257, 430.258, 430.259, 430.270,
430.290, 430.359, 430.368, 430.535 and 430.630.
SECTION 475. ORS 430.257 is amended to read:
430.257. (1) The Legislative Assembly finds that alcohol and
other drug use, abuse and addiction:
(a) Pose significant social and public health problems for
Oregon;
(b) Impact the budgets and workloads of state and local
agencies that provide services for children and families and
contribute to incidences of crime, violence, accidents and
deaths, as well as reducing worker productivity; and
(c) Contribute substantially to the problems faced by a
significant number of persons served by the Department of Human
Services, Department of Corrections, { + Oregon Health
Enrolled House Bill 2009 (HB 2009-C) Page 297
Authority, + } Oregon Youth Authority, Juvenile Crime Prevention
Advisory Committee and State Commission on Children and Families.
(2) The Department of Human Services, Department of
Corrections, { + Oregon Health Authority, + } Oregon Youth
Authority, Juvenile Crime Prevention Advisory Committee and State
Commission on Children and Families shall contribute to the
development of a comprehensive state plan for alcohol and other
drug prevention, intervention and treatment services.
(3) The administrative heads of the Department of Education,
Department of Human Services, { + Oregon Health Authority, + }
Oregon State Police, Department of Transportation, Oregon Liquor
Control Commission, Juvenile Crime Prevention Advisory Committee
and State Commission on Children and Families shall each
designate an individual, or in the instance of multidivisional
departments, individuals, to serve as liaison to and assist the
Governor's Council on Alcohol and Drug Abuse Programs in meeting
the policies, duties and responsibilities set forth in this
section and ORS { - 409.010, - } 430.250, 430.255, 430.258,
430.259, 430.270, 430.290, 430.359, 430.368, 430.535 and 430.630.
SECTION 476. ORS 430.259 is amended to read:
430.259. All state agencies providing alcohol and other drug
prevention and treatment services and strategies, or purchasing
prevention and treatment services and strategies from local
community providers approved or licensed by the { - Department
of Human Services - } { + Oregon Health Authority + }, shall
coordinate with the office to report expenditures and client data
for the purposes of service capacity utilization and monitoring
resources and outcomes coordination in the statewide plan of
services and strategies for alcohol and other drug prevention and
treatment for children and families prepared under ORS 430.258.
SECTION 477. ORS 430.265 is amended to read:
430.265. The { - Department of Human Services - }
{ + Oregon Health Authority + } is authorized to contract with
the federal government for services to alcohol and drug-dependent
persons who are either residents or nonresidents of the State of
Oregon.
SECTION 478. ORS 430.270 is amended to read:
430.270. The { - Department of Human Services - }
{ + Oregon Health Authority + }, in consultation with the
Governor's Council on Alcohol and Drug Abuse Programs, shall take
such means as it considers most effective to bring to the
attention of the general public, employers, the professional
community and particularly the youth of the state, the harmful
effects to the individual and society of the irresponsible use of
alcoholic beverages, controlled substances and other chemicals,
and substances with abuse potential.
SECTION 479. ORS 430.290 is amended to read:
430.290. (1) The objective of this section is to prevent
alcoholism and drug dependency.
(2) To carry out the objective of this section, the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall:
(a) Consult with and be advised by the Governor's Council on
Alcohol and Drug Abuse Programs and the Mental Health Advisory
Board in identifying program priorities for the primary
prevention of alcoholism and drug dependency.
(b) Solicit program proposals that address identified
priorities from agencies, associations, individuals or any
political subdivision of this state and award and distribute
Enrolled House Bill 2009 (HB 2009-C) Page 298
moneys under this section in accordance with the provisions of
this section.
(3) Every applicant for a grant to develop a primary prevention
of alcoholism program shall be assisted in its preparation by the
local alcohol planning committee, if there be one, operating in
the area to which the application relates. Every applicant shall
establish to the satisfaction of the { - department - }
{ + authority + } that the committee was actively involved in
the development and preparation of such program.
(4) Every grant applicant shall include the recommendations of
the local alcohol planning committee, if there be one, operating
in the area. The { - department - } { + authority + } shall
take the recommendations of the local alcohol planning committee
into consideration before making or refusing a grant.
SECTION 480. ORS 430.306 is amended to read:
430.306. As used in ORS 430.315 to 430.335, 430.397 and
430.399, unless the context requires otherwise:
(1) 'Alcoholic' means any person who has lost the ability to
control the use of alcoholic beverages, or who uses alcoholic
beverages to the extent that the health of the person or that of
others is substantially impaired or endangered or the social or
economic function of the person is substantially disrupted. An
alcoholic may be physically dependent, a condition in which the
body requires a continuing supply of alcohol to avoid
characteristic withdrawal symptoms, or psychologically dependent,
a condition characterized by an overwhelming mental desire for
continued use of alcoholic beverages.
(2) 'Applicant' means a city, county or any combination
thereof.
(3) { - ' Department' means the Department of Human
Services. - } { + ' Authority' means the Oregon Health
Authority. + }
(4) 'Detoxification center' means a publicly or privately
operated profit or nonprofit facility approved by the
{ - department - } { + authority + } that provides emergency
care or treatment for alcoholics or drug-dependent persons.
(5) 'Director of the treatment facility' means the person in
charge of treatment and rehabilitation programs at a treatment
facility.
(6) 'Drug-dependent person' means one who has lost the ability
to control the personal use of controlled substances or other
substances with abuse potential, or who uses such substances or
controlled substances to the extent that the health of the person
or that of others is substantially impaired or endangered or the
social or economic function of the person is substantially
disrupted. A drug-dependent person may be physically dependent, a
condition in which the body requires a continuing supply of a
drug or controlled substance to avoid characteristic withdrawal
symptoms, or psychologically dependent, a condition characterized
by an overwhelming mental desire for continued use of a drug or
controlled substance.
(7) 'Halfway house' means a publicly or privately operated
profit or nonprofit, residential facility approved by the
{ - department - } { + authority + } that provides
rehabilitative care and treatment for alcoholics or
drug-dependent persons.
(8) 'Local alcoholism planning committee' means a committee
appointed or designated by the county governing body under ORS
430.342.
Enrolled House Bill 2009 (HB 2009-C) Page 299
(9) 'Other treatment facility' includes outpatient facilities,
inpatient facilities and such other facilities as the
{ - department - } { + authority + } determines suitable, any
of which may provide diagnosis and evaluation, medical care,
detoxification, social services or rehabilitation for alcoholics
or drug-dependent persons and which operate in the form of a
general hospital, a state hospital, a foster home, a hostel, a
clinic or other suitable form approved by the
{ - department - } { + authority + }.
SECTION 481. ORS 430.315 is amended to read:
430.315. The Legislative Assembly finds alcoholism or drug
dependence is an illness. The alcoholic or drug-dependent person
is ill and should be afforded treatment for that illness. To the
greatest extent possible, the least costly settings for
treatment, outpatient services and residential facilities shall
be widely available and utilized except when contraindicated
because of individual health care needs. State agencies that
purchase treatment for alcoholism or drug dependence shall
develop criteria consistent with this policy in consultation with
the { - Department of Human Services - } { + Oregon Health
Authority + }. In reviewing applications for certificate of need,
the Director of { - Human Services - } { + the Oregon Health
Authority + } shall take this policy into account.
SECTION 482. ORS 430.335 is amended to read:
430.335. Subject to the availability of funds therefor, the
{ - Department of Human Services - } { + Oregon Health
Authority + } may:
(1) Provide directly through publicly operated treatment
facilities, which shall not be considered to be state
institutions, or by contract with publicly or privately operated
profit or nonprofit treatment facilities, for the care of
alcoholics or drug-dependent persons.
(2) Sponsor and encourage research of alcoholism and drug
dependence.
(3) Seek to coordinate public and private programs relating to
alcoholism and drug dependence.
(4) Apply for federally granted funds available for study or
prevention and treatment of alcoholism and drug dependence.
(5) Directly or by contract with public or private entities,
administer financial assistance, loan and other programs to
assist the development of drug and alcohol free housing.
SECTION 483. ORS 430.342 is amended to read:
430.342. (1) The governing body of each county or combination
of counties in a mental health administrative area, as designated
by the { - Department of Human Services - } { + Oregon Health
Authority, + } shall appoint a local alcoholism planning
committee or shall designate an already existing body to act as
the local alcoholism planning committee.
(2) The committee shall identify needs and establish priorities
for alcoholism services. In doing so, it shall coordinate its
activities with existing community mental health planning bodies.
(3) Members of the committee shall be representative of the
geographic area and shall be persons with interest or experience
in developing programs dealing with alcohol problems. The
membership of the committee shall include a number of minority
members which reasonably reflects the proportion of the need for
alcoholism treatment and rehabilitation services of minorities in
the community.
SECTION 484. ORS 430.345 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 300
430.345. Upon application therefor, the { - Department of
Human Services - } { + Oregon Health Authority + } may make
grants from funds specifically appropriated for the purposes of
carrying out ORS 430.345 to 430.380 to any applicant for the
establishment, operation and maintenance of alcohol and drug
abuse prevention, early intervention and treatment services. When
necessary, a portion of the appropriated funds may be designated
by the
{ - department - } { + authority + } for training and
technical assistance, or additional funds may be appropriated for
this purpose. Alcohol and drug abuse prevention, early
intervention and treatment services shall be approved if the
applicant establishes to the satisfaction of the
{ - department - } { + authority + }:
(1) The adequacy of the services to accomplish the goals of the
applicant and the program goals are consonant with the purposes
of ORS 430.306, 430.338 to 430.380, 471.810, 473.030 and 473.050
and goals of the State Plan for Alcohol Problems.
(2) The community need for the services as documented in the
annual community mental health plan.
(3) That an appropriate operating relationship exists, or will
exist with other community facilities able to assist in providing
alcohol and drug abuse prevention, early intervention and
treatment services, including nearby detoxification centers and
halfway houses.
(4) That the services comply with the rules adopted by the
{ - department - } { + authority + } pursuant to ORS 430.357.
SECTION 485. ORS 430.350 is amended to read:
430.350. (1) Every applicant for a grant made under ORS 430.345
to 430.380 shall be assisted in the preparation and development
of alcohol and drug abuse prevention, early intervention and
treatment services by the local planning committee operating in
the area to which the application relates. Every application
shall establish to the satisfaction of the
{ - Department of Human Services - } { + Oregon Health
Authority + } that the committee was actively involved in the
development and preparation of such program.
(2) The { - department - } { + authority + } shall require
of every applicant for a grant made under ORS 430.345 to 430.380
the recommendation of the local planning committee in the area to
which the application relates. The { - department - }
{ + authority + } shall take such recommendation into
consideration before making or refusing grants under ORS 430.345
to 430.380.
SECTION 486. ORS 430.357 is amended to read:
430.357. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall make all necessary and
proper rules governing the administration of ORS 430.345 to
430.380, including but not limited to standards, consistent with
modern knowledge about alcohol and drug abuse prevention, early
intervention and treatment services.
(2) All standards and guidelines adopted by the
{ - Department of Human Services - } { + authority + } to
implement programs authorized under ORS 430.345 to 430.380 shall
be adopted as rules pursuant to ORS chapter 183 regardless of
whether they come within the definition of rule in ORS 183.310
(8).
SECTION 487. ORS 430.359 is amended to read:
430.359. (1) Upon approval of an application, the
{ - Department of Human Services - } { + Oregon Health
Enrolled House Bill 2009 (HB 2009-C) Page 301
Authority + } shall enter into a matching fund relationship with
the applicant. In all cases the amount granted by the
{ - department - } { + authority + } under the matching
formula shall not exceed 50 percent of the total estimated costs,
as approved by the { - department - } { + authority + }, of
the alcohol and drug abuse prevention, early intervention and
treatment services.
(2) The amount of state funds shall be apportioned among the
applicants according to the community need of the applicant for
services as compared with the community needs of all applicants.
In evaluating the community needs of the applicant, the
{ - department - } { + authority + }, in consultation with
the Governor's Council on Alcohol and Drug Abuse Programs, shall
give priority consideration to those applications that identify
and include alcohol and drug abuse prevention, early intervention
and treatment services aimed at providing services to minorities
with a significant population of affected persons. The funds
granted shall be distributed monthly.
(3) Federal funds at the disposal of an applicant for use in
providing alcohol and drug abuse prevention, early intervention
and treatment services may be counted toward the percentage
contribution of an applicant.
(4) An applicant that is, at the time of a grant made under
this section, expending funds appropriated by its governing body
for the alcohol and drug abuse prevention, early intervention and
treatment services shall, as a condition to the receipt of funds
under this section, maintain its financial contribution to these
programs at an amount not less than the preceding year. However,
the financial contribution requirement may be waived in its
entirety or in part in any year by the { - Department of Human
Services - } { + authority + } because of:
(a) The severe financial hardship that would be imposed to
maintain the contribution in full or in part;
(b) The application of any special funds for the alcohol and
drug abuse prevention, early intervention and treatment services
in the prior year when such funds are not available in the
current year;
(c) The application of federal funds, including but not limited
to general revenue sharing, distributions from the Oregon and
California land grant fund and block grant funds to the alcohol
and drug abuse prevention, early intervention and treatment
services in the prior year when such funds are not available for
such application in the current year; or
(d) The application of fund balances resulting from fees,
donations or underexpenditures in a given year of the funds
appropriated to counties pursuant to ORS 430.380 (2) to the
alcohol and drug abuse prevention, early intervention and
treatment services in the prior year when such funds are not
available for such application in the current year.
(5) Any moneys received by an applicant from fees,
contributions or other sources for alcohol and drug abuse
prevention, early intervention and treatment services for service
purposes, including federal funds, shall be considered a portion
of an applicant's contribution for the purpose of determining the
matching fund formula relationship. All moneys so received shall
only be used for the purposes of carrying out ORS 430.345 to
430.380.
(6) Grants made pursuant to ORS 430.345 to 430.380 shall be
paid from funds specifically appropriated therefor and shall be
Enrolled House Bill 2009 (HB 2009-C) Page 302
paid in the same manner as other claims against the state are
paid.
SECTION 488. ORS 430.364 is amended to read:
430.364. Within the limits of available funds, in giving
priority consideration under ORS 430.359 (2), the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall:
(1) Identify all applications containing funding proposals for
minority programs and assess the extent to which such funding
proposals address the needs of minorities as stated in ORS
430.362, adjusting such amounts as it deems justified on the
basis of the facts presented for its consideration and such
additional information as may be necessary to determine an
appropriate level of funding for such programs, and award such
funds to those applicants for the purposes stated in the
application; and
(2) After making a determination of the appropriate level of
funding minority programs under subsection (1) of this section,
assess the remaining portions of all applications containing
minority program funding proposals together with applications
which do not contain funding proposals for minority programs on
the basis of the remaining community need stated in ORS 430.345,
adjusting such amounts as it deems justified on the basis of the
facts presented for its consideration and such additional
information as may be necessary to determine an appropriate level
of funding such programs, and award such funds to those
applicants.
SECTION 489. ORS 430.366 is amended to read:
430.366. (1) Every proposal for alcohol and drug abuse
prevention, early intervention and treatment services received
from an applicant shall contain:
(a) A clear statement of the goals and objectives of the
program for the following fiscal year, including the number of
persons to be served and methods of measuring the success of
services rendered;
(b) A description of services to be funded; and
(c) A statement of the minorities to be served, if a minority
program.
(2) Thirty days before the end of each fiscal year, every
service funded under ORS 430.306, 430.338 to 430.380, 471.810,
473.030 and 473.050 shall file a concise progress report with the
{ - Department of Human Services - } { + Oregon Health
Authority + }, including a narrative statement of progress made
in meeting its goals and objectives for the year.
(3) The { - department - } { + authority + } shall assemble
all progress reports received in each biennium and transmit them
to the succeeding session of the Legislative Assembly.
SECTION 490. ORS 430.368 is amended to read:
430.368. (1) Any alcohol and drug abuse prevention, early
intervention and treatment service, including but not limited to
minority programs, aggrieved by any final action of an applicant
with regard to requesting funding for the program from the
{ - Department of Human Services - } { + Oregon Health
Authority + }, may appeal the applicant's action to the Director
of { - Human Services - } { + the Oregon Health Authority + }
within 30 days of the action. For the purposes of this section
'final action' means the submission of the applicant's compiled
funding requests to the { - department - } { + authority + }.
The director shall review, in consultation with the Governor's
Council on Alcohol and Drug Abuse Programs, all appealed actions
Enrolled House Bill 2009 (HB 2009-C) Page 303
for compliance with the purposes and requirements of ORS 430.306,
430.338 to 430.380, 471.810, 473.030 and 473.050, including but
not limited to ORS 430.338 (5).
(2) The director shall act on all appeals within 60 days of
filing, or before the time of the { - department's - }
{ + authority's + } decision on the applicant's funding request,
whichever is less. The director is not required to follow
procedures for hearing a contested case, but shall set forth
written findings justifying the action. The decision of the
director shall be final, and shall not be subject to judicial
review.
SECTION 491. ORS 430.375 is amended to read:
430.375. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall recommend fee schedules to
be used in determining the dollar fee to charge a person admitted
to approved alcohol and drug abuse prevention, early intervention
and treatment services for the expenses incurred by the service
in offering alcohol and drug abuse prevention, early intervention
and treatment services. An individual facility may adopt the
schedules developed by the
{ - department - } { + authority + } or may, subject to the
approval of the
{ - department - } { + authority + }, develop and adopt its
own fee schedules. The fee schedules adopted by each facility
shall be applied uniformly to all persons admitted to the
facility and shall be based on the costs of a person's alcohol
and drug abuse prevention, early intervention and treatment
services and the ability of the person to pay. The person
admitted shall be liable to the facility only to the extent
indicated by the fee schedules.
SECTION 492. ORS 430.380 is amended to read:
430.380. (1) There is established in the General Fund of the
State Treasury an account to be known as the Mental Health
Alcoholism and Drug Services Account. Moneys deposited in the
account are continuously appropriated for the purposes of ORS
430.345 to 430.380. Moneys deposited in the account may be
invested in the manner prescribed in ORS 293.701 to 293.820.
(2) Forty percent of the moneys in the Mental Health Alcoholism
and Drug Services Account shall be continuously appropriated to
the counties on the basis of population. The counties must use
the moneys for the establishment, operation and maintenance of
alcohol and drug abuse prevention, early intervention and
treatment services and for local matching funds under ORS 430.345
to 430.380.
(3) Forty percent of the moneys shall be continuously
appropriated to the { - Department of Human Services - }
{ + Oregon Health Authority + } to be used for state matching
funds to counties for alcohol and drug abuse prevention, early
intervention and treatment services pursuant to ORS 430.345 to
430.380.
(4) Twenty percent of the moneys shall be continuously
appropriated to the { - Department of Human Services - }
{ + Oregon Health Authority + } to be used for alcohol and drug
abuse prevention, early intervention and treatment services for
inmates of correctional and penal institutions and for parolees
therefrom and for probationers as provided pursuant to rules of
the { - department - } { + authority + }. However, prior to
expenditure of moneys under this subsection, the
{ - department - } { + authority + } must present its program
plans for approval to the appropriate legislative body which is
Enrolled House Bill 2009 (HB 2009-C) Page 304
either the Joint Ways and Means Committee during a session of the
Legislative Assembly or the Emergency Board during the interim
between sessions.
SECTION 493. ORS 430.395 is amended to read:
430.395. (1) Subject to the availability of funds, the
{ - Department of Human Services - } { + Oregon Health
Authority + } may fund regional centers for the treatment of
adolescents with drug and alcohol dependencies.
(2) The { - Department of Human Services - }
{ + authority + } shall define by rule a minimum number of
inpatient beds and outpatient slots necessary for effective
treatment and economic operation of any regional center funded by
state funds.
(3) The areas to be served by any treatment facility shall be
determined by the following:
(a) Areas that demonstrate the most need;
(b) Areas with no treatment program or an inadequate program;
and
(c) Areas where there is strong, organized community support
for youth treatment programs.
(4) The area need is determined by:
(a) Current area youth admissions to treatment programs;
(b) Per capita consumption of alcohol in the area;
(c) Percentage of area population between 10 and 18 years of
age;
(d) Whether the area has effective, specialized outpatient and
early intervention services in place;
(e) Whether the area suffers high unemployment and economic
depression; and
(f) Other evidence of need.
(5) As used in this section, 'regional center' means a
community residential treatment facility including intensive
residential and outpatient care for adolescents with drug and
alcohol dependencies.
SECTION 494. ORS 430.397 is amended to read:
430.397. Any person may voluntarily apply for admission to any
treatment facility, as defined in ORS 430.306, operated pursuant
to rules of the { - Department of Human Services - }
{ + Oregon Health Authority + }. The director of the treatment
facility shall determine whether the person shall be admitted as
a patient, or referred to another appropriate treatment facility
or denied referral or admission. If the person is under 18 years
of age or an incompetent, the director of the treatment facility
shall notify the person's parents or guardian of the admission or
referral.
SECTION 495. ORS 430.420 is amended to read:
430.420. (1) In collaboration with local seizing agencies, the
district attorney, the local public safety coordinating council
and the local mental health advisory committee, a local
alcoholism planning committee appointed or designated pursuant to
ORS 430.342 shall develop a plan to integrate drug treatment
services into the criminal justice system for offenders who
commit nonviolent felony drug possession offenses. The plan may
also include property offenders as provided for under ORS
475.245. The plan developed under this subsection must be
incorporated into the local coordinated comprehensive plan
required by ORS 417.775.
(2)(a) A plan may include, but need not be limited to, programs
that occur before adjudication, after adjudication as part of a
sentence of probation or as part of a conditional discharge.
Enrolled House Bill 2009 (HB 2009-C) Page 305
(b) A plan must include, but need not be limited to:
(A) A description of local criminal justice and treatment
coordination efforts;
(B) A description of the method by which local, state and
federal treatment resources are prioritized and allocated to meet
the needs of the drug abusing offender population;
(C) The principles that guide criminal justice strategies for
supervision and treatment of drug abusing offenders and the
purchase of treatment services from local community providers;
(D) The desired outcomes for criminal justice strategies for
supervision and treatment of drug abusing offenders and the
provision of treatment services and identification of a method
for monitoring and reporting the outcomes; and
(E) Consistent standards for measuring the success of criminal
justice strategies for supervision and treatment of drug abusing
offenders and the provision of treatment.
(3) A program must include, but need not be limited to:
(a) Ongoing oversight of the participant;
(b) Frequent monitoring to determine whether a participant is
using controlled substances unlawfully; and
(c) A coordinated strategy governing responses to a
participant's compliance or noncompliance with the program.
(4) The local alcoholism planning committee shall submit the
plan to the { - Department of Human Services - } { + Oregon
Health Authority + } and shall provide the county board of
commissioners with a copy of the plan.
SECTION 496. ORS 430.422 is amended to read:
430.422. The Drug Prevention and Education Fund is established
separate and distinct from the General Fund. The Drug Prevention
and Education Fund consists of moneys deposited in the fund under
ORS 131.597 and 430.426, and other moneys as may be appropriated
to the fund by law. The moneys in the Drug Prevention and
Education Fund are continuously appropriated to the
{ - Department of Human Services - } { + Oregon Health
Authority + } for the purpose of assisting counties in paying the
costs incurred by the counties in providing drug treatment
services pursuant to plans submitted under ORS 430.420.
SECTION 497. ORS 430.424 is amended to read:
430.424. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall distribute moneys in the
Drug Prevention and Education Fund established in ORS 430.422
based on a review of the plans submitted to the office under ORS
430.420. Funding criteria include, but need not be limited to,
whether the plan includes the existence or development of a drug
treatment court or a drug diversion program.
SECTION 498. ORS 430.426 is amended to read:
430.426. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules necessary to
carry out the provisions of ORS 430.420 to 430.426.
(2) The { - department - } { + authority + } may accept
gifts, grants and donations from any source, public or private.
Moneys accepted under this section must be deposited in the Drug
Prevention and Education Fund to be used for the purposes for
which the fund is established.
SECTION 499. ORS 430.450 is amended to read:
430.450. As used in ORS 430.450 to 430.555, unless the context
requires otherwise:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'Community diversion plan' means a
system of services approved and monitored by the { - Department
Enrolled House Bill 2009 (HB 2009-C) Page 306
of Human Services - } { + Oregon Health Authority + } in
accordance with approved county mental health plans, which may
include but need not be limited to, medical, educational,
vocational, social and psychological services, training,
counseling, provision for residential care, and other
rehabilitative services designed to benefit the defendant and
protect the public.
{ - (2) - } { + (3) + } 'Crimes of violence against the
person' means criminal homicide, assault and related offenses as
defined in ORS 163.165 to 163.208, rape and sexual abuse, incest,
or any other crime involving the use of a deadly weapon or which
results in physical harm or death to a victim.
{ - (3) 'Department' means the Department of Human
Services. - }
(4) 'Diversion' means the referral or transfer from the
criminal justice system into a program of treatment or
rehabilitation of a defendant diagnosed as drug dependent and in
need of treatment at { - department - } { + authority + }
approved sites, on the condition that the defendant successfully
fulfills the specified obligations of a program designed for
rehabilitation.
(5) 'Diversion coordinator' means a person designated by a
county mental health program director to work with the criminal
justice system and health care delivery system to screen
defendants who may be suitable for diversion; to coordinate the
formulation of individual diversion plans for such defendants;
and to report to the court the performance of those defendants
being treated under an individual diversion plan.
(6) 'Director of the treatment facility' means the person in
charge of treatment and rehabilitation programs at the treatment
facility.
(7) 'Drug abuse' means repetitive, excessive use of a drug or
controlled substance short of dependence, without medical
supervision, which may have a detrimental effect on the
individual or society.
(8) 'Drug-dependent person' means one who has lost the ability
to control the personal use of controlled substances or other
substances with abuse potential, or who uses such substances or
controlled substances to the extent that the health of the person
or that of others is substantially impaired or endangered or the
social or economic function of the person is substantially
disrupted. A drug-dependent person may be physically dependent, a
condition in which the body requires a continuing supply of a
drug or controlled substance to avoid characteristic withdrawal
symptoms, or psychologically dependent, a condition characterized
by an overwhelming mental desire for continued use of a drug or
controlled substance.
(9) 'Evaluation' means any diagnostic procedures used in the
determination of drug dependency, and may include but are not
limited to chemical testing, medical examinations and interviews.
(10) 'Individual diversion plan' means a system of services
tailored to the individual's unique needs as identified in the
evaluation, which may include but need not be limited to medical,
educational, vocational, social and psychological services,
training, counseling, provision for residential care, and other
rehabilitative services designed to benefit the defendant and
protect the public. The plan shall include appropriate methods
for monitoring the individual's progress toward achievement of
the defined treatment objectives and shall also include periodic
review by the court.
Enrolled House Bill 2009 (HB 2009-C) Page 307
(11) 'Treatment facility' means detoxification centers,
outpatient clinics, residential care facilities, hospitals and
such other facilities determined to be suitable by the
{ - Department of Human Services - } { + authority + }, any of
which may provide diagnosis and evaluation, medical care,
detoxification, social services or rehabilitation.
SECTION 500. ORS 430.535 is amended to read:
430.535. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } and the Governor's Council on
Alcohol and Drug Abuse Programs shall, subject to the
availability of funds, develop bilingual forms to assist
non-English-speaking persons in understanding their rights under
ORS 430.450 to 430.555.
(2) The { - department - } { + authority + } shall assist
county mental health programs in the development of comprehensive
and coordinated identification, evaluation, treatment, education
and rehabilitation services for the drug-dependent person. The
State Plan for Drug Problems shall be consistent with such
system.
SECTION 501. ORS 430.540 is amended to read:
430.540. (1) The county mental health program director shall
designate sites for evaluation in the county plan of individuals
who may be or are known to be drug dependent. The
{ - Department of Human Services - } { + Oregon Health
Authority + } shall establish standards for such sites and
periodically publish a list of approved sites.
(2) The costs of evaluation shall be borne by the county of
appropriate jurisdiction.
SECTION 502. ORS 430.545 is amended to read:
430.545. (1) Evaluation sites provided for under ORS 430.450 to
430.555 shall conduct such procedures as may be necessary to
determine if an individual is a drug-dependent person. A person
shall be evaluated only with that person's written consent.
Subject to approval of the { - Department of Human Services - }
{ + Oregon Health Authority + }, the director of a treatment
facility or the director of an evaluation site may designate
personnel to provide treatment or evaluation as appropriate under
the lawful limitations of their certification, licensure or
professional practice.
(2) Antagonist drugs may be administered for diagnosis of
addiction by a registered nurse at an approved site when the
nurse has completed required training and a physician is
available on call. Antagonist drugs shall not be administered
without informed written consent of the person.
SECTION 503. ORS 430.560 is amended to read:
430.560. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall establish for
drug-dependent persons treatment programs that involve:
(a) Detoxification;
(b) Detoxification with acupuncture and counseling; and
(c) The supplying of synthetic opiates to such persons under
close supervision and control. However, the supplying of
synthetic opiates shall be used only when detoxification or
detoxification with acupuncture and counseling has proven
ineffective or upon a written request of a physician licensed by
the Oregon Medical Board showing medical need for synthetic
opiates if the request is approved in writing by the parole and
probation officer, if any, of the drug-dependent person. The copy
of the request and the approval must be included in the client's
permanent treatment and releasing authority records.
Enrolled House Bill 2009 (HB 2009-C) Page 308
(2) Notwithstanding subsection (1) of this section, synthetic
opiates may be made available to a pregnant woman with her
informed consent without prior resort to the treatment programs
described in subsection (1)(a) and (b) of this section.
(3) In establishing the programs authorized by subsection (1)
of this section, the { - Department of Human Services - }
{ + Oregon Health Authority + } may enter into contracts with
detoxification programs, physicians licensed by the Oregon
Medical Board, acupuncturists, counselors, licensed pharmacies
and any agency of this state or a political subdivision in this
state to conduct the required examinations and to supply the
services used in the programs.
(4) The { - department - } { + authority + } shall
establish rules of eligibility for the programs authorized by ORS
430.565 and this section, considering such factors as residency,
duration of dependency on drugs or controlled substances, failure
of previous attempts at abstinence and other relevant factors.
The
{ - department - } { + authority + } shall establish
reasonable fees for participation in the programs.
(5) Pursuant to ORS chapter 183, the { - department - }
{ + authority + } shall adopt rules governing the administration
of the programs authorized by ORS 430.565 and this section.
SECTION 504. ORS 430.565 is amended to read:
430.565. The provisions of any law restricting the use,
possession, control or administration of a controlled substance
shall not apply to any physician, pharmacist or other person
while participating in the program authorized by ORS 430.560
(1)(c) so long as the physician, pharmacist or other person
complies with provisions of ORS 430.560 and this section and the
rules of the
{ - Department of Human Services - } { + Oregon Health
Authority + } made pursuant to ORS 430.560 and this section.
SECTION 505. ORS 430.570 is amended to read:
430.570. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall cause information
concerning the usefulness and feasibility of opiate inhibitors to
be made available to persons involved in administering diversion
programs, corrections programs and other programs for drug
dependent persons.
SECTION 506. ORS 430.610 is amended to read:
430.610. It is declared to be the policy and intent of the
Legislative Assembly that:
(1) Subject to the availability of funds, { - mental
health - } services should be available to all persons with
mental or emotional disturbances, mental retardation,
developmental disabilities, alcoholism or drug dependence, and
persons who are alcohol or drug abusers, regardless of age,
county of residence or ability to pay;
(2) The Department of Human Services { + , the Oregon Health
Authority + } and other state agencies shall conduct their
activities in the least costly and most efficient manner so that
delivery of services to persons with mental or emotional
disturbances, mental retardation, developmental disabilities,
alcoholism or drug dependence, and persons who are alcohol or
drug abusers, shall be effective and coordinated;
(3) To the greatest extent possible, mental health { + and
developmental disabilities + } services shall be delivered in the
community where the person lives in order to achieve maximum
Enrolled House Bill 2009 (HB 2009-C) Page 309
coordination of services and minimum disruption in the life of
the person; and
(4) The State of Oregon shall encourage, aid and financially
assist its county governments in the establishment and
development of community mental health { - and - }
{ + programs or community + } developmental disabilities
programs, including but not limited to, treatment and
rehabilitation services for persons with mental or emotional
disturbances, mental retardation, developmental disabilities,
alcoholism or drug dependence, and persons who are alcohol or
drug abusers, and prevention of these problems through county
administered community mental health { - and - } { + programs
or community + } developmental disabilities programs.
SECTION 507. ORS 430.620 is amended to read:
430.620. (1) The county court or board of county commissioners,
or its representatives designated by it for the purpose, of any
county, on behalf of the county, may:
(a) In conformity with the rules of the Department of Human
Services, establish and operate, or contract with a public agency
or private corporation for, a community { - mental health
and - } developmental disabilities program.
{ + (b) In conformity with the rules of the Oregon Health
Authority, establish and operate, or contract with a public
agency or private corporation for, a community mental health
program. + }
{ - (b) - } { + (c) + } Cooperate, coordinate or act
jointly with any other county or counties or any appropriate
officer or agency of such counties in establishing and operating
or contracting for a community mental health { - and - }
{ + program or community + } developmental disabilities program
to service all such counties in conformity with the regulations
of the department { + or the authority + }.
{ - (c) - } { + (d) + } Expend county moneys for the
purposes referred to in paragraph (a) { - or (b) - } { + , (b)
or (c) + } of this subsection.
{ - (d) - } { + (e) + } Accept and use or expend property
or moneys from any public or private source made available for
the purposes referred to in paragraph (a) { - or (b) - } { + ,
(b) or (c) + } of this subsection.
(2) All officers and agencies of a county, upon request, shall
cooperate insofar as possible with the county court or board of
county commissioners, or its designated representatives, in
conducting programs and carrying on and coordinating activities
under subsection (1) of this section.
SECTION 508. ORS 430.630 is amended to read:
430.630. (1) In addition to any other requirements that may be
established by rule by the { - Department of Human Services and
subject to the availability of funds, each community mental
health and developmental disabilities program - } { + Oregon
Health Authority, each community mental health program and
community developmental disabilities program, subject to the
availability of funds, + }shall provide the following basic
services to persons with mental retardation, developmental
disabilities, alcoholism or drug dependence, and persons who are
alcohol or drug abusers:
(a) Outpatient services;
(b) Aftercare for persons released from hospitals and training
centers;
(c) Training, case and program consultation and education for
community agencies, related professions and the public;
Enrolled House Bill 2009 (HB 2009-C) Page 310
(d) Guidance and assistance to other human service agencies for
joint development of prevention programs and activities to reduce
factors causing mental retardation, developmental disabilities,
alcohol abuse, alcoholism, drug abuse and drug dependence; and
(e) Age-appropriate treatment options for older adults.
(2) As alternatives to state hospitalization, it is the
responsibility of the community mental health { - and - }
{ + or community + } developmental disabilities program to
ensure that, subject to the availability of funds, the following
services for persons with mental retardation, developmental
disabilities, alcoholism or drug dependence, and persons who are
alcohol or drug abusers, are available when needed and approved
by the { - Department of Human Services - } { + Oregon Health
Authority + }:
(a) Emergency services on a 24-hour basis, such as telephone
consultation, crisis intervention and prehospital screening
examination;
(b) Care and treatment for a portion of the day or night, which
may include day treatment centers, work activity centers and
preschool programs;
(c) Residential care and treatment in facilities such as
halfway houses, detoxification centers and other community living
facilities;
(d) Continuity of care, such as that provided by service
coordinators, community case development specialists and core
staff of federally assisted community mental health centers;
(e) Inpatient treatment in community hospitals; and
(f) Other alternative services to state hospitalization as
defined by the Department { + of Human Services or the Oregon
Health Authority + }.
(3) In addition to any other requirements that may be
established by rule of the { - department, each community
mental health and developmental disabilities - } { + Oregon
Health Authority, each community mental health + } program,
subject to the availability of funds, shall provide or ensure the
provision of the following services to persons with mental or
emotional disturbances:
(a) Screening and evaluation to determine the client's service
needs;
(b) Crisis stabilization to meet the needs of persons with
acute mental or emotional disturbances, including the costs of
investigations and prehearing detention in community hospitals or
other facilities approved by the { - department - }
{ + authority + } for persons involved in involuntary commitment
procedures;
(c) Vocational and social services that are appropriate for the
client's age, designed to improve the client's vocational,
social, educational and recreational functioning;
(d) Continuity of care to link the client to housing and
appropriate and available health and social service needs;
(e) Psychiatric care in state and community hospitals, subject
to the provisions of subsection (4) of this section;
(f) Residential services;
(g) Medication monitoring;
(h) Individual, family and group counseling and therapy;
(i) Public education and information;
(j) Prevention of mental or emotional disturbances and
promotion of mental health;
(k) Consultation with other community agencies;
Enrolled House Bill 2009 (HB 2009-C) Page 311
(L) Preventive mental health services for children and
adolescents, including primary prevention efforts, early
identification and early intervention services. Preventive
services should be patterned after service models that have
demonstrated effectiveness in reducing the incidence of
emotional, behavioral and cognitive disorders in children. As
used in this paragraph:
(A) 'Early identification' means detecting emotional
disturbance in its initial developmental stage;
(B) 'Early intervention services' for children at risk of later
development of emotional disturbances means programs and
activities for children and their families that promote
conditions, opportunities and experiences that encourage and
develop emotional stability, self-sufficiency and increased
personal competence; and
(C) 'Primary prevention efforts' means efforts that prevent
emotional problems from occurring by addressing issues early so
that disturbances do not have an opportunity to develop; and
(m) Preventive mental health services for older adults,
including primary prevention efforts, early identification and
early intervention services. Preventive services should be
patterned after service models that have demonstrated
effectiveness in reducing the incidence of emotional and
behavioral disorders and suicide attempts in older adults. As
used in this paragraph:
(A) 'Early identification' means detecting emotional
disturbance in its initial developmental stage;
(B) 'Early intervention services' for older adults at risk of
development of emotional disturbances means programs and
activities for older adults and their families that promote
conditions, opportunities and experiences that encourage and
maintain emotional stability, self-sufficiency and increased
personal competence and that deter suicide; and
(C) 'Primary prevention efforts' means efforts that prevent
emotional problems from occurring by addressing issues early so
that disturbances do not have an opportunity to develop.
(4) A community mental health { - and developmental
disabilities - } program shall assume responsibility for
psychiatric care in state and community hospitals, as provided in
subsection (3)(e) of this section, in the following
circumstances:
(a) The person receiving care is a resident of the county
served by the program. For purposes of this paragraph, '
resident' means the resident of a county in which the person
maintains a current mailing address or, if the person does not
maintain a current mailing address within the state, the county
in which the person is found, or the county in which a
court-committed person with a mental illness has been
conditionally released.
(b) The person has been hospitalized involuntarily or
voluntarily, pursuant to ORS 426.130 or 426.220, except for
persons confined to the Secure Child and Adolescent Treatment
Unit at Oregon State Hospital, or has been hospitalized as the
result of a revocation of conditional release.
(c) Payment is made for the first 60 consecutive days of
hospitalization.
(d) The hospital has collected all available patient payments
and third-party reimbursements.
(e) In the case of a community hospital, the
{ - department - } { + authority + } has approved the hospital
Enrolled House Bill 2009 (HB 2009-C) Page 312
for the care of persons with mental or emotional disturbances,
the community mental health { - and developmental
disabilities - } program has a contract with the hospital for
the psychiatric care of residents and a representative of the
program approves voluntary or involuntary admissions to the
hospital prior to admission.
(5) Subject to the review and approval of the { - department,
a community mental health and - } { + Department of Human
Services, a + } developmental disabilities program may initiate
additional services after the services defined in this section
are provided.
{ + (6) Subject to the review and approval of the Oregon
Health Authority, a mental health program may initiate additional
services after the services defined in this section are
provided. + }
{ - (6) - } { + (7) + } Each community mental health
{ - and - } { + program and community + } developmental
disabilities program and the state hospital serving the program's
geographic area shall enter into a written agreement concerning
the policies and procedures to be followed by the program and the
hospital when a patient is admitted to, and discharged from, the
hospital and during the period of hospitalization.
{ - (7) - } { + (8) + } Each community mental health
{ - and developmental disabilities - } program shall have a
mental health advisory committee, appointed by the board of
county commissioners or the county court or, if two or more
counties have combined to provide mental health services, the
boards or courts of the participating counties or, in the case of
a Native American reservation, the tribal council.
{ - (8) - } { + (9) + } A community mental health { - and
developmental disabilities - } program may request and the
{ - department - } { + authority + } may grant a waiver
regarding provision of one or more of the services described in
subsection (3) of this section upon a showing by the county and a
determination by the { - department - } { + authority + } that
persons with mental or emotional disturbances in that county
would be better served and unnecessary institutionalization
avoided.
{ - (9) - } { + (10) + } Each community mental health
{ - and developmental disabilities - } program shall cooperate
fully with the Governor's Council on Alcohol and Drug Abuse
Programs in the performance of its duties.
{ - (10)(a) - } { + (11)(a) + } As used in this subsection,
'local mental health authority' means one of the following
entities:
(A) The board of county commissioners of one or more counties
that establishes or operates a community mental health { - and
developmental disabilities - } program;
(B) The tribal council, in the case of a federally recognized
tribe of Native Americans that elects to enter into an agreement
to provide mental health services; or
(C) A regional local mental health authority comprised of two
or more boards of county commissioners.
(b) Each local mental health authority that provides mental
health services shall determine the need for local mental health
services and adopt a comprehensive local plan for the delivery of
mental health services for children, families, adults and older
adults that describes the methods by which the local mental
health authority shall provide those services. The local mental
health authority shall review and revise the local plan
Enrolled House Bill 2009 (HB 2009-C) Page 313
biennially. The purpose of the local plan is to create a
blueprint to provide mental health services that are directed by
and responsive to the mental health needs of individuals in the
community served by the local plan.
(c) The local plan shall identify ways to:
(A) Coordinate and ensure accountability for all levels of care
described in paragraph (e) of this subsection;
(B) Maximize resources for consumers and minimize
administrative expenses;
(C) Provide supported employment and other vocational
opportunities for consumers;
(D) Determine the most appropriate service provider among a
range of qualified providers;
(E) Ensure that appropriate mental health referrals are made;
(F) Address local housing needs for persons with mental health
disorders;
(G) Develop a process for discharge from state and local
psychiatric hospitals and transition planning between levels of
care or components of the system of care;
(H) Provide peer support services, including but not limited to
drop-in centers and paid peer support;
(I) Provide transportation supports; and
(J) Coordinate services among the criminal and juvenile justice
systems, adult and juvenile corrections systems and local mental
health programs to ensure that persons with mental illness who
come into contact with the justice and corrections systems
receive needed care and to ensure continuity of services for
adults and juveniles leaving the corrections system.
(d) When developing a local plan, a local mental health
authority shall:
(A) Coordinate with the budgetary cycles of state and local
governments that provide the local mental health authority with
funding for mental health services;
(B) Involve consumers, advocates, families, service providers,
schools and other interested parties in the planning process;
(C) Coordinate with the local public safety coordinating
council to address the services described in paragraph (c)(J) of
this subsection;
(D) Conduct a population based needs assessment to determine
the types of services needed locally;
(E) Determine the ethnic, age-specific, cultural and diversity
needs of the population served by the local plan;
(F) Describe the anticipated outcomes of services and the
actions to be achieved in the local plan;
(G) Ensure that the local plan coordinates planning, funding
and services with:
(i) The educational needs of children, adults and older adults;
(ii) Providers of social supports, including but not limited to
housing, employment, transportation and education; and
(iii) Providers of physical health and medical services;
(H) Describe how funds, other than state resources, may be used
to support and implement the local plan;
(I) Demonstrate ways to integrate local services and
administrative functions in order to support integrated service
delivery in the local plan; and
(J) Involve the local mental health advisory committees
described in subsection { - (7) - } { + (8) + } of this
section.
(e) The local plan must describe how the local mental health
authority will ensure the delivery of and be accountable for
Enrolled House Bill 2009 (HB 2009-C) Page 314
clinically appropriate services in a continuum of care based on
consumer needs. The local plan shall include, but not be limited
to, services providing the following levels of care:
(A) Twenty-four-hour crisis services;
(B) Secure and nonsecure extended psychiatric care;
(C) Secure and nonsecure acute psychiatric care;
(D) Twenty-four-hour supervised structured treatment;
(E) Psychiatric day treatment;
(F) Treatments that maximize client independence;
(G) Family and peer support and self-help services;
(H) Support services;
(I) Prevention and early intervention services;
(J) Transition assistance between levels of care;
(K) Dual diagnosis services;
(L) Access to placement in state-funded psychiatric hospital
beds;
(M) Precommitment and civil commitment in accordance with ORS
chapter 426; and
(N) Outreach to older adults at locations appropriate for
making contact with older adults, including senior centers, long
term care facilities and personal residences.
(f) In developing the part of the local plan referred to in
paragraph (c)(J) of this subsection, the local mental health
authority shall collaborate with the local public safety
coordinating council to address the following:
(A) Training for all law enforcement officers on ways to
recognize and interact with persons with mental illness, for the
purpose of diverting them from the criminal and juvenile justice
systems;
(B) Developing voluntary locked facilities for crisis treatment
and follow-up as an alternative to custodial arrests;
(C) Developing a plan for sharing a daily jail and juvenile
detention center custody roster and the identity of persons of
concern and offering mental health services to those in custody;
(D) Developing a voluntary diversion program to provide an
alternative for persons with mental illness in the criminal and
juvenile justice systems; and
(E) Developing mental health services, including housing, for
persons with mental illness prior to and upon release from
custody.
(g) Services described in the local plan shall:
(A) Address the vision, values and guiding principles described
in the Report to the Governor from the Mental Health Alignment
Workgroup, January 2001;
(B) Be provided to children, older adults and families as close
to their homes as possible;
(C) Be culturally appropriate and competent;
(D) Be, for children, older adults and adults with mental
health needs, from providers appropriate to deliver those
services;
(E) Be delivered in an integrated service delivery system with
integrated service sites or processes, and with the use of
integrated service teams;
(F) Ensure consumer choice among a range of qualified providers
in the community;
(G) Be distributed geographically;
(H) Involve consumers, families, clinicians, children and
schools in treatment as appropriate;
(I) Maximize early identification and early intervention;
Enrolled House Bill 2009 (HB 2009-C) Page 315
(J) Ensure appropriate transition planning between providers
and service delivery systems, with an emphasis on transition
between children and adult mental health services;
(K) Be based on the ability of a client to pay;
(L) Be delivered collaboratively;
(M) Use age-appropriate, research-based quality indicators;
(N) Use best-practice innovations; and
(O) Be delivered using a community-based, multisystem approach.
(h) A local mental health authority shall submit to the
{ - Department of Human Services - } { + Oregon Health
Authority + } a copy of the local plan and biennial revisions
adopted under paragraph (b) of this subsection at time intervals
established by the
{ - department - } { + authority + }.
(i) Each local commission on children and families shall
reference the local plan for the delivery of mental health
services in the local coordinated comprehensive plan created
pursuant to ORS 417.775.
SECTION 509. ORS 430.632 is amended to read:
430.632. A local mental health authority shall submit to the
{ - Department of Human Services - } { + Oregon Health
Authority + } by October 1 of each even-numbered year a report on
the implementation of the comprehensive local plan adopted under
ORS 430.630 { - (10) - } { + (11) + }.
SECTION 510. ORS 430.635 is amended to read:
430.635. The children's mental health programs of the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall address preventive services under ORS 430.630
(3)(L). The
{ - department - } { + authority + } budget shall give high
priority to such services.
SECTION 511. ORS 430.640 is amended to read:
430.640. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + }, in carrying out the legislative
policy declared in ORS 430.610, subject to the availability of
funds { + , + } shall:
(a) Assist Oregon counties and groups of Oregon counties in the
establishment and financing of community mental health { - and
developmental disabilities - } programs operated or contracted
for by one or more counties.
(b) If a county declines to operate or contract for a community
mental health { - and developmental disabilities - } program,
contract with another public agency or private corporation to
provide the program. The county must be provided with an
opportunity to review and comment.
(c) In an emergency situation when no community mental health
{ - and developmental disabilities - } program is operating
within a county or when a county is unable to provide a service
essential to public health and safety, operate the program or
service on a temporary basis.
(d) At the request of the tribal council of a federally
recognized tribe of Native Americans, contract with the tribal
council for the establishment and operation of a community mental
health { - and developmental disabilities - } program in the
same manner
{ - that the department - } { + in which the authority + }
contracts with a county court or board of county commissioners.
(e) If a county agrees, contract with a public agency or
private corporation for all services within one or more of the
following program areas: { - Mental or emotional disturbances,
Enrolled House Bill 2009 (HB 2009-C) Page 316
drug abuse, mental retardation or other developmental
disabilities and alcohol abuse and alcoholism - }
{ + (A) Mental or emotional disturbances.
(B) Drug abuse.
(C) Alcohol abuse and alcoholism + }.
(f) Approve or disapprove the biennial plan and budget
information for the establishment and operation of each community
mental health { - and developmental disabilities - } program.
Subsequent amendments to or modifications of an approved plan or
budget information involving more than 10 percent of the state
funds provided for services under ORS 430.630 may not be placed
in effect without prior approval of the { - department - }
{ + authority + }. However, an amendment or modification
affecting 10 percent or less of state funds for services under
ORS 430.630 within the portion of the program for persons with
mental or emotional disturbances { - , or within the portion for
persons with mental retardation or developmental disabilities - }
or within the portion for persons with alcohol or drug dependence
may be made without { - department - } { + authority + }
approval.
(g) Make all necessary and proper rules to govern the
establishment and operation of community mental health { - and
developmental disabilities - } programs, including adopting
rules defining the range and nature of the services which shall
or may be provided under ORS 430.630.
(h) Collect data and evaluate services in the state hospitals
in accordance with the same methods prescribed for community
mental health { - and developmental disabilities - } programs
under ORS 430.665.
(i) Develop guidelines that include, for the development of
comprehensive local plans in consultation with local mental
health authorities:
(A) The use of integrated services;
(B) The outcomes expected from services and programs provided;
(C) Incentives to reduce the use of state hospitals;
(D) Mechanisms for local sharing of risk for state
hospitalization;
(E) The provision of clinically appropriate levels of care
based on an assessment of the mental health needs of consumers;
(F) The transition of consumers between levels of care; and
(G) The development, maintenance and continuation of older
adult mental health programs with mental health professionals
trained in geriatrics.
(j) Work with local mental health authorities to provide
incentives for community-based care whenever appropriate while
simultaneously ensuring adequate statewide capacity.
(k) Provide technical assistance and information regarding
state and federal requirements to local mental health authorities
throughout the local planning process required under ORS 430.630
{ - (10) - } { + (11) + }.
(L) Provide incentives for local mental health authorities to
enhance or increase vocational placements for adults with mental
health needs.
(m) Develop or adopt nationally recognized system-level
performance measures, linked to the Oregon Benchmarks, for
state-level monitoring and reporting of mental health services
for children, adults and older adults, including but not limited
to quality and appropriateness of services, outcomes from
services, structure and management of local plans, prevention of
Enrolled House Bill 2009 (HB 2009-C) Page 317
mental health disorders and integration of mental health services
with other needed supports.
(n) Develop standardized criteria for each level of care
described in ORS 430.630 { - (10) - } { + (11) + }, including
protocols for implementation of local plans, strength-based
mental health assessment and case planning.
(o) Develop a comprehensive long-term plan for providing
appropriate and adequate mental health treatment and services to
children, adults and older adults that is derived from the needs
identified in local plans, is consistent with the vision, values
and guiding principles in the Report to the Governor from the
Mental Health Alignment Workgroup, January 2001, and addresses
the need for and the role of state hospitals.
(p) Report biennially to the Governor and the Legislative
Assembly on the progress of the local planning process and the
implementation of the local plans adopted under ORS 430.630
{ - (10)(b) - } { + (11)(b) + } and the state planning
process described in paragraph (o) of this subsection, and on the
performance measures and performance data available under
paragraph (m) of this subsection.
(q) On a periodic basis, not to exceed 10 years, reevaluate the
methodology used to estimate prevalence and demand for mental
health services using the most current nationally recognized
models and data.
(r) Encourage the development of regional local mental health
authorities comprised of two or more boards of county
commissioners that establish or operate a community mental health
{ - and developmental disabilities - } program.
(2) The { - department - } { + Oregon Health Authority + }
may provide technical assistance and other incentives to assist
in the planning, development and implementation of regional local
mental health authorities whenever the { - department - }
{ + Oregon Health Authority + } determines that a regional
approach will optimize the comprehensive local plan described
under ORS 430.630 { - (10) - } { + (11) + }.
{ + (3) The Department of Human Services in carrying out the
legislative policy declared in ORS 430.610, subject to the
availability of funds, shall:
(a) Assist Oregon counties and groups of Oregon counties in the
establishment and financing of community developmental
disabilities programs operated or contracted for by one or more
counties.
(b) If a county declines to operate or contract for a community
developmental disabilities program, contract with another public
agency or private corporation to provide the program. The county
must be provided with an opportunity to review and comment.
(c) In an emergency situation when no community developmental
disabilities program is operating within a county, operate the
program or service on a temporary basis.
(d) At the request of the tribal council of a federally
recognized tribe of Native Americans, contract with the tribal
council for the establishment and operation of a community
developmental disabilities program in the same manner in which
the department contracts with a county court or board of county
commissioners.
(e) If a county agrees, contract with a public agency or
private corporation for all developmental disabilities services.
(f) Approve or disapprove the biennial plan and budget
information for the establishment and operation of each community
developmental disabilities program. Subsequent amendments to or
Enrolled House Bill 2009 (HB 2009-C) Page 318
modifications of an approved plan or budget information involving
more than 10 percent of the state funds provided for services
under ORS 430.630 may not be placed in effect without prior
approval of the department. However, an amendment or modification
affecting 10 percent or less of state funds for services under
ORS 430.630 within the portion of the program for persons with
developmental disabilities may be made without department
approval.
(g) Make all necessary and proper rules to govern the
establishment and operation of community developmental
disabilities programs. + }
{ - (3) - } { + (4) + } The enumeration of duties and
functions in
{ - subsection (1) - } { + subsections (1) and (2) + } of
this section shall not be deemed exclusive nor construed as a
limitation on the powers and authority vested in the department
{ + or the authority + } by other provisions of law.
SECTION 512. ORS 430.665 is amended to read:
430.665. (1) In order to improve services to persons with
mental or emotional disturbances and provide information for
uniform analysis, each community mental health { - and
developmental disabilities - } program shall collect and report
data and evaluate programs in accordance with methods prescribed
by the { - Department of Human Services - } { + Oregon Health
Authority + } after consultation with the program directors.
(2) Information collected by the { - department - }
{ + authority + } under subsection (1) of this section shall
include, but need not be limited to:
(a) Numbers of persons served;
(b) Ages of persons served;
(c) Types of services provided; and
(d) Cost of services.
(3) Within the limits of available funds allocated for the
administration of community mental health { - and developmental
disabilities - } programs, community mental health { - and
developmental disabilities - } programs shall collect data and
evaluate programs with moneys provided by the { - department.
The department - } { + authority. The authority + } shall
distribute funds so that programs within the same population
grouping shall receive equal amounts of funds. The population
groupings are:
(a) More than 400,000 population.
(b) Less than 400,000 but more than 100,000.
(c) Less than 100,000 but more than 50,000.
(d) Less than 50,000.
(4) During the first biennium that a new service is funded by
the { - department - } { + authority + }, two percent of the
service funds shall be set aside for use in data collection and
evaluation of the service. Thereafter, the service shall be
evaluated as a part of the total community mental health program.
SECTION 513. ORS 430.670 is amended to read:
430.670. (1) A community { - mental health and - }
developmental disabilities program may provide services by
contracting
{ - therefor - } with a public agency, private corporation or
individual. All elements of service provided for in the contract
shall be considered as a part of a community { - mental
health - } { + developmental disabilities + } program for all
purposes of ORS 430.610 to 430.695. Contracts authorized by this
Enrolled House Bill 2009 (HB 2009-C) Page 319
section shall comply with rules adopted by the Department of
Human Services.
{ + (2) A community mental health program may provide
services by contracting with a public agency, private corporation
or individual. All elements of service provided for in the
contract shall be considered as a part of a community mental
health program for all purposes of ORS 430.610 to 430.695.
Contracts authorized by this section shall comply with rules
adopted by the Oregon Health Authority. + }
{ - (2) - } { + (3) + } A private corporation that
contracts with a county { + , + }
{ - or - } the Department of Human Services { + or the Oregon
Health Authority + } to operate a community mental health
{ - and - } { + program or community + } developmental
disabilities program shall provide an opportunity for competition
among private care providers when awarding subcontracts for
provision of services described in ORS 430.630 (1) to (3).
{ - (3) - } { + (4) + } In keeping with the principles of
family support expressed in ORS 417.342 and notwithstanding
subsection { - (2) - } { + (3) + } of this section or ORS
291.047 (3), an entity operating a community mental health
{ - and - } { + program or community + } developmental
disabilities program may purchase services for an individual from
a service provider without first providing an opportunity for
competition among other service providers if the service provider
is selected by the individual, the individual's family or the
individual's guardian, as long as the service provider has been
approved by the department { + or the authority + } to provide
such service.
SECTION 514. ORS 430.672 is amended to read:
430.672. (1) Except for community mental health { - and - }
{ + programs or community + } developmental disabilities
programs operated by the county, a county may impose only
standards, requirements and conditions for mental health
{ - and - } { + or + } developmental disabilities programs
that are substantially similar to the standards, requirements and
conditions established for such programs by the Department of
Human Services { + or the Oregon Health Authority + }.
(2) When a county contracts with a public agency or private
corporation for a community mental health { - and - }
{ + program or community + } developmental disabilities program,
the county shall include in the contract only terms that are
substantially similar to model contract terms developed by the
department { + under ORS 430.640 (3)(g) or the authority + }
under ORS 430.640 (1)(g). The county may not add contractual
requirements, including qualifications for contractor selection,
that are nonessential to the services provided under ORS 430.630.
The county may add contract requirements that the county
considers necessary to ensure the siting and maintenance of
facilities of the community mental health { - and - }
{ + program or community + } developmental disabilities program.
(3) The provisions of subsections (1) and (2) of this section
apply only insofar as funds are provided by the department to the
county for { - community mental health and developmental
disabilities programs - } { + community developmental
disabilities programs or by the authority to the county for
community mental health programs + }.
{ - (4) As used in this section, 'community mental health and
developmental disabilities program' includes those program
Enrolled House Bill 2009 (HB 2009-C) Page 320
elements that serve only persons with developmental
disabilities. - }
SECTION 515. ORS 430.673 is amended to read:
430.673. (1) When a dispute exists between a county and a
community { - mental health and - } developmental disabilities
program that is a private corporation or individual regarding the
terms of their contract or the interpretation of an
administrative rule of the Department of Human Services relating
to department programs under this chapter, either party may
request mediation under rules adopted by the department.
{ + (2) When a dispute exists between a county and a
community mental health program that is a private corporation or
individual regarding the terms of their contract or the
interpretation of an administrative rule of the Oregon Health
Authority relating to authority programs under this chapter,
either party may request mediation under rules adopted by the
authority. + }
{ - (2) - } { + (3) + } A county may not retaliate against
a community mental health { - and - } { + program or
community + } developmental disabilities program solely because
the program:
(a) Requested mediation under subsection (1) { + or (2) + } of
this section;
(b) Requested dispute resolution or filed an appeal under rules
adopted by the department { - under this section with respect
to a dispute described in subsection (1) of this section - }
{ + or the authority + }; or
(c) Initiated a contested case proceeding otherwise available
under ORS chapter 183 with respect to a dispute described in
subsection (1) { + or (2) + } of this section.
{ - (3) - } { + (4) + } For purposes of this section,
'retaliate' means an adverse action taken by a county against a
community mental health { - and - } { + program or a
community + } developmental disabilities program to:
(a) Materially alter or terminate the contract between the
county and the community mental health { - and - }
{ + program or community + } developmental disabilities program;
or
(b) Fail to renew the contract between the county and the
community mental health { - and - } { + program or
community + } developmental disabilities program.
{ - (4) - } { + (5) + } Notwithstanding any other remedy
provided by law, a community mental health { - and - }
{ + program or community + } developmental disabilities program
against which a county has retaliated in violation of subsection
{ - (2) - } { + (3) + } of this section may bring an action
against the county for actual damages or $1,000, whichever is
greater. The court shall award reasonable attorney fees to the
prevailing party in an action under this subsection. An action
described in this section shall be considered a tort claim under
ORS 30.260 to 30.300. Except as provided in this section, the
provisions of ORS 30.260 to 30.300 apply to an action described
in this section.
{ - (5) - } { + (6) + } In accordance with any applicable
provision of ORS chapter 183, the department { + or the
authority + } may adopt rules to carry out the provisions of this
section.
SECTION 516. ORS 430.675 is amended to read:
430.675. Within the limits of available funds, community mental
health { - and developmental disabilities - } programs shall
Enrolled House Bill 2009 (HB 2009-C) Page 321
provide those services as defined in ORS 430.630 (3)(a) to (h) to
persons in the following order of priority:
(1) Those persons who, in accordance with the assessment of
professionals in the field of mental health, are at immediate
risk of hospitalization for the treatment of mental or emotional
disturbances or are in need of continuing services to avoid
hospitalization or pose a hazard to the health and safety of
themselves, including the potential for suicide, or others and
those persons under 18 years of age who, in accordance with the
assessment of professionals in the field of mental health, are at
immediate risk of removal from their homes for treatment of
mental or emotional disturbances or exhibit behavior indicating
high risk of developing disturbances of a severe or persistent
nature;
(2) Those persons who, because of the nature of their
{ + mental + } illness, their geographic location or their
family income, are least capable of obtaining assistance from the
private sector; and
(3) Those persons who, in accordance with the assessment of
professionals in the field of mental health, are experiencing
mental or emotional disturbances but will not require
hospitalization in the foreseeable future.
SECTION 517. ORS 430.685 is amended to read:
430.685. In allocating funds for community mental health
{ - and developmental disabilities - } programs affecting
persons with mental or emotional disturbances, the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall observe the following priorities:
(1) To { - assure - } { + ensure + } the establishment and
operation of community mental health { - and developmental
disabilities - } programs for persons with mental or emotional
disturbances in every geographic area of the state to provide
some services in each category of services described in ORS
430.630 (3) unless a waiver has been granted;
(2) To { - assure - } { + ensure + } survival of services
that address the needs of persons within the priority of services
under ORS 430.675 and that meet { - department - }
{ + authority + } standards;
(3) To develop the interest and capacity of community mental
health { - and developmental disabilities - } programs to
provide new or expanded services to meet the needs for services
under ORS 430.675 and to promote the equal availability of such
services throughout the state; and
(4) To encourage and assist in the development of model
projects to test new services and innovative methods of service
delivery.
SECTION 518. ORS 430.690 is amended to read:
430.690. (1) Within the limits of state funds, community mental
health { - and developmental disabilities - } program services
shall be funded as follows:
(a) Services defined in ORS 430.630 (1) and (2) shall be funded
up to 100 percent with state funds.
(b) State funds available for payments to community mental
health { - and developmental disabilities - } programs for
services under ORS 430.630 (3) shall be paid by the
{ - Department of Human Services - } { + Oregon Health
Authority + } to the programs under the priorities set forth in
ORS 430.685.
(2) If a group of counties acts jointly to operate a community
mental health { - and - } { + program or community + }
Enrolled House Bill 2009 (HB 2009-C) Page 322
developmental disabilities program, state funds shall be
allocated, and the counties' contributions shall be prorated, in
accordance with the agreement establishing the program.
(3) The counties or other entities operating community mental
health { - and - } { + programs or community + }
developmental disabilities programs shall not be required to
match funds granted under subsections (1) and (2) of this
section. However, the { - department - } { + Department of
Human Services or the Oregon Health Authority + } may require
matching funds if they are required as a condition of receipt of
federal funds and the county or entity agrees to match funds.
(4) A reasonable portion of state funds granted under
subsection (1)(b) of this section may be expended by community
mental health { - and developmental disabilities - } programs
and their subcontractors for expenses incurred in administering
services.
SECTION 519. ORS 430.693 is amended to read:
430.693. (1) If the { - Department of Human Services - }
{ + Oregon Health Authority + } uses a formula for allocating to
counties moneys
{ - described in subsection (3) of this section - } , and if
the formula includes population as a factor in determining the
amount of each allocation, the { - department - }
{ + authority + } shall calculate the formula annually using the
most current population data that is available.
(2) The { - department - } { + authority + } shall use as
the source of the population data required by subsection (1) of
this section the primary population research center that is part
of the Oregon University System.
{ - (3) Subsection (1) of this section applies to moneys
allocated to counties for community mental health and addiction
services. - }
SECTION 520. ORS 430.695 is amended to read:
430.695. (1) Any program fees, third-party reimbursements,
contributions or funds from any source, except client resources
applied toward the cost of care in group homes for persons with
mental retardation or mental illness and client resources and
third-party payments for community psychiatric inpatient care,
received by a community mental health { - and developmental
disabilities - } program are not an offset to the costs of the
services and may not be applied to reduce the program's
eligibility for state funds, providing the funds are expended for
mental health services approved by the { - Department of Human
Services - } { + Oregon Health Authority + }.
(2) Within the limits of available funds, the
{ - department - } { + authority + } may contract for
specialized, statewide and regional services including but not
limited to group homes for persons with mental retardation or
mental or emotional disturbances, day and residential treatment
programs for children and adolescents with mental or emotional
disturbances and community services for clients of the
Psychiatric Security Review Board.
(3) Fees and third-party reimbursements, including all amounts
paid pursuant to Title XIX of the Social Security Act by the
Department of Human Services { + or the Oregon Health
Authority + }, for { - services rendered by the community
mental health and developmental disabilities program and interest
earned on the funds - } { + mental health services or
developmental disabilities services and interest earned on those
fees and reimbursements + } shall be retained by the
Enrolled House Bill 2009 (HB 2009-C) Page 323
{ - program - } { + community mental health program or
community developmental disabilities program + } and expended for
any service that meets the standards of { - the department - }
{ + ORS 430.630 + }.
SECTION 521. ORS 430.705 is amended to read:
430.705. Notwithstanding ORS 430.640, the State of Oregon,
through the { - Department of Human Services - } { + Oregon
Health Authority + }, may establish the necessary facilities and
provide comprehensive mental health services for children
throughout the state. These services may include, but need not be
limited to:
(1) The prevention of mental illness, emotional disturbances
and drug dependency in children; and
(2) The treatment of children with mental illness, emotional
disturbances and drug dependency.
SECTION 522. ORS 430.715 is amended to read:
430.715. The { - Department of Human Services - }
{ + Oregon Health Authority + } may contract for general
hospital services and may provide or contract with public or
private agencies or persons to provide child care and residential
treatment programs to implement the objectives of ORS 430.705.
The { - Department of Human Services - } { + authority + } may
also purchase or contract for specific services and supplies for
treatment of individual children.
SECTION 523. ORS 430.725 is amended to read:
430.725. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall have authority to contract
with private, nonprofit agencies and persons for receipt of
grants-in-aid and other funds to be applied to child mental
health service programs.
SECTION 524. ORS 430.735 is amended to read:
430.735. As used in ORS 430.735 to 430.765:
(1) 'Abuse' means one or more of the following:
(a) Any death caused by other than accidental or natural means.
(b) Any physical injury caused by other than accidental means,
or that appears to be at variance with the explanation given of
the injury.
(c) Willful infliction of physical pain or injury.
(d) Sexual harassment or exploitation, including but not
limited to any sexual contact between an employee of a facility
or community program and an adult.
(e) Neglect that leads to physical harm through withholding of
services necessary to maintain health and well-being. For
purposes of this paragraph, 'neglect' does not include a failure
of the state or a community program to provide services due to a
lack of funding available to provide the services.
(2) 'Adult' means a person 18 years of age or older with:
(a) A developmental disability who is currently receiving
services from a community program or facility or was previously
determined eligible for services as an adult by a community
program or facility; or
(b) A mental illness who is receiving services from a community
program or facility.
(3) 'Adult protective services' means the necessary actions
taken to prevent abuse or exploitation of an adult, to prevent
self-destructive acts and to safeguard an adult's person,
property and funds, including petitioning for a protective order
as defined in ORS 125.005. Any actions taken to protect an adult
shall be undertaken in a manner that is least intrusive to the
adult and provides for the greatest degree of independence.
Enrolled House Bill 2009 (HB 2009-C) Page 324
(4) 'Care provider' means an individual or facility that has
assumed responsibility for all or a portion of the care of an
adult as a result of a contract or agreement.
(5) 'Community program' means a community mental health
{ - and - } { + program or a community + } developmental
disabilities program as established in ORS 430.610 to 430.695.
(6) 'Department' means the Department of Human Services.
(7) 'Facility' means a residential treatment home or facility,
residential care facility, adult foster home, residential
training home or facility or crisis respite facility.
(8) 'Law enforcement agency' means:
(a) Any city or municipal police department;
(b) Any county sheriff's office;
(c) The Oregon State Police; or
(d) Any district attorney.
(9) 'Public or private official' means:
(a) Physician, naturopathic physician, osteopathic physician,
psychologist, 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;
(c) Employee of the Department of Human Services { + or Oregon
Health Authority + }, county health department, community mental
health { - and - } { + program or community + } developmental
disabilities program or private agency contracting with a public
body to provide any community mental health service;
(d) Peace officer;
(e) Member of the clergy;
(f) Licensed clinical social worker;
(g) Physical, speech or occupational therapist;
(h) Information and referral, outreach or crisis worker;
(i) Attorney;
(j) Licensed professional counselor or licensed marriage and
family therapist; or
(k) Any public official who comes in contact with adults in the
performance of the official's duties.
SECTION 525. ORS 430.850 is amended to read:
430.850. (1) Subject to the availability of funds therefor, the
{ - Department of Human Services - } { + Oregon Health
Authority + } may establish and administer a treatment program
with courts, with the consent of the judge thereof, for any
person convicted of driving under the influence of alcohol, or of
any crime committed while the defendant was intoxicated when the
judge has probable cause to believe the person is an alcoholic or
problem drinker and would benefit from treatment, who is eligible
under subsection (2) of this section to participate in such
program. The program shall involve medical and mental treatment
to include at least the supplying of disulfiram or any other
agent that interferes with normal metabolic degradation of
alcohol in the body resulting in an increase in acetaldehyde
concentrate in the blood, at regular intervals and under close
supervision and control.
(2) A person eligible to participate in the program is a person
who:
(a) Has been convicted of driving under the influence of
alcohol if such conviction has not been appealed, or if such
conviction has been appealed, whose conviction has been sustained
upon appeal; or
(b) Has been convicted of any crime committed while the
defendant was intoxicated if such conviction has not been
Enrolled House Bill 2009 (HB 2009-C) Page 325
reversed on appeal, and when the judge has probable cause to
believe the person is an alcoholic or problem drinker and would
benefit from treatment; and
(c) Has been referred by the participating court to the
{ - Department of Human Services - } { + authority + } for
participation in the treatment program; and
(d) Prior to sentencing, has been medically evaluated by the
{ - Department of Human Services - } { + authority + } and
accepted by the
{ - department - } { + authority + } as a participant in the
program; and
(e) Has consented as a condition to probation to participate in
the program; and
(f) Has been sentenced to probation by the court, a condition
of which probation is participation in the program according to
the rules adopted by the { - Department of Human Services - }
{ + authority + } under ORS 430.870.
SECTION 526. ORS 430.860 is amended to read:
430.860. The { - Department of Human Services - }
{ + Oregon Health Authority + } may:
(1) Accept for medical evaluation any person meeting the
conditions defined in ORS 430.850 (2)(a) or (b) and referred for
participation in the program by a participating court, cause such
medical evaluation to be made and report the results of the
evaluation to the referring court;
(2) Within the limitation of funds available to the program,
accept any person as a participant in the program who is eligible
under ORS 430.850 (2) and whose medical evaluation shows the
person suitable to participate in the program; and
(3) Report to the referring court the progress of, and any
violation of rules of the { - department - }
{ + authority + } adopted under ORS 430.870 by, a participant.
SECTION 527. ORS 430.870 is amended to read:
430.870. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules necessary to
the efficient administration and functioning of the program and
rules regulating the conduct of participants in the program.
Rules regulating the conduct of participants in the program shall
include but not be limited to rules requiring participants to
keep appointments and the time, place and frequency of any
dosages.
SECTION 528. ORS 430.880 is amended to read:
430.880. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may accept gifts and apply for
and accept grants or services from the federal government or any
of its agencies, from associations, individuals and private
corporations to carry out the purposes of ORS 430.850 to 430.880.
(2) All moneys received by the { - department - }
{ + authority + } under ORS 430.850 to 430.880 shall be paid
into the State Treasury and deposited in the General Fund to the
credit of a special account. Such moneys are appropriated
continuously to the { - department - } { + authority + } for
the purposes of ORS 430.850 to 430.880.
SECTION 529. ORS 430.920 is amended to read:
430.920. (1) The attending health care provider shall perform
during the first trimester of pregnancy or as early as possible a
risk assessment which shall include an assessment for drug and
alcohol usage. If the results of the assessment indicate that the
patient uses or abuses drugs or alcohol or uses unlawful
controlled substances, the provider shall tell the patient about
Enrolled House Bill 2009 (HB 2009-C) Page 326
the potential health effects of continued substance abuse and
recommend counseling by a trained drug or alcohol abuse
counselor.
(2) The provider shall supply to the local public health
administrator demographic information concerning patients
described in subsection (1) of this section without revealing the
identity of the patients. The local administrator shall use forms
prescribed by the { - Department of Human Services - }
{ + Oregon Health Authority + } and shall send copies of the
forms and any compilation made from the forms to the
{ - Department of Human Services - } { + authority + } at such
times as the { - department - } { + authority + } may require
by rule.
(3) The provider, if otherwise authorized, may administer or
prescribe controlled substances that relieve withdrawal symptoms
and assist the patient in reducing the need for unlawful
controlled substances according to medically acceptable
practices.
SECTION 530. ORS 430.925 is amended to read:
430.925. Subject to the availability of federal funds, the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall design and place in operation as soon as
possible after August 5, 1989, two demonstration pilot projects
in local health departments to alleviate the health related
problems of pregnant and postpartum women and their infants which
arise from substance use. One project shall be within a
metropolitan statistical area and one project shall be in a rural
area outside of a metropolitan statistical area. The project
designs shall take account of the findings, policies and intent
of ORS 430.900 to 430.930. Projects shall incorporate promising
or innovative services and activities intended to realize the
following goals:
(1) Promote the involvement and coordinated participation of
multiple organizations in the delivery of comprehensive services
for substance-using pregnant and postpartum women and their
infants;
(2) Increase the availability and accessibility of prevention,
early intervention and treatment services for these populations;
(3) Improve the identification of substance-using women and
their recruitment into and retention in appropriate treatment
programs;
(4) Decrease the incidence and prevalence of drug and alcohol
use among pregnant and postpartum women;
(5) Decrease the incidence of pregnancy among women who use
alcohol and other drugs through intensive family planning
counseling and referral;
(6) Improve the birth outcomes of women who used alcohol and
other drugs during pregnancy and to decrease the incidence of
infants affected by maternal substance use;
(7) Reduce the severity of impairment among children born to
substance-using women; and
(8) Promote continuing education among health providers to
improve identification of pregnant women at risk of substance
abuse or abusing substances and improved services to these women
and their infants.
SECTION 531. ORS 430.955 is amended to read:
430.955. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } and the Oregon Health and
Science University shall develop a standardized screening
Enrolled House Bill 2009 (HB 2009-C) Page 327
instrument designed to identify the use of substances during
pregnancy.
(2) The { - department - } { + authority + } and the Oregon
Health and Science University shall request the boards
responsible for the licensing of health care providers and
appropriate professional organizations to work with them to
conduct a series of training sessions for health professionals
who provide maternity care on how to assess drug use in
pregnancy.
SECTION 532. ORS 431.035 is amended to read:
431.035. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } may delegate to any of the officers
and employees of the { - Department of Human Services - } { +
Oregon Health Authority + } the exercise or discharge in the
director's name of any power, duty or function of whatever
character vested in or imposed upon the director by the laws of
Oregon. However, the power to administer oaths and affirmations,
subpoena witnesses, take evidence and require the production of
books, papers, correspondence, memoranda, agreements or other
documents or records may be exercised by an officer or employee
of the { - department - } { + authority + } only when
specifically delegated in writing by the director.
(2) The official act of any such person so acting in the
director's name and by the authority of the director shall be
deemed to be an official act of the director.
(3)(a) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall appoint a Public Health
Director to perform the duties and exercise authority over public
health emergency matters in the state and other duties as
assigned by the director { - of Human Services - } . The
director { - of Human Services - } may appoint the same person
to serve as both the Public Health Director and the Public Health
Officer appointed under ORS 431.045.
(b) The Public Health Director shall be an assistant director
appointed by the Director of { - Human Services - } { + the
Oregon Health Authority + } in accordance with ORS 409.130.
(c) The Public Health Director shall delegate to an employee of
the { - department - } { + authority + } the duties, powers
and functions granted to the Public Health Director by ORS
431.264 and 433.443 in the event of the absence from the state or
the unavailability of the director. The delegation must be in
writing.
SECTION 533. ORS 431.045 is amended to read:
431.045. The Director of { - Human Services - } { + the
Oregon Health Authority + } shall appoint a physician licensed by
the Oregon Medical Board and certified by the American Board of
Preventive Medicine who shall serve as the Public Health Officer
and be responsible for the medical and paramedical aspects of the
health programs within the { - Department of Human Services - }
{ + Oregon Health Authority + }.
SECTION 534. ORS 431.110 is amended to read:
431.110. Subject to ORS 417.300 and 417.305, the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall:
(1) Have direct supervision of all matters relating to the
preservation of life and health of the people of the state.
(2) Keep the vital statistics and other health related
statistics of the state.
Enrolled House Bill 2009 (HB 2009-C) Page 328
(3) Make sanitary surveys and investigations and inquiries
respecting the causes and prevention of diseases, especially of
epidemics.
(4) Investigate, conduct hearings and issue findings in
connection with annexations proposed by cities as provided in ORS
222.840 to 222.915.
(5) Have full power in the control of all communicable
diseases.
(6) Have authority to send a representative of the
{ - department - } { + authority + } to any part of the state
when deemed necessary.
(7) From time to time, publish and distribute to the public in
such form as the { - department - } { + authority + }
determines, such information as in its judgment may be useful in
carrying on the work or purposes for which the
{ - department - } { + authority + } was established.
(8) Carry out the duties imposed on the { - department - }
{ + authority + } under ORS chapter 690.
SECTION 535. ORS 431.120 is amended to read:
431.120. The { - Department of Human Services - } { +
Oregon Health Authority + } shall:
(1) Enforce state health policies and rules.
(2) Have the custody of all books, papers, documents and other
property belonging to the State Health Commission, which may be
deposited in the { - department's - } { + authority's + }
office.
(3) Give any instructions that may be necessary, and forward
them to the various local public health administrators throughout
the state.
(4) Routinely conduct epidemiological investigations for each
case of sudden infant death syndrome including, but not limited
to, the identification of risk factors such as birth weight,
maternal age, prenatal care, history of apnea and socioeconomic
characteristics. The { - department - } { + authority + } may
conduct the investigations through local health departments only
upon adoption by rule of a uniform epidemiological data
collection method.
(5) Adopt rules related to loans and grants awarded under ORS
285B.560 to 285B.599 or 541.700 to 541.855 for the improvement of
drinking water systems for the purpose of maintaining compliance
with applicable state and federal drinking water quality
standards. In adopting rules under this subsection, the
{ - Department of Human Services - } { + authority + } shall
coordinate the
{ - department's - } { + authority's + } rulemaking process
with the Water Resources Department and the Economic and
Community Development Department in order to ensure that rules
adopted under this subsection are consistent with rules adopted
under ORS 285B.563 and 541.845.
(6) Control health care capital expenditures by administering
the state certificate of need program pursuant to ORS 442.325 to
442.344.
SECTION 536. ORS 431.150 is amended to read:
431.150. (1) The local public health administrators are charged
with the strict and thorough enforcement of the public health
laws of this state in their districts, under the supervision and
direction of the { - Department of Human Services - }
{ + Oregon Health Authority + }. They shall make an immediate
report to the { - department - } { + authority + } of any
Enrolled House Bill 2009 (HB 2009-C) Page 329
violation of such laws coming to their notice by observation, or
upon the complaint of any person, or otherwise.
(2) The { - department - } { + authority + } is charged
with the thorough and efficient execution of the public health
laws of this state in every part of the state, and with
supervisory powers over all local public health administrators,
to the end that all the requirements are complied with.
(3) The { - department - } { + authority + } may
investigate cases of irregularity or violation of law. All local
public health administrators shall aid the { - department - }
{ + authority + }, upon request, in such investigation.
(4) When any case of violation of the public health laws of
this state is reported to any district attorney or official
acting in said capacity, such official shall forthwith initiate
and promptly follow up the necessary proceedings against the
parties responsible for the alleged violations of law.
(5) Upon request of the { - department - } { +
authority + }, the Attorney General shall likewise assist in the
enforcement of the public health laws of this state.
SECTION 537. ORS 431.155 is amended to read:
431.155. (1) Whenever it appears to the { - Department of
Human Services - } { + Oregon Health Authority + } that any
person is engaged or about to engage in any acts or practices
that constitute a violation of any statute relating to public
health administered by the { - department - } { +
authority + }, or any rule or order issued thereunder, the
{ - department - } { + authority + } may institute proceedings
in the circuit courts to enforce obedience thereto by injunction,
or by other processes, mandatory or otherwise, restraining such
person, or its officers, agents, employees and representatives
from further violation of such statute, rule or order, and
enjoining upon them obedience thereto.
(2) The provisions of this section are in addition to and not
in substitution of any other enforcement provisions contained in
any statute administered by the { - department - } { +
authority + }.
SECTION 538. ORS 431.157 is amended to read:
431.157. Pursuant to ORS 448.100 (1) and 446.425 (1), the
county is delegated the authority granted to the Director of
{ - Human Services - } { + the Oregon Health Authority + } in
ORS 431.155.
SECTION 539. ORS 431.170 is amended to read:
431.170. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall take direct charge of the
functions that are necessary to preserve the public health in any
county or district whenever any county or district official fails
or refuses to administer or enforce the public health laws or
rules that the director or board is charged to enforce.
(2) The director may call to the aid of the director such
assistance as is necessary for the enforcement of such statutes
and rules, the expense of which shall be borne by the county or
district making the use of this procedure necessary, to be paid
out of the respective county or district treasury upon vouchers
properly certified by the director.
SECTION 540. ORS 431.175 is amended to read:
431.175. If necessary, the Director of { - Human Services - }
{ + the Oregon Health Authority + } or a designee thereof, the
State Fire Marshal or a designee thereof or an officer of a law
enforcement agency may appear before any magistrate empowered to
issue warrants in criminal cases, and require such magistrate to
Enrolled House Bill 2009 (HB 2009-C) Page 330
issue a warrant, directing it to any sheriff or deputy or any
constable or police officer, to enter the described property or
to remove any person or obstacle, or to defend any threatened
violence to the director or a designee thereof, the State Fire
Marshal or a designee thereof or an officer, upon entering
private property, or to assist the director in any way.
SECTION 541. ORS 431.180 is amended to read:
431.180. Nothing in the public health laws shall be construed
to empower or authorize the { - Department of Human
Services - } { + Oregon Health Authority + } or its
representatives, or any county or district board of health or its
representatives to interfere in any manner with the individual's
right to select the physician or mode of treatment of the choice
of the individual, nor interfere with the practice of any person
whose religion treats or administers to people who are sick or
suffering by purely spiritual means. However, sanitary laws and
rules must be complied with.
SECTION 542. ORS 431.190 is amended to read:
431.190. The Director of { - Human Services - } { + the
Oregon Health Authority + } shall appoint, not later than 60 days
after October 4, 1977, an advisory board to study the practices
and procedures of the health care professions in this state and
to recommend rules relating to the auditing of health care
practices in hospitals which will:
(1) Promote standard record keeping by hospitals and persons
practicing any of the healing arts in hospitals;
(2) Establish those criteria most appropriate for determining
the proper objects of such auditing; and
(3) Insure auditing of those practices and procedures most
relevant to the causes and occurrence of professional negligence
in hospitals.
SECTION 543. ORS 431.195 is amended to read:
431.195. (1) There is established the Oregon Public Health
Advisory Board to serve as an advisory body to the { - Director
of Human Services - } { + Oregon Health Policy Board + }.
(2) The members of the { - board - } { + Oregon Public
Health Advisory Board + } shall be residents of this state and
shall be appointed by the Governor. The { - board - } { +
Oregon Public Health Advisory Board + } shall consist of 15
members at least one-half of whom shall be public members broadly
representing the state as a whole and the others to include
representatives of local government and public and private health
providers.
(3) The Oregon Public Health Advisory Board shall:
(a) Advise the { - director - } { + Oregon Health Policy
Board + } on policy matters related to the operation of the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(b) Provide a review of statewide public health issues and make
recommendations to the { - director - } { + Oregon Health
Policy Board + }.
(c) Participate in public health policy development.
(4) Members shall be appointed for four-year terms. No person
shall serve more than two consecutive terms.
(5) The { - board - } { + Oregon Public Health Advisory
Board + } shall meet at least quarterly.
(6) Members of the { - board - } { + Oregon Public Health
Advisory Board + } shall be entitled to compensation and expenses
as provided in ORS 292.495.
Enrolled House Bill 2009 (HB 2009-C) Page 331
(7) Vacancies on the { - board - } { + Oregon Public Health
Advisory Board + } shall be filled by appointments of the
Governor for the unexpired term.
SECTION 544. ORS 431.210 is amended to read:
431.210. (1) There is established in the General Fund the
Public Health Account, classified separately as to federal and
other moneys.
(2) All fines, fees, penalties, federal apportionments or
contributions and other moneys received by the { - Department
of Human Services - } { + Oregon Health Authority + } relating
to public health shall be turned over to the State Treasurer not
later than the 10th day of the calendar month next succeeding
their receipt by the { - department - } { + authority + } and
shall be credited to the Public Health Account.
(3) All moneys credited to the Public Health Account are
continuously appropriated to the { - department - } { +
authority + } for the payment of expenses of the
{ - department - } { + authority + }.
SECTION 545. ORS 431.220 is amended to read:
431.220. The { - Department of Human Services - } { +
Oregon Health Authority + } shall keep a record of all moneys
deposited in the Public Health Account. This record shall
indicate by separate cumulative accounts the source from which
the moneys are derived and the individual activity or program
against which each withdrawal is charged.
SECTION 546. ORS 431.230 is amended to read:
431.230. (1) The { - Director of Human Services - } { +
Oregon Health Authority + } may request the Oregon Department of
Administrative Services to, and when so requested, the Oregon
Department of Administrative Services shall, draw a payment on
the Public Health Account in favor of the Director of { - Human
Services - } { + the Oregon Health Authority + } in a sum not
exceeding $25,000, which sum shall be used by the director as an
emergency or revolving fund.
(2) The emergency or revolving fund shall be deposited with the
State Treasurer, and shall be at the disposal of the director
{ - of Human Services - } . It may be used to pay advances for
salaries, travel expenses or any other proper claim against, or
expense of, the { - Department of Human Services - }
{ + authority + } or the health-related licensing boards for
whom the { - department - } { + authority + } provides
accounting services.
(3) Claims for reimbursement of advances paid from the
emergency or revolving fund shall be submitted to the
{ - department - } { + authority + } for approval. When such
claims are so approved, payments covering them shall be drawn in
favor of the director { - of Human Services - } and charged
against the appropriate fund or account, and shall be used to
reimburse the emergency or revolving fund.
(4) The { - department - } { + authority + } may establish
petty cash funds within the emergency or revolving fund by
drawing checks upon the emergency or revolving fund payable to
the custodians of the petty cash funds.
SECTION 547. ORS 431.250 is amended to read:
431.250. (1) The { - Department of Human Services - } { +
Oregon Health Authority + } hereby is designated as the state
agency to apply to and receive from the federal government or any
agency thereof such grants for promoting public health and the
prevention of disease, including grants for cancer control and
Enrolled House Bill 2009 (HB 2009-C) Page 332
industrial hygiene programs, as may be available to this state or
any of its political subdivisions or agencies.
(2) For the purposes of subsection (1) of this section, the
{ - department - } { + authority + } shall:
(a) Disburse or supervise the disbursement of all funds made
available at any time by the federal government or this state for
those purposes.
(b) Adopt, carry out and administer plans for those purposes.
Plans so adopted shall be made statewide in application insofar
as reasonably feasible, possible or permissible, and shall be so
devised as to meet the approval of the federal government or any
of its agencies, not inconsistent with the laws of the state.
SECTION 548. ORS 431.260 is amended to read:
431.260. As used in ORS 431.035 to 431.530:
(1) 'Children's facility' has the meaning given that term in
ORS 433.235.
(2) 'Communicable disease' means a disease or condition, the
infectious agent of which may be transmitted by any means from
one person or from an animal to another person, that may result
in illness, death or severe disability.
(3) 'Condition of public health importance' means a disease,
syndrome, symptom, injury or other threat to public health that
is identifiable on an individual or community level.
(4) 'Disease outbreak' means a significant or notable increase
in the number of cases of a disease or other condition of public
health importance.
(5) 'Epidemic' means the occurrence in a community or region of
a group of similar conditions of public health importance that
are in excess of normal expectancy and derived from a common or
propagated source.
(6) 'Local public health administrator' means the public health
administrator of a county or health district appointed under ORS
431.418 or the authorized representative of that public health
administrator.
(7) 'Local public health authority' means a county government,
or a health district created under ORS 431.414 or a person or
agency a county or health district has contracted with to act as
the local public health authority.
(8) 'Public health law' means any statute, rule or local
ordinance that has the purpose of promoting or protecting the
public health and that establishes the authority of the
{ - Department of Human Services - } { + Oregon Health
Authority + }, the Public Health Director, the Public Health
Officer, a local public health authority or local public health
administrator to enforce the statute, rule or local ordinance.
(9) 'Public health measure' means a test, medical examination,
treatment, isolation, quarantine or other measure imposed on an
individual or group of individuals in order to prevent the spread
of or exposure to a communicable disease, toxic substance or
transmissible agent.
(10) 'Reportable disease' means a disease or condition, the
reporting of which enables a public health authority to take
action to protect or to benefit the public health.
(11) 'School' has the meaning given that term in ORS 433.235.
(12) 'Specimen' means blood, sputum, urine, stool or other
bodily fluids and wastes, tissues, and cultures necessary to
perform required tests.
(13) 'Test' means any diagnostic or investigative analyses or
medical procedures that determine the presence or absence of, or
Enrolled House Bill 2009 (HB 2009-C) Page 333
exposure to, a condition of potential public health importance,
or its precursor in an individual.
(14) 'Toxic substance' means a substance that may cause
illness, disability or death to persons who are exposed to it.
SECTION 549. ORS 431.262 is amended to read:
431.262. (1) The { - Department of Human Services - } { +
Oregon Health Authority + } and local public health
administrators shall have the power to enforce public health
laws. The enforcement powers authorized by this section include,
but are not limited to, the authority to:
(a) Investigate possible violations of public health laws;
(b) Issue subpoenas requiring testimony or the production of
physical or other evidence;
(c) Issue administrative orders to enforce compliance with
public health laws;
(d) Issue a notice of violation of a public health law and
impose a civil penalty as established by rule not to exceed $500
a day per violation;
(e) Enter private property at any reasonable time with consent
of the owner or custodian of the property to inspect,
investigate, evaluate or conduct tests, or take specimens or
samples for testing, as may be reasonably necessary to determine
compliance with any public health law;
(f) Enter a public place to inspect, investigate, evaluate,
conduct tests, or take specimens or samples for testing as may be
reasonably necessary to determine compliance with the provisions
of any public health law;
(g) Seek an administrative warrant from an appropriate court
authorizing the inspection, investigation, evaluation or testing,
or taking of specimens or samples for testing, if denied entry to
property;
(h) Restrict access to contaminated property;
(i) Require removal or abatement of a toxic substance on any
property and prescribe the proper measures for the removal or
abatement;
(j) Maintain a civil action to enforce compliance with public
health laws, including a petition to a court for an order
imposing a public health measure appropriate to the public health
threat presented;
(k) Refer any possible criminal violations of public health
laws to a district attorney or other appropriate law enforcement
official; and
(L) Request the Attorney General to assist in the enforcement
of the public health laws.
(2) Any administrative actions undertaken by the state under
this section shall comply with the provisions of ORS chapter 183.
(3) State and local law enforcement officials, to the extent
resources are available, must assist the { - Department of
Human Services - } { + Oregon Health Authority + } and local
public health administrators in ensuring compliance with
administrative or judicial orders issued pursuant to this
section.
(4) Nothing in this section shall be construed to limit any
other enforcement authority granted by law to a local public
health authority or to the state.
SECTION 550. ORS 431.264 is amended to read:
431.264. (1) Unless the Governor has declared a public health
emergency under ORS 433.441, the Public Health Director may, upon
approval of the Governor or the designee of the Governor, take
Enrolled House Bill 2009 (HB 2009-C) Page 334
the public health actions described in subsection (2) of this
section if the Public Health Director determines that:
(a)(A) A communicable disease, reportable disease, disease
outbreak, epidemic or other condition of public health importance
has affected more than one county;
(B) There is an immediate need for a consistent response from
the state in order to adequately protect the public health;
(C) The resources of the local public health authority or
authorities are likely to be quickly overwhelmed or unable to
effectively manage the required response; and
(D) There is a significant risk to the public health; or
(b) A communicable disease, reportable disease, disease
outbreak, epidemic or other condition of public health importance
is reported in Oregon and is an issue of significant regional or
national concern or is an issue for which there is significant
involvement from federal authorities requiring state-federal
coordination.
(2) The Public Health Director, after making the determinations
required under subsection (1) of this section, may take the
following public health actions:
(a) Coordinate the public health response across jurisdictions.
(b) Prescribe measures for the:
(A) Identification, assessment and control of the communicable
disease or reportable disease, disease outbreak, epidemic or
other condition of public health importance; and
(B) Allocation and distribution of antitoxins, serums,
vaccines, immunizing agents, antibiotics, antidotes and other
pharmaceutical agents, medical supplies or personal protective
equipment.
(c) After consultation with appropriate medical experts, create
and require the use of diagnostic and treatment guidelines and
provide notice of those guidelines to health care providers,
institutions and facilities.
(d) Require a person to obtain treatment and use appropriate
prophylactic measures to prevent the introduction or spread of a
communicable disease or reportable disease, unless:
(A) The person has a medical diagnosis for which a vaccination
is contraindicated; or
(B) The person has a religious or conscientious objection to
the required treatments or prophylactic measures.
(e) Notwithstanding ORS 332.075, direct a district school board
to close a children's facility or school under the jurisdiction
of the board. The authority granted to the Public Health Director
under this paragraph supersedes the authority granted to the
district school board under ORS 332.075 to the extent the
authority granted to the board is inconsistent with the authority
granted to the director.
(f) Issue guidelines for private businesses regarding
appropriate work restrictions.
(g) Organize public information activities regarding the public
health response to circumstances described in subsection (1) of
this section.
(h) Adopt reporting requirements for, and provide notice of
those reporting requirements to, health care providers,
institutions and facilities for the purpose of obtaining
information directly related to the public health threat
presented.
(i) Take control of antitoxins, serums, vaccines, immunizing
agents, antibiotics, antidotes and other pharmaceutical agents,
medical supplies or personal protective equipment.
Enrolled House Bill 2009 (HB 2009-C) Page 335
(3) The authority granted to the Public Health Director under
this section is not intended to override the general authority
provided to a local public health authority except as already
permitted by law, or under the circumstances described in
subsection (1) of this section.
(4) If the { - Department of Human Services - } { + Oregon
Health Authority + } adopts temporary rules to implement
subsection (2) of this section, the rules adopted are not subject
to the provisions of ORS 183.335 (6)(a). The { - department - }
{ + authority + } may amend the temporary rules adopted under
this subsection as often as is necessary to respond to the public
health threat.
(5) If it is necessary for the { - department - } { +
authority + } to purchase antitoxins, serums, vaccines,
immunizing agents, antibiotics, antidotes or other pharmaceutical
agents, medical supplies or personal protective equipment, the
purchases are not subject to the provisions of ORS chapter 279A,
279B or 279C.
(6) If property is taken under the authority granted to the
Public Health Director under subsection (2) of this section, the
owner of the property is entitled to reasonable compensation from
the state.
SECTION 551. ORS 431.270 is amended to read:
431.270. (1) The { - Department of Human Services - } { +
Oregon Health Authority + } shall educate residents of this state
about:
(a) The need for bone marrow donors;
(b) The procedures required to become registered as a potential
bone marrow donor, including procedures for determining a
person's tissue type; and
(c) The medical procedures a donor must undergo to donate bone
marrow or other sources of blood stem cells.
(2) The { - Department of Human Services - } { + Oregon
Health Authority + } shall make special efforts to educate and
recruit citizens of Oregon with a special emphasis on minority
populations to volunteer as potential bone marrow donors. Means
of communication may include use of press, radio and television,
and placement of educational materials in appropriate health care
facilities, blood banks and state and local agencies. The
{ - Department of Human Services - } { + Oregon Health
Authority + } in conjunction with the Department of
Transportation shall make educational materials available at all
places where driver licenses are issued or renewed.
SECTION 552. ORS 431.290 is amended to read:
431.290. (1) There is established a Spinal Cord Injury Research
Board consisting of 11 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. 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 a member to the board is subject to
confirmation by the Senate in the manner prescribed in ORS
171.562 and 171.565.
(4) The members of the Spinal Cord Injury Research Board shall
be citizens of this state who are well informed on the issues
relating to spinal cord injuries and related disabilities.
Members may include, but are not limited to:
(a) A minimum of five health professionals with clinical
practice experience in each of the practice fields of
Enrolled House Bill 2009 (HB 2009-C) Page 336
neuroscience, neurology, neurosurgery, neuropharmacology and
spinal cord rehabilitative medicine;
(b) A representative of the Oregon Disabilities Commission;
(c) A representative of a disabilities advocacy organization or
an individual who advocates on behalf of persons with spinal cord
injuries;
(d) A representative of the { - Department of Human
Services - } { + Oregon Health Authority + };
(e) Members of the Legislative Assembly; and
(f) A person with a spinal cord injury.
(5) The board shall elect one of its members as chairperson and
another as vice chairperson, for such terms and with such duties
and powers necessary for the performance of the functions of such
offices as the board determines.
(6) The board shall meet at least once every three months at a
place, day and hour determined by the chairperson. The board also
shall meet at other times and places specified by the call of the
chairperson or of a majority of the members of the board.
(7) In accordance with applicable provisions of ORS chapter
183, the board may adopt rules necessary for the administration
of the grant program and fund described in ORS 431.292 and
431.294.
SECTION 553. ORS 431.310 is amended to read:
431.310. (1) For the better protection of the public health the
laboratory of the { - Department of Human Services - } { +
Oregon Health Authority + } shall make bacteriological and other
examinations of water, milk, blood, secretions or tissues
required by any state, county or city institution, or officer,
and may make such examinations for any licensed physician in
accordance with the rules of the { - department - } { +
authority + }.
(2) The { - department - } { + authority + } shall
establish by rule and collect fees for tests performed in the
state public health laboratory, not to exceed:
(a) $50 per test for tests other than newborn screening tests;
and
(b) $30 per specimen for newborn screening tests.
(3) All money received for such tests shall be deposited in the
Public Health Account to be used for expenses of the state public
health laboratory.
SECTION 554. ORS 431.330 is amended to read:
431.330. (1) The Conference of Local Health Officials is
created. The conference shall consist of all local health
officers and public health administrators, appointed pursuant to
ORS 431.418 and such other local health personnel as may be
included by the rules of the conference.
(2) The Conference of Local Health Officials shall select one
of its members as chairperson, another as vice chairperson and
another as secretary with such powers and duties necessary to the
performance of the functions of such offices as the conference
shall determine. The chairperson, after consultation with the
Director of { - Human Services - } { + the Oregon Health
Authority + }, shall appoint from the conference membership an
executive committee. The executive committee with the chairperson
shall advise the director in the administration of ORS 431.330 to
431.350.
SECTION 555. ORS 431.335 is amended to read:
431.335. (1) The Conference of Local Health Officials shall
meet at least annually at a place, day and hour determined by the
executive committee and the Director of { - Human Services - }
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{ + the Oregon Health Authority + }. The conference may meet
specially at such other times as the director or the executive
committee considers necessary.
(2) The director shall cause at least 10 days' notice of each
meeting date to be given to the members. The chairperson or an
authorized representative of the chairperson shall preside at all
meetings of the conference.
(3) Each conference member shall receive from the local board
which the conference member represents from funds available under
ORS 431.510, the actual and necessary travel and other expenses
incurred by the conference member in attendance at no more than
two meetings of the conference per year. Additionally, subject to
applicable law regulating travel and other expenses for state
officers, a local health official who is a member of the
executive committee of the conference or who is the chairperson
shall receive from funds available to the { - Department of
Human Services - } { + Oregon Health Authority + }, actual and
necessary travel and other expenses for attendance at no more
than six meetings per year of the executive committee called by
the { - department - } { + authority + }.
SECTION 556. ORS 431.340 is amended to read:
431.340. The Conference of Local Health Officials may submit to
the { - Department of Human Services - } { + Oregon Health
Authority + } such recommendations on the rules and standards
specified in ORS 431.345 and 431.350.
SECTION 557. ORS 431.345 is amended to read:
431.345. In order to establish criteria for local boards of
health to qualify for such financial assistance as may be made
available, the { - Department of Human Services - } { +
Oregon Health Authority + }, upon receipt of written approval
from the Conference of Local Health Officials shall adopt minimum
standards governing:
(1) Education and experience for professional and technical
personnel employed in local health departments, such standards to
be consistent with any applicable merit system.
(2) Organization, operation and extent of activities which are
required or expected of local health departments to carry out
their responsibilities in implementing the public health laws of
this state and the rules of the { - Department of Human
Services - } { + Oregon Health Authority + }.
SECTION 558. ORS 431.350 is amended to read:
431.350. Upon receipt of written approval from the Conference
of Local Health Officials the { - Department of Human
Services - } { + Oregon Health Authority + } shall adopt rules
necessary for the administration of ORS 431.330 to 431.350.
SECTION 559. ORS 431.375 is amended to read:
431.375. (1) The Legislative Assembly of the State of Oregon
finds that each citizen of this state is entitled to basic public
health services which promote and preserve the health of the
people of Oregon. To provide for basic public health services the
state, in partnership with county governments, shall maintain and
improve public health services through county or district
administered public health programs.
(2) County governments or health districts established under
ORS 431.414 are the local public health authority responsible for
management of local public health services unless the county
contracts with private persons or an agency to act as the local
public health authority or the county relinquishes authority to
the state. If authority is relinquished, the state may then
Enrolled House Bill 2009 (HB 2009-C) Page 338
contract with private persons or an agency or perform the
services.
(3) All expenditure of public funds utilized to provide public
health services on the local level must be approved by the local
public health authority unless the county has relinquished
authority to the state or an exception has been approved by the
{ - Department of Human Services - } { + Oregon Health
Authority + } with the concurrence of the Conference of Local
Health Officials.
(4) The { - Department of Human Services - } { + Oregon
Health Authority + }:
(a) Shall contract for the provision of maternal and child
public health services with any tribal governing council of a
federally recognized Indian tribe that requests to receive
funding and to deliver services under the federal Title V
Maternal and Child Health Services Block Grant Program.
(b) May contract directly with any tribal governing council of
a federally recognized Indian tribe for provision of public
health services and programs not required under paragraph (a) of
this subsection.
(5) Contracts authorized by subsection (4) of this section must
specify that:
(a) Payments will be made to the tribe on a per capita or other
equitable formula basis;
(b) The tribe must provide services that are comparable to the
services provided by a local public health authority; and
(c) The tribe must comply with any state or federal
requirements with which a local public health authority providing
the same services must comply.
SECTION 560. ORS 431.380 is amended to read:
431.380. (1) From funds available to the { - Department of
Human Services - } { + Oregon Health Authority + } for local
public health purposes, regardless of the source, the
{ - department - } { + authority + } shall provide payments to
the local public health authority on a per capita or other
equitable formula basis to be used for public health services.
Funding formulas shall be determined by the
{ - department - } { + authority + } with the concurrence of
the Conference of Local Health Officials.
(2) With respect to counties that have established joint public
health services with another county, either by agreement or the
formation of a district board of health, distribution of funds
made available under the provisions of this section shall be
prorated to such counties as provided by agreement or under ORS
431.510.
SECTION 561. ORS 431.385 is amended to read:
431.385. (1) The local public health authority shall submit an
annual plan to the { - Department of Human Services - } { +
Oregon Health Authority + } for performing services pursuant to
ORS 431.375 to 431.385 and 431.416. The annual plan shall be
submitted no later than May 1 of each year or on a date mutually
agreeable to the
{ - department - } { + authority + } and the local public
health authority.
(2) If the local public health authority decides not to submit
an annual plan under the provisions of ORS 431.375 to 431.385 and
431.416, the { - department - } { + authority + } shall
become the local public health authority for that county or
health district.
Enrolled House Bill 2009 (HB 2009-C) Page 339
(3) The { - department - } { + authority + } shall review
and approve or disapprove each plan. Variances to the local
public health plan must be approved by the { - department - }
{ + authority + }. In consultation with the Conference of Local
Health Officials, the { - department - } { + authority + }
shall establish the elements of a plan and an appeals process
whereby a local health authority may obtain a hearing if its plan
is disapproved.
(4) Each local commission on children and families shall
reference the local public health plan in the local coordinated
comprehensive plan created pursuant to ORS 417.775.
SECTION 562. ORS 431.415 is amended to read:
431.415. (1) The district or county board of health is the
policymaking body of the county or district in implementing the
duties of local departments of health under ORS 431.416.
(2) The district or county board of health shall adopt rules
necessary to carry out its policies under subsection (1) of this
section. The county or district board of health shall adopt no
rule or policy which is inconsistent with or less strict than any
public health law or rule of the { - Department of Human
Services - } { + Oregon Health Authority + }.
(3) With the permission of the county governing body, a county
board may, and with the permission of the governing bodies of the
counties involved, a district board may, adopt schedules of fees
for public health services reasonably calculated not to exceed
the cost of the services performed. The health department shall
charge fees in accordance with such schedule or schedules
adopted.
SECTION 563. ORS 431.416 is amended to read:
431.416. The local public health authority or health district
shall:
(1) Administer and enforce the rules of the local public health
authority or the health district and public health laws and rules
of the { - Department of Human Services - } { + Oregon Health
Authority + }.
(2) Assure activities necessary for the preservation of health
or prevention of disease in the area under its jurisdiction as
provided in the annual plan of the authority or district are
performed. These activities shall include but not be limited to:
(a) Epidemiology and control of preventable diseases and
disorders;
(b) Parent and child health services, including family planning
clinics as described in ORS 435.205;
(c) Collection and reporting of health statistics;
(d) Health information and referral services; and
(e) Environmental health services.
SECTION 564. ORS 431.418 is amended to read:
431.418. (1) Each district board of health shall appoint a
qualified public health administrator to supervise the activities
of the district in accordance with law. Each county governing
body in a county that has created a county board of health under
ORS 431.412 shall appoint a qualified public health administrator
to supervise the activities of the county health department in
accordance with law. In making such appointment, the district or
county board of health shall consider standards for selection of
administrators prescribed by the { - Department of Human
Services - } { + Oregon Health Authority + }.
(2) When the public health administrator is a physician
licensed by the Oregon Medical Board, the administrator shall
serve as health officer for the district or county board of
Enrolled House Bill 2009 (HB 2009-C) Page 340
health. When the public health administrator is not a physician
licensed by the Oregon Medical Board, the administrator will
employ or otherwise contract for services with a health officer
who shall be a licensed physician and who will perform those
specific medical responsibilities requiring the services of a
physician and shall be responsible to the public health
administrator for the medical and paramedical aspects of the
health programs.
(3) The public health administrator shall:
(a) Serve as the executive secretary of the district or county
health board, act as the administrator of the district or county
health department and supervise the officers and employees
appointed under paragraph (b) of this subsection.
(b) Appoint with the approval of the health board,
administrators, medical officers, public health nurses,
environmental health specialists and such other employees as are
necessary to carry out the duties and responsibilities of the
office.
(c) Provide the board at appropriate intervals information
concerning the activities of the county health department and
submit an annual budget for the approval of the county governing
body except that, in the case of the district public health
administrator, the budget shall be submitted to the governing
bodies of the participating counties for approval.
(d) Act as the agent of the { - Department of Human
Services - } { + Oregon Health Authority + } in enforcing state
public health laws and rules of the { - Department of Human
Services - } { + authority + }, including such sanitary
inspection of hospitals and related institutions as may be
requested by the { - Department of Human Services - } { +
authority + }.
(e) Perform such other duties as may be required by law.
(4) The public health administrator shall serve until removed
by the appointing board. The public health administrator shall
engage in no occupation which conflicts with official duties and
shall devote sufficient time to duties as public health
administrator as may be necessary to fulfill the requirements of
subsection (3) of this section. However, if the board of health
is not created under ORS 431.412, it may, with the approval of
the Director of { - Human Services - } { + the Oregon Health
Authority + }, require less than full-time service of the public
health administrator.
(5) The public health administrator shall receive a salary
fixed by the appointing board and shall be reimbursed for actual
and necessary expenses incurred in the performance of duties.
SECTION 565. ORS 431.530 is amended to read:
431.530. (1) The local public health administrator may take any
action which the { - Department of Human Services - } { +
Oregon Health Authority + } or its director could have taken, if
an emergency endangering the public health occurs within the
jurisdiction of any local public health administrator and:
(a) The circumstances of the emergency are such that the
{ - department - } { + authority + } or its director cannot
take action in time to meet the emergency; and
(b) Delay in taking action to meet the emergency will increase
the hazard to public health.
(2) Any local public health administrator who acts under
subsection (1) of this section shall report the facts
constituting the emergency and any action taken under the
authority granted by subsection (1) of this section to the
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Director of { - Human Services - } { + the Oregon Health
Authority + } by the fastest possible means.
SECTION 566. ORS 431.550 is amended to read:
431.550. Nothing in ORS 431.412, 431.418 and this section shall
be construed to limit the authority of the { - Department of
Human Services - } { + Oregon Health Authority + } to require
facts and statistics from local public health administrators
under its general supervisory power over all matters relating to
the preservation of life and health of the people of the state.
SECTION 567. ORS 431.607 is amended to read:
431.607. In cooperation with representatives of the emergency
medical services professions, the { - Department of Human
Services - } { + Oregon Health Authority + } shall develop a
comprehensive emergency medical services and trauma system. The
{ - department - } { + authority + } shall report progress on
the system to the Legislative Assembly.
SECTION 568. ORS 431.609 is amended to read:
431.609. (1) With the advice of the State Trauma Advisory
Board, the { - Department of Human Services - } { + Oregon
Health Authority + } shall:
(a) Develop and monitor a statewide trauma system; and
(b) Designate within the state, trauma areas consistent with
local resources, geography and current patient referral patterns.
(2) Each trauma area shall have:
(a) Central medical control for all field care and
transportation consistent with geographic and current
communications capability.
(b) The development of triage protocols.
(c) One or more hospitals categorized according to trauma care
capabilities using standards adopted by the { - department - }
{ + authority + } by rule. Such rules shall be modeled after the
American College of Surgeons Committee on Trauma standards.
(d) The establishment of area trauma advisory boards to develop
trauma system plans for each trauma area.
(3) On and after July 1, 1986, the { - department - } { +
authority + } may designate trauma system hospitals in accordance
with area trauma advisory board plans which meet state objectives
and standards.
(4) Trauma system plans shall be implemented by June 30, 1987,
in Health Systems Area I, and June 30, 1988, in Health Systems
Areas II and III.
SECTION 569. ORS 431.611 is amended to read:
431.611. (1) Prior to approval and implementation of area
trauma plans submitted to the { - Department of Human
Services - } { + Oregon Health Authority + } by area trauma
advisory boards, the
{ - department - } { + authority + } shall adopt rules
pursuant to ORS chapter 183 which specify state trauma objectives
and standards, hospital categorization criteria and criteria and
procedures to be utilized in designating trauma system hospitals.
(2) For approved area trauma plans recommending designation of
trauma system hospitals, the { - department - } { +
authority + } rules shall provide for:
(a) The transport of a member of a health maintenance
organization, or other managed health care system, as defined by
rule, to a hospital that contracts with the health maintenance
organization when central medical control determines that the
condition of the member permits such transport; and
(b) The development and utilization of protocols between
designated trauma hospitals and health maintenance organizations,
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or other managed health care systems, as defined by rule,
including notification of admission of a member to a designated
trauma hospital within 48 hours of admission, and coordinated
discharge planning between a designated trauma hospital and a
hospital that contracts with a health maintenance organization to
facilitate transfer of the member when the medical condition of
the member permits.
SECTION 570. ORS 431.613 is amended to read:
431.613. (1) Area trauma advisory boards shall meet as often as
necessary to identify specific trauma area needs and problems and
propose to the { - Department of Human Services - } { +
Oregon Health Authority + } area trauma system plans and changes
that meet state standards and objectives. The
{ - department - } { + authority + } acting with the advice of
the State Trauma Advisory Board will have the authority to
implement these plans.
(2) In concurrence with the Governor, the { - department - }
{ + authority + } shall select members for each area from lists
submitted by local associations of emergency medical technicians,
emergency nurses, emergency physicians, surgeons, hospital
administrators, emergency medical services agencies and citizens
at large. Members shall be broadly representative of the trauma
area as a whole and shall consist of at least 15 members per area
trauma advisory board, including:
(a) Three surgeons;
(b) Two physicians serving as emergency physicians;
(c) Two hospital administrators from different hospitals;
(d) Two nurses serving as emergency nurses;
(e) Two emergency medical technicians serving different
emergency medical services;
(f) Two representatives of the public at large selected from
among those submitting letters of application in response to
public notice by the { - department - } { + authority + }.
Public members shall not have an economic interest in any
decision of the health care service areas;
(g) One representative of any bordering state which is included
within the patient referral area;
(h) One anesthesiologist; and
(i) One ambulance service owner or operator or both.
SECTION 571. ORS 431.619 is amended to read:
431.619. The { - Department of Human Services - } { +
Oregon Health Authority + } shall continuously identify the
causes of trauma in Oregon, and propose programs of prevention
thereof for consideration by the Legislative Assembly or others.
SECTION 572. ORS 431.623 is amended to read:
431.623. (1) The Emergency Medical Services and Trauma Systems
Program is created within the { - Department of Human
Services - } { + Oregon Health Authority + } for the purpose of
administering and regulating ambulances, training and certifying
emergency medical technicians, establishing and maintaining
emergency medical systems including trauma systems and obtaining
appropriate data from the Oregon Injury Registry as necessary for
trauma reimbursement, system quality assurance and assuring cost
efficiency.
(2) For purposes of ORS 431.607 to 431.619 and ORS chapter 682,
the duties vested in the { - department - } { + authority + }
shall be performed by the Emergency Medical Services and Trauma
Systems Program.
(3) The program shall be administered by a director.
Enrolled House Bill 2009 (HB 2009-C) Page 343
(4) With moneys transferred to the program by ORS 442.625, the
program shall apply those moneys to:
(a) Developing state and regional standards of care;
(b) Developing a statewide educational curriculum to teach
standards of care;
(c) Implementing quality improvement programs;
(d) Creating a statewide data system for prehospital care; and
(e) Providing ancillary services to enhance Oregon's emergency
medical service system.
SECTION 573. ORS 431.627 is amended to read:
431.627. (1) In addition to and not in lieu of ORS 431.607 to
431.617, the { - Department of Human Services - } { + Oregon
Health Authority + } shall designate trauma centers in areas that
are within the jurisdiction of trauma advisory boards other than
in the area within the jurisdiction of area trauma advisory board
1.
(2) The { - department - } { + authority + } shall enter
into contracts with designated trauma centers and monitor and
assure quality of care and appropriate costs for trauma patients
meeting trauma system entry criteria.
(3) All findings and conclusions, interviews, reports, studies,
communications and statements procured by or furnished to the
{ - department - } { + authority + }, the State Trauma
Advisory Board or an area trauma advisory board in connection
with obtaining the data necessary to perform patient care quality
assurance functions shall be confidential pursuant to ORS 192.501
to 192.505.
(4)(a) All data received or compiled by the State Trauma
Advisory Board or any area trauma advisory board in conjunction
with { - department - } { + authority + } monitoring and
assuring quality of trauma patient care shall be confidential and
privileged, nondiscoverable and inadmissible in any proceeding.
No person serving on or communicating information to the State
Trauma Advisory Board or an area trauma advisory board shall be
examined as to any such communications or to the findings or
recommendations of such board. A person serving on or
communicating information to the State Trauma Advisory Board or
an area trauma advisory board shall not be subject to an action
for civil damages for actions taken or statements made in good
faith. Nothing in this section affects the admissibility in
evidence of a party's medical records not otherwise confidential
or privileged dealing with the party's medical care. The
confidentiality provisions of ORS 41.675 and 41.685 shall also
apply to the monitoring and quality assurance activities of the
State Trauma Advisory Board, area trauma advisory boards and the
{ - department - } { + authority + }.
(b) As used in this section, 'data' includes but is not limited
to written reports, notes, records and recommendations.
(5) Final reports by the { - department - } { +
authority + }, the State Trauma Advisory Board and area trauma
advisory boards shall be available to the public.
(6) The { - department - } { + authority + } shall publish
a biennial report of the Emergency Medical Services and Trauma
Systems Program and trauma systems activities.
SECTION 574. ORS 431.633 is amended to read:
431.633. (1) Designated trauma centers and providers, physical
rehabilitation centers, alcohol and drug rehabilitation centers
and ambulances shall develop a monthly log of all unsponsored,
inadequately insured trauma system patients determined by the
hospital to have an injury severity score greater than or equal
Enrolled House Bill 2009 (HB 2009-C) Page 344
to 13, and submit monthly to the Emergency Medical Services and
Trauma Systems Program the true costs and unpaid balance for the
care of these patients.
(2) No reimbursement for these patients shall occur until:
(a) All information required by the Emergency Medical Services
and Trauma Systems Program rules is submitted to the Oregon
Injury Registry; and
(b) The Emergency Medical Services and Trauma Systems Program
confirms that the injury severity score, as defined by the
{ - Department of Human Services - } { + Oregon Health
Authority + } by rule, is greater than or equal to 13.
(3) The Emergency Medical Services and Trauma Systems Program
shall cause providers to be reimbursed in the following
decreasing order of priority:
(a) Designated trauma centers and providers;
(b) Physical rehabilitation centers;
(c) Alcohol and drug rehabilitation centers; and
(d) Ambulances.
(4) Subject to the availability of funds, the Emergency Medical
Services and Trauma Systems Program shall cause the designated
trauma centers and providers to be paid first in full.
Subsequent providers shall be paid from the balance remaining
according to priority.
(5) Any matching funds, available pursuant to the federal
Trauma Care Systems and Development Act of 1990 (H.R. 1602), that
are available for purposes of the Emergency Medical Services and
Trauma Systems Program may be used for related studies and
projects and reimbursement for uncompensated care.
SECTION 575. ORS 431.671 is amended to read:
431.671. (1) Subject to available funding from gifts, grants or
donations, the Emergency Medical Services for Children Program is
established in the { - Department of Human Services - } { +
Oregon Health Authority + }. The Emergency Medical Services for
Children Program shall operate in cooperation with the Emergency
Medical Services and Trauma Systems Program to promote the
delivery of emergency medical and trauma services to the children
of Oregon.
(2) The { - Department of Human Services - } { + Oregon
Health Authority + } shall:
(a) Employ or contract with professional, technical, research
and clerical staff as required to implement this section.
(b) Provide technical assistance to the State Trauma Advisory
Board on the integration of an emergency medical services for
children program into the statewide emergency medical services
and trauma system.
(c) Provide advice and technical assistance to area trauma
advisory boards on the integration of an emergency medical
services for children program into area trauma system plans.
(d) Establish an Emergency Medical Services for Children
Advisory Committee.
(e) Establish guidelines for:
(A) The approval of emergency and critical care medical service
facilities for pediatric care, and for the designation of
specialized regional pediatric critical care centers and
pediatric trauma care centers.
(B) Referring children to appropriate emergency or critical
care medical facilities.
(C) Necessary prehospital and other pediatric emergency and
critical care medical service equipment.
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(D) Developing a coordinated system that will allow children to
receive appropriate initial stabilization and treatment with
timely provision of, or referral to, the appropriate level of
care, including critical care, trauma care or pediatric
subspecialty care.
(E) Protocols for prehospital and hospital facilities
encompassing all levels of pediatric emergency services,
pediatric critical care and pediatric trauma care.
(F) Rehabilitation services for critically ill or injured
children.
(G) An interfacility transfer system for critically ill or
injured children.
(H) Initial and continuing professional education programs for
emergency medical services personnel, including training in the
emergency care of infants and children.
(I) A public education program concerning the Emergency Medical
Services for Children Program including information on emergency
access telephone numbers.
(J) The collection and analysis of statewide pediatric
emergency and critical care medical services data from emergency
and critical care medical service facilities for the purpose of
quality improvement by such facilities, subject to relevant
confidentiality requirements.
(K) The establishment of cooperative interstate relationships
to facilitate the provision of appropriate care for pediatric
patients who must cross state borders to receive emergency and
critical care services.
(L) Coordination and cooperation between the Emergency Medical
Services for Children Program and other public and private
organizations interested or involved in emergency and critical
care for children.
SECTION 576. ORS 431.705 is amended to read:
431.705. As used in ORS 431.705 to 431.760, unless the context
requires otherwise:
(1) 'Affected territory' means an area that is the subject of a
proceedings under ORS 431.705 to 431.760 where there is a danger
to public health or an alleged danger to public health.
(2) 'Boundary commission' means a local government boundary
commission created under ORS 199.410 to 199.430, 199.435 to
199.464, 199.480 to 199.505 and 199.510.
(3) 'Commission' means the Environmental Quality Commission.
(4) '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. - }
{ - (7) - } { + (5) + } '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.
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(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.
{ - (8) - } { + (6) + } 'Requesting body' means the county
court, or local or district board of health that makes a request
under ORS 431.715.
{ - (9) - } { + (7) + } 'Service facilities' means water or
sewer installations or works.
SECTION 577. ORS 431.710 is amended to read:
431.710. (1) ORS 431.705 to 431.760 shall not apply if the
affected territory could be subject to an annexation proceeding
under ORS 222.840 to 222.915.
(2) If the { - Department of Human Services - } { + Oregon
Health Authority + }, in accordance with ORS 431.705 to 431.760,
finds that a danger to public health exists within the affected
territory and that such danger could be removed or alleviated by
the construction, maintenance and operation of service
facilities, the
{ - department - } { + authority + } shall initiate
proceedings for the formation of or annexation to a district to
serve the affected territory. If the affected territory is
located within a district that has the authority to provide the
service facilities, the
{ - department - } { + authority + } shall order the district
to provide service facilities in the affected territory.
SECTION 578. ORS 431.715 is amended to read:
431.715. (1) The county court or the local or district board of
health having jurisdiction over territory where it believes
conditions dangerous to the public health exist shall adopt a
resolution requesting the { - Department of Human Services - }
{ + Oregon Health Authority + } to initiate proceedings for the
formation of a district or annexation of territory to, or
delivery of appropriate water or sewer services by, an existing
district without vote or consent in the affected territory. The
resolution shall:
(a) Describe the boundaries of the affected territory;
(b) Describe the conditions alleged to be causing a danger to
public health;
(c) Request the { - department - } { + authority + } to
ascertain whether conditions dangerous to public health exist in
the affected territory and whether such conditions could be
removed or alleviated by the provision of service facilities; and
either
(d) Recommend a district that the affected territory could be
included in or annexed to for the purpose of providing the
requested service facilities; or
(e) Recommend that an existing district provide service
facilities in the affected territory.
(2) The requesting body shall cause a certified copy of the
resolution, together with the time schedule and preliminary plans
and specifications, prepared in accordance with subsection (3) of
this section, to be forwarded to the { - department - } { +
authority + }.
(3) The requesting body shall cause a study to be made and
preliminary plans and specifications prepared for the service
facilities considered necessary to remove or alleviate the
conditions causing a danger to public health. The requesting body
shall prepare a schedule setting out the steps necessary to put
Enrolled House Bill 2009 (HB 2009-C) Page 347
the facilities into operation and the time required for each step
in implementation of the plans.
(4) If the preliminary plans involve facilities that are
subject to the jurisdiction of the Environmental Quality
Commission, a copy of the documents submitted to the
{ - department - } { + authority + } under subsection (2) of
this section shall be submitted to the commission for review, in
accordance with ORS 431.725, of those facilities that are subject
to its jurisdiction. No order or findings shall be adopted under
ORS 431.735 or 431.756 until the plans of the requesting body for
such facilities, if any, have been approved by the commission.
SECTION 579. ORS 431.720 is amended to read:
431.720. (1) Upon receipt of the documents submitted under ORS
431.715 (4), the Environmental Quality Commission shall review
them to determine whether the conditions dangerous to public
health within the affected territory could be removed or
alleviated by the provision of service facilities that are
subject to the jurisdiction of the commission.
(2) If the commission considers such proposed facilities and
the time schedule for installation of such facilities adequate to
remove or alleviate the dangerous conditions, it shall approve
the part of the plans that are subject to its jurisdiction and
certify its approval to the { - Department of Human
Services - } { + Oregon Health Authority + }.
(3) If the commission considers the proposed facilities or time
schedule inadequate, it shall disapprove the part of the plans
that are subject to its jurisdiction and certify its disapproval
to the { - department - } { + authority + }. The commission
shall also inform the requesting body of its approval or
disapproval and, in case of disapproval, of the particular
matters causing the disapproval. The requesting body may then
submit additional or revised plans.
SECTION 580. ORS 431.725 is amended to read:
431.725. (1) Upon receipt of the certified copy of a resolution
adopted under ORS 431.715, the { - Department of Human
Services - } { + Oregon Health Authority + } shall contact the
requesting body within 30 days of receipt of the request and
schedule the review and investigation of conditions in the
affected territory. The { - department - } { + authority + }
shall review and investigate conditions in the affected territory
in accordance with the agreed upon schedule unless both parties
agree to an extension. If it finds substantial evidence that a
danger to public health exists in the territory, it shall issue
an order setting a time and place for a hearing on the
resolution. The hearing shall be held within the affected
territory, or at a place near the territory if there is no
suitable place within the territory at which to hold the hearing,
not less than 30 or more than 50 days after the date of the
order.
(2) Upon issuance of an order for a hearing, the
{ - department - } { + authority + } shall immediately give
notice of the time and place of the hearing on the resolution by
publishing the order and resolution in a newspaper of general
circulation within the territory once each week for two
successive weeks and by posting copies of the order in four
public places within the territory prior to the hearing.
SECTION 581. ORS 431.730 is amended to read:
431.730. (1) At the hearing on the resolution, any interested
person shall be given a reasonable opportunity to be heard or to
present written statements. The hearing shall be for the sole
Enrolled House Bill 2009 (HB 2009-C) Page 348
purpose of determining whether a danger to public health exists
due to conditions in the affected territory and whether such
conditions could be removed or alleviated by the provision of
service facilities. Hearings under this section shall be
conducted by an administrative law judge assigned from the Office
of Administrative Hearings established under ORS 183.605. It
shall be conducted in accordance with the provisions of ORS
chapter 183. The { - Department of Human Services - } { +
Oregon Health Authority + } shall publish a notice of the
issuance of said findings and recommendations in the newspaper
utilized for the notice of hearing under ORS 431.725 (2) 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, or the affected
district, may petition the Director of { - Human Services - }
{ + the Oregon Health Authority + } according to rules of the
{ - department - } { + authority + } to present written or oral
arguments relative to the proposal. If a petition is received,
the director may set a time and place for receipt of argument.
SECTION 582. ORS 431.735 is amended to read:
431.735. (1) If the Director of { - Human Services - } { +
the Oregon Health Authority + } after investigation finds that no
danger to public health exists because of conditions within the
affected territory, or that such a danger does exist but the
conditions causing it could not be removed or alleviated by the
provision of service facilities, the director shall issue an
order terminating the proceedings under ORS 431.705 to 431.760
with reference to the affected territory.
(2) If the director finds, after investigation and the hearing
required by ORS 431.725, that a danger to public health exists
because of conditions within the territory, and that such
conditions could be removed or alleviated by the provisions of
service facilities in accordance with the plans and
specifications and the time schedule proposed, the director shall
enter findings in an order, directed to the officers described by
ORS 431.740, setting out the service facilities to be provided.
(3) If the director determines that a danger to public health
exists because of conditions within only part of the affected
territory, or that such conditions could be removed or alleviated
in only part of the affected territory by the provision of
service facilities, the director may, subject to conditions
stated in ORS 431.705 to 431.760, reduce the boundaries of the
affected territory to that part which presents a danger or in
which the conditions could be removed or alleviated if the area
to be excluded would not be surrounded by the 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 territory remaining
to be annexed. The findings shall describe the boundaries of the
area as reduced by the director.
(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 area remaining to be annexed and whether the exclusion would
result in an illogical boundary for the provision of services.
(5) The requesting body or the boundary commission shall, when
requested, aid in the determinations made under subsections (3)
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and (4) of this section and, if necessary, cause a study to be
made.
SECTION 583. ORS 431.740 is amended to read:
431.740. (1) If a boundary commission has jurisdiction of the
affected territory, the Director of { - Human Services - }
{ + the Oregon Health Authority + } shall file the findings and
order with such boundary commission. If the affected territory is
not within the jurisdiction of a boundary commission, the
director shall file the findings and order with the county court
of the county having jurisdiction of the territory.
(2) The { - Department of Human Services - } { + Oregon
Health Authority + } and the Environmental Quality Commission
shall use their applicable powers of enforcement to insure that
the service facilities are constructed or installed in
conformance with the approved plans and schedules.
SECTION 584. ORS 431.745 is amended to read:
431.745. (1) At any time after the adoption of a resolution
under ORS 431.715, 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 + }. The petition shall suggest an
alternative plan to the proposed formation or annexation 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 city or special district
authorized by law to provide service facilities necessary to
remove or alleviate the dangerous conditions. 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) Upon receipt of the petition, the { - department - }
{ + authority + } shall immediately forward a copy of the
petition to the Environmental Quality Commission, if the plan
accompanying the petition involves facilities that are subject to
the jurisdiction of the commission. The { - department - }
{ + authority + } also shall forward a copy of the petition to
the requesting body and to the county court or boundary
commission where the { - department - } { + authority + }
filed its findings under ORS 431.740 and direct the county court
or boundary commission to stay the proceedings pending the review
permitted under this section and ORS 431.750.
SECTION 585. ORS 431.750 is amended to read:
431.750. (1) If the alternative plan submitted under ORS
431.745 (1) involves service facilities that are subject to the
jurisdiction of the commission, the alternative plan shall be
submitted to and reviewed by the Environmental Quality Commission
and shall be approved or rejected by the commission within 30
days from the date of filing with the { - Department of Human
Services - } { + Oregon Health Authority + }. In reviewing the
alternative plan, the 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 the commission determines that the original plan
provides the better and most expeditious method of removing or
alleviating the dangerous conditions, it shall disapprove the
alternative plan and inform the { - department - } { +
authority + } of its decision. The { - department - }
{ + authority + } shall order the proceedings on the finding
filed under ORS 431.740 to resume.
Enrolled House Bill 2009 (HB 2009-C) Page 350
(2) If the commission finds that the alternative plan provides
a preferable method of alleviating or removing the dangerous
conditions, the petitioners shall be granted six months within
which to present to the commission information showing:
(a) That the affected territory has annexed to a city or
special district authorized by law to provide the service
facilities necessary to remove or alleviate the dangerous
conditions, and that the financing of the 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
formation or annexation proposed by the original plans.
(3) The commission shall review the plan presented to it by the
petitioners under subsection (2) of this section and shall
promptly certify to the { - department - } { + authority + }
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 to the county court or boundary commission
having jurisdiction and direct it to proceed in accordance with
the alternative plan and in lieu of the plans filed under ORS
431.740. If the requirements of subsection (2) of this section
are not met by the petitioners, the { - department - }
{ + authority + } shall certify that fact to the county court or
boundary commission having jurisdiction and direct it to continue
the proceedings on the plans filed under ORS 431.740.
SECTION 586. ORS 431.760 is amended to read:
431.760. (1) A person who owns property or resides within
affected territory that is subject to proceedings under the
provisions of ORS 431.705 to 431.760 shall not 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 the such
proceeding.
(2) Subsection (1) of this section does not excuse a member of
a county court from voting on the order required by ORS 198.792
(2) or 451.445 (1).
SECTION 587. Section 2, chapter 460, Oregon Laws 2007, is
amended to read:
{ + Sec. 2. + } (1) The { - Department of Human
Services - } { + Oregon Health Authority + } shall develop, by
the year 2009, a strategic plan to start to slow the rate of
diabetes caused by obesity and other environmental factors by the
year 2010.
(2) The { - department - } { + authority + } shall
collaborate with the American Diabetes Association, the Oregon
Diabetes Coalition and others such as:
(a) Health care professionals and researchers specializing in
diabetes and obesity prevention, treatment or research;
(b) Diabetes educators;
(c) Representatives of medical schools or schools of public
health;
Enrolled House Bill 2009 (HB 2009-C) Page 351
(d) High school and post-secondary institution health
educators;
(e) Representatives from geographic areas and other population
groups at higher risk of diabetes;
(f) Representatives of community-based organizations involved
in providing education about or awareness of diabetes; and
(g) Other individuals the { - department - } { +
authority + } determines are necessary.
(3) The plan developed by the { - department - }
{ + authority + } shall include but not be limited to:
(a) Identification of environmental factors that encourage or
support physical activity and healthy eating habits;
(b) Identification of preventative strategies that are
effective and culturally competent and that meet the populations
most at risk for developing diabetes;
(c) Recommendations for evidence-based screening;
(d) Recommendations for redesigning and financing primary care
practices that would facilitate adoption of the Chronic Care
Model for screening for diabetes, support for patient
self-management and regular reporting of preventative clinical
screening results;
(e) Identification of actions to be taken to reduce the
morbidity and mortality from diabetes by the year 2015 and a time
frame for taking those actions; and
(f) Recommendations to the Seventy-fifth Legislative Assembly
on statutory changes and funding needed to achieve the
{ - department's - } { + authority's + } plan.
SECTION 588. ORS 431.825 is amended to read:
431.825. The { - Department of Human Services - } { +
Oregon Health Authority + } shall provide to the counties of this
state pamphlets described in ORS 106.081. The
{ - department - } { + authority + } may produce such
pamphlets with moneys available for the purpose or may accept a
gift of such pamphlets from any public or private source if the
content is acceptable to the { - department - } { +
authority + }.
SECTION 589. ORS 431.827 is amended to read:
431.827. The { - Department of Human Services - } { +
Oregon Health Authority + } shall establish and implement
appropriate education, prevention and outreach activities in
communities that traditionally practice female circumcision,
excision or infibulation for the purpose of informing:
(1) Those communities of the health risks and emotional trauma
inflicted by the practices;
(2) Those communities and the medical community as to the
existence and ramifications of ORS 163.207; and
(3) Those communities that the practices constitute physical
injuries to a child for purposes of ORS 419B.005.
SECTION 590. ORS 431.830 is amended to read:
431.830. (1) The { - Department of Human Services - } { +
Oregon Health Authority + } shall establish an acquired immune
deficiency syndrome program:
(a) To provide education and prevention services to its
clients; and
(b) To provide education and prevention services to the public.
(2) Programs authorized by this section may be operated by the
{ - department - } { + authority + } directly or under
contract with public and private agencies.
SECTION 591. ORS 431.831 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 352
431.831. (1) The { - Department of Human Services - } { +
Oregon Health Authority + } shall develop a program to reimburse
smoking cessation program providers for services provided to
residents of this state who are not insured for smoking cessation
costs.
(2) The { - department - } { + authority + } shall adopt
rules for the program established under subsection (1) of this
section that include but are not limited to criteria for provider
and participant eligibility and other program specifications. The
rules shall establish a maximum reimbursement limit for each
participant.
(3) Costs for smoking cessation programs funded under
subsection (1) of this section are eligible for reimbursement
from funds received by the State of Oregon from tobacco products
manufacturers under the Master Settlement Agreement of 1998.
SECTION 592. ORS 431.832 is amended to read:
431.832. (1) There is established in the General Fund the
Tobacco Use Reduction Account.
(2) Amounts credited to the Tobacco Use Reduction Account are
continuously appropriated to the { - Department of Human
Services - } { + Oregon Health Authority + } for the funding of
prevention and education programs designed to reduce cigarette
and tobacco use.
SECTION 593. ORS 431.834 is amended to read:
431.834. The { - Department of Human Services - } { +
Oregon Health Authority + } shall develop and adopt rules for
awarding grants to programs for educating the public on the risk
of tobacco use, including but not limited to:
(1) Educating children on the health hazards and consequences
of tobacco use; and
(2) Promoting enrollment in smoking cessation programs and
programs that prevent smoking-related diseases including cancer
and other diseases of the heart, lungs and mouth.
SECTION 594. ORS 431.836 is amended to read:
431.836. During each biennium, the { - Department of Human
Services - } { + Oregon Health Authority + } shall prepare a
report regarding the awarding of grants from the Tobacco Use
Reduction Account and the formation of public-private
partnerships in connection with the receipt of funds from the
account. The { - department - } { + authority + } shall
present the report to the Governor and to those committees of the
Legislative Assembly to which matters of public health are
assigned.
SECTION 595. ORS 431.853 is amended to read:
431.853. (1) The { - Department of Human Services - } { +
Oregon Health Authority + } shall:
(a) Coordinate with law enforcement agencies to conduct random,
unannounced inspections of Oregon wholesalers and retailers of
tobacco products to insure compliance with Oregon laws designed
to discourage the use of tobacco by minors including ORS 163.575,
163.580, 167.400, 167.402 and 431.840; and
(b) Submit a report describing:
(A) The activities carried out to enforce the laws listed in
paragraph (a) of this subsection during the previous fiscal year;
(B) The extent of success achieved in reducing the availability
of tobacco products to minors; and
(C) The strategies to be utilized for enforcing the laws listed
in paragraph (a) of this subsection during the year following the
report.
Enrolled House Bill 2009 (HB 2009-C) Page 353
(2) The { - Department of Human Services - } { + Oregon
Health Authority + } shall adopt rules concerning random
inspections of places that sell tobacco products consistent with
section 1921, Public Law 102-321, 1992. The rules shall provide
that inspections may take place:
(a) Only in areas open to the public;
(b) Only during hours that tobacco products are sold or
distributed; and
(c) No more frequently than once a month in any single
establishment unless a compliance problem exists or is suspected.
SECTION 596. ORS 431.890 is amended to read:
431.890. (1) The Poison Prevention Task Force is created in the
Poison Center of the Oregon Health and Science University and
consists of five members as follows:
(a) The Medical Director of the Oregon Poison Center or
designee, who shall serve as chairperson.
(b) The Director of { - Human Services - } { + the Oregon
Health Authority + } or a designee.
(c) A pediatrician licensed under ORS chapter 677, appointed by
the Governor.
(d) A chemist from an academic institution, appointed by the
Governor.
(e) A representative of a manufacturer of toxic household
products, appointed by the Governor.
(2) Each member shall serve without compensation.
(3) The task force shall meet as considered necessary by the
chairperson or on the call of three members of the task force.
(4) The task force shall meet for the purposes of reviewing,
granting or denying requests for exemptions from and extensions
of the requirements of ORS 431.870 to 431.915.
(5) The task force shall obtain and evaluate statewide
poisoning incidence and severity data over a period of every two
years for the purpose of making recommendations for the addition
or deletion of products to ORS 431.885.
SECTION 597. ORS 431.915 is amended to read:
431.915. (1) Any person who violates any provision of ORS
431.870 to 431.915 shall be liable for a civil penalty not to
exceed $5,000 for each day of violation, which shall be assessed
and recovered in a civil action brought by the { - Department
of Human Services - } { + Oregon Health Authority + }.
(2) All civil penalties collected pursuant to subsection (1) of
this section shall be deposited in the General Fund.
SECTION 598. ORS 431.920 is amended to read:
431.920. The { - Department of Human Services - } { +
Oregon Health Authority + } shall:
(1) Develop accreditation programs for training providers;
(2) Prescribe the requirements for and the manner of testing
the competency of license applicants for the protection of the
public and as required by federal law;
(3) Prescribe those actions or circumstances that constitute
failure to achieve or maintain competency, or that otherwise are
contrary to the public interest, for which the agency may refuse
to issue or renew or may suspend or revoke a certification;
(4) Develop and conduct programs to screen blood lead levels,
to identify hazards and to educate the public, including parents,
residential dwelling owners and child care facility operators,
about the dangers of lead-based paint hazards and of appropriate
precautions that should be taken to reduce the possibility of
childhood lead poisoning; and
Enrolled House Bill 2009 (HB 2009-C) Page 354
(5) Impose fees to the extent necessary to pay the costs of the
following:
(a) Certification of training curriculums, up to $1,500;
(b) Annual renewal of training providers and curriculums, up to
$500;
(c) Certification of trainers, up to $500;
(d) Annual renewal of trainer's certification, up to $250; and
(e) Certification test, up to $85.
SECTION 599. ORS 431.940 is amended to read:
431.940. (1) The { - Department of Human Services - } { +
Oregon Health Authority + } shall adopt by rule standards and a
system of registration for tanning devices. Any entity doing
business in this state as a tanning facility shall register the
tanning devices with the { - department - } { + authority + }
in a manner prescribed by rule.
(2) The registration shall include payment of an annual
registration fee, not to exceed $100 per tanning device,
prescribed by rule in an amount sufficient to cover the costs of
administering the regulatory program.
(3) The { - department - } { + authority + } may conduct
inspections of tanning facilities to ensure compliance with ORS
431.925 to 431.955.
SECTION 600. ORS 431.945 is amended to read:
431.945. (1) A tanning facility shall give each customer a
written statement warning that:
(a) Not wearing the protective eye wear provided to each
customer by the tanning facility may cause damage to the eyes.
(b) Overexposure to the tanning process causes burns.
(c) Repeated exposure to the tanning process may cause skin
cancer or premature aging of the skin, or both.
(d) Abnormal skin sensitivity or burning may result from the
tanning process if the customer is also consuming or using
certain:
(A) Foods.
(B) Cosmetics.
(C) Medications such as tranquilizers, antibiotics, diuretics,
high blood pressure medication, antineoplastics or birth control
pills.
(e) Any person taking a prescription or over-the-counter drug
should consult a physician before using a tanning device.
(2) In addition to giving customers the written statement
required by subsection (1) of this section, the tanning facility
shall post a warning sign in any area where a tanning device is
used. The { - Department of Human Services - } { + Oregon
Health Authority + } shall adopt by rule the language for the
warning sign.
SECTION 601. ORS 431.950 is amended to read:
431.950. The { - Department of Human Services - } { +
Oregon Health Authority + } may impose a civil penalty in an
amount not to exceed $500 for a violation of ORS 431.925 to
431.955 or rules of the
{ - department - } { + authority + } adopted pursuant to ORS
431.925 to 431.955. Civil penalties under this section shall be
imposed in the manner provided by ORS 183.745.
SECTION 602. ORS 431.955 is amended to read:
431.955. Except as otherwise provided by law, all fees and
other moneys received by the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
431.925 to 431.955 shall be paid into the State Treasury and
Enrolled House Bill 2009 (HB 2009-C) Page 355
placed to the credit of the Public Health Account and are
continuously appropriated to the
{ - department - } { + authority + } for the purposes of
carrying out the provisions of ORS 431.925 to 431.955. If moneys
received under ORS 431.925 to 431.955 are in excess of moneys
required to administer the program authorized by ORS 431.925 to
431.955, the moneys may be used by the { - department - } { +
authority + } to meet expenses of other programs administered by
the { - department - } { + authority + } if an appropriate
expenditure increase is approved by the Emergency Board.
SECTION 603. ORS 431.990 is amended to read:
431.990. Unless otherwise specifically provided by any other
statute, failure to obey any rules relating to public health of
the { - Department of Human Services - } { + Oregon Health
Authority + } or failure to obey any lawful written order
relating to public health issued by the Director of { - Human
Services - } { + the Oregon Health Authority + } or any
district or county public health administrator is a Class A
misdemeanor.
SECTION 604. ORS 432.005, as amended by section 16, chapter 99,
Oregon Laws 2007, is amended to read:
432.005. As used in this chapter, unless the context requires
otherwise:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'Dead body' means a human body or
such parts of such human body from the condition of which it
reasonably may be concluded that death occurred.
{ - (2) 'Department' means the Department of Human
Services. - }
(3) 'Director' means the Director of { - Human Services. - }
{ + the Oregon Health Authority. + }
(4) 'Divorce' means dissolution of a marriage.
(5) 'Fetal death' means death prior to the complete expulsion
or extraction from its mother of a product of human conception,
irrespective of the duration of pregnancy. The death is indicated
by the fact that after such expulsion or extraction the fetus
does not breathe or show any other evidence of life such as
beating of the heart, pulsation of the umbilical cord or definite
movement of the voluntary muscles.
(6) 'File' means the presentation and acceptance of a vital
record or vital report provided for in this chapter by the Center
for Health Statistics.
(7) 'Final disposition' means the burial, interment, cremation,
removal from the state or other authorized disposition of a dead
body or fetus, except that when removal from the state is
conducted by the holder of a certificate of removal registration
issued under ORS 692.270, the final disposition may not be
considered complete until the certificate of death is filed.
(8) 'Induced termination of pregnancy' means the purposeful
interruption of an intrauterine pregnancy with the intention
other than to produce a live-born infant and that does not result
in a live birth.
(9) 'Institution' means any establishment, public or private,
that provides inpatient or outpatient medical, surgical or
diagnostic care or treatment or nursing, custodial or domiciliary
care, or to which persons are committed by law.
(10) 'Live birth' means the complete expulsion or extraction
from its mother of a product of human conception, irrespective of
the duration of pregnancy, that, after such expulsion or
extraction, breathes or shows any other evidence of life such as
Enrolled House Bill 2009 (HB 2009-C) Page 356
beating of the heart, pulsation of the umbilical cord or definite
movement of voluntary muscles, whether or not the umbilical cord
has been cut or the placenta is attached.
(11) 'Person acting as a funeral service practitioner ' means:
(a) A person other than a funeral service practitioner licensed
under ORS 692.045, including but not limited to a relative,
friend or other interested party, who performs the duties of a
funeral service practitioner without payment; or
(b) A funeral service practitioner who files death certificates
in another state if the funeral service practitioner is employed
by a funeral establishment licensed in another state and
registered with the State Mortuary and Cemetery Board under ORS
692.270.
(12) 'Physician' means a person authorized or licensed under
the laws of this state to practice medicine, osteopathy,
chiropractic or naturopathic medicine.
(13) 'Registration' means the process by which vital records
and vital reports are completed, filed and incorporated into the
official records of the Center for Health Statistics.
(14) 'State registrar' means the State Registrar of the Center
for Health Statistics.
(15) 'System of vital statistics' means the registration,
collection, preservation, amendment and certification of vital
records and vital reports; the collection of other reports
required by this chapter, and activities related thereto
including the tabulation, analysis, dissemination and publication
of vital statistics and training in the use of health data.
(16) 'Vital records' means certificates or reports of birth,
death, marriage, declaration of domestic partnership, dissolution
of marriage or domestic partnership and data related thereto.
(17) 'Vital reports' means reports of fetal death, induced
termination of pregnancy, suicide attempts by persons under 18
years of age and survey and questionnaire documents and data
related thereto.
(18) 'Vital statistics' means the data derived from
certificates and reports of birth, death, fetal death, induced
termination of pregnancy, marriage, declaration of domestic
partnership, dissolution of marriage, dissolution of domestic
partnership, suicide attempts by persons under 18 years of age
and related reports.
SECTION 605. ORS 432.010 is amended to read:
432.010. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall establish the Center for
Health Statistics, which shall install, maintain and operate the
system of vital statistics throughout this state in cooperation
with appropriate units of local government. The Center for Health
Statistics shall be responsible for the proper administration of
the system of vital statistics and for the preservation and
security of its official records.
(2) In order to promote and maintain nationwide uniformity in
the system of vital statistics, the State Registrar of the Center
for Health Statistics may refer to the 1992 federal revision of
the Model State Vital Statistics Act and Regulations for
recommendations regarding the forms of certificates and reports
required by this chapter.
(3) Each certificate, report and other document required by
this chapter shall be on a form or in a format prescribed by the
state registrar.
(4) All vital records shall contain the date of filing.
Enrolled House Bill 2009 (HB 2009-C) Page 357
(5) Information required in certificates, forms, records or
reports authorized by this chapter may be filed, verified,
registered and stored by photographic, electronic or other means
as prescribed by the state registrar.
SECTION 606. ORS 432.015 is amended to read:
432.015. The State Registrar of the Center for Health
Statistics, under the supervision of the Director of { - Human
Services - } { + the Oregon Health Authority + }, in compliance
with ORS chapter 183, shall adopt rules necessary to the
installation and efficient performance of an adequate system of
vital and public health statistics including rules for the return
of evidence affecting delayed certificates, or affecting
alteration of a certificate, after the certificate has been filed
with the state registrar.
SECTION 607. ORS 432.020 is amended to read:
432.020. The Director of { - Human Services - } { + the
Oregon Health Authority + } shall appoint the State Registrar of
the Center for Health Statistics who shall qualify in accordance
with standards of education and experience as the director shall
determine.
SECTION 608. ORS 432.025 is amended to read:
432.025. The State Registrar of the Center for Health
Statistics, with the approval of the Director of { - Human
Services - } { + the Oregon Health Authority + }, may appoint,
when necessary, assistant state registrars who shall be
assistants to the state registrar.
SECTION 609. ORS 432.030 is amended to read:
432.030. (1) The State Registrar of the Center for Health
Statistics shall:
(a) Under the supervision of the Director of { - Human
Services - } { + the Oregon Health Authority + }, have charge of
the Center for Health Statistics.
(b) Administer and enforce the provisions of this chapter and
the rules adopted pursuant thereto for the efficient
administration of the system of vital statistics.
(c) Direct and supervise the system of vital statistics and the
Center for Health Statistics and be custodian of its records.
(d) Direct, supervise and control the activities of all persons
when they are engaged in activities pertaining to the operation
of the system of vital statistics.
(e) Conduct training programs to promote uniformity of policy
and procedures throughout the state in matters pertaining to the
system of vital statistics.
(f) Prescribe, furnish and distribute such forms as are
required by this chapter and the rules adopted pursuant thereto
or prescribe other means for transmission of data to accomplish
the purpose of complete and accurate reporting and registration.
(g) Prepare and publish reports of vital statistics of this
state and such other reports as may be required by the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(h) Provide to local health agencies such copies of or data
derived from certificates and reports required under this chapter
as the state registrar shall determine are necessary for local
health planning and program activities. The state registrar shall
establish a schedule with each local health agency for
transmittal of the copies or data. The copies or data shall
remain the property of the Center for Health Statistics and the
uses that may be made of them shall be determined by the state
registrar.
Enrolled House Bill 2009 (HB 2009-C) Page 358
(i) Provide local health agencies training and consultation in
working with health data.
(2) The state registrar may delegate such functions and duties
vested in the state registrar to employees of the Center for
Health Statistics and to employees of any office established or
designated under ORS 432.035.
SECTION 610. ORS 432.060 is amended to read:
432.060. (1)(a) All information procured by or furnished to the
{ - Department of Human Services - } { + Oregon Health
Authority + }, any federal public health agency or any nonprofit
health agency that is exempt from taxation under the laws of this
state or procured by any agency, organization or person acting
jointly with or at the request of the { - department - }
{ + authority + }, in connection with special epidemiologic
morbidity and mortality studies, is confidential, nondiscoverable
and inadmissible in any proceeding and is exempt from disclosure
under ORS 192.410 to 192.505. A person communicating information
in connection with special epidemiologic morbidity and mortality
studies pursuant to this subsection may not be examined about the
communication or the information.
(b) Nothing in this subsection affects the confidentiality or
admissibility into evidence of data not otherwise confidential or
privileged that is obtained from sources other than the
{ - department - } { + authority + }.
(c) As used in this subsection, 'information' includes, but is
not limited to, written reports, notes, records, statements and
studies.
(2) The furnishing of morbidity and mortality information to
the { - department - } { + authority + } or health agency, to
its authorized representatives or to any other agency,
organization or person cooperating in a special epidemiologic
study, does not subject any hospital, sanitarium, rest home,
nursing home or other organization or person furnishing such
information to an action for damages.
(3) Subsection (1) of this section does not prevent the
{ - department - } { + authority + } or a health agency from
publishing:
(a) Statistical compilations and reports relating to special
epidemiologic morbidity and mortality studies, if such
compilations and reports do not identify individual cases and
sources of information.
(b) General morbidity and mortality studies customarily and
continuously conducted by the { - department - }
{ + authority + } or health agency that do not involve patient
identification.
(4) Nothing in this section prevents disposition of records
described in subsection (1) of this section pursuant to ORS
192.105.
SECTION 611. ORS 432.085 is amended to read:
432.085. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt, taking into
consideration local service needs and interests, rules to allow a
county registrar to sell, within six months of the date of the
event occurring in the county, certified copies of birth
certificates and death certificates.
SECTION 612. ORS 432.119 is amended to read:
432.119. (1) Abstracts of birth and death certificates as
provided in ORS 432.105 are public records and open to public
inspection except as provided in this section. The county
registrar shall mark the abstract of birth in a manner designated
Enrolled House Bill 2009 (HB 2009-C) Page 359
by the State Registrar of the Center for Health Statistics to
indicate that the record is not to be used by any person
compiling a list for publication or a business contact list under
the following conditions:
(a) If a birth certificate indicates any of the following:
(A) The father of the child is not identified.
(B) The infant dies after birth.
(C) Congenital anomaly is reported.
(D) Maternal disability or death is indicated.
(b) If the parent of the infant requests that the record not be
made available for publication or business contact lists.
(2) The { - Department of Human Services - } { + Oregon
Health Authority + } or local health department, as provided in
ORS 431.416, may use any birth record or abstract as a source of
information for activities necessary for the preservation of
health or prevention of disease.
SECTION 613. ORS 432.146 is amended to read:
432.146. Except as provided in ORS 432.090 and 432.312, subject
to the review of the Oregon Department of Administrative
Services, the { - Department of Human Services - } { + Oregon
Health Authority + } shall establish all fees for services or
records provided under ORS 432.005 to 432.165. The fees and
charges established under this section shall be authorized by the
Legislative Assembly for the { - department's - }
{ + authority's + } budget, as the budget may be modified by the
Emergency Board.
SECTION 614. ORS 432.240 is amended to read:
432.240. (1) Upon receipt of a written application to the state
registrar, any adopted person 21 years of age and older born in
the State of Oregon shall be issued a certified copy of his/her
unaltered, original and unamended certificate of birth in the
custody of the state registrar, with procedures, filing fees, and
waiting periods identical to those imposed upon nonadopted
citizens of the State of Oregon pursuant to ORS 432.121 and
432.146. Contains no exceptions.
(2) A birth parent may at any time request from the State
Registrar of the Center for Health Statistics or from a voluntary
adoption registry a Contact Preference Form that shall accompany
a birth certificate issued under subsection (1) of this section.
The Contact Preference Form shall provide the following
information to be completed at the option of the birth parent:
_________________________________________________________________
(a) I would like to be contacted;
(b) I would prefer to be contacted only through an
intermediary; or
(c) I prefer not to be contacted at this time. If I decide
later that I would like to be contacted, I will register with the
voluntary adoption registry. I have completed an updated medical
history and have filed it with the voluntary adoption registry.
Attached is a certificate from the voluntary adoption registry
verifying receipt of the updated medical history.
_________________________________________________________________
(3) The certificate from the voluntary adoption registry
verifying receipt of an updated medical history under subsection
(2) of this section shall be in a form prescribed by the
{ - Department of Human Services - } { + Oregon Health
Authority + } and shall be supplied upon request of the birth
parent by the voluntary adoption registry.
Enrolled House Bill 2009 (HB 2009-C) Page 360
(4) When the State Registrar of the Center for Health
Statistics receives a completed Contact Preference Form from a
birth parent, the state registrar shall match the Contact
Preference Form with the adopted person's sealed file. The
Contact Preference Form shall be placed in the adopted person's
sealed file when a match is made.
(5) A completed Contact Preference Form shall be confidential
and shall be placed in a secure file until a match with the
adopted person's sealed file is made and the Contact Preference
Form is placed in the adopted person's file.
(6) Only those persons who are authorized to process
applications made under subsection (1) of this section may
process Contact Preference Forms.
SECTION 615. ORS 432.287 is amended to read:
432.287. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall adopt by rule a form of a
voluntary acknowledgment of paternity that includes the minimum
requirements specified by the United States Secretary of Health
and Human Services. When the form is signed by both biological
parents and witnessed by a third party, the form establishes
paternity for all purposes when filed with the State Registrar of
the Center for Health Statistics, provided there is no male
parent already named on the birth certificate. Establishment of
paternity under this section is subject to the provisions and the
requirements in ORS 109.070. When there is no other male named as
father on the child's birth certificate, the filing of such
voluntary acknowledgment of paternity form shall cause the state
registrar to place the name of the male parent who has signed the
voluntary acknowledgment of paternity form on the birth
certificate of the child or, if appropriate, issue a new birth
certificate containing the name of the child's male parent, as
that parent is named in the voluntary acknowledgment of paternity
form. When signed by both parents in the health care facility of
the child's birth within five days after the birth, the voluntary
acknowledgment of paternity form is not a sworn document. When
thus signed, a staff member of the health care facility shall
witness the signatures of the parents. In all other
circumstances, the form is a sworn document. The filing of the
voluntary acknowledgment of paternity form created by this
section is subject to the payment of any fees that may apply.
(2) The voluntary acknowledgment of paternity form must
contain:
(a) A statement of rights and responsibilities including any
rights afforded to a minor parent;
(b) A statement of the alternatives to and consequences of
signing the acknowledgment;
(c) Instructions on how to file the form with the state
registrar and information about any fee required;
(d) Lines for the Social Security numbers and addresses of the
parents; and
(e) A statement that the rights, responsibilities, alternatives
and consequences listed on the acknowledgment were read to the
parties prior to signing the acknowledgment.
(3) Upon request, the state registrar shall provide a copy of
any voluntary acknowledgment of paternity form to the state
agency responsible for administration of the child support
enforcement program created under Title IV-D of the Social
Security Act. The duty imposed upon the state registrar by this
section is limited to birth certificates executed and filed with
the state registrar after October 1, 1995.
Enrolled House Bill 2009 (HB 2009-C) Page 361
SECTION 616. ORS 432.312 is amended to read:
432.312. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall impose and collect a
filing fee of $7 for each certificate of death. Of the fee, $2
shall be deposited to the credit of the Public Health Account and
used to carry out the purposes of ORS 97.170 (5) and $5 shall be
deposited to the credit of the State Mortuary and Cemetery Board
Account and used in the same manner as funds credited to the
account under ORS 692.375.
(2) The expenditures under ORS 97.170 (5) and 692.375 shall not
exceed the funds collected under subsection (1) of this section,
and in no event shall expenditure on the administration of the
funds exceed five percent of the moneys collected.
SECTION 617. ORS 432.317 is amended to read:
432.317. (1) The funeral service practitioner or person acting
as a funeral service practitioner who first assumes possession of
a dead body or fetus shall make a written report to the county
registrar in the county in which death occurred or in which the
body or fetus was found within 24 hours after taking possession
of the body or fetus. The report shall be on a form prescribed
and furnished by the State Registrar of the Center for Health
Statistics and in accordance with rules adopted by the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(2) Prior to final disposition of the body, the funeral service
practitioner or person acting as a funeral service practitioner
who first assumes custody of a dead body shall, prior to final
disposition of the body, obtain written authorization for final
disposition of the body from the physician, physician assistant
practicing under the supervision of a person licensed to practice
medicine under ORS chapter 677, certified nurse practitioner or
medical examiner who certifies the cause of death as provided in
ORS 432.307 (3) on a form prescribed and furnished by the state
registrar. If the funeral service practitioner or person acting
as a funeral service practitioner is unable to obtain such
written authorization prior to final disposition of the body, the
practitioner or person, with the oral consent of the physician,
the physician assistant, the nurse practitioner, the medical
examiner or a licensed health professional authorized to give
such consent on behalf of the physician or medical examiner who
is responsible for certifying the cause of death, may authorize
final disposition of the body on a form prescribed and furnished
by the state registrar.
(3) Prior to final disposition of a fetus, irrespective of the
duration of pregnancy, the funeral service practitioner, the
person in charge of the institution or other person assuming
responsibility for final disposition of the fetus shall authorize
final disposition of the fetus on a form prescribed and furnished
or approved by the state registrar.
(4) With the consent of the physician, physician assistant
practicing under the supervision of a person licensed to practice
medicine under ORS chapter 677, nurse practitioner or medical
examiner who is to certify the cause of death, a dead body may be
moved from the place of death for the purpose of being prepared
for final disposition.
(5) An authorization for final disposition issued under the
laws of another state which accompanies a dead body or fetus
brought into this state shall be authority for final disposition
of the body or fetus in this state. Permits for transporting a
body or fetus out of another state issued under the laws of
Enrolled House Bill 2009 (HB 2009-C) Page 362
another state shall be authority for transporting a body or fetus
into Oregon.
(6) No sexton or other person in charge of any place in which
interment or other disposition of dead bodies is made shall inter
or allow interment or other disposition of a dead body or fetus
unless it is accompanied by authorization for final disposition.
(7) Each person in charge of any place for final disposition
shall include in the authorization the date of disposition and
shall complete and return all authorizations to the county
registrar within 10 days after the date of the disposition. When
there is no person in charge of the place for final disposition,
a responsible party other than the funeral service practitioner
or person acting as a funeral service practitioner shall complete
and return the authorization to the county registrar within 10
days after the date of disposition.
(8) Authorization for disinterment and reinterment shall be
required prior to disinterment of a dead body or fetus. The
authorization shall be issued by the state registrar to a
licensed funeral service practitioner or person acting as a
funeral service practitioner, upon proper application.
(9) Prior to removing a dead body or fetus from the State of
Oregon under ORS 692.270, a person acting as a funeral service
practitioner as defined in ORS 432.005 (11)(b) shall submit a
written notice of removal to the county registrar in the county
in which death occurred or in which the body or fetus was found.
The notice shall be on a form prescribed and furnished by the
State Registrar of the Center for Health Statistics and in
accordance with rules adopted by the { - Department of Human
Services - } { + Oregon Health Authority + }. A copy of the
written notice of removal shall serve as a transit permit for the
remains of the decedent named on the notice.
SECTION 618. ORS 432.500 is amended to read:
432.500. As used in ORS 432.510 to 432.550 and 432.900:
(1) 'Clinical laboratory' means a facility where
microbiological, serological, chemical, hematological,
immunohematological, immunological, toxicological, cytogenetical,
exfoliative cytological, histological, pathological or other
examinations are performed on material derived from the human
body, for the purpose of diagnosis, prevention of disease or
treatment of patients by physicians, dentists and other persons
who are authorized by license to diagnose or treat humans.
(2) 'Department' means the Department of Human Services or its
authorized representative.
(3) 'Health care facility' means a hospital, as defined in ORS
442.015 { - (19) - } , or an ambulatory surgical center, as
defined in ORS 442.015.
(4) 'Practitioner' means any person whose professional license
allows the person to diagnose or treat cancer in patients.
SECTION 619. ORS 432.510 is amended to read:
432.510. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall establish a uniform,
statewide, population-based registry system for the collection of
information determining the incidence of cancer and benign tumors
of the brain and central nervous system and related data. The
purpose of the registry shall be to provide information to
design, target, monitor, facilitate and evaluate efforts to
determine the causes or sources of cancer and benign tumors among
the residents of Oregon and to reduce the burden of cancer and
benign tumors in Oregon. Such efforts may include but are not
limited to:
Enrolled House Bill 2009 (HB 2009-C) Page 363
(a) Targeting populations in need of cancer screening services
or evaluating screening or other cancer control services;
(b) Supporting the operation of hospital registries in
monitoring and upgrading the care and the end results of
treatment for cancer and benign tumors;
(c) Investigating suspected clusters or excesses of cancer and
benign tumors both in occupational settings and in the state's
environment generally;
(d) Conducting studies to identify cancer hazards to the public
health and cancer hazard remedies; and
(e) Projecting the benefits or costs of alternative policies
regarding the prevention or treatment of cancer and benign
tumors.
(2) The { - department - } { + authority + } shall adopt
rules necessary to carry out the purposes of ORS 432.510 to
432.550 and 432.900, including but not limited to designating
which types of cancer and benign tumors of the brain and central
nervous system are reportable to the statewide registry, the data
to be reported, the data reporting standards and format and the
effective date after which reporting by health care facilities,
clinical laboratories and practitioners shall be required. When
adopting rules under this subsection, the { - department - }
{ + authority + } shall, to the greatest extent practicable,
conform the rules to the standards and procedures established by
the American College of Surgeons Commission on Cancer, with the
goal of achieving uniformity in the collection and reporting of
data.
(3) The { - department - } { + authority + } shall:
(a) Conduct a program of epidemiologic analyses of registry
data collected under subsection (1) of this section to assess
control, prevention, treatment and causation of cancer and benign
tumors in Oregon; and
(b) Utilize the data to promote, facilitate and evaluate
programs designed to reduce the burden of cancer and benign
tumors among the residents of Oregon.
(4) The { - department - } { + authority + } shall:
(a) Collaborate in studies of cancer and benign tumors with
clinicians and epidemiologists and publish reports on the results
of such studies; and
(b) Cooperate with the National Institutes of Health and the
Centers for Disease Control and Prevention in providing incidence
data for cancer and benign tumors.
(5) The { - department - } { + authority + } shall
establish a training program for the personnel of participating
health care facilities and a quality control program for data for
cancer and benign tumors reported to the state registry.
SECTION 620. ORS 432.520 is amended to read:
432.520. (1) Except as provided in subsection (2) of this
section, any health care facility in which patients are diagnosed
or provided treatment for cancer or benign tumors of the brain
and central nervous system shall report each case of cancer or
benign tumors of the brain and central nervous system to the
{ - Department of Human Services - } { + Oregon Health
Authority + } within a time period and in a format prescribed by
the { - department - } { + authority + }. The
{ - department - } { + authority + } shall provide, at cost,
reporting services to any health care facility at the option of
the health care facility. Health care facilities may also
purchase reporting services from another facility or commercial
vendor. If a health care facility is unable to report in
Enrolled House Bill 2009 (HB 2009-C) Page 364
conformance with the format and standards prescribed by the
{ - department - } { + authority + }, the
{ - department - } { + authority + } may, after consultation
with the health care facility, elect to activate its reporting
service for the facility. When activated, the
{ - department - } { + authority + } may enter the facility,
obtain the information and report it in conformance with the
appropriate format and standards. In these instances, the
facility shall reimburse the { - department - }
{ + authority + } or its authorized representative for the cost
of obtaining and reporting the information.
(2) Upon application to the { - department - }
{ + authority + } by a health care facility, the
{ - department - } { + authority + } shall grant to the health
care facility an extension of time in which to meet the reporting
requirements of this section. In no event shall the extension of
time exceed two years from the date of application.
(3) Any practitioner diagnosing or providing treatment to
patients with cancer or benign tumors of the brain and central
nervous system shall report each case to the { - department - }
{ + authority + } or its authorized representative within a time
period and in a format prescribed by the { - department - }
{ + authority + }. Those cases diagnosed or treated at an Oregon
health care facility or previously admitted to an Oregon health
care facility for diagnosis or treatment of that instance of
cancer or benign tumors of the brain and central nervous system
shall be considered by the
{ - department - } { + authority + } to have been reported by
the health care practitioner.
(4) Any clinical laboratory diagnosing cases of cancer or
benign tumors of the brain and central nervous system shall
report each case to the { - department - } { + authority + }
or its authorized representative within a time period and in a
format prescribed by the { - department - }
{ + authority + }.
(5) For the purpose of assuring the accuracy and completeness
of reported data, the { - department - } { + authority + }
shall have the right to periodically review all records that
would:
(a) Identify cases of cancer and benign tumors, the treatment
of the cancer or benign tumors or the medical status of any
patient identified as being treated for cancer or benign tumors;
or
(b) Establish characteristics of the cancer or benign tumors.
(6) The { - department - } { + authority + } may conduct
special studies of cancer morbidity and mortality. As part of
such studies, registry personnel may obtain additional
information that applies to a patient's cancer or benign tumors
and that may be in the medical record of the patient. The record
holder may either provide the requested information to the
registry personnel or provide the registry personnel access to
the relevant portions of the patient's medical record. Neither
the { - department - } { + authority + } nor the record
holder shall bill the other for the cost of providing or
obtaining this information.
SECTION 621. ORS 432.530 is amended to read:
432.530. (1) All identifying information regarding individual
patients, health care facilities and practitioners reported
pursuant to ORS 432.520 shall be confidential and privileged.
Except as required in connection with the administration or
Enrolled House Bill 2009 (HB 2009-C) Page 365
enforcement of public health laws or rules, no public health
official, employee or agent shall be examined in an
administrative or judicial proceeding as to the existence or
contents of data collected under the registry system for cancer
and benign tumors of the brain and central nervous system.
(2) All additional information reported in connection with a
special study shall be confidential and privileged and shall be
used solely for the purposes of the study, as provided by ORS
432.060. Nothing in this section shall prevent the
{ - Department of Human Services - } { + Oregon Health
Authority + } from publishing statistical compilations relating
to morbidity and mortality studies that do not identify
individual cases or prevent use of this data by third parties to
conduct research as provided by ORS 432.540 (1).
SECTION 622. ORS 432.540 is amended to read:
432.540. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules under which
confidential data may be used by third parties to conduct
research and studies for the public good. Research and studies
conducted using confidential data from the statewide registry
must be reviewed and approved by the Committee for the Protection
of Human Research Subjects established in accordance with 45
C.F.R. 46.
(2) The { - department - } { + authority + } may enter into
agreements to exchange information with other registries for
cancer and benign tumors of the brain and central nervous system
in order to obtain complete reports of Oregon residents diagnosed
or treated in other states and to provide information to other
states regarding the residents of other states diagnosed or
treated in Oregon. Prior to providing information to any other
registry, the { - department - } { + authority + } shall
ensure that the recipient registry has comparable confidentiality
protections.
SECTION 623. ORS 432.900 is amended to read:
432.900. (1) In addition to any other liability or penalty
provided by law, the Director of { - Human Services - }
{ + the Oregon Health Authority + } may impose a civil penalty
on any person for willful failure to comply with any part of ORS
432.520. A civil penalty may be imposed against a health care
facility for each day compliance is refused. The penalty shall be
$50 per day for the first 30 days and $500 per day thereafter. A
civil penalty of $50 may be imposed against a practitioner for
each day compliance is refused.
(2) Any fines collected pursuant to subsection (1) of this
section shall be paid into the State Treasury and deposited in
the General Fund.
(3) Civil penalties described in subsection (1) of this section
shall be imposed in the manner provided in ORS 183.745.
SECTION 624. ORS 433.001 is amended to read:
433.001. As used in ORS 433.001 to 433.045 and 433.110 to
433.770 unless the context requires otherwise:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'Communicable disease' has the
meaning given that term in ORS 431.260.
{ - (2) - } { + (3) + } 'Condition of public health
importance' has the meaning given that term in ORS 431.260.
{ - (3) 'Department' means the Department of Human
Services. - }
(4) 'Director' means the Director of { - Human Services - }
{ + the Oregon Health Authority + }.
Enrolled House Bill 2009 (HB 2009-C) Page 366
(5) 'Isolation' means the physical separation and confinement
of a person or group of persons who are infected or reasonably
believed to be infected with a communicable disease or possibly
communicable disease from nonisolated persons to prevent or limit
the transmission of the disease to nonisolated persons.
(6) 'Local public health administrator' has the meaning given
that term in ORS 431.260.
(7) 'Local public health authority' has the meaning given that
term in ORS 431.260.
(8) 'Property' means animals, inanimate objects, vessels,
public conveyances, buildings and all other real or personal
property.
(9) 'Public health measure' has the meaning given that term in
ORS 431.260.
(10) 'Quarantine' means the physical separation and confinement
of a person or group of persons who have been or may have been
exposed to a communicable disease or possibly communicable
disease and who do not show signs or symptoms of a communicable
disease, from persons who have not been exposed to a communicable
disease or possibly communicable disease, to prevent or limit the
transmission of the disease to other persons.
(11) 'Reportable disease' has the meaning given that term in
ORS 431.260.
(12) 'Toxic substance' has the meaning given that term in ORS
431.260.
SECTION 625. ORS 433.004 is amended to read:
433.004. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall by rule:
(a) Specify reportable diseases;
(b) Identify those categories of persons who must report
reportable diseases and the circumstances under which the reports
must be made;
(c) Prescribe the procedures and forms for making such reports
and transmitting the reports to the { - department - }
{ + authority + }; and
(d) Prescribe measures for investigating the source and
controlling reportable diseases.
(2) Persons required under the rules to report reportable
diseases shall do so by reporting to the local public health
administrator. The local public health administrator shall
transmit such reports to the { - department - }
{ + authority + }.
(3) In addition to other grounds for which a state agency may
exercise disciplinary action against its licensees or certificate
holders, the substantial or repeated failure of a licensee or
certificate holder to report when required to do so under
subsection (2) of this section shall be cause for the exercise of
any of the agency's disciplinary powers.
(4) Any person making a report under this section is immune
from any civil or criminal liability that might otherwise be
incurred or imposed with respect to the making of a report under
this section or to the contents of the report.
SECTION 626. ORS 433.006 is amended to read:
433.006. In response to each report of a reportable disease,
the local public health administrator shall assure that
investigations and control measures, as prescribed by
{ - Department of Human Services - } { + Oregon Health
Authority + } rule, shall be conducted.
SECTION 627. ORS 433.008 is amended to read:
433.008. (1) Notwithstanding ORS 192.410 to 192.505, the
Enrolled House Bill 2009 (HB 2009-C) Page 367
{ - Department of Human Services - } { + Oregon Health
Authority + }, the local public health administrator, all
officers and employees thereof and all persons to whom
disclosures are made under this subsection or subsection (2) of
this section shall not disclose the name or address of, or
otherwise disclose the identity of, any person reported under ORS
433.004 except to officers or employees of federal, state or
local government public health agencies as may be necessary for
the administration or enforcement of public health laws or rules.
(2) If the { - department - } { + authority + } or local
public health administrator has determined that a reported
person's disease or condition is in a contagious state and that
the person is violating the rules of the { - department - }
{ + authority + } pertaining to control of that disease, it may
disclose that person's name and address to persons other than
those stated in subsection (1) of this section if clear and
convincing evidence in the particular instance requires
disclosure to avoid a clear and immediate danger to other
individuals or to the public generally. A decision not to
disclose information under this subsection, if made in good
faith, shall not subject the entity or person withholding the
information to any liability.
(3) Except where required in connection with the administration
or enforcement of public health laws or rules, no public health
official or employee shall be examined in an administrative or
judicial proceeding as to the existence or contents of a report
under ORS 433.004 or any record thereof.
(4) The disclosures and examination prohibited by this section
may otherwise be authorized by the specific written consent of
the person who is the subject of the report or the authorized
representative of the person.
SECTION 628. ORS 433.010 is amended to read:
433.010. (1) No person shall willfully cause the spread of any
communicable disease within this state.
(2) Whenever Oregon Revised Statutes require a person to secure
a health certificate, such certificate shall be acquired from a
physician licensed by the Oregon Medical Board or the Board of
Naturopathic Examiners in accordance with the rules of the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
SECTION 629. ORS 433.012 is amended to read:
433.012. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall provide the necessary
laboratory examinations requested by local health departments for
the diagnosis of those communicable diseases identified by rule
of the { - department - } { + authority + } to be a reportable
disease.
SECTION 630. ORS 433.017 is amended to read:
433.017. (1) Every licensed physician attending a pregnant
woman in this state for conditions relating to her pregnancy
during the period of gestation or at the time of delivery shall,
as required by rule of the { - Department of Human Services - }
{ + Oregon Health Authority + }, take or cause to be taken a
sample of blood of every woman so attended at the time of the
first professional visit or within 10 days thereafter. The blood
specimen thus obtained shall be submitted to a licensed
laboratory for such tests related to any infectious condition
which may affect a pregnant woman or fetus, as the
{ - department - } { + authority + } shall by rule require,
Enrolled House Bill 2009 (HB 2009-C) Page 368
including but not limited to an HIV test as defined in ORS
433.045.
(2) Every other person permitted by law to attend a pregnant
woman in this state, but not permitted by law to take blood
samples, shall, as required by rule of the { - department - }
{ + authority + }, cause a sample of blood of such pregnant
woman to be taken by a licensed physician, and have such sample
submitted to a licensed laboratory for the tests described under
subsection (1) of this section.
(3) In all cases under subsections (1) and (2) of this section
the physician shall request consent of the patient to take a
blood sample. No sample shall be taken without such consent.
SECTION 631. ORS 433.035 is amended to read:
433.035. (1)(a) The Public Health Director or a local public
health administrator may require testing or medical examination
of any person who may have, or may have been exposed to, a
communicable disease identified by rule of the { - Department
of Human Services - } { + Oregon Health Authority + } to be a
reportable disease, a new or uncommon disease of potential public
health significance, or a condition that is the basis of a state
of public health emergency declared by the Governor as authorized
by ORS 433.441. The Public Health Director or the local public
health administrator must issue a written order for testing or
medical examination pursuant to this section.
(b) A written order must:
(A) Include findings stating the communicable disease that the
Public Health Director or the local public health administrator
believes the person has and the reasons for that belief.
(B) State whether medical or laboratory confirmation of the
disease is feasible and possible and whether such confirmation
would enable control measures to be taken to minimize infection
of others with the disease.
(C) Include a statement that the person may refuse to submit to
the testing or medical examination and that if the testing or
examination is refused, the Public Health Director or the local
public health administrator may seek the imposition of a public
health measure, including isolation or quarantine pursuant to ORS
433.121 or 433.123.
(2) When a person is directed to submit to a test or
examination under this section and the person agrees to do so,
the person shall submit to any testing or examination as may be
necessary to establish the presence or absence of the
communicable disease for which the testing or examination was
directed. The examination shall be carried out by the local
health officer or a physician licensed by the Oregon Medical
Board or the Board of Naturopathic Examiners. A written report of
the results of the test or examination shall be provided to the
person ordering the test or examination, and upon request, to the
person tested or examined. Laboratory examinations, if any, shall
be carried out by the laboratory of the { - department - }
{ + authority + } whenever the examinations are within the scope
of the tests conducted by the laboratory. If treatment is needed,
the person or the parent or guardian of the person shall be
liable for the costs of treatment based on the examination
carried out under this section, if the person liable is able to
pay the treatment costs. Cost of any examination performed by a
physician in private practice shall be paid from public funds
available to the local public health administrator, if any, or
from county funds available for general governmental expenses in
the county that the local public health administrator serves or
Enrolled House Bill 2009 (HB 2009-C) Page 369
in the county where the person tested or examined resides if the
local public health administrator serves more than one county or
the test or examination was ordered by the Public Health Director
or local public health administrator.
(3) If a person has a communicable disease, a new or uncommon
disease of potential public health significance, or a condition
that is the basis of a state of public health emergency, the
Public Health Director or the local public health administrator
may issue an order requiring the person to complete an
appropriate prescribed course of medication or other treatment
for the communicable disease, including directly observed therapy
if appropriate, and to follow infection control provisions for
the disease. The order shall also include statements that the
person may refuse the medication or other treatment and that the
person's failure to comply with the order issued under this
subsection may result in the Public Health Director or the local
public health administrator seeking the imposition of a public
health measure, including isolation or quarantine as authorized
by ORS 433.121 and 433.123.
(4) The Public Health Director or the local public health
administrator must make every effort to obtain voluntary
compliance from a person for any testing, medical examination and
treatment required under this section.
(5) Any action taken by the Public Health Director or the local
public health administrator under this section to compel testing,
medical examination or treatment of a person who has a
communicable disease, a new or uncommon disease of potential
public health significance, or a condition that is the basis of a
state of public health emergency must be the least restrictive
alternative available to accomplish the results necessary to
minimize the transmission of the disease to others.
SECTION 632. ORS 433.040 is amended to read:
433.040. (1) As used in this section, 'vaccine' includes
vaccines, immune products and chemoprophylactic medications.
(2) When the State Health Officer of the { - Department of
Human Services - } { + Oregon Health Authority + } determines
that there is clear evidence that adverse and avoidable health
outcomes from a preventable and acute communicable disease are
expected to affect identifiable categories of high-risk
individuals throughout Oregon and that assistance with the
administration of vaccine is warranted due to a vaccine shortage
to protect or treat such individuals, the health officer shall
implement the Oregon Vaccine Education and Prioritization Plan as
provided in subsection (3) of this section.
(3) The { - Department of Human Services - }
{ + authority + } shall develop and adopt by rule the Oregon
Vaccine Education and Prioritization Plan to protect the public
health during a vaccine shortage. The plan shall consist of:
(a) Guidelines for physicians, nurses, hospitals, health
systems, pharmacies and others that hold vaccines for the
distribution and administration of vaccines. The guidelines shall
include, but are not limited to, a definition of high-risk groups
for priority protection or treatment in the event a vaccine
shortage is imminent;
(b) Rules for imposing a civil penalty of $500 against persons
who knowingly violate the guidelines for each repeat violation of
the guidelines; and
(c) Procedures for:
(A) Mobilizing public and private health resources to assist in
vaccine distribution and administration; and
Enrolled House Bill 2009 (HB 2009-C) Page 370
(B) Notifying health professional regulatory boards and
licensing authorities of repeated violations of the guidelines by
health professionals regulated by the board or licensed by the
{ + licensing + } authority.
(4) If the { - department - } { + Oregon Health
Authority + } adopts temporary rules to implement subsection (2)
of this section, the rules adopted are not subject to the
requirements of ORS 183.335 (6)(a). The { - department - }
{ + authority + } may amend the temporary rules adopted pursuant
to subsection (3) of this section as often as is necessary to
respond to a vaccine shortage.
SECTION 633. ORS 433.045 is amended to read:
433.045. (1) Except as provided in ORS 433.017, 433.055 (3) and
433.080, no person shall subject the blood of an individual to an
HIV test without first obtaining informed consent as described in
subsection (2) or (7) of this section.
(2) A physician licensed under ORS chapter 677 shall comply
with the requirement of subsection (1) of this section through
the procedure in ORS 677.097. Any other licensed health care
provider or facility shall comply with the requirement of
subsection (1) of this section through a procedure substantially
similar to that specified in ORS 677.097. Any other person shall
comply with this requirement through use of such forms,
procedures and educational materials as the { - Department of
Human Services - } { + Oregon Health Authority + } shall
specify.
(3) Regardless of the manner of receipt or the source of the
information, including information received from the tested
individual, no person shall disclose or be compelled to disclose
the identity of any individual upon whom an HIV-related test is
performed, or the results of such a test in a manner which
permits identification of the subject of the test, except as
required or permitted by federal law, the law of this state or
any rule, including any { - Department of Human Services - }
{ + authority + } rule considered necessary for public health or
health care purposes, or as authorized by the individual whose
blood is tested.
(4) Any person who complies with the requirements of this
section shall not be subject to an action for civil damages.
(5) An HIV test shall be considered diagnosis of venereal
disease for purposes of ORS 109.610.
(6) As used in this section:
(a) 'HIV test' means a test of an individual for the presence
of human immunodeficiency virus (HIV), or for antibodies or
antigens that result from HIV infection, or for any other
substance specifically indicating infection with HIV.
(b) 'Person' includes but is not limited to any health care
provider, health care facility, clinical laboratory, blood or
sperm bank, insurer, insurance producer, insurance-support
organization, as defined in ORS 746.600, government agency,
employer, research organization or agent of any of them. For
purposes of subsection (3) of this section, 'person' does not
include an individual acting in a private capacity and not in an
employment, occupational or professional capacity.
(7) Whenever an insurer, insurance producer or
insurance-support organization asks an applicant for insurance to
take an HIV test in connection with an application for insurance,
the use of such a test must be revealed to the applicant and the
written consent thereof obtained. The consent form shall disclose
Enrolled House Bill 2009 (HB 2009-C) Page 371
the purpose of the test and the persons to whom the results may
be disclosed.
SECTION 634. ORS 433.055 is amended to read:
433.055. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall conduct studies of the
prevalence of the HIV infection in this state. Its findings shall
be reported to the Public Health Advisory Board, the Conference
of Local Health Officials, the Emergency Board and other
interested bodies at regular intervals, commencing in January
1988. The { - Department of Human Services - }
{ + authority + } may cause the prevalence study of persons
sentenced to the Department of Corrections of this state, as
defined in ORS 421.005, to be made.
(2) The { - Department of Human Services - }
{ + authority + } shall contract with an appropriate education
agency to prepare a curriculum regarding HIV infection, acquired
immune deficiency syndrome (AIDS) and prevention of the spread of
AIDS for all school districts and offer workshops to prepare
teachers and parents to implement the curriculum. The
{ - department - } { + authority + } shall award incentive
grants from funds available therefor to school districts to
encourage use of the curriculum in the schools.
(3) Prior informed consent to HIV antibody testing need not be
obtained from an individual if the test is for the purpose of
research as authorized by the { - Department of Human
Services - } { + authority + } and if the testing is performed
in a manner by which the identity of the test subject is not
known, and may not be retrieved by the researcher.
SECTION 635. ORS 433.060 is amended to read:
433.060. As used in ORS 433.060 to 433.085 unless the context
requires otherwise:
(1) { - ' Department' means the Department of Human
Services - } { + ' Authority' means the Oregon Health
Authority + }.
(2) 'Health care facility' means a facility as defined in ORS
442.015 and a mental health facility, alcohol treatment facility
or drug treatment facility licensed or operated under ORS chapter
426 and 430.397 to 430.401 or ORS chapter 430.
(3) 'Hepatitis test' means a test of an individual for the
presence of hepatitis B or C or for any other substance
specifically indicating the presence of hepatitis B or C.
(4) 'HIV test' means a test of an individual for the presence
of human immunodeficiency virus (HIV), or for antibodies or
antigens that result from HIV infection, or for any other
substance specifically indicating infection with HIV.
(5) 'Licensed health care provider' or 'health care provider'
means a person licensed or certified to provide health care under
ORS chapter 677, 678, 679, 680, 684 or 685 or ORS 682.216, or
under comparable statutes of any other state.
(6) 'Local public health administrator' means the public health
administrator of the county or district health department for the
jurisdiction in which the reported substantial exposure occurred.
(7) 'Local public health officer' means the health officer, as
described in ORS 431.418, of the county or district health
department for the jurisdiction in which the substantial exposure
occurred.
(8) 'Occupational exposure' means a substantial exposure of a
worker in the course of the worker's occupation.
Enrolled House Bill 2009 (HB 2009-C) Page 372
(9) 'Source person' means a person who is the source of the
blood or body fluid in the instance of a substantial exposure of
another person.
(10) 'Substantial exposure' means an exposure to blood or
certain body fluids as defined by rule of the { - Department of
Human Services - } { + authority + } to have a potential for
transmitting the human immunodeficiency virus based upon current
scientific information.
(11) 'Worker' means a person who is licensed or certified to
provide health care under ORS chapters 677, 678, 679, 680, 684 or
685 or ORS 682.216, an employee of a health care facility, of a
licensed health care provider or of a clinical laboratory, as
defined in ORS 438.010 { - (1) - } , a firefighter, a law
enforcement officer, as defined in ORS 414.805, a corrections
officer or a parole and probation officer.
SECTION 636. ORS 433.065 is amended to read:
433.065. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall by rule prescribe
procedures:
(a) Whereby a worker who has experienced an occupational
exposure may request or cause to be requested the source person's
voluntary informed consent to an HIV test;
(b) Whereby a person who, while being administered health care,
has experienced a substantial exposure from a worker shall be
given notice of such exposure and be given opportunity to request
or cause to be requested the worker's voluntary informed consent
to an HIV test; and
(c) Whereby a person who has experienced a substantial exposure
shall be offered information about HIV infection, methods of
preventing HIV infection and HIV tests.
(2) Rules prescribing procedures under subsection (1)(a) of
this section may require the participation or intervention of the
health care facility and licensed health care provider providing
care to the source person and may require the further
participation or intervention of the local public health
administrator or local public health officer.
(3) Where the source person under subsection (1)(a) of this
section is not known to be under the care of a health care
facility or provider or cannot be located, and in the case of
procedures under subsection (2) of this section, the rules may
require the participation and intervention of the local public
health administrator.
(4) The rules under this section may also include, but need not
be limited to, time frames within which the notice and other
procedures are to be performed and by whom, prescribed forms for
reporting of exposures, and for recording of results of
procedures undertaken and restrictions upon disclosure of such
reports and records only to specific persons.
SECTION 637. ORS 433.075 is amended to read:
433.075. (1) The informed consent provisions of ORS 433.045 (1)
and (2) apply to any request for consent to an HIV test under
rules adopted pursuant to ORS 433.065.
(2) When a source person is deceased, consent for voluntary
informed consent under ORS 433.065 shall be from the next of kin.
(3) When an HIV test is performed pursuant to ORS 433.080 or
rules adopted under ORS 433.065, the exposed person requesting
the test, or the exposed person's employer in the case of an
occupational exposure, shall be responsible for the cost of the
testing.
Enrolled House Bill 2009 (HB 2009-C) Page 373
(4) Where an employer provides a program of prevention,
education and testing for HIV exposures for its employees, the
employee to be tested under the provisions of this Act shall
comply with the procedures provided by such program. Such program
must be approved by the { - Department of Human Services - }
{ + Oregon Health Authority + }.
(5) When an HIV test is performed pursuant to ORS 433.080 or
rules adopted under ORS 433.065, the results shall be reported
confidentially to the person who suffered the substantial
exposure giving rise to the test.
(6) The confidentiality provisions of ORS 433.045 (3) apply to
any person who receives an HIV test result pursuant to ORS
433.080 or rules adopted under ORS 433.065. Any person who
complies with the requirements of this subsection shall not be
subject to an action for damages.
SECTION 638. ORS 433.080 is amended to read:
433.080. When the { - Department of Human Services - }
{ + Oregon Health Authority + } declares by rule that mandatory
testing of source persons could help a defined class of workers
from being infected or infecting others with the human
immunodeficiency virus, the following apply:
(1) When a source person, after having been first requested to
consent to testing by rules adopted under ORS 433.065, has
refused or within a time period prescribed by rule of the
{ - department - } { + authority + } has failed to submit to
the requested test, except when the exposed person has knowledge
that the exposed person has a history of a positive HIV test, the
exposed person may seek mandatory testing of the source person by
filing a petition with the circuit court for the county in which
the exposure occurred. The form for the petition shall be as
prescribed by the { - department - } { + authority + } and
shall be obtained from the local public health department.
(2) The petition shall name the source person as the respondent
and shall include a short and plain statement of facts alleging:
(a) The petitioner is a worker subjected to an occupational
exposure or a person who has been subjected to a substantial
exposure by a worker administering health care and the respondent
is the source person;
(b) The petitioner is in the class of workers defined by rule
of the { - Department of Human Services - } { + authority + }
under this section;
(c) All procedures for obtaining the respondent's consent to an
HIV test by rules adopted under ORS 433.065 have been exhausted
by the petitioner and the respondent has refused to consent to
the test, or within the time period prescribed by rule of the
{ - department - } { + authority + } has failed to submit to
the test;
(d) The petitioner has no knowledge that the petitioner has a
history of a positive HIV test and has since the exposure, within
a time period prescribed by rule of the { - department - }
{ + authority + }, submitted a specimen from the petitioner for
an HIV test; and
(e) The injury that petitioner is suffering or will suffer if
the source person is not ordered to submit to an HIV test.
(3) The petition shall be accompanied by the certificate of the
local public health administrator declaring that, based upon
information in the possession of the administrator, the facts
stated in the allegations under subsection (2)(a), (b) and (c) of
this section are true.
Enrolled House Bill 2009 (HB 2009-C) Page 374
(4) Upon the filing of the petition, the court shall issue a
citation to the respondent stating the nature of the proceedings,
the statutes involved and the relief requested and, that if the
respondent does not appear at the time and place for hearing
stated in the citation, that the court will order the relief
requested in the petition.
(5) The citation shall be served on the respondent together
with a copy of the petition by the county sheriff or deputy. The
person serving the citation and petition shall, immediately after
service thereof, make a return showing the time, place and manner
of such service and file it with the clerk of the court.
(6) The hearing shall be held within three days of the service
of the citation upon the respondent. The court may for good cause
allow an additional period of 48 hours if additional time is
requested by the respondent.
(7) Both the petitioner and the local public health
administrator certifying to the matter alleged in the petition
shall appear at the hearing. The hearing of the case shall be
informal with the object of resolving the issue before the court
promptly and economically between the parties. The parties shall
be entitled to subpoena witnesses, to offer evidence and to
cross-examine. The judge may examine witnesses to insure a full
inquiry into the facts necessary for a determination of the
matter before the court.
(8) After hearing all of the evidence, the court shall
determine the truth of the allegations contained in the petition.
The court shall order the respondent to submit to the requested
test by a licensed health care provider without delay if, based
upon clear and convincing evidence, the court finds that:
(a) The allegations in the petition are true;
(b) The injury the petitioner is suffering or will suffer is an
injury that only the relief requested will adequately remedy; and
(c) The interest of the petitioner in obtaining the relief
clearly outweighs the privacy interest of the respondent in
withholding consent.
(9) If the court does not make the finding described in
subsection (8) of this section, the court shall dismiss the
petition.
(10) Failure to obey the order of the court shall be subject to
contempt proceedings pursuant to law.
SECTION 639. ORS 433.085 is amended to read:
433.085. (1) Notwithstanding any other provision of law, any
employee of the Department of Corrections, law enforcement
officer as defined in ORS 414.805, parole and probation officer,
corrections officer, emergency medical technician, licensed
health care provider, firefighter or paramedic who in the
performance of the individual's official duties comes into
contact with the bodily fluids of another person may seek to have
the source person tested for HIV and hepatitis B or C by
petitioning the circuit court for an order compelling the
testing.
(2) The petition submitted to the court must set forth the
facts and circumstances of the contact and the reasons the
petitioner and a medically trained person representing the
petitioner, if available, believe the exposure was substantial
and the testing would be appropriate. The petition must also
include information sufficient to identify the alleged source
person and the location of the alleged source person, if known.
The court shall hold an ex parte hearing in person or by
telephone on the day of receipt of the petition, if possible, or
Enrolled House Bill 2009 (HB 2009-C) Page 375
within a reasonable period not to exceed three judicial days.
Upon a showing that the petitioner has been exposed to the bodily
fluids of another person and the circumstances create probable
cause to conclude that a significant possibility exists that the
petitioner has been exposed to HIV or hepatitis B or C, the court
shall order the testing of the source person.
(3) If the court orders a test under subsection (2) of this
section:
(a) The order shall direct the source person to allow the
required test to be performed by a licensed health care provider
without delay and may specify a time when the test must be
completed. If the source person is in custody or otherwise
subject to the legal control of another person, the order may be
directed to the agency with custody of, or the other person with
legal control over, the source person and direct the agency or
other person to provide the source person with a copy of the
order and ensure that the required test is performed.
(b) The petitioner shall designate a physician or nurse
practitioner to receive the test results on behalf of the
petitioner.
(c) The order must inform the source person, agency or other
person of who is to receive the results of the test and of how to
obtain payment for costs under subsection (6) of this section.
(d) The order shall be served on the source person, or the
agency with custody of or other person with legal control over
the source person, in the manner directed by the court. The court
may provide for service of the order by any means appropriate to
the circumstances of the source person, including but not limited
to service by the petitioner or by directing the sheriff to serve
the order. Any costs of service shall be paid as provided under
subsection (6) of this section.
(e) The order is enforceable through the contempt powers of the
court.
(4) The results of any test ordered under this section are
confidential and subject to the confidentiality provisions of ORS
433.045 (3). The results shall be made available only to those
persons authorized under ORS 433.045 (3) and to the petitioner,
any physician or nurse practitioner designated by the petitioner
to receive the results, the { - Department of Human
Services - } { + Oregon Health Authority + } and the source
person.
(5) If the test results are negative, the court may order the
source person to submit to additional testing six months after
the first test was conducted.
(6) No charge or filing fee may be imposed for the filing of a
petition under this section. The cost of any testing ordered
under this section shall be the responsibility of the employer of
the petitioner.
SECTION 640. ORS 433.090 is amended to read:
433.090. As used in ORS 433.090 to 433.102:
(1) 'Authorized user' means a person or entity authorized to
provide information to or to receive information from an
immunization registry or immunization tracking and recall system
under ORS 433.090 to 433.102. 'Authorized user' includes, but is
not limited to, licensed health care providers, health care
institutions, insurance carriers, the Oregon medical assistance
program, parents or guardians of children under 18 years of age,
clients 18 years of age or older, post-secondary education
institutions, schools, children's facilities, local health
departments, the { - Department of Human Services - }
Enrolled House Bill 2009 (HB 2009-C) Page 376
{ + Oregon Health Authority + } and agents of the
{ - department - } { + authority + }.
(2) 'Children's facility' has the meaning given that term in
ORS 433.235.
(3) 'Client' means any person registered with any Oregon
immunization tracking and recall system.
(4) 'Immunization record' includes but is not limited to the
following:
(a) Any immunization received;
(b) Date immunization was received;
(c) Complication or side effect associated with immunization;
(d) Date and place of birth of a client;
(e) Hospital where a client was born;
(f) Client's name; and
(g) Mother's name.
(5) 'Immunization registry' means any listing of clients and
information relating to their immunization status, without regard
to whether the registry is maintained in this state or elsewhere.
(6) 'Immunization tracking and recall record' includes but is
not limited to the client's name, address of the parent or
guardian of the client, telephone number, insurance carrier,
health care provider and other information needed to send
reminder cards to, place telephone calls to or personally contact
the client or the parent or the guardian of a client for the
purposes of informing the client, parent or guardian that the
client is late in receiving the recommended immunizations.
(7) 'Local health department' has the meaning given that term
in ORS 433.235.
(8) 'Parent or guardian' has the meaning given the term '
parent' in ORS 433.235.
(9) 'Post-secondary education institution' means:
(a) A state institution of higher education under the
jurisdiction of the State Board of Higher Education;
(b) A community college operated under ORS chapter 341;
(c) A school or division of Oregon Health and Science
University; or
(d) An Oregon-based, generally accredited, private institution
of higher education.
(10) 'Provider' means a physician or a health care professional
who is acting within the scope of his or her licensure and
responsible for providing immunization services or for
coordinating immunization services within a clinic, public health
site, school or other immunization site.
(11) 'School' has the meaning given that term in ORS 433.235.
(12) 'Tracking and recall system' means a system attached to an
immunization registry designed to contact clients listed in the
immunization registry for the purposes of assisting in the
completion of the immunization series in a timely manner.
SECTION 641. ORS 433.094 is amended to read:
433.094. The { - Department of Human Services - }
{ + Oregon Health Authority + }, a local health department, or
both, or their agents or other providers may develop an
immunization registry and an associated tracking and recall
system to include, but not be limited to, children and young
adults. This system shall include, but not be limited to, the
following:
(1) Registering all clients born in, living in or receiving
services in this state;
(2) Tracking and updating immunization histories of the
registered clients;
Enrolled House Bill 2009 (HB 2009-C) Page 377
(3) Allowing a provider to provide information to and obtain
information from the immunization and immunization tracking and
recall records contained in an immunization registry without the
consent of the client or the parent or guardian of the client;
(4) Allowing an immunization record of a client to be released
to authorized users;
(5) Notifying in writing the parent or guardian of a client, at
least through five years of age, when the tracking and recall
system indicates that a client has missed a scheduled
immunization and, if the client has not been immunized after two
notifications, arranging to have the parent or guardian contacted
personally;
(6) Integrating with any immunization registry and its
associated tracking and recall systems; and
(7) Working with health care providers to develop easy
information transfer systems.
SECTION 642. ORS 433.100 is amended to read:
433.100. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules pertaining to
the development and implementation of the immunization registries
and their associated tracking and recall systems. The rules shall
include a process that allows a client who is 18 years of age or
older, a custodial parent or guardian to control the transfer of
information from the immunization record or the immunization
tracking and recall record when such control is necessary to
protect the health or safety of the family or the client.
(2) Nothing in this section requires the consent of a parent or
guardian prior to enrolling the child in the registry or
restricts the registry from providing tracking and recall
information to a custodial parent or guardian.
(3)(a) Pursuant to rules adopted by the { - department, the
department - } { + authority, the authority + } may charge fees
to authorized users, except hospitals, schools and individual
health care providers, for services requested from an
immunization registry, including associated tracking and recall
systems maintained by the
{ - department - } { + authority + }. Authorized users may
make voluntary contributions to the { - department - }
{ + authority + } to help support the operation of an
immunization registry established under ORS 433.094.
(b) Fees authorized under paragraph (a) of this subsection
shall be assessed only against managed care organizations, health
maintenance organizations, physician organizations and insurance
carriers that are using the information from the registries for
quality improvement activities for their privately insured
patients.
(c) All moneys received by the { - department - }
{ + authority + } under this section shall be paid into the
State Treasury and placed in the General Fund to the credit of
the Public Health Account. Such moneys are continuously
appropriated to the { - department - } { + authority + } and
shall be used only for the administration and enforcement of ORS
433.090 to 433.102.
SECTION 643. ORS 433.110 is amended to read:
433.110. Every physician or nurse attending a person affected
with any communicable disease shall use all precautionary
measures to prevent the spread of the disease as the
{ - Department of Human Services - } { + Oregon Health
Authority + } may prescribe by rule.
SECTION 644. ORS 433.133 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 378
433.133. (1)(a) Any person or group of persons who is isolated
or quarantined pursuant to ORS 433.121 or 433.123 may apply to
the court for an order to show cause why the individual or group
should not be released.
(b) The court shall rule on the application to show cause
within 48 hours of the filing of the application.
(c) The court must grant the application if there is a
reasonable basis to support the allegations in the application,
and the court shall schedule a hearing on the order requiring the
{ - Department of Human Services - } { + Oregon Health
Authority + } to appear and to show cause within five working
days of the filing of the application.
(d) The issuance of an order to show cause and ordering the
{ - department - } { + authority + } to appear and show cause
does not stay or enjoin an isolation or quarantine order.
(2)(a) A person or group of persons who is isolated or
quarantined may request a hearing in the court for remedies
regarding breaches of the conditions of isolation or quarantine
required by ORS 433.128.
(b) The court must hold a hearing if there is a reasonable
basis to believe there has been a breach of the conditions of
isolation or quarantine required by ORS 433.128.
(c) A request for a hearing shall not stay or enjoin an order
for isolation or quarantine.
(d) Upon receipt of a request under this subsection alleging
extraordinary circumstances justifying the immediate granting of
relief, the court shall hold a hearing on the matters alleged as
soon as practicable.
(e) If a hearing is not granted under paragraph (c) of this
subsection, the court shall hold a hearing on the matters alleged
within five days from receipt of the request.
(3) In any proceedings brought for relief under this section,
in extraordinary circumstances and for good cause shown, or with
consent of the petitioner or petitioners the Public Health
Director or local public health administrator may move the court
to extend the time for a hearing. The court in its discretion may
grant the extension giving due regard to the rights of the
affected persons, the protection of the public health, the
severity of the emergency and the availability of necessary
witnesses and evidence.
(4) If a person or group of persons who is detained cannot
personally appear before the court because such an appearance
poses a risk of serious harm to others, the court proceeding may
be conducted by legal counsel for the person or group of persons
and be held at a location or via any means that allows all
parties to fully participate.
(5) If the court finds, by clear and convincing evidence, that
a person or group of persons no longer poses a serious risk to
the health and safety to others, the court may order the release
of that person or group of persons from isolation or quarantine.
(6) If the court finds by clear and convincing evidence that a
person or group of persons is not being held in accordance with
the conditions of isolation or quarantine required by ORS
433.128, the court may order an appropriate remedy to ensure
compliance with ORS 433.128.
SECTION 645. ORS 433.140 is amended to read:
433.140. (1) The expenses incurred under ORS 433.128, when
properly certified by the local public health administrator,
shall be paid by the person who is isolated or quarantined, when
the person is able to pay the expenses.
Enrolled House Bill 2009 (HB 2009-C) Page 379
(2) The { - Department of Human Services - } { + Oregon
Health Authority + } may provide general assistance, including
medical care for the person who is isolated or quarantined, on
the basis of need, provided that no payment shall be made for the
care of any such person in or under the care of any public
institution or public agency or municipality.
SECTION 646. ORS 433.220 is amended to read:
433.220. (1) If upon inspection pursuant to ORS 433.216, there
is discovered among the passengers or goods being transported by
any public or private conveyance the existence of any
communicable disease or toxic substance that presents a
substantial threat to public health, the Public Health Director,
under rules of the { - Department of Human Services - }
{ + Oregon Health Authority, + } may:
(a) Issue an order for testing, medical examination or
treatment under ORS 433.035.
(b) Isolate or quarantine such persons or goods in accordance
with ORS 433.121, 433.123 or 433.142.
(c) { - Cause the passengers and material in the involved
conveyance to be subjected to requirements by the Department of
Human Services - } { + Require the passengers and persons
conveying materials to follow the authority's rules + } for the
control of the specific communicable disease or prevention of
harm to the public health from the toxic substance.
(d) Offer free immunization in those diseases to which such
prophylactic treatment is applicable to all persons exposed in
any conveyance.
(2) Should any question arise as to the existence of any
emergency, the Public Health Director shall have final
jurisdiction.
SECTION 647. ORS 433.235 is amended to read:
433.235. As used in ORS 433.235 to 433.284:
(1) 'Administrator' means the principal or other person having
general control and supervision of a school or children's
facility.
(2) 'Children's facility' or 'facility' means:
(a) A certified child care facility as described in ORS
657A.030 and 657A.250 to 657A.450, except as exempted by rule of
the { - Department of Human Services - } { + Oregon Health
Authority + };
(b) A program operated by, or sharing the premises with, a
certified child care facility, school or post-secondary
institution where care is provided to children, six weeks of age
to kindergarten entry, except as exempted by rule of the
{ - department - } { + authority + }; or
(c) A program providing child care or educational services to
children, six weeks of age to kindergarten entry, in a
residential or nonresidential setting, except as exempted by rule
of the
{ - department - } { + authority + }.
(3) 'Local health department' means the district or county
board of health, public health officer, public health
administrator or health department having jurisdiction within the
area.
(4) 'Parent' means a parent or guardian of a child or any adult
responsible for the child.
(5) 'Physician' means a physician licensed by the Oregon
Medical Board or by the Board of Naturopathic Examiners or a
physician similarly licensed by another state or country in which
Enrolled House Bill 2009 (HB 2009-C) Page 380
the physician practices or a commissioned medical officer of the
Armed Forces or Public Health Service of the United States.
(6) 'School' means a public, private, parochial, charter or
alternative educational program offering kindergarten through
grade 12 or any part thereof, except as exempted by rule of the
{ - Department of Human Services - } { + authority + }.
SECTION 648. ORS 433.245 is amended to read:
433.245. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall appoint a committee to advise
the
{ - Department of Human Services - } { + Oregon Health
Authority + } on the administration of the provisions of ORS
433.235 to 433.284, including the adoption of rules pursuant to
ORS 433.269 (2), 433.273, 433.282 and 433.283.
(2) Members of the committee appointed pursuant to subsection
(1) of this section shall include, but need not be limited to,
representatives of { + the Oregon Health Authority, + } the
Department of Human Services, the Department of Education,
public, private and parochial schools, children's facilities,
institutions of post-secondary education, education service
districts, local health departments, the boards of county
commissioners or county courts and the public.
SECTION 649. ORS 433.255 is amended to read:
433.255. Except in strict conformity with the rules of the
{ - Department of Human Services - } { + Oregon Health
Authority + }, no child or employee shall be permitted to be in
any school or children's facility when:
(1) That child or employee has any restrictable disease;
(2) That child or employee comes from any house in which exists
any restrictable disease; or
(3) That child has been excluded as provided in ORS 433.267 (5)
or (7).
SECTION 650. ORS 433.260 is amended to read:
433.260. (1) Whenever any administrator has reason to suspect
that any child or employee has or has been exposed to any
restrictable disease and is required by the rules of the
{ - Department of Human Services - } { + Oregon Health
Authority + } to be excluded from a school or children's
facility, the administrator shall send such person home and, if
the disease is one that must be reported to the
{ - department - } { + authority + }, report the occurrence to
the local health department by the most direct means available.
(2) Any person excluded under subsection (1) of this section
may not be permitted to be in the school or facility until the
person presents a certificate from a physician, nurse
practitioner, local health department nurse or school nurse
stating that the person does not have or is not a carrier of any
restrictable disease.
SECTION 651. ORS 433.267 is amended to read:
433.267. (1) As a condition of attendance in any school or
children's facility in this state, every child through grade 12
shall submit to the administrator one of the following statements
unless the school or facility which the child attends already has
on file a record which indicates that the child has received
immunizations against the restrictable diseases prescribed by
rules of the { - Department of Human Services - } { + Oregon
Health Authority + } as provided in ORS 433.273:
(a) A statement signed by the parent, a practitioner of the
healing arts who has within the scope of the practitioner's
license the authority to administer immunizations or a
Enrolled House Bill 2009 (HB 2009-C) Page 381
representative of the local health department certifying the
immunizations the child has received;
(b) A statement signed by a physician or a representative of
the local health department that the child should be exempted
from receiving specified immunization because of indicated
medical diagnosis; or
(c) A statement signed by the parent that the child has not
been immunized as described in paragraph (a) of this subsection
because the child is being reared as an adherent to a religion
the teachings of which are opposed to such immunization.
(2)(a) A newly entering child or a transferring child shall be
required to submit the statement described in subsection (1) of
this section prior to attending the school or facility.
(b) Notwithstanding paragraph (a) of this subsection, a child
transferring from a school in the United States must submit the
statement required by subsection (1) of this section not later
than the exclusion date set by rule of the { - department - }
{ + authority + }.
(3) Persons who have been emancipated pursuant to ORS 419B.558
or who have reached the age of consent for medical care pursuant
to ORS 109.640 may sign those statements on their own behalf
otherwise requiring the signatures of parents under subsection
(1) of this section.
(4) The administrator shall conduct a primary evaluation of the
records submitted pursuant to subsection (1) of this section to
determine whether the child is entitled to begin attendance by
reason of having submitted a statement that complies with the
requirements of subsection (1) of this section.
(5) If the records do not meet the initial minimum requirements
established by rule, the child may not be allowed to attend until
the requirements are met. If the records meet the initial minimum
requirements, the child shall be allowed to attend.
(6) At the time specified by the { - department - }
{ + authority + } by rule, records for children meeting the
initial minimum requirements and records previously on file shall
be reviewed for completion of requirements by the administrator
to determine whether the child is entitled to continue in
attendance. If the records do not comply, the administrator shall
notify the local health department and shall transmit any records
concerning the child's immunization status to the local health
department.
(7) The local health department shall provide for a secondary
evaluation of the records to determine whether the child should
be excluded for noncompliance with the requirements stated in
subsection (1)(a) or (b) of this section. If the child is
determined to be in noncompliance, the local health department
shall issue an exclusion order and shall send copies of the order
to the parent or the person who is emancipated or has reached the
age of majority and the administrator. On the effective date of
the order, the administrator shall exclude the child from the
school or facility and not allow the child to attend the school
or facility until the requirements of this section have been met.
(8) The administrator shall readmit the child to the school or
facility when in the judgment of the local health department the
child is in compliance with the requirements of this section.
(9) The administrator shall be responsible for updating the
statement described in subsection (1)(a) of this section as
necessary to reflect the current status of the immunization of
the child and the time at which the child comes into compliance
with immunizations against the restrictable diseases prescribed
Enrolled House Bill 2009 (HB 2009-C) Page 382
by rules of the { - department - } { + authority + } pursuant
to ORS 433.273.
(10) Nothing in this section shall be construed as relieving
agencies, in addition to school districts, which are involved in
the maintenance and evaluation of immunization records on April
27, 1981, from continuing responsibility for these activities.
(11) All statements required by this section shall be on forms
approved or provided by the { - department - }
{ + authority + }.
(12) In lieu of signed statements from practitioners of the
healing arts, the { - department - } { + authority + } may
accept immunization record updates using practitioner documented
immunization records generated by electronic means or on
{ - practitioner letterhead but unsigned, if the department - }
{ + unsigned practitioner letterhead if the authority + }
determines such records are accurate.
(13) As used in this section:
(a) 'Newly entering child' means a child who is initially
attending:
(A) A facility in this state;
(B) A school at the entry grade level;
(C) Either a school at any grade level or a facility from
homeschooling; or
(D) A school at any grade level or a facility after entering
the United States from another country.
(b) 'Transferring child' means a child moving from:
(A) One facility to another facility;
(B) One school in this state to another school in this state
when the move is not the result of a normal progression of grade
level; or
(C) A school in another state to a school in this state.
SECTION 652. ORS 433.269 is amended to read:
433.269. (1) Local health departments shall make available
immunizations to be administered under the direction of the local
health officer in convenient areas and at convenient times. No
person shall be refused service because of inability to pay.
(2) The local health department and all schools and children's
facilities shall report annually to the { - Department of Human
Services as specified in the rules of the Department of Human
Services on the number of children in the area served and those
children who are susceptible to restrictable disease as
prescribed by rules of the Department of Human Services pursuant
to ORS 433.273 by reason of noncompliance - } { + Oregon Health
Authority on the number of children in the area served and the
number of children who are susceptible to restrictable disease as
prescribed by the authority's rules pursuant to ORS 433.273 + }.
A child exempted under ORS 433.267 shall be considered to be
susceptible.
(3) The administrator shall maintain immunization records of
children, including children in attendance conditionally because
of incomplete immunization schedules and children exempted under
ORS 433.267.
SECTION 653. ORS 433.271 is amended to read:
433.271. The { - Department of Human Services - }
{ + Oregon Health Authority + } may not purchase or distribute a
pediatric vaccine necessary for school entry immunization
requirements if the vaccine contains thimerosal, unless
thimerosal is detectable only in trace amounts or no other
vaccine for the same purpose is commercially available in a form
that does not contain thimerosal. The { - department - }
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{ + authority + } may purchase and distribute a pediatric
vaccine that contains thimerosal if no other vaccine for the same
purpose is commercially available in a form that does not contain
thimerosal.
SECTION 654. ORS 433.273 is amended to read:
433.273. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules pertaining to
the implementation of ORS 433.235 to 433.284, which shall
include, but need not be limited to:
(1) The definition of 'restrictable' disease;
(2) The required immunization against diseases, including
rubella, considered to be dangerous to the public health under
ORS 433.267;
(3) The time schedule for immunization;
(4) The approved means of immunization;
(5) The procedures and time schedule whereby children may be
excluded from attendance in schools or facilities, including
service of notice to parents;
(6) The manner in which immunization records for children are
established, evaluated and maintained;
(7) The exempted schools and children's facilities; and
(8) The implementation of ORS 433.282 and 433.283.
SECTION 654a. ORS 433.282 is amended to read:
433.282. (1) The { - Department of Human Services - } { +
Oregon Health Authority + } may require each post-secondary
educational institution, except a community college or a career
school, to require that each entering full-time student has
current immunizations, as required for children attending school
pursuant to rules adopted by the { - department - } { +
authority + } under ORS 433.273, prior to the student's second
quarter or semester of enrollment on an Oregon campus, using
procedures developed by the institution.
(2) Notwithstanding subsection (1) of this section, the
{ - department - } { + authority + } may require each
post-secondary educational institution, except a community
college or a career school, to document, using procedures
developed by the institution, that each entering full-time
student has current immunizations, as required for children
attending school pursuant to rules adopted by the
{ - department - } { + authority + } under ORS 433.273, prior
to the student attending classes if the student will be attending
the institution pursuant to a nonimmigrant visa.
(3) The { - department - } { + authority + } by rule shall
establish immunization schedules and may further limit the
students and programs to which the requirement applies.
(4) The { - department - } { + authority + } may conduct
validation surveys to ensure compliance with this section.
SECTION 654b. ORS 433.283 is amended to read:
433.283. (1) The { - Department of Human Services - } { +
Oregon Health Authority + } may require each community college to
require that students involved in clinical experiences in allied
health programs, practicum experiences in education and child
care programs and membership on intercollegiate sports teams have
current immunizations for measles prior to each student's
participation. The requirement shall apply only to those students
born on or after January 1, 1957.
(2) The State Board of Education by rule shall define clinical
experiences in allied health programs, practicum experiences in
education and child care programs and membership on
intercollegiate sports teams at the community colleges. The
Enrolled House Bill 2009 (HB 2009-C) Page 384
{ - Department of Human Services - } { + Oregon Health
Authority + } by rule shall establish immunization schedules and
may further limit the students and programs to which the
requirement applies. Each community college shall develop
procedures to implement and maintain this requirement.
(3) The { - Department of Human Services - } { +
authority + } may conduct validation surveys to { - insure - }
{ + ensure + } compliance with this section. Community colleges
shall be required to keep immunization records only while the
student is involved in the program.
SECTION 655. ORS 433.285 is amended to read:
433.285. (1) It hereby is declared to be a matter of public
policy of the State of Oregon that in the interest of public
health and the prevention of mental retardation, every infant,
shall be given tests approved by the { - Department of Human
Services - } { + Oregon Health Authority + } for the detection
of the disease of phenylketonuria and other metabolic diseases.
(2) The { - Department of Human Services - } { +
authority + } by rule shall specify the diseases for which
infants shall be tested under subsection (1) of this section, the
appropriate time following delivery for collecting specimens, the
manner in which the specimens are to be submitted, the persons
responsible for submitting the specimens, the methods of testing
and the manner of payment of the fees.
(3) The testing required by subsection (1) of this section
shall not be required if the infant is being reared as an
adherent to a religion the teachings of which are opposed to such
testing. The person responsible for submitting specimens under
the rules of the { - Department of Human Services - }
{ + authority + } shall be responsible for submitting a
statement signed by the infant's parent that the infant is being
so reared. The { - department - } { + authority + } by rule
shall prescribe the form of the statement.
(4) The { - Department of Human Services - }
{ + authority + } shall adopt by rule a procedure whereby the
fees established under subsection (2) of this section shall be
waived and no infant refused service because of the parent's
inability to pay the fee.
(5) The { - Department of Human Services - }
{ + authority + } by rule shall prescribe the procedure to be
followed in cases where initial testing for metabolic diseases is
administered too early to detect these diseases, where the sample
submitted for testing is improperly collected and where a sample
shows an abnormal result. The { - Department of Human
Services - } { + authority + }, within the limits of funds
available from fees collected under this section, shall institute
a pilot program for follow-up on abnormal test results.
SECTION 656. ORS 433.290 is amended to read:
433.290. (1) The Legislative Assembly finds that many newborn
children are given their first tests for metabolic diseases too
early for the detection of these diseases because parents remove
these newborn infants from the hospital before the optimum
testing period commences. To assure proper first testing and
follow-up testing and increase knowledge about the nature and
results of these diseases, the { - Department of Human
Services - } { + Oregon Health Authority + } shall institute
and carry on an intensive educational program among physicians,
hospitals, public health nurses, the parents of newborn children
and the public concerning the disease of phenylketonuria and
Enrolled House Bill 2009 (HB 2009-C) Page 385
other metabolic diseases. This educational program shall include
information concerning:
(a) The nature of these diseases; and
(b) Examinations for the detection of these diseases in infancy
in order that measures may be taken to prevent the mental
retardation resulting from these diseases.
(2) The { - Department of Human Services - }
{ + authority + } shall make a special effort specifically to
inform expectant parents and parents of newborn children of the
necessity of newborn infants receiving appropriate tests within
the optimum time range after birth to prevent the mental
retardation or other serious complications resulting from these
diseases.
SECTION 657. ORS 433.295 is amended to read:
433.295. (1) All physicians, public health nurses and the
administrators of hospitals shall report the discovery of cases
of phenylketonuria to the { - Department of Human Services - }
{ + Oregon Health Authority + }.
(2) The { - Department of Human Services shall furnish all
physicians, public health nurses and hospitals forms on which the
result of tests for phenylketonuria shall be reported to the
Department of Human Services - } { + authority shall furnish
forms that all physicians, public health nurses and hospitals
shall use to report to the authority the test results for
phenylketonuria + }.
SECTION 658. ORS 433.312 is amended to read:
433.312. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } in consultation with the Oregon
Pediatric Society by rule shall establish the appropriate dosage
of vitamin K and the procedures for administering vitamin K which
may be either by injection or orally.
(2) The { - Department of Human Services - }
{ + authority + } in cooperation with the licensing boards
established in ORS chapters 677, 684 and 685 shall notify their
licensees of these rules. Any association of midwives shall also
be notified.
SECTION 659. ORS 433.314 is amended to read:
433.314. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall institute and carry on an
educational program among medical and naturopathic physicians,
chiropractors, midwives, potential parents and the public
concerning the need for newborn infants to receive vitamin K
within 24 hours after birth.
SECTION 660. ORS 433.321 is amended to read:
433.321. (1) In all Oregon hospitals and birthing centers with
more than 200 live births per year, each newborn child shall
receive a newborn hearing screening test within one month of the
date of birth. A hospital or birthing center shall attempt to
conduct the test required under this subsection prior to the
discharge of the child from the facility.
(2) All Oregon hospitals and birthing centers with fewer than
200 live births per year shall provide the parent or guardian of
a newborn child with the appropriate information furnished by the
{ - Department of Human Services - } { + Oregon Health
Authority + } concerning the importance of newborn hearing
screening tests.
(3) All Oregon hospitals and birthing centers conducting
newborn hearing screening tests shall, within 10 days of the
test:
Enrolled House Bill 2009 (HB 2009-C) Page 386
(a) Notify the parent or guardian and the health care provider
for the newborn child of the test results;
(b) With the results of the test, provide names and contact
information for diagnostic facilities in the community; and
(c) Report to the { - department - } { + authority + } the
results of the test for the newborn child and information
identifying the newborn child.
(4) A diagnostic facility conducting newborn hearing tests
shall report, within 10 days of the test, to the
{ - department - } { + authority + } the results of the test
for the newborn child and information identifying the newborn
child.
(5) Each public and private educational institution that
provides early intervention services as defined in ORS 343.035
shall disclose to the { - department - } { + authority + }
information identifying the children referred to the educational
institution with diagnosed hearing loss and the enrollment status
of the children. The institution may disclose to the
{ - department - } { + authority + } additional information
regarding children with hearing loss who are receiving early
intervention services if the educational institution has obtained
consent to disclose the information.
(6) The { - department - } { + authority + }, in
collaboration with the Child Development and Rehabilitation
Center of the Oregon Health and Science University shall, on an
annual basis, provide to all Oregon hospitals and birthing
centers the following information:
(a) A description of the responsibilities created by this
section;
(b) A list of appropriate screening devices and descriptions of
training protocols to ensure that staff members are adequately
trained in the use of screening equipment;
(c) A list of newborn hearing screening testing and diagnostic
facilities;
(d) A list of public and private educational institutions that
provide early intervention services and a description of the
geographic area served by each institution; and
(e) Other information related to newborn hearing screening
tests that the { - department - } { + authority + } deems
appropriate.
(7) A hospital or birthing center directed to provide newborn
hearing screening tests under this section is exempt from
providing such services if the parent or guardian of the newborn
child objects to the testing procedure on the grounds that the
procedure conflicts with the religious tenets and practices of
the parent or guardian. The parent or guardian must sign a
statement that the newborn infant is being so reared.
(8) No newborn child may be refused the procedure described in
subsection (1) of this section because of an inability of the
parent or guardian to pay for the procedure.
SECTION 661. ORS 433.323 is amended to read:
433.323. (1) As used in this section:
(a) 'Newborn hearing screening test registry' means a listing
of newborn children and information related to their newborn
hearing screening tests.
(b) 'Tracking and recall system' means a system attached to the
newborn hearing screening test registry designed to contact the
parent or guardian of a newborn child listed in the newborn
hearing screening test registry for the purposes of assisting in
Enrolled House Bill 2009 (HB 2009-C) Page 387
testing and in enrollment of the newborn child in early
intervention services in a timely manner.
(2) The { - Department of Human Services - } { + Oregon
Health Authority + } shall implement a newborn hearing screening
test registry and tracking and recall system. The registry and
system shall include, but are not limited to, the following:
(a) Information on the results of newborn hearing screening
tests performed at Oregon hospitals, birthing centers and
diagnostic facilities.
(b) Notification of the parent or guardian and the health care
provider of a newborn child and of the local public health agency
of the county in which the parent or guardian resides when the
system indicates that a newborn child has not received a newborn
hearing screening test, has been referred to a diagnostic
facility for a diagnostic evaluation but has not received the
evaluation or has been diagnosed with hearing loss but has not
been enrolled in an educational institution providing early
intervention services.
(3) The { - department - } { + authority + } shall adopt
rules:
(a) Implementing this section and ORS 433.321;
(b) Ensuring the privacy of individuals about whom information
is collected pursuant to this section and ORS 433.321; and
(c) Specifying the forms to be used by hospitals, birthing
centers, diagnostic facilities and educational institutions to
provide the information required under this section and ORS
433.321.
(4) The { - department - } { + authority + } shall analyze
the information collected under this section to determine the
efficacy of this section and ORS 433.321 in identifying hearing
loss in the newborn child population and enrolling newborn
children in early intervention services.
(5) The { - department - } { + authority + } shall issue an
annual report detailing the results of newborn hearing screening
tests, diagnostic evaluations and participation in early
intervention services.
(6) The { - department - } { + authority + } shall
implement the newborn hearing screening test registry within
existing resources. The
{ - department - } { + authority + } may accept contributions
of funds and assistance from the United States Government or its
agencies or from any other source, public or private, and agree
to conditions not inconsistent with the purposes of the registry.
SECTION 662. ORS 433.326 is amended to read:
433.326. The purpose of ORS 433.321, 433.323 and 433.327 and
section 4, chapter 240, Oregon Laws 2003, is to waive the
requirement of authorization to disclose information from, or
provide information to, the record of a newborn child in the
newborn hearing screening test registry and to waive
confidentiality in regard to this information. The waiver allows
providers, the { - Department of Human Services - }
{ + Oregon Health Authority + } and local health departments and
their agents, parents or guardians and diagnostic facilities to
share information from the newborn hearing screening test
registry without violating confidentiality. The newborn hearing
screening test registry and the associated tracking and recall
system are designed to increase early and appropriate
intervention to minimize delays in developing language skills by
the children of this state.
SECTION 663. ORS 433.345 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 388
433.345. (1) If an animal bites a person and the bite causes a
break in the skin, or if an animal is suspected of rabies or has
been in close contact with an animal suspected of rabies, the
facts shall be immediately reported to the local health officer
by any person having direct knowledge.
(2) The { - Department of Human Services - } { + Oregon
Health Authority + }, in consultation with the State Department
of Agriculture, shall promulgate rules relating to the handling
and disposition of animals that have bitten a person or are
suspected of rabies or that have been in close contact with an
animal suspected of rabies. Such rules may include requirements
for confinement, isolation and inoculation. Owners or persons in
possession of animals subject to such rules, shall handle or
dispose or allow the handling or disposal of such animals
strictly in accordance with such rules.
SECTION 664. ORS 433.350 is amended to read:
433.350. When confinement and observation of an animal for
purposes of determining infection with rabies will not avoid the
necessity of the application of painful or possibly dangerous
preventative treatment to a person who has been bitten or
scratched by such animal, the Director of { - Human
Services - } { + the Oregon Health Authority + } may order
possession of the animal to be immediately relinquished to the
director or to the authorized representative of the director and
may order the animal destroyed for examination of its bodily
tissues.
SECTION 665. ORS 433.355 is amended to read:
433.355. (1) In the event of the refusal of the owner or person
in possession of an animal to comply with an order of the
Director of { - Human Services - } { + the Oregon Health
Authority + } under ORS 433.350, the { - Director of Human
Services - } { + director + } or the authorized representative
of the director may petition the circuit court of the county in
which such animal is located for an order requiring such owner or
person to comply with such order.
(2) The petition shall be verified and shall set forth the
facts relative to the refusal to comply with the order. A copy of
the petition shall be served upon the owner or person in
possession of the animal in the manner provided for service of
summons in civil actions. Such owner or person in possession
shall appear and answer the petition at a time and place set by
the court in an order, a copy of which shall be served with the
petition, directing the defendant to appear at such time and
place, and to then and there show cause, if any, why an order
directing compliance with the order of the { - Director of
Human Services - } { + director + } should not be granted. The
time set by the court for the hearing to show cause shall be made
with due regard for the circumstances of the person or persons
who have been subjected to the bite or scratch of the animal and
whose health or life may be in jeopardy.
(3) If the owner or person in possession fails to appear or the
court either with or without such appearance finds the
allegations of the petition are true and the order of the
{ - Director of Human Services - } { + director + } is
necessary under ORS 433.350, the court shall enter its order
requiring the owner or person in possession of such animal to
comply with the order of the { - Director of Human Services - }
{ + director + }.
(4) The sheriff of the county in which the animal is located
shall execute such order by serving upon the owner or person in
Enrolled House Bill 2009 (HB 2009-C) Page 389
possession a copy thereof duly certified to by the clerk of the
circuit court and by enforcing the provisions thereof.
SECTION 666. ORS 433.360 is amended to read:
433.360. (1) Whenever a case of animal rabies occurs, the fact
shall be reported to the Director of { - Human Services - }
{ + the Oregon Health Authority + } and to the State Department
of Agriculture immediately.
(2) The { - State Department of Agriculture in consultation
with the Director of Human Services shall establish such
quarantine under ORS chapter 596 as the State Department of
Agriculture and the Director of Human Services may deem - }
{ + department, in consultation with the Oregon Health
Authority, shall establish a quarantine pursuant to ORS chapter
596 if the department and the authority find that a quarantine
is + } necessary.
(3) The { - State Department of Agriculture and the Director
of Human Services - } { + department and the authority + } may
contract with counties for the purpose of carrying out the
provisions of ORS 433.350, 433.355 and subsection (2) of this
section.
SECTION 667. ORS 433.365 is amended to read:
433.365. (1) A dog that has permanent canine teeth or that is
six months of age or older must be inoculated against rabies,
unless specifically exempted by rule of the { - Department of
Human Services - } { + Oregon Health Authority + } or the State
Department of Agriculture.
(2) Unless pursuant to conditions specified in ORS 430.357, any
rules of the { - State Department of Agriculture or the
Director of Human Services - } { + department or the
authority + } with respect to inoculation shall:
(a) Not apply to animals brought temporarily into the state for
periods of less than 30 days but may require that the animals be
kept under strict supervision by the owners of the animals.
(b) Not apply to dogs or to any other animal specifically
exempted from the inoculation requirement by rule of the
{ - Department of Human Services or the State Department of
Agriculture - } { + department or the authority + }.
(3) The costs of all such required inoculations shall be borne
by the owners of the animal.
SECTION 668. ORS 433.367 is amended to read:
433.367. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall be responsible for
development and coordination of vaccination clinics at sufficient
and reasonable times at various locations throughout the state
for the inoculation of dogs against rabies. Costs of vaccination
shall be borne by the dog owner.
SECTION 669. ORS 433.370 is amended to read:
433.370. Every veterinarian inoculating an animal against
rabies shall supply to the owner evidence of inoculation which
shall consist of a certificate issued and signed by the
veterinarian. The form of the certificate shall be prescribed by
the { - Department of Human Services - } { + Oregon Health
Authority + }.
SECTION 670. ORS 433.375 is amended to read:
433.375. (1) The owner of the animal shall present by mail or
otherwise the inoculation certificate, together with the fee
fixed pursuant to ORS 433.380, if any, to the clerk of the county
in which the owner resides.
(2) The county shall upon receipt of the fee and presentation
of the certificate issue to the owner a serial-numbered tag,
Enrolled House Bill 2009 (HB 2009-C) Page 390
legibly identifying its expiration date as such date is
determined in accordance with rules of the { - Department of
Human Services - } { + Oregon Health Authority + } relating to
intervals of inoculation. The tag shall be designed for and shall
be attached to a collar or harness which shall be worn by the dog
for which the tag and certificate is issued at all times when off
or outside the premises of the owner. Whenever an original tag is
lost, mutilated or destroyed, upon application and payment of the
fee prescribed under ORS 433.380, if any, a replacement tag, to
be dated, designed and worn as the original, shall be issued.
(3) No official of any county shall issue a license for a dog
until the official has been shown a proper certification, or its
equivalent, of a rabies inoculation.
(4) If the county files the certificate upon which a tag is
issued, it shall be cross-referenced to the tag number. If the
certificate is not filed, the county shall keep an appropriate
record of the expiration date and number, if any, of the
certificate cross-referenced to the tag number. Notwithstanding
ORS 205.320 (1), a fee is not required for filing the
certificate.
(5) Unexpired tags shall be honored in all counties when the
animal is in transit or where the owner has established a new
residence.
(6) The provisions of this section apply to a city, rather than
a county, in a city which has a dog licensing program.
SECTION 671. ORS 433.407 is amended to read:
433.407. As used in ORS 433.407 to 433.423 unless the context
requires otherwise:
(1) { - ' Department' means the Department of Human
Services - } { + ' Authority' means the Oregon Health
Authority + }.
(2) 'Health care facility' means a facility as defined in ORS
442.015 and a mental health facility, alcohol treatment facility
or drug treatment facility licensed or operated under ORS chapter
426 and 430.397 to 430.401 or ORS chapter 430.
(3) 'Worker' means a person who is licensed or certified to
provide health care under ORS chapter 677, 678, 679, 680, 684 or
685 or ORS 682.216, an employee of a health care facility, of a
licensed health care provider or of a clinical laboratory as
defined in ORS 438.010 { - (1) - } , a firefighter, a law
enforcement officer as defined in ORS 414.805, a corrections
officer or a parole and probation officer.
SECTION 672. ORS 433.419 is amended to read:
433.419. When a local health department or the { - Department
of Human Services - } { + Oregon Health Authority + } learns of
a case or suspected case of an infectious disease which may have
exposed a worker to risk of infection, the local health
department or the
{ - Department of Human Services - } { + authority + } shall
make every reasonable effort to notify the worker and employer of
the exposure as soon as medically appropriate given the urgency
of the disease or suspected disease. Notification shall include
recommendations to the worker and employer that are medically
appropriate.
SECTION 673. ORS 433.423 is amended to read:
433.423. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules implementing
ORS 433.407 to 433.423. Such rules shall include, but need not
be limited to:
Enrolled House Bill 2009 (HB 2009-C) Page 391
(a) The development of curriculum dealing with the exposure of
workers to infectious diseases;
(b) Development and conduct of training programs for local
health department personnel to prepare them to train workers
about the subject of infectious diseases;
(c) Information on the manner in which infectious diseases are
transmitted; and
(d) Guidelines that can assist workers and their employers in
distinguishing between conditions in which such workers are or
are not at risk with respect to infectious diseases.
(2) The rules adopted by the { - Department of Human
Services - } { + authority + } shall require that
implementation of ORS 433.407 to 433.423 be accomplished in such
a manner as to protect the confidentiality of persons with
infectious diseases and workers exposed to such persons.
SECTION 674. ORS 433.443 is amended to read:
433.443. (1)(a) During a public health emergency proclaimed
under ORS 433.441, the Public Health Director may, as necessary
to appropriately respond to the public health emergency:
(A) Adopt reporting requirements for and provide notice of
those requirements to health care providers, institutions and
facilities for the purpose of obtaining information directly
related to the public health emergency;
(B) After consultation with appropriate medical experts, create
and require the use of diagnostic and treatment protocols to
respond to the public health emergency and provide notice of
those protocols to health care providers, institutions and
facilities;
(C) Order, or authorize local public health administrators to
order, public health measures appropriate to the public health
threat presented;
(D) Upon approval of the Governor, take other actions necessary
to address the public health emergency and provide notice of
those actions to health care providers, institutions and
facilities, including public health actions authorized by ORS
431.264;
(E) Take any enforcement action authorized by ORS 431.262,
including the imposition of civil penalties of up to $500 per day
against individuals, institutions or facilities that knowingly
fail to comply with requirements resulting from actions taken in
accordance with the powers granted to the Public Health Director
under subparagraphs (A), (B) and (D) of this paragraph; and
(F) The authority granted to the Public Health Director under
this section:
(i) Supersedes any authority granted to a local public health
authority if the local public health authority acts in a manner
inconsistent with guidelines established or rules adopted by the
director under this section; and
(ii) Does not supersede the general authority granted to a
local public health authority or a local public health
administrator except as authorized by law or necessary to respond
to a public health emergency.
(b) The authority of the Public Health Director to take
administrative action, and the effectiveness of any action taken,
under paragraph (a)(A), (B), (D), (E) and (F) of this subsection
terminates upon the expiration of the proclaimed state of public
health emergency, unless the actions are continued under other
applicable law.
(2) Civil penalties under subsection (1) of this section shall
be imposed in the manner provided in ORS 183.745. The Public
Enrolled House Bill 2009 (HB 2009-C) Page 392
Health Director must establish that the individual, institution
or facility subject to the civil penalty had actual notice of the
action taken that is the basis for the penalty. The maximum
aggregate total for penalties that may be imposed against an
individual, institution or facility under subsection (1) of this
section is $500 for each day of violation, regardless of the
number of violations of subsection (1) of this section that
occurred on each day of violation.
(3)(a) During a proclaimed state of public health emergency,
the Public Health Director and local public health administrators
shall be given immediate access to individually identifiable
health information necessary to:
(A) Determine the causes of an illness related to the public
health emergency;
(B) Identify persons at risk;
(C) Identify patterns of transmission;
(D) Provide treatment; and
(E) Take steps to control the disease.
(b) Individually identifiable health information accessed as
provided by paragraph (a) of this subsection may not be used for
conducting nonemergency epidemiologic research or to identify
persons at risk for post-traumatic mental health problems, or for
any other purpose except the purposes listed in paragraph (a) of
this subsection.
(c) Individually identifiable health information obtained by
the Public Health Director or local public health administrators
under this subsection may not be disclosed without written
authorization of the identified individual except:
(A) Directly to the individual who is the subject of the
information or to the legal representative of that individual;
(B) To state, local or federal agencies authorized to receive
such information by state or federal law;
(C) To identify or to determine the cause or manner of death of
a deceased individual; or
(D) Directly to a health care provider for the evaluation or
treatment of a condition that is the subject of a proclamation of
a state of public health emergency issued under ORS 433.441.
(d) Upon expiration of the state of public health emergency,
the Public Health Director or local public health administrators
may not use or disclose any individually identifiable health
information that has been obtained under this section. If a state
of emergency that is related to the state of public health
emergency has been declared under ORS 401.055, the Public Health
Director and local public health administrators may continue to
use any individually identifiable information obtained as
provided under this section until termination of the state of
emergency.
(4) As used in this section:
(a) 'Covered entity' means:
(A) The Children's Health Insurance Program;
(B) The Family Health Insurance Assistance Program established
under ORS 735.722;
(C) A health insurer that is an insurer as defined in ORS
731.106 and that issues health insurance as defined in ORS
731.162;
(D) The state medical assistance program; and
(E) A health care provider.
(b) 'Health care provider' includes but is not limited to:
(A) A psychologist, occupational therapist, clinical social
worker, professional counselor or marriage and family therapist
Enrolled House Bill 2009 (HB 2009-C) Page 393
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;
(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.
(c) 'Individual' means a natural person.
(d) '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:
Enrolled House Bill 2009 (HB 2009-C) Page 394
(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.
(e) 'Legal representative' means attorney at law, person
holding a general power of attorney, guardian, conservator or any
person appointed by a court to manage the personal or financial
affairs of a person, or agency legally responsible for the
welfare or support of a person.
(5) All civil penalties recovered under this section shall be
paid into the State Treasury and credited to the General Fund and
are available for general governmental expenses.
(6) The Public Health Director may request assistance in
enforcing orders issued pursuant to this section from state or
local law enforcement authorities. If so requested by the Public
Health Director, state and local law enforcement authorities, to
the extent resources are available, shall assist in enforcing
orders issued pursuant to this section.
(7) If the { - Department of Human Services - } { + Oregon
Health Authority + } adopts temporary rules to implement the
provisions of this section, the rules adopted are not subject to
the provisions of ORS 183.335 (6)(a). The { - department - }
{ + authority + } may amend temporary rules adopted pursuant to
this subsection as often as necessary to respond to the public
health emergency.
SECTION 675. ORS 433.452 is amended to read:
433.452. (1) If the Public Health Director or the local public
health administrator reasonably believes a person within the
jurisdiction of the director or the administrator may have been
exposed to a communicable disease identified by rule of the
{ - Department of Human Services - } { + Oregon Health
Authority + } to be a reportable disease or condition or a
condition that is the basis for a state of public health
emergency declared by the Governor as authorized by ORS 433.441,
the person may be detained for as long as reasonably necessary
for the director or administrator to convey information to the
person regarding the communicable disease or condition and to
obtain contact information, including but not limited to the
person's residence and employment addresses, date of birth,
telephone numbers and any other contact information required by
the director or administrator.
(2) If a person detained under subsection (1) of this section
refuses to provide the information requested, the director or
administrator may impose a public health measure appropriate to
the public health threat presented pursuant to ORS 433.035,
433.121 and 433.123.
SECTION 676. ORS 433.511 is amended to read:
433.511. Subject to available funds, the { - Department of
Human Services - } { + Oregon Health Authority + } may
establish a broad public information program to educate the
public on indoor air pollutants, their identities, causes and
effects, and on effective practical methods for preventing,
detecting and correcting the causes of indoor air pollution.
SECTION 677. ORS 433.517 is amended to read:
433.517. Subject to available funds, the { - Department of
Human Services - } { + Oregon Health Authority + } may conduct
field investigations and epidemiological studies to quantify the
extent of indoor air pollution levels and public exposure in
Oregon. Field investigations shall be conducted in a manner that
Enrolled House Bill 2009 (HB 2009-C) Page 395
does not compete with the business of private contractors.
Epidemiological studies may be conducted to look for the causes
of illness and collect and analyze data to identify trends and
health impacts, especially where national information on
significant potential problems is lacking.
SECTION 678. ORS 433.521 is amended to read:
433.521. (1) Based upon the recommendations of the Indoor Air
Pollution Task Force, the { - Department of Human Services - }
{ + Oregon Health Authority + } may establish indoor air quality
standards for significant indoor air pollutants. If established,
the standards:
(a) Shall include an adequate margin of safety;
(b) Shall be adequate to protect the population, including
sensitive groups; and
(c) May be revised as appropriate.
(2) If established, indoor air quality standards shall be at
least for the following significant indoor air pollutants:
(a) Particulate matter;
(b) Aldehydes;
(c) Radon;
(d) Carbon monoxide;
(e) Carbon dioxide;
(f) Ozone; and
(g) Water vapor.
(3) In developing the indoor air quality standards, the
{ - Department of Human Services - } { + authority + } shall
consult with the Department of Environmental Quality, the
Department of Consumer and Business Services and the Indoor Air
Pollution Task Force.
(4) The standards established by the { - Department of Human
Services - } { + authority + } shall not take effect before
July 1, 1991. The
{ - Department of Human Services - } { + authority + } shall
seek voluntary compliance with the standards.
SECTION 679. ORS 433.526 is amended to read:
433.526. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may establish by rule a public
recognition program for office workplaces, buildings and public
areas that consistently meet the indoor air quality requirements
of ORS 433.502 to 433.526, 455.445 and 468A.775 to 468A.785. Any
workplace, building or public area that qualifies for such
recognition may display a notice indicating that the building
exceeds the requirements of Oregon's indoor clean air statutes.
(2) To qualify for recognition under this section, an office
workplace, building or public area shall:
(a) Comply with all applicable provisions of ORS 433.835 to
433.875;
(b) Demonstrate a consistent pattern of compliance in meeting
all indoor air quality standards and other requirements of ORS
433.502 to 433.526, 455.445 and 468A.775 to 468A.785; and
(c) Demonstrate to the satisfaction of the { - Department of
Human Services - } { + authority + } that all technically and
economically practicable steps have been taken to minimize
significant sources of indoor air pollution.
(3) The { - Department of Human Services - }
{ + authority + } by rule may establish a fee to be submitted by
the owner or responsible party of a building, workplace or public
area who requests certification under this section. The fee shall
be an amount sufficient to pay the { - department's - }
Enrolled House Bill 2009 (HB 2009-C) Page 396
{ + authority's + } costs in carrying out the provisions of this
section.
SECTION 680. ORS 433.715 is amended to read:
433.715. No person having delivered merchandise, such as
clothing, wearing apparel of every description, hair goods,
brushes, rubber goods, books, mattresses, blankets, sheets,
pillows or other kinds of bedding, to any person or institution
at or thereafter taken to any place where any communicable
disease exists or may exist, after the delivery of such
merchandise, shall intermingle the same with the goods for sale
or offer the same for sale or sell the same, or receive any
merchandise from any place or premises where any communicable
disease exists or has existed, and intermingle such goods with
other goods for sale or offer the same for sale or sell the same,
until such goods have been thoroughly disinfected in accordance
with the rules and regulations of the { - Department of Human
Services - } { + Oregon Health Authority + }.
SECTION 681. ORS 433.750 is amended to read:
433.750. (1) The governing body of a county in which an outdoor
mass gathering is to take place shall issue a permit upon
application when the organizer demonstrates compliance with or
the ability to comply with the health and safety rules governing
outdoor mass gatherings to be regulated according to the
anticipated crowd and adopted by the { - Department of Human
Services - } { + Oregon Health Authority + }. The application
shall include all of the following:
(a) Name and address of the applicant.
(b) Legal description of the place of the proposed gathering.
(c) Date of the proposed gathering.
(d) Estimated attendance at the proposed gathering.
(e) Nature of the proposed gathering.
(f) Such other appropriate information as the county governing
body may require in order to insure compliance with rules of the
{ - Department of Human Services - } { + authority + }.
(2) Notice of the application shall be sent by the county
governing body to the county sheriff or county chief law
enforcement officer, the county health officer and the chief of
the fire district in which the gathering is to be held.
(3) Each officer receiving notice of the application under
subsection (2) of this section who wishes to comment on the
application shall submit such comment in writing to the county
governing body not later than the hearing date. The comment may
include recommendations related to the official functions of the
officer as to granting the permit and any recommended conditions
that should be imposed.
(4) The county governing body shall hold a public hearing on
the issue of compliance with this section. Notice of the time and
place of such hearing including a general explanation of the
matter to be considered shall be published at least 10 calendar
days before the hearing in a newspaper of general circulation in
the county or, if there is none, it shall be posted in at least
three public places in the county.
(5) Any decision of a county governing body on an application
for a permit to hold an outdoor mass gathering may be appealed to
a circuit court for the county as provided in ORS 34.020 to
34.100.
(6) A county governing body may charge permit applicants a fee
reasonably calculated to reimburse the county for its reasonable
and necessary costs in receiving, processing and reviewing
applications for permits to hold outdoor mass gatherings.
Enrolled House Bill 2009 (HB 2009-C) Page 397
However, a fee authorized by this subsection shall not exceed
$5,000 and shall not be charged when the governing body finds, by
a preponderance of the evidence presented to the governing body,
that the applicant is unable to reimburse the governing body.
SECTION 682. ORS 433.760 is amended to read:
433.760. Notwithstanding any other provisions of law, the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall, in accordance with the provisions of ORS
chapter 183, make rules regulated according to anticipated crowds
with respect to health and safety at outdoor mass gatherings
which provide for:
(1) Adequate water supply, drainage and sewerage facilities;
(2) Adequate toilet facilities;
(3) Adequate refuse storage and disposal facilities;
(4) Adequate food and sanitary food service, if supplied;
(5) Adequate emergency medical facilities and communication
systems;
(6) Adequate fire protection; and
(7) Adequate security personnel and traffic control.
SECTION 683. ORS 433.810 is amended to read:
433.810. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall:
(1) Adopt rules necessary for the administration of ORS 433.800
to 433.830 including defining circumstances under which 433.800
to 433.815 and 433.825 shall apply. The { - department - }
{ + authority + } shall include input from the educational
system, health care provider organizations and other interested
parties when adopting rules or amending those rules.
(2) Develop or approve protocols for educational training as
described in ORS 433.815, including the use of mechanisms for
periodic retraining of individuals, and provide the protocols for
educational training upon request to schools, health care
professionals, parents or guardians of students or other
interested parties.
SECTION 684. ORS 433.835, as amended by section 1, chapter 602,
Oregon Laws 2007, is amended to read:
433.835. As used in ORS 433.835 to 433.875:
(1) 'Cigar bar' means a business that:
(a) Has on-site sales of cigars as defined in ORS 323.500;
(b) Has a humidor on the premises;
(c) Allows the smoking of cigars on the premises but prohibits
the smoking of all other tobacco products in any form including,
but not limited to, loose tobacco, pipe tobacco, cigarettes as
defined in ORS 323.010 and cigarillos as defined by the
{ - Department of Human Services - } { + Oregon Health
Authority + } by rule;
(d) Has been issued and operates under a full on-premises sales
license issued under ORS 471.175;
(e) Prohibits persons under 21 years of age from entering the
premises and posts notice of the prohibition;
(f) Does not offer video lottery games as authorized under ORS
461.217;
(g) Has a maximum seating capacity of 40 persons;
(h) Has a ventilation system that is certified by the assistant
to the State Fire Marshal described in ORS 476.060 for the
jurisdiction in which the cigar bar is located as adequate to
remove the cigar smoke in the cigar bar and vents the smoke from
the cigar bar in a manner that prevents the smoke from entering
any other establishment; and
Enrolled House Bill 2009 (HB 2009-C) Page 398
(i) Requires all employees to read and sign a document that
explains the dangers of exposure to secondhand smoke.
(2) 'Enclosed area' means all space between a floor and a
ceiling that is enclosed on three or more sides by permanent or
temporary walls or windows, exclusive of doors or passageways,
that extend from the floor to the ceiling.
(3) 'Place of employment' means every enclosed area under the
control of a public or private employer that employees frequent
during the course of employment, including but not limited to
work areas, employee lounges, vehicles that are operated in the
course of an employer's business that are not operated
exclusively by one employee, rest rooms, conference rooms,
classrooms, cafeterias, hallways, meeting rooms, elevators and
stairways. 'Place of employment' does not include a private
residence unless it is used as a child care facility as defined
in ORS 657A.250 or a facility providing adult day care as defined
in ORS 410.490.
(4) 'Public place' means any enclosed area open to the public.
(5) 'Smoke shop' means a business that:
(a) Is primarily engaged in the sale of tobacco products and
smoking instruments, with at least 75 percent of the gross
revenues of the business resulting from such sales;
(b) Prohibits persons under 18 years of age from entering the
premises;
(c) Does not offer video lottery games as authorized under ORS
461.217, social gaming or betting on the premises;
(d) Does not sell or offer on-premises consumption of alcoholic
beverages; and
(e) Is a stand-alone business with no other businesses or
residential property attached to the premises.
(6) 'Smoking instrument' means any cigar, cigarette, pipe or
other smoking equipment.
SECTION 685. ORS 433.850, as amended by section 4, chapter 602,
Oregon Laws 2007, is amended to read:
433.850. (1) An employer shall provide a place of employment
that is free of tobacco smoke for all employees.
(2) Notwithstanding subsection (1) of this section:
(a) The owner or person in charge of a hotel or motel may
designate up to 25 percent of the sleeping rooms of the hotel or
motel as rooms in which smoking is permitted.
(b) Smoking of noncommercial tobacco products for ceremonial
purposes is permitted in spaces designated for traditional
ceremonies in accordance with the American Indian Religious
Freedom Act, 42 U.S.C. 1996.
(c) Smoking is permitted in a smoke shop.
(d) Smoking is permitted in a cigar bar that generated on-site
retail sales of cigars of at least $5,000 for the calendar year
ending December 31, 2006.
(3) An employer, except in those places described in subsection
(2) of this section, shall post signs that provide notice of the
provisions of ORS 433.835 to 433.875.
SECTION 686. ORS 433.855, as amended by section 5, chapter 602,
Oregon Laws 2007, is amended to read:
433.855. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + }, in accordance with the
provisions of ORS chapter 183:
(a) Shall adopt rules necessary to implement the provisions of
ORS 433.835 to 433.875 and 433.990 (5);
(b) Shall be responsible for compliance with such rules; and
Enrolled House Bill 2009 (HB 2009-C) Page 399
(c) May impose a civil penalty not to exceed the amount
specified in ORS 433.990 (5) for each violation of a rule of the
{ - department - } { + authority + } applicable to ORS
433.845 or 433.850, to be collected in the manner provided in ORS
441.705 to 441.745. All penalties recovered shall be paid into
the State Treasury and credited to the Tobacco Use Reduction
Account established under ORS 431.832.
(2) In carrying out its duties under this section, the
{ - Department of Human Services - } { + authority + } is not
authorized to require any changes in ventilation or barriers in
any public place or place of employment. However, nothing in this
subsection is intended to limit the { - authority of the
department - } { + power of the authority + } to impose any
requirements under any other provision of law.
(3) In public places which the { - Department of Human
Services - } { + authority + } regularly inspects, the
{ - Department of Human Services - } { + authority + } shall
check for compliance with the provisions of ORS 433.835 to
433.875 and 433.990 (5). In other public places and places of
employment, the { - Department of Human Services - }
{ + authority + } shall respond in writing or orally by
telephone to complaints, notifying the proprietor or person in
charge of responsibilities of the proprietor or person in charge
under ORS 433.835 to 433.875 and 433.990 (5). If repeated
complaints are received, the
{ - Department of Human Services - } { + authority + } may
take appropriate action to ensure compliance.
(4) When a county has received delegation of the duties and
responsibilities under ORS 446.425 and 448.100, or contracted
with the { - Department of Human Services - }
{ + authority + } under ORS 190.110, the county shall be
responsible for enforcing the provisions of ORS 433.835 to
433.875 and 433.990 (5) { - that are applicable to those
licensed facilities and shall have the same authority as the
Department of Human Services for such enforcement - } { + and
shall have the same enforcement power as the authority + }.
SECTION 687. ORS 433.860 is amended to read:
433.860. The { - Department of Human Services - }
{ + Oregon Health Authority + } or local board of health may
institute an action in the circuit court of the county where the
violation occurred to enjoin repeated violations of ORS 433.850.
SECTION 688. ORS 433.990, as amended by section 7, chapter 602,
Oregon Laws 2007, is amended to read:
433.990. (1) Violation of ORS 433.004 or 433.008, 433.255,
433.260 or 433.715 is a Class A misdemeanor.
(2) Violation of ORS 433.010 is punishable, upon conviction, by
imprisonment in the custody of the Department of Corrections for
not more than three years.
(3) Violation of ORS 433.035 is punishable upon conviction by a
fine of not less than $10 nor more than $100, or by imprisonment
for not less than 10 days nor more than 30 days, or by both.
(4) Violation of ORS 433.131 is a Class D violation punishable
by fines totaling not more than $50 per day, not to exceed $1,000
in any 30-day period.
(5) Violation of ORS 433.850 is a Class A violation punishable
by a fine of not more than $500 per day. Fines imposed against a
single employer under this subsection may not exceed $2,000 in
any 30-day period.
(6) Violation of ORS 433.345 or 433.365 is a Class B violation.
Failure to obey any lawful order of the Director of
Enrolled House Bill 2009 (HB 2009-C) Page 400
{ - Human Services - } { + the Oregon Health Authority + }
issued under ORS 433.350 is a Class C misdemeanor.
(7) Any organizer, as defined in ORS 433.735, violating ORS
433.745 is punishable, upon conviction, by a fine of not more
than $10,000.
SECTION 689. ORS 435.090 is amended to read:
435.090. (1) Goods of the class specified in ORS 435.010 shall
be sold at wholesale or at retail in this state only if they:
(a) Specifically identify the manufacturer, date of manufacture
or an expiration date and the distributor thereof by firm name
and address on the container in which the goods are sold or are
intended to be distributed. All such goods manufactured after
December 31, 1994, shall bear an expiration date.
(b) Comply with the standards as to such goods, respecting
grade and quality, prescribed by the { - Department of Human
Services - } { + Oregon Health Authority + } under ORS 435.100.
(2) Relative to drugs or medicinal preparations intended or
having special utility for the prevention of conception, each
individual container manufactured for sale in Oregon must bear
the date of manufacture or an expiration date. All such drugs or
medicinal preparations manufactured after December 31, 1994,
shall bear an expiration date.
SECTION 690. ORS 435.100 is amended to read:
435.100. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt and promulgate from
time to time and have jurisdiction over the establishing of such
standards relating to and governing the articles and medicinal
preparations mentioned in ORS 435.010 as may be deemed necessary
by the { - department - } { + authority + } in the interest
of disease prevention.
(2) The State Board of Pharmacy may adopt other rules to
enforce and carry out the provisions of ORS 435.010 to 435.130 in
cooperation with the { - department - } { + authority + }.
(3) The { - department - } { + authority + } shall cause to
have published the brand names of all goods of the class
specified in ORS 435.010 that comply with the standards
prescribed under subsection (1) of this section.
SECTION 691. ORS 435.105 is amended to read:
435.105. In lieu of its own inspection program, the State Board
of Pharmacy may enter into an agreement with the { - Department
of Human Services - } { + Oregon Health Authority + } or a
county or district board of health. The agreement shall authorize
the { - department - } { + authority + } or the board to make
inspections of the condom stock to determine that the stock
consists only of brands that comply with standards promulgated
under ORS 435.100 (1). The agreement shall include authority to
enforce applicable rules of the State Board of Pharmacy and the
{ - department - } { + authority + } and such rules of the
board shall be considered rules of the { - department - }
{ + authority + } or the county or district board of health.
SECTION 692. ORS 435.205 is amended to read:
435.205. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } and every county health
department shall offer family planning and birth control services
within the limits of available funds. Both agencies jointly may
offer such services. The Director of { - Human Services - }
{ + the Oregon Health Authority + } or a designee shall initiate
and conduct discussions of family planning with each person who
might have an interest in and benefit from such service. The
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{ - Department of Human Services - } { + authority + } shall
furnish consultation and assistance to county health departments.
(2) Family planning and birth control services may include
interviews with trained personnel; distribution of literature;
referral to a licensed physician for consultation, examination,
medical treatment and prescription; and, to the extent so
prescribed, the distribution of rhythm charts, the initial supply
of a drug or other medical preparation, contraceptive devices and
similar products.
(3) Any literature, charts or other family planning and birth
control information offered under this section in counties in
which a significant segment of the population does not speak
English shall be made available in the appropriate foreign
language for that segment of the population.
(4) In carrying out its duties under this section, and with the
consent of the county governing body, any county health
department may adopt a fee schedule for services provided by the
county health department. The fees shall be reasonably calculated
not to exceed costs of services provided and may be adjusted on a
sliding scale reflecting ability to pay.
(5) The county health department shall collect fees according
to the schedule adopted under subsection (4) of this section.
Such fees may be used to meet the expenses of providing the
services authorized by this section.
SECTION 693. ORS 435.225 is amended to read:
435.225. Any employee of the { - Department of Human
Services - } { + Oregon Health Authority + } may refuse to
accept the duty of offering family planning and birth control
services to the extent that such duty is contrary to the personal
or religious beliefs of the employee. However, such employee
shall notify the immediate supervisor in writing of such refusal
in order that arrangements may be made for eligible persons to
obtain such information and services from another employee. Such
refusal shall not be grounds for any disciplinary action, for
dismissal, for any interdepartmental transfer, for any other
discrimination in employment, or for suspension from employment,
or for any loss in pay or other benefits.
SECTION 694. ORS 435.254 is amended to read:
435.254. (1) A hospital providing care to a female victim of
sexual assault shall:
(a) Promptly provide the victim with unbiased, medically and
factually accurate written and oral information about emergency
contraception;
(b) Promptly orally inform the victim of her option to be
provided emergency contraception at the hospital; and
(c) If requested by the victim and if not medically
contraindicated, provide the victim with emergency contraception
immediately at the hospital, notwithstanding section 2, chapter
789, Oregon Laws 2003.
(2)(a) In collaboration with victim advocates, other interested
parties and nonprofit organizations that provide intervention and
support services to victims of sexual assault and their families,
the { - Department of Human Services - } { + Oregon Health
Authority + } shall develop, prepare and produce informational
materials relating to emergency contraception for the prevention
of pregnancy in victims of sexual assault for distribution to and
use in all hospital emergency departments in the state, in
quantities sufficient to comply with the requirements of this
section.
Enrolled House Bill 2009 (HB 2009-C) Page 402
(b) The Director of { - Human Services - } { + the Oregon
Health Authority + }, in collaboration with community sexual
assault programs and other relevant stakeholders, may approve
informational materials developed, prepared and produced by other
entities for the purposes of paragraph (a) of this subsection.
(c) All informational materials must:
(A) Be clearly written and easily understood in a culturally
competent manner; and
(B) Contain an explanation of emergency contraception,
including its use, safety and effectiveness in preventing
pregnancy, including but not limited to the following facts:
(i) Emergency contraception has been approved by the United
States Food and Drug Administration as an over-the-counter
medication for women 18 years of age or older and is a safe and
effective way to prevent pregnancy after unprotected sexual
intercourse or after contraceptive failure, if taken in a timely
manner.
(ii) Emergency contraception is more effective the sooner it is
taken.
(iii) Emergency contraception will not disrupt an established
pregnancy.
(3) The { - department - } { + authority + } shall respond
to complaints of violations of ORS 435.256 in accordance with ORS
441.057.
(4) The { - department - } { + authority + } shall
incorporate the requirements of this section in rules adopted
pursuant to ORS 441.055 that prescribe the care to be given to
patients at hospitals.
(5) The director shall adopt rules necessary to carry out the
provisions of this section.
(6) Information required to be provided under subsection (1) of
this section is medically and factually accurate if the
information is verified or supported by the weight of research
conducted in compliance with accepted scientific methods and
based upon:
(a) Reports in peer-reviewed journals; or
(b) Information that leading professional organizations, such
as the American College of Obstetricians and Gynecologists, and
agencies with expertise in the field recognize as accurate and
objective.
SECTION 695. ORS 435.256 is amended to read:
435.256. The { - Department of Human Services - }
{ + Oregon Health Authority + } may impose a civil penalty
against a hospital for each violation of the rules adopted under
ORS 435.254. A civil penalty imposed under this section may not
exceed $1,000 for each violation upon inspection or each
substantiated complaint filed.
SECTION 696. ORS 437.010 is amended to read:
437.010. Any representative of a religious denomination,
householder, nurse, parent, guardian or other person attending
to, or in any way having knowledge of the existence of a case of
pulmonary tuberculosis, including the affected person, must
immediately report the fact to the { - Department of Human
Services - } { + Oregon Health Authority + }. The names and
addresses of all persons reported as having pulmonary
tuberculosis shall be recorded { - in the office of the
department - } { + with the authority + }.
SECTION 697. ORS 437.030 is amended to read:
437.030. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall, upon receiving a report
Enrolled House Bill 2009 (HB 2009-C) Page 403
that any person has tuberculosis, make such investigation of the
case as is necessary to determine whether or not the person
reported has communicable tuberculosis. Upon finding that any
person has communicable tuberculosis, the { - department - }
{ + authority + } shall exercise such control over the affected
person and contacts with other persons as may be necessary for
the protection of the public health, pursuant to its rules and
regulations. In exercising such control over any person who has
communicable tuberculosis the { - department - }
{ + authority + } may make such rules or orders governing such
person's conduct as are necessary to prevent the spread of the
disease.
SECTION 698. ORS 438.010 is amended to read:
438.010. As used in ORS 438.010 to 438.510, unless the context
requires otherwise:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'Clinical laboratory' or
'laboratory' means a facility where the microbiological,
serological, chemical, hematological, immunohematological,
immunological, toxicological, cytogenetical, exfoliative
cytological, histological, pathological or other examinations are
performed on materials derived from the human body, for the
purpose of diagnosis, prevention of disease or treatment of
patients by physicians, dentists and other persons who are
authorized by license to diagnose or treat humans.
{ - (2) - } { + (3) + } 'Clinical laboratory specialty' or
'laboratory specialty' means the examination of materials derived
from the human body for the purpose of diagnosis and treatment of
patients or assessment of health, employing one of the following
sciences: Serology, microbiology, chemistry, hematology,
immunohematology, immunology, toxicology, cytogenetics,
exfoliative cytology, histology or pathology.
{ - (3) - } { + (4) + } 'Clinician' means a nurse
practitioner licensed and certified by the Oregon State Board of
Nursing, or a physician assistant licensed by the Oregon Medical
Board.
{ - (4) - } { + (5) + } 'Custody chain' means the handling
of specimens in a way that supports legal testimony to prove that
the sample integrity and identification of the sample have not
been violated, as well as the documentation describing those
procedures from specimen collection to the final report.
{ - (5) - } { + (6) + } 'Dentist' means a person licensed
to practice dentistry by the Oregon Board of Dentistry.
{ - (6) 'Department' means the Department of Human
Services. - }
(7) 'Director of clinical laboratory' or 'director' means the
person who plans, organizes, directs and participates in any or
all of the technical operations of a clinical laboratory,
including but not limited to reviewing laboratory procedures and
their results, training and supervising laboratory personnel, and
evaluating the technical competency of such personnel.
(8) 'Health screen testing' means tests performed for the
purpose of identifying health risks, providing health information
and referring the person being tested to medical care.
(9) 'High complexity laboratory' means a facility that performs
testing classified as highly complex in the specialties of
microbiology, chemistry, hematology, diagnostic immunology,
immunohematology, clinical cytogenetics, cytology,
histopathology, oral pathology, pathology, radiobioassay and
Enrolled House Bill 2009 (HB 2009-C) Page 404
histocompatibility and that may also perform moderate complexity
tests and waived tests.
(10) 'High complexity test' means a procedure performed on
materials derived from the human body that meet the criteria for
this category of testing in the specialties of microbiology,
chemistry, hematology, immunohematology, diagnostic immunology,
clinical cytogenetics, cytology, histopathology, oral pathology,
pathology, radiobioassay and histocompatibility as established by
the { - department - } { + authority + }.
(11) 'Laboratory evaluation system' means a system of testing
clinical laboratory methods, procedures and proficiency by
periodic performance and reporting on test specimens submitted
for examination.
(12) 'Moderate complexity laboratory' means a facility that
performs testing classified as moderately complex in the
specialties of microbiology, hematology, chemistry,
immunohematology or diagnostic immunology and may also perform
any waived test.
(13) 'Moderate complexity test' means a procedure performed on
materials derived from the human body that meet the criteria for
this category of testing in the specialties of microbiology,
hematology, chemistry, immunohematology or diagnostic immunology
as established by the { - department - } { + authority + }.
(14) 'Operator of a substances of abuse on-site screening
facility' or 'operator' means the person who plans, organizes,
directs and participates in any or all of the technical and
administrative operations of a substances of abuse on-site
screening facility.
(15) 'Owner of a clinical laboratory' means the person who owns
the clinical laboratory, or a county or municipality operating a
clinical laboratory or the owner of any institution operating a
clinical laboratory.
(16) 'Physician' means a person licensed to practice medicine
by the Oregon Medical Board.
(17) 'Physician performed microscopy procedure' means a test
personally performed by a physician or other clinician during a
patient's visit on a specimen obtained during the examination of
the patient.
(18) 'Physician performed microscopy procedures' means a
limited group of tests that are performed only by a physician or
clinician.
(19) 'Specimen' means materials derived from a human being or
body.
(20) 'Substances of abuse' means ethanol and controlled
substances, except those used as allowed by law and as defined in
ORS chapter 475 or as used in ORS 689.005.
(21) 'Substances of abuse on-site screening facility' or '
on-site facility' means a location where on-site tests are
performed on specimens for the purpose of screening for the
detection of substances of abuse.
(22) 'Substances of abuse on-site screening test' or ' on-site
test' means a substances of abuse test that is easily portable
and can meet the requirements of the federal Food and Drug
Administration for commercial distribution or an alcohol
screening test that meets the requirements of the conforming
products list found in the United States Department of
Transportation National Highway Traffic Safety Administration
Docket No. 94-004 and meets the standards of the United States
Department of Transportation Alcohol Testing Procedure, 49 C.F.R.
part 40, in effect on October 23, 1999.
Enrolled House Bill 2009 (HB 2009-C) Page 405
(23) 'Waived test' means a procedure performed on materials
derived from the human body that meet the criteria for this
category of testing as established by the { - department - }
{ + authority + }.
SECTION 699. ORS 438.060 is amended to read:
438.060. Notwithstanding ORS 438.050, any person performing
health screen testing must obtain a permit under ORS 438.150 (5).
However, an employer providing health screen testing to employees
of the employer is exempt from the applications of ORS 438.010,
438.130, 438.150 and this section if such employer contracts for
the testing through a licensed physician, a clinical laboratory
or a hospital, which is a permittee of the { - Department of
Human Services - } { + Oregon Health Authority + } as provided
in this section.
SECTION 700. ORS 438.070 is amended to read:
438.070. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall establish by rule the
qualifications and responsibilities of technical and clinical
consultants, general and technical supervisors and testing
personnel. A person is qualified to act as a technical or
clinical consultant, a general or technical supervisor, or a
testing person in a clinical laboratory if the person meets the
requirements established by the
{ - department - } { + authority + }. Rules adopted under
this section shall not be more stringent than comparable rules
adopted under the Clinical Laboratory Improvement Amendments of
1988 (P.L. 100-578; 42 U.S.C. 201 and 263a).
SECTION 701. ORS 438.110 is amended to read:
438.110. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall establish four levels of
laboratory licenses as follows:
(a) A high complexity laboratory license;
(b) A moderate complexity laboratory license;
(c) A physician performed microscopy laboratory license; and
(d) A waived laboratory license.
(2) The { - department - } { + authority + } shall issue
and renew licenses required under ORS 438.040 for any or all
clinical laboratory specialties to the owners of clinical
laboratories who demonstrate to the satisfaction of the
{ - department - } { + authority + } that:
(a) The clinical laboratory is in compliance with ORS 438.010
to 438.510 and the rules of the { - department - }
{ + authority + } adopted under ORS 438.450;
(b) The laboratory is adequately equipped to perform
proficiently within the scope of its license;
(c) The clinical laboratory has facilities for retaining and
does retain complete laboratory records for an appropriate length
of time as the { - department - } { + authority + } by rule
may require; and
(d) The clinical laboratory meets the standards of the
{ - department - } { + authority + } for safety, sanitary
conditions, plumbing, ventilation, handling of specimens,
maintenance of equipment and requirements of general hygiene to
insure protection of the public health.
SECTION 702. ORS 438.120 is amended to read:
438.120. (1) In determining the specialties that are authorized
to be performed in a clinical laboratory, the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall consider laboratory personnel, with
particular emphasis on the qualifications of the director,
Enrolled House Bill 2009 (HB 2009-C) Page 406
laboratory equipment and any other relevant factors affecting the
ability of the laboratory to perform different laboratory
specialties.
(2) No laboratory shall be licensed to perform examinations in
the fields of surgical pathology, autopsy pathology, exfoliative
cytology, or immunohematology, { - except as the Department of
Human Services may establish exemptions from the requirements of
this subsection in the field of immunohematology, - } unless its
director is a physician or dentist specifically qualified in
these fields. { + The authority may establish exemptions from
the requirements of this subsection for the field of
immunohematology. + }
(3) The list of waived tests, physician performed microscopy
procedures and moderate and high complexity tests shall be
established by the { - department - } { + authority + }.
SECTION 703. ORS 438.130 is amended to read:
438.130. (1) The application for a license for a clinical
laboratory shall be made on forms provided by the
{ - Department of Human Services - } { + Oregon Health
Authority + } and shall be executed by the owner or one of the
owners or by an officer of the firm or corporation owning the
clinical laboratory, or in the case of a county or municipality,
by the public official responsible for operation of the
laboratory, or in the case of an institution, by the
administrator of the institution. The application shall contain
the names of the owner, the director or directors of the clinical
laboratory, the location and physical description of the clinical
laboratory, the laboratory specialties for which a license is
requested and such other information as the
{ - department - } { + authority + } may require.
(2)(a) The application shall be accompanied by an annual or
biennial license fee to be established by the
{ - department - } { + authority + }. The fee shall be based
on test volume, test complexity, the number of specialties
performed and private laboratory accreditation. For each level of
laboratory testing, the fee shall be not more than 100 percent of
the corresponding fee charged by the federal laboratory
certification program known as the Clinical Laboratory
Improvement Amendments of 1988 (P.L. 100-578, 42 U.S.C. 201 and
263a) in effect on July 1, 1999. The fee for substance of abuse
screening laboratories not certified under the Clinical
Laboratory Improvement Amendments of 1988 shall be comparable to
the clinical laboratory fee established under this section.
(b) The { - department - } { + authority + } may establish
prorated fees for licenses issued for a year or less and when
there is a change in the laboratory's owner, director or address.
A prorated license fee shall be issued to a laboratory accredited
by an organization recognized by the { - department - }
{ + authority + }.
(3) Unless sooner voided, suspended or revoked, all licenses
issued under this section expire on June 30 of the one-year or
two-year cycle following the date of issuance or on such date as
may be specified by { - department - } { + authority + }
rule. Licenses issued under this section shall be renewable in
the manner prescribed by the { - department - }
{ + authority + }.
(4) Subject to prior approval of the Oregon Department of
Administrative Services and a report to the Emergency Board prior
to adopting the fees and charges, the fees and charges
established under this section shall not exceed the cost of
Enrolled House Bill 2009 (HB 2009-C) Page 407
administering the regulatory program of the { - Department of
Human Services - } { + authority + } pertaining to the purpose
for which the fee or charge is established, as authorized by the
Legislative Assembly within the
{ - department's - } { + authority's + } budget, as the
budget may be modified by the Emergency Board.
SECTION 704. ORS 438.140 is amended to read:
438.140. (1) A license issued to the owner of a clinical
laboratory shall show on its face the names of the owners and
directors, the location of the laboratory and the clinical
laboratory specialties authorized under the license. The license
shall be displayed at all times in a prominent place in the
laboratory.
(2) A license issued to the owner of a clinical laboratory is
not transferable. The license of the laboratory is voided 30 days
after a change in its director if it has only one director or if
all directors change or a change in the ownership or in the
location of the laboratory. In case of death of a director,
immediate notification to the Director of { - Human
Services - } { + the Oregon Health Authority + } or a designee
who shall be empowered to issue a special temporary permit of 30
days' duration issued to a designated substitute director is
required. If a license is voided or a special temporary permit is
issued under this section, a new license application, accompanied
by the nonrefundable license fee prescribed in ORS 438.130, shall
be filed with the { - Department of Human Services - }
{ + authority + }.
SECTION 705. ORS 438.150 is amended to read:
438.150. (1) In addition to the license of a clinical
laboratory required by ORS 438.040, the { - Department of Human
Services - } { + Oregon Health Authority + } may issue a
temporary permit valid for a period, to be determined by the
{ - department - } { + authority + }, from the date of
issuance in any or all clinical laboratory specialties upon
payment of the respective required fees as described in ORS
438.130 (2).
(2) In issuing the temporary permit, the { - department - }
{ + authority + } may require that:
(a) Plans for compliance with applicable laws and rules be
submitted with the application for the temporary permit;
(b) During the period in which the temporary permit is in
effect periodic reports be submitted on the progress of the plans
for compliance; and
(c) Special temporary provisions specified by the
{ - department - } { + authority + } upon application of the
temporary permit be maintained for the protection of the public.
(3) If at any time the { - department - } { + authority + }
determines that the clinical laboratory can no longer operate in
a manner that protects the public health and safety or that the
requirements imposed under subsection (2) of this section are not
being maintained, the { - department - } { + authority + }
shall cancel the temporary permit.
(4) One renewal of the temporary permit may be granted if
deemed to be in the best interest of public health by the
{ - department - } { + authority + }. The fee for renewal is
the respective required fee as described in ORS 438.130 (2).
(5) The { - department - } { + authority + } may issue
permits for health screen testing.
(6) The { - department - } { + authority + } by rule shall
specify:
Enrolled House Bill 2009 (HB 2009-C) Page 408
(a) Appropriate quality assurance procedures;
(b) Personnel qualifications;
(c) Standards for counseling and referral of persons being
tested;
(d) Tests a health testing service may conduct;
(e) The procedure for applying for a permit; and
(f) The procedure for reporting to the { - department - }
{ + authority + } the location of all health screening
facilities.
(7) The { - department - } { + authority + } by rule may
specify the maximum length of time a health screen testing
service may remain in one location.
SECTION 706. ORS 438.160 is amended to read:
438.160. Subject to ORS chapter 183, the { - Department of
Human Services - } { + Oregon Health Authority + } may refuse
to issue or renew the license, or may suspend or revoke the
license or health screen testing permit, of a clinical laboratory
if it finds that the owner or director has:
(1) Intentionally made false statements on an application for a
clinical laboratory license or any other documents required by
the { - department - } { + authority + }, or made any
misrepresentation in seeking to obtain or retain a license.
(2) Demonstrated incompetence as defined pursuant to
regulations promulgated after public hearing.
(3) Intentionally falsified any report.
(4) Referred a specimen for examination to a nonlicensed or an
unlicensed clinical laboratory in this state unless the
laboratory is exempt from the application of ORS 438.010 to
438.510.
(5) Misrepresented the scope of laboratory service offered by
the clinical laboratory or the clinical laboratory specialties
authorized by the license.
(6) Rendered a report on clinical laboratory work actually
performed in another clinical laboratory without designating the
name and address of the clinical laboratory in which the test was
performed.
(7) Knowingly had professional connection with or permitted the
use of the name of the licensed clinical laboratory or its
director by a clinical laboratory that is required to but has not
obtained a license.
(8) Failed to perform or cause to be performed within the time
specified analysis of test samples as authorized by ORS 438.320,
or failed to report on the results of such analysis within the
specified time.
(9) Failed to permit within a reasonable time the entry or
inspection authorized by ORS 438.310.
(10) Failed to continue to meet requirements of ORS 438.110 and
438.120.
(11) Violated any provision of ORS 438.010 to 438.510.
SECTION 707. ORS 438.210 is amended to read:
438.210. A person is qualified to act as a laboratory director
of a clinical laboratory if:
(1) The person is a pathologist certified in clinical or
anatomical pathology by a national organization or organizations
recognized by the { - Department of Human Services - }
{ + Oregon Health Authority + }, or is a physician who possesses
qualifications equivalent to those required for such
certification;
Enrolled House Bill 2009 (HB 2009-C) Page 409
(2) The person is a physician who possesses special
qualifications that enable the person to perform as a laboratory
director, or is directing a laboratory on January 1, 1970;
(3) The person has an earned degree of Doctor of Science or
Doctor of Philosophy, or an acceptable degree as determined by
the
{ - department - } { + authority + }, from an accredited
college or university, with a major in the chemical, physical, or
biological sciences and possesses special qualifications as
described in the administrative rules of the { - department - }
{ + authority + } that enable the person to perform as a
laboratory director;
(4) The person is a member of a group of five or more
physicians who operate on November 4, 1993, a laboratory
performing work only on their patients and is the member
designated by the group to be the director; or
(5) The person was responsible for the direction of a clinical
laboratory for at least 12 months within the five years preceding
January 1, 1970, and has had at least two years of pertinent
clinical laboratory experience, as determined by the
{ - department - } { + authority + }.
SECTION 708. ORS 438.310 is amended to read:
438.310. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } or its authorized representative
may:
(a) At reasonable times enter the premises of a clinical
laboratory licensed or subject to being licensed under ORS
438.010 to 438.510 to inspect the facilities, methods,
procedures, materials, staff, equipment, laboratory results and
records of the clinical laboratory.
(b) Require the owner or director to submit reports on the
operations and procedures of the laboratory.
(c) Require the owner or director to submit initial laboratory
findings indicative of communicable disease as defined by law or
by rule. Each report shall include the name of the person from
whom the specimen was obtained, if the name was reported to the
laboratory, and the name and address of the physician for whom
such examination or test was made. Such reports shall not be
construed as constituting a diagnosis nor shall any laboratory
making such report be held liable under the laws of this state
for having violated a trust or confidential relationship.
(2) The Director of { - Human Services - } { + the Oregon
Health Authority + } or a designee, the { - department - }
{ + authority + }, or any employee thereof, shall not disclose
information contained in reports on communicable diseases
submitted to the { - department - } { + authority + } under
subsection (1) of this section except as such information is made
available to employees of the { - department - }
{ + authority + } and to local health officers for purposes of
administering the public health laws of this state. However,
information contained in such reports may be used in compiling
statistical and other data in which persons are not identified by
name or otherwise.
(3) The { - department - } { + authority + } shall by rule
set standards for the recognition of private laboratory
accrediting organizations whose standards meet or exceed federal
standards. A laboratory that is accredited by a private
laboratory accrediting organization recognized by the
{ - department - } { + authority + } under this section may
submit proof of such accreditation to the { - department - }
Enrolled House Bill 2009 (HB 2009-C) Page 410
{ + authority + }. Upon receipt of such proof, the
{ - department - } { + authority + } shall issue a license
pursuant to ORS 438.130.
SECTION 709. ORS 438.320 is amended to read:
438.320. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall institute a laboratory
evaluation system, as defined in ORS 438.010, and shall make such
rules as are necessary to insure quality control of laboratory
work.
(2) As part of this system, the { - department - }
{ + authority + } may require each laboratory to:
(a) Participate in on-site inspection and testing;
(b) Analyze test samples submitted by the { - department - }
{ + authority + } prior to, during or subsequent to the
inspection; and
(c) Contract with, at the laboratory's own expense, { - a
department-approved - } { + an authority-approved + } source of
test samples for such test samples to be submitted periodically
to the laboratory and to be returned to that source for grading
after testing. The test results shall be made available to the
{ - department - } { + authority + }.
(3) The procedures under subsection (2) of this section shall
be referred to as external quality control. The samples are to be
tested by regularly assigned personnel using routine methods. The
test samples shall be confined to the specialty of the laboratory
as indicated on the license. A specified time shall be allowed
for such testing and reporting of the results and shall be the
time required under conditions of normal operation.
(4) In addition to external quality control, each clinical
laboratory shall establish an internal laboratory quality control
system pursuant to rules of the { - department - }
{ + authority + } including but not necessarily limited to the
testing of reference or control sera and other biological
samples, verifying concurrent calibration standards and control
charts recordings, and reporting on its control system as
required by the { - department - } { + authority + }.
SECTION 710. ORS 438.420 is amended to read:
438.420. When the control or release of a case contact or
carrier of a communicable disease is dependent on laboratory
findings, the health officer may require such findings to be
obtained by a clinical laboratory licensed by the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
SECTION 711. ORS 438.435 is amended to read:
438.435. (1) In addition to duties which a clinical laboratory
may perform under ORS 438.010 to 438.510, a laboratory is
authorized to perform appropriate tests, examinations or analyses
on materials derived from the human body for the purpose of
detecting substances of abuse in the body. All laboratories
performing the tests, examinations or analyses must be licensed
under the provisions of ORS 438.010 to 438.510 and must employ
qualified technical personnel to perform the tests, examinations
and analyses.
(2) In order to perform such tests, examinations or analyses,
the laboratory may examine specimens submitted by persons other
than those described in ORS 438.430 (1) and shall report the
result of any test, examination or analysis to the person who
submitted the specimen. When the substance of abuse test is for
nonmedical employment or pre-employment purposes, and a written
Enrolled House Bill 2009 (HB 2009-C) Page 411
request is provided, the test result shall be reported to the
person from whom the specimen was originally obtained.
(3) When the specimen of a person tested for substances of
abuse is submitted to the laboratory and the test result is
positive, the laboratory shall perform a confirming test which
has been designated by rule of the { - Department of Human
Services - } { + Oregon Health Authority + } as the best
available technology for use to determine whether or not the
substance of abuse identified by the first test is present in the
specimen prior to reporting the test results.
(4) The { - department - } { + authority + } by rule shall
set standards for special category laboratories that engage only
in the initial testing for substances of abuse in the body,
including registration procedures for such laboratories and
personnel.
(5) The operator of a substances of abuse on-site screening
facility may use substances of abuse on-site screening tests if
the test results are not for use in diagnosing or preventing
disease and are not for use by physicians, dentists or other
licensed health care professionals in treating humans. Any entity
using the test shall pay a yearly filing fee, not to exceed $50,
and file a registration form as provided by rule of the
{ - department - } { + authority + } that:
(a) States the current name and address of the entity, the
telephone number of the entity, if any, and the name of a contact
individual at each on-site facility operated by the entity; and
(b) Certifies that:
(A) The tests are being administered according to the federal
Food and Drug Administration package insert that accompanies the
test;
(B) The tests are being administered according to the
instructions of the manufacturer;
(C) Custody chain procedures are being followed;
(D) Operators of the substances of abuse on-site screening
facility are trained in the use of the substances of abuse
on-site screening tests by the manufacturer; and
(E) If the substances of abuse on-site screening facility
obtains a positive test result on a specimen and the entity
indicates that the test result is to be used to deny or deprive
any person of employment or any benefit, or may otherwise result
in adverse employment action, the same specimen shall be
submitted to a clinical laboratory licensed under ORS 438.110 and
438.150 or an equivalent out-of-state facility and the presence
of a substance of abuse confirmed prior to release of the on-site
test result.
(6) The { - department - } { + authority + } by rule shall
set reasonable standards for the screening by correctional
agencies of inmates within state and local correctional
facilities and offenders on parole, probation or post-prison
supervision for substances of abuse. The standards shall include,
but not be limited to, the establishment of written procedures
and protocols, the qualifications and training of individuals who
perform screening tests, the approval of specific technologies
and the minimum requirements for record keeping, quality control
and confirmation of positive screening results.
(7) If an initial test by a special category laboratory under
subsection (4) of this section or a special category screening
under subsection (6) of this section shows a result indicating
the presence of a substance of abuse in the body, a confirmatory
test shall be conducted in a licensed clinical laboratory if the
Enrolled House Bill 2009 (HB 2009-C) Page 412
results are to be used to deprive or deny any person of any
employment or benefit. If a screening test of an inmate of a
state or local correctional facility is positive for a substance
of abuse, the inmate may be held in a secure facility pending the
outcome of the confirmatory test. If the confirmatory test is
positive, the inmate may be held in a secure facility pending the
outcome of any hearing to determine what action will be taken.
(8) If any test for substances of abuse is performed outside
this state the results of which are to be used to deprive or deny
any person any employment or any benefit, the person desiring to
use the test shall have the burden to show that the testing
procedure used meets or exceeds the testing standards of this
state.
SECTION 712. ORS 438.440 is amended to read:
438.440. All moneys received by the { - Department of Human
Services - } { + Oregon Health Authority + } under ORS 438.010
to 438.510 and 438.990 shall be credited to the Public Health
Account and shall be used for payment of the expenses of the
{ - department - } { + authority + } in administering the
provisions of ORS 438.010 to 438.510 and 438.990.
SECTION 713. ORS 438.450 is amended to read:
438.450. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall make such rules as are
necessary for carrying out ORS 438.010 to 438.510 in accordance
with ORS 183.330.
SECTION 714. ORS 438.605 is amended to read:
438.605. As used in ORS 438.605 to 438.620, 448.280 and
448.285:
(1) 'Accrediting authority' means the official accrediting
authority for the Oregon environmental laboratory accreditation
program comprised of the Director of { - Human Services or - }
{ + the Oregon Health Authority or + } designee, the Director of
the Department of Environmental Quality or designee and the
Director of Agriculture or designee.
(2) { - ' Department' means the Department of Human
Services - } { + ' Authority' means the Oregon Health
Authority + }.
(3) 'Environmental laboratory' means a fixed location or mobile
facility that performs chemical, physical, radiological,
microbiological or biological testing of environmental samples or
the collection of environmental samples.
(4) 'Environmental testing' means laboratory analysis of any
matter, pollutant, contaminant or hazardous substance subject to
regulation pursuant to:
(a) Rules adopted or enforced by the { - Department of Human
Services - } { + Oregon Health Authority + }, the Department of
Environmental Quality or the State Department of Agriculture; or
(b) A federal environmental statute or regulation administered
or enforced by the United States Environmental Protection Agency.
SECTION 715. ORS 438.610 is amended to read:
438.610. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + }, in concurrence with the
accrediting authority, may adopt by rule standards for any
laboratory seeking accreditation and performing environmental
testing for a fee or for determining compliance with
environmental statutes, rules or regulations.
(2) In developing standards under subsection (1) of this
section, the { - department - } { + authority + } shall
cooperate with and may seek advice from the United States
Environmental Protection Agency and any other state or federal
Enrolled House Bill 2009 (HB 2009-C) Page 413
agency that may have adopted rules or regulations for
environmental monitoring.
(3) The standards adopted under this section may address
testing and sampling procedures or methods, record keeping,
disposal or retention of testing materials or samples, or any
other practice related to work performed by an environmental
laboratory.
SECTION 716. ORS 438.615 is amended to read:
438.615. The { - Department of Human Services - }
{ + Oregon Health Authority + }, in concurrence with the
accrediting authority, shall establish by rule and implement an
environmental laboratory accreditation program. The standards for
accreditation may be equivalent to, but may not exceed, standards
adopted by national accreditation programs.
SECTION 717. ORS 438.620 is amended to read:
438.620. (1) In conjunction with the environmental laboratory
accreditation program established under ORS 438.615, the
{ - Department of Human Services - } { + Oregon Health
Authority + } may establish and collect a fee for laboratory
accreditation under the program. A fee imposed under this section
shall not exceed the cost of administering the program.
(2) Prior to imposing the fee under subsection (1) of this
section, the { - Department of Human Services - }
{ + authority + } shall obtain the approval of the Oregon
Department of Administrative Services and report to the
appropriate legislative committee.
(3) All moneys collected by the { - Department of Human
Services - } { + Oregon Health Authority + } under this section
shall be deposited in a dedicated account of the
{ - department - } { + authority + }. Such moneys are
continuously appropriated to the { - Department of Human
Services - } { + Oregon Health Authority + } to pay the costs
of the
{ - Department of Human Services - } { + authority + }, the
State Department of Agriculture and the Department of
Environmental Quality in administering the environmental
laboratory accreditation program established under ORS 438.615.
SECTION 718. ORS 440.420 is amended to read:
440.420. (1) The Medicaid Upper Payment Limit Account is
established in the State Treasury separate and distinct from the
General Fund. Moneys in the account are continuously appropriated
to the Oregon Department of Administrative Services for
health-related programs.
(2) The { - Department of Human Services - } { + Oregon
Health Authority + } shall transfer to the Medicaid Upper Payment
Limit Account that portion of the payment received by the
{ - department - } { + authority + } from health districts in
this state under the Proportionate Share Incentive Adjustment
State Plan Amendment to the State Medicaid Plan and under
intergovernmental agreements with the health districts that is
attributable to the federal funds portion of the total payment
made by the { - department - } { + authority + } to the
health districts during the biennium.
SECTION 719. ORS 441.017 is amended to read:
441.017. For purposes of licensing health care facilities,
health care facility, as defined in ORS 442.015, does not
include:
(1) Facilities established by ORS 430.306 to 430.335 for
treatment of alcoholism or drug abuse; and
Enrolled House Bill 2009 (HB 2009-C) Page 414
(2) Community mental health { - and - } { + programs or + }
development disabilities programs established under ORS 430.610
to 430.695.
SECTION 720. ORS 441.020 is amended to read:
441.020. (1) Licenses for { - health care facilities
including long term care facilities, as defined in ORS 442.015,
shall be obtained from the Department of Human Services - }
{ + health care facilities, except long term facilities as
defined in ORS 442.015, must be obtained from the Oregon Health
Authority.
(2) Licenses for long term care facilities must be obtained
from the Department of Human Services + }.
{ - (2) - } { + (3) + } Applications shall be upon such
forms and shall contain such information as the { + authority or
the + } department may reasonably require, which may include
affirmative evidence of ability to comply with such reasonable
standards and rules as may lawfully be prescribed under ORS
441.055.
{ - (3) - } { + (4) + } Each application shall be
accompanied by the license fee. If the license is denied, the fee
shall be refunded to the applicant. If the license is issued, the
fee shall be paid into the State Treasury to the credit of
{ - the Department of Human Services Account for carrying out
the functions under ORS 441.015 to 441.063 and 431.607 to
431.619. - } { + :
(a) The Oregon Health Authority Fund for the purpose of
carrying out the functions of the Oregon Health Authority under
ORS 441.015 to 441.063; or
(b) The Department of Human Services Account for the purpose of
carrying out the functions of the Department of Human Services
under ORS 441.015 to 441.063 and 431.607 to 431.619. + }
{ - (4) - } { + (5) + } Except as otherwise provided in
subsection (5) of this section, for hospitals with:
(a) Fewer than 26 beds, the annual license fee shall be $750.
(b) Twenty-six beds or more but fewer than 50 beds, the annual
license fee shall be $1,000.
(c) Fifty or more beds but fewer than 100 beds, the annual
license fee shall be $1,900.
(d) One hundred beds or more but fewer than 200 beds, the
annual license fee shall be $2,900.
(e) Two hundred or more beds, the annual license fee shall be
$3,400.
{ - (5) - } { + (6) + } For long term care facilities with:
(a) Fewer than 16 beds, the annual license fee shall be up to
$120.
(b) Sixteen beds or more but fewer than 50 beds, the annual
license fee shall be up to $175.
(c) Fifty beds or more but fewer than 100 beds, the annual
license fee shall be up to $350.
(d) One hundred beds or more but fewer than 200 beds, the
annual license fee shall be up to $450.
(e) Two hundred beds or more, the annual license fee shall be
up to $580.
{ - (6) - } { + (7) + } For special inpatient care
facilities with:
(a) Fewer than 26 beds, the annual license fee shall be $750.
(b) Twenty-six beds or more but fewer than 50 beds, the annual
license fee shall be $1,000.
(c) Fifty beds or more but fewer than 100 beds, the annual
license fee shall be $1,900.
Enrolled House Bill 2009 (HB 2009-C) Page 415
(d) One hundred beds or more but fewer than 200 beds, the
annual license fee shall be $2,900.
(e) Two hundred beds or more, the annual license fee shall be
$3,400.
{ - (7) - } { + (8) + } For ambulatory surgical centers,
the annual license fee shall be $1,000.
{ - (8) - } { + (9) + } For birthing centers, the annual
license fee shall be $250.
{ - (9) - } { + (10) + } For outpatient renal dialysis
facilities, the annual license fee shall be $1,500.
{ - (10) - } { + (11) + } During the time the licenses
remain in force holders thereof are not required to pay
inspection fees to any county, city or other municipality.
{ - (11) - } { + (12) + } Any health care facility license
may be indorsed to permit operation at more than one location. In
such case the applicable license fee shall be the sum of the
license fees which would be applicable if each location were
separately licensed.
{ - (12) - } { + (13) + } Licenses for health maintenance
organizations shall be obtained from the Director of the
Department of Consumer and Business Services pursuant to ORS
731.072.
SECTION 721. ORS 441.022 is amended to read:
441.022. In determining whether to license a health care
facility { - pursuant to ORS 441.025, the Department of Human
Services - } { + or long term care facility pursuant to ORS
441.025, the Oregon Health Authority or the Department of Human
Services + } shall consider only factors relating to the health
and safety of individuals to be cared for therein and
{ - shall - } { + may + } not consider whether the health care
facility { + or long term care facility + } is or will be a
governmental, charitable or other nonprofit institution or
whether { - it - } { + the facility + } is or will be an
institution for profit.
SECTION 722. ORS 441.025 is amended to read:
441.025. { + (1) Upon receipt of an application to operate a
health care facility and the license fee, the Oregon Health
Authority shall issue a license if it finds that the applicant
and health care facility comply with ORS 441.015 to 441.063 and
441.085 and the rules of the authority provided that the
authority does not receive within the time specified a
certificate of noncompliance issued by the State Fire Marshal,
deputy, or approved authority pursuant to ORS 479.215. + }
{ - (1) - } { + (2) + } Upon receipt of an application
{ + to operate a long term care facility + } and the license
fee, the Department of Human Services shall issue a license if
{ - it - } { + the department + } finds that the applicant and
{ - health - } { + long term + } care facility comply with ORS
441.015 to 441.063, 441.085 and 441.087 and the rules of the
department provided that it does not receive within the time
specified a certificate of noncompliance issued by the State Fire
Marshal, deputy, or approved authority pursuant to ORS 479.215.
{ - (2) - } { + (3) + } Each license, unless sooner
suspended or revoked, shall be renewable annually for the
calendar year upon payment of the fee, provided that a
certificate of noncompliance has not been issued by the State
Fire Marshal, deputy, or approved authority pursuant to ORS
479.215.
Enrolled House Bill 2009 (HB 2009-C) Page 416
{ - (3) - } { + (4) + } Each license shall be issued only
for the premises and persons or governmental units named in the
application and shall not be transferable or assignable.
{ - (4) - } { + (5) + } Licenses shall be posted in a
conspicuous place on the licensed premises as prescribed by rule
of the { + authority or the + } department.
{ - (5) - } { + (6) + } No license shall be issued or
renewed for any health care facility or health maintenance
organization that offers or proposes to develop a new health
service unless a certificate of need has first been issued
therefor pursuant to ORS 442.340 (1987 Replacement Part) or
approval has been granted under ORS 442.315 or section 9, chapter
1034, Oregon Laws 1989.
{ - (6) - } { + (7) + } No license shall be issued or
renewed for any skilled nursing facility or intermediate care
facility, as defined in ORS 442.015, unless the applicant has
included in the application the name and such other information
as may be necessary to establish the identity and financial
interests of any person who has incidents of ownership in the
facility representing an interest of 10 percent or more thereof.
If the person having such interest is a corporation, the name of
any stockholder holding stock representing an interest in the
facility of 10 percent or more shall also be included in the
application. If the person having such interest is any other
entity, the name of any member thereof having incidents of
ownership representing an interest of 10 percent or more in the
facility shall also be included in the application.
{ - (7) - } { + (8) + } A license may be denied to any
applicant for a license or renewal thereof or any stockholder of
any such applicant who has incidents of ownership in the
{ + health care facility or long term care + } facility
representing an interest of 10 percent or more thereof, or an
interest of 10 percent or more of a lease agreement for the
facility, if during the five years prior to the application the
applicant or any stockholder of the applicant had an interest of
10 percent or more in the facility or of a lease for the facility
and has divested that interest after receiving { - written
notice from the department of intention - } { + from the
authority or the department written notice that the authority or
the department intends + } to suspend or revoke the license or to
decertify the { - home - } { + facility + } from eligibility
to receive payments for services provided under this section.
{ - (8) - } { + (9) + } { - No license shall be issued or
renewed for any - } { + The Department of Human Services may
not issue or renew a license for a + } long term care facility,
as defined in ORS 442.015, unless the applicant has included in
the application the identity of any person who has incident of
ownership in the { + long term care + } facility who also has a
financial interest in any pharmacy, as defined in ORS 689.005.
SECTION 723. ORS 441.030 is amended to read:
441.030. (1) The { + Oregon Health Authority or the + }
Department of Human Services, pursuant to ORS 479.215, shall
deny, suspend or revoke a license in any case where the State
Fire Marshal, or the representative of the State Fire Marshal,
certifies that there is a failure to comply with all applicable
laws, lawful ordinances and rules relating to safety from fire.
{ - (2) The department may deny, suspend or revoke a license
in any case where it finds that there has been a substantial
failure to comply with ORS 441.015 to 441.063, 441.085 or 441.087
Enrolled House Bill 2009 (HB 2009-C) Page 417
or the rules or minimum standards adopted under ORS 441.015 to
441.063, 441.085 or 441.087. - }
{ - (3) The department may suspend or revoke a license issued
under ORS 441.025 for failure to comply with a department order
arising from a health care facility's substantial lack of
compliance with the provisions of ORS 441.015 to 441.063, 441.084
to 441.087, 441.162 or 441.166 or the rules adopted under ORS
441.015 to 441.063, 441.084 to 441.087, 441.162 or 441.166, or
for failure to pay a civil penalty imposed under ORS 441.170 or
441.710. - }
{ + (2) The authority may:
(a) Deny, suspend or revoke a health care facility's license in
any case where it finds that there has been a substantial failure
to comply with ORS 441.015 to 441.063 and 441.085 or the rules or
minimum standards adopted under ORS 441.015 to 441.063 and
441.085; or
(b) Suspend or revoke a license issued under ORS 441.025 for
failure to comply with an authority order arising from a health
care facility's substantial lack of compliance with the
provisions of ORS 441.015 to 441.063, 441.085, 441.162 or 441.166
or the rules adopted under ORS 441.015 to 441.063, 441.085,
441.162 or 441.166, or for failure to pay a civil penalty imposed
under ORS 441.170.
(3) The department may:
(a) Deny, suspend or revoke a long term care facility's license
in any case where it finds that there has been a substantial
failure to comply with ORS 441.015 to 441.063, 441.085 or 441.087
or the rules or minimum standards adopted under ORS 441.015 to
441.063, 441.085 or 441.087.
(b) Suspend or revoke a long term care facility's license
issued under ORS 441.025 for failure to comply with a department
order arising from a long term care facility's substantial lack
of compliance with the provisions of ORS 441.015 to 441.063 or
441.084 to 441.087 or the rules adopted under ORS 441.015 to
441.063 or 441.084 to 441.087, or for failure to pay a civil
penalty imposed under ORS 441.710. + }
{ - (4) - } { + (c) + } { - The department may - } Order
a long term care facility licensed under ORS 441.025 to restrict
the admission of patients when the department finds an immediate
threat to patient health and safety arising from failure of the
long term care facility to be in compliance with ORS 441.015 to
441.063 or 441.084 to 441.087 and the rules adopted under ORS
441.015 to 441.063 or 441.084 to 441.087.
{ - (5) - } { + (4) + } Any long term care facility that
has been ordered to restrict the admission of patients pursuant
to subsection { - (4) - } { + (3)(c) + } of this section shall
post a notice of the restriction, provided by the department, on
all doors providing ingress to and egress from the facility, for
the duration of the restriction.
SECTION 724. ORS 441.037 is amended to read:
441.037. (1) When the { + Oregon Health Authority or the + }
Department of Human Services proposes to refuse to issue or renew
a license, or proposes to revoke or suspend a license,
opportunity for hearing shall be accorded as provided in ORS
chapter 183.
(2) Adoption of rules, conduct of hearings, issuance of orders
and judicial review of rules and orders shall be in accordance
with ORS chapter 183.
SECTION 725. ORS 441.050 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 418
441.050. { + (1) Notwithstanding the existence and pursuit of
any other remedy, the Oregon Health Authority may, in the manner
provided by law, maintain an action in the name of the state for
injunction or other process against any person or governmental
unit to restrain or prevent the establishment, conduct,
management or operation of a health care facility or health
maintenance organization without a license.
(2) + } Notwithstanding the existence and pursuit of any other
remedy, the Department of Human Services may, in the manner
provided by law, maintain an action in the name of the state for
injunction or other process against any person or governmental
unit to restrain or prevent the establishment, conduct,
management or operation of a { - health care facility or health
maintenance organization - } { + long term care facility + }
without a license.
SECTION 726. ORS 441.055 is amended to read:
441.055. (1) { - The Department of Human Services shall adopt
such rules with respect to the different types of health care
facilities as may be designed to further the accomplishment of
the purposes of ORS 441.015 to 441.087. - } { + To fulfill the
purposes of ORS 441.015 to 441.087:
(a) The Oregon Health Authority shall adopt rules with respect
to the different types of health care facilities; and
(b) The Department of Human Services shall adopt rules with
respect to long term care facilities.
(2) + } No rules shall require any specific food so long as the
necessary nutritional food elements are present.
{ - (2) - } { + (3) + } Rules describing care given in
health care facilities { - shall - } { + or long term care
facilities must + } include, but { + need + } not be limited
to, standards of patient care or patient safety, adequate
professional staff organizations, training of staff for whom no
other state regulation exists, suitable delineation of
professional privileges and adequate staff analyses of clinical
records. The { - department may in its discretion - }
{ + authority or the department may + } accept certificates by
the Joint Commission on Accreditation of Hospitals or the
Committee on Hospitals of the American Osteopathic Association as
evidence of compliance with acceptable standards.
{ - (3) - } { + (4) + } The governing body of each health
{ + care facility or long term + } care facility shall be
responsible for the operation of the facility, the selection of
the medical staff and the quality of care rendered in the
facility. The governing body shall:
(a) Ensure that all health care personnel for whom state
licenses, registrations or certificates are required are
currently licensed, registered or certified;
(b) Ensure that physicians admitted to practice in the facility
are granted privileges consistent with their individual training,
experience and other qualifications;
(c) Ensure that procedures for granting, restricting and
terminating privileges exist and that such procedures are
regularly reviewed to { - assure - } { + ensure + } their
conformity to applicable law;
(d) Ensure that physicians admitted to practice in the facility
are organized into a medical staff in such a manner as to
effectively review the professional practices of the facility for
the purposes of reducing morbidity and mortality and for the
improvement of patient care; and
Enrolled House Bill 2009 (HB 2009-C) Page 419
(e) Ensure that a physician is not denied medical staff
membership or privileges at the facility solely on the basis that
the physician holds medical staff membership or privileges at
another health care facility.
{ - (4) - } { + (5) + } The physicians organized into a
medical staff pursuant to subsection { - (3) - } { + (4) + }
of this section shall propose medical staff bylaws to govern the
medical staff. The bylaws shall include, but not be limited to
the following:
(a) Procedures for physicians admitted to practice in the
facility to organize into a medical staff pursuant to subsection
{ - (3) - } { + (4) + } of this section;
(b) Procedures for ensuring that physicians admitted to
practice in the facility are granted privileges consistent with
their individual training, experience and other qualifications;
(c) Provisions establishing a framework for the medical staff
to nominate, elect, appoint or remove officers and other persons
to carry out medical staff activities with accountability to the
governing body;
(d) Procedures for ensuring that physicians admitted to
practice in the facility are currently licensed by the Oregon
Medical Board;
(e) Procedures for ensuring that the facility's procedures for
granting, restricting and terminating privileges are followed and
that such procedures are regularly reviewed to assure their
conformity to applicable law; and
(f) Procedures for ensuring that physicians provide services
within the scope of the privileges granted by the governing body.
{ - (5) - } { + (6) + } Amendments to medical staff bylaws
shall be accomplished through a cooperative process involving
both the medical staff and the governing body. Medical staff
bylaws shall be adopted, repealed or amended when approved by the
medical staff and the governing body. Approval shall not be
unreasonably withheld by either. Neither the medical staff nor
the governing body shall withhold approval if such repeal,
amendment or adoption is mandated by law, statute or regulation
or is necessary to obtain or maintain accreditation or to comply
with fiduciary responsibilities or if the failure to approve
would subvert the stated moral or ethical purposes of the
institution.
{ - (6) - } { + (7) + } The Oregon Medical Board may
appoint one or more physicians to conduct peer review for a
health care facility upon request of such review by all of the
following:
(a) The physician whose practice is being reviewed.
(b) The executive committee of the health care facility's
medical staff.
(c) The governing body of the health care facility.
{ - (7) - } { + (8) + } The physicians appointed pursuant
to subsection
{ - (6) - } { + (7) + } of this section shall be deemed
agents of the Oregon Medical Board, subject to the provisions of
ORS 30.310 to 30.400 and shall conduct peer review. Peer review
shall be conducted pursuant to the bylaws of the requesting
health care facility.
{ - (8) - } { + (9) + } Any person serving on or
communicating information to a peer review committee shall not be
subject to an action for damages for action or communications or
statements made in good faith.
Enrolled House Bill 2009 (HB 2009-C) Page 420
{ - (9) - } { + (10) + } All findings and conclusions,
interviews, reports, studies, communications and statements
procured by or furnished to the peer review committee in
connection with a peer review are confidential pursuant to ORS
192.501 to 192.505 and 192.690 and all data is privileged
pursuant to ORS 41.675.
{ - (10) - } { + (11) + } Notwithstanding subsection
{ - (9) - } { + (10) + } of this section, a written report of
the findings and conclusions of the peer review shall be provided
to the governing body of the health care facility who shall abide
by the privileged and confidential provisions set forth in
subsection { - (9) - } { + (10) + } of this section.
{ - (11) - } { + (12) + } Procedures for peer review
established by subsections { - (6) to (10) - } { + (7) to
(11) + } of this section are exempt from ORS chapter 183.
{ - (12) - } { + (13) + } { - The department - }
{ + The authority + } shall adopt by rule standards for rural
hospitals, as defined in ORS 442.470, that specifically address
the provision of care to postpartum and newborn patients so long
as patient care is not adversely affected.
{ - (13) - } { + (14) + } For purposes of this section,
'physician' has the meaning given the term in ORS 677.010.
SECTION 727. ORS 441.057 is amended to read:
441.057. (1) Rules adopted { - by the Department of Human
Services - } pursuant to ORS 441.055 shall include procedures
for the filing of complaints as to the standard of care in any
health { + care facility or long term + } care facility and
provide for the confidentiality of the identity of any
complainant.
(2) { - No - } { + A + } health { + care facility or a
long term + } care facility, or person acting in the interest of
the facility, { - shall - } { + may not + } take any
disciplinary or other adverse action against any employee who in
good faith brings evidence of inappropriate care or any other
violation of law or rules to the attention of the proper
authority solely because of the employee's action as described in
this subsection.
(3) Any employee who has knowledge of inappropriate care or any
other violation of law or rules shall utilize established
reporting procedures of the health { + care facility or long
term + } care facility administration before notifying { - the
department - } { + the Department of Human Services, Oregon
Health Authority + } or other state agency of the alleged
violation, unless the employee believes that patient health or
safety is in immediate jeopardy or the employee makes the report
to the department { + or the authority + } under the
confidentiality provisions of subsection (1) of this section.
(4) The protection of health { + care facility or long
term + } care facility employees under subsection (2) of this
section shall commence with the reporting of the alleged
violation by the employee to the administration of the health
{ + care facility or long term + } care facility or to the
department { + , authority + } or other state agency pursuant to
subsection (3) of this section.
(5) Any person suffering loss or damage due to any violation of
subsection (2) of this section has a right of action for damages
in addition to other appropriate remedy.
(6) The provisions of this section do not apply to a nursing
staff, as defined in ORS 441.172, who claims to be aggrieved by a
violation of ORS 441.174 committed by a hospital.
Enrolled House Bill 2009 (HB 2009-C) Page 421
SECTION 728. ORS 441.060 is amended to read:
441.060. (1) The { + Oregon Health Authority and the + }
Department of Human Services shall make or cause to be made such
inspections as { - it may - } { + the authority or the
department + } deem necessary.
(2) The { - Department of Human Services - } { + authority
and the department + } may prescribe by rule that any licensee or
prospective applicant desiring to make specified types of
alteration or addition to its facilities or to construct new
facilities shall, before commencing such alteration, addition or
new construction, either prior to or after receiving a
certificate of need pursuant to ORS 442.340 (1987 Replacement
Part), if required, submit plans and specifications therefor to
the { + authority or the + } department for preliminary
inspection and approval or recommendations with respect to
compliance with the rules authorized by ORS 441.055 and 443.420
and for compliance with National Fire Protection Association
standards when the facility is also to be Medicare or Medicaid
certified.
{ + (3) + } The { + authority or the + } department may
require by rule payment of a fee for project review services at a
variable rate, dependent on total project cost.
{ + (4) + } For health care facilities, the
{ - department - } { + authority + } shall develop a review
fee schedule as minimally necessary to support the staffing level
and expenses required to administer the program.
{ + (5) For long term care facilities and residential care
facilities, the department shall develop a review fee schedule as
minimally necessary to support the staffing level and expenses
required to administer the program. + } The fee for project
review of residential care facilities shall equal two-thirds that
required of health care facilities.
{ + (6) + } The { + authority or the + }department may also
conduct an on-site review of projects as a prerequisite to
licensure of new facilities, major renovations and expansions.
The { + authority and the + } department shall, at least
annually, with the advice of { + the + } facilities covered by
{ - this - } { + the + } review, present proposed rule changes
regarding facility design and construction to such agencies for
their consideration.
{ + (7) + } { - The department - } { + The authority + }
shall { - also - } publish a state submissions guide for
health { - and residential - } care facility projects and
advise project sponsors of applicable requirements of federal,
state and local regulatory agencies.
{ + (8) The department shall publish a state submissions
guide for long term care facility and residential care facility
projects and advise project sponsors of applicable requirements
of federal, state and local regulatory agencies. + }
SECTION 729. ORS 441.062 is amended to read:
441.062. (1) In conducting inspections for the purpose of
licensing health { + care facilities and long term + } care
facilities under ORS 441.020, the { + Oregon Health Authority
and the + } Department of Human Services shall avoid unnecessary
facility disruption by coordinating inspections performed by the
{ + authority or the + } department with inspections performed
by other federal, state and local agencies that have
responsibility for health care facility { + or long term care
facility + } licensure.
Enrolled House Bill 2009 (HB 2009-C) Page 422
(2) Whenever possible, the { + authority and the + }
department shall avoid duplication of inspections by accepting
inspection reports or surveys prepared by other state agencies
that have responsibility for health { + care facility or long
term + } care facility licensure for purposes of the inspection
required for licensure.
(3) The { + authority and the + } department shall adopt
{ - all - } rules necessary to implement this section.
SECTION 730. ORS 441.082 is amended to read:
441.082. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt by rule standards
and a system of registration for every organ procurement
organization, tissue bank and eye bank doing business in this
state.
(2) An organ procurement organization, tissue bank or eye bank
may not do business in this state unless it has registered with
the { - department - } { + authority + }.
(3) Each organ procurement organization, tissue bank and eye
bank shall provide to the { - department - }
{ + authority + } at least every three years current
documentation of designation, certification and inspection as
evidence of compliance with national standards and requirements
under federal law.
(4) The { - department - } { + authority + } may impose a
civil penalty not to exceed $1,000 against an organ procurement
organization, tissue bank or eye bank doing business in this
state for failure to:
(a) Register with the { - department - } { + authority + };
(b) Report loss of designation, accreditation or certification
within 60 days of the loss; or
(c) Supply the { - department - } { + authority + } with
requested current documentation of designation, certification and
inspection.
(5) Civil penalties under this section shall be imposed in the
manner provided under ORS 183.745.
SECTION 731. ORS 441.085 is amended to read:
441.085. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may by rule establish
classifications and descriptions for { - the various types
of - } health care facilities that are licensed under ORS
441.015 to 441.087, 441.525 to 441.595, 441.815, 441.820,
441.990, 442.342, 442.344 and 442.400 to 442.463 { + , except
long term care facilities as defined in ORS 442.015 + }.
{ + (2) The Department of Human Services may by rule
establish classifications and descriptions for long term care
facilities that are licensed under ORS 441.015 to 441.087 and
441.525 to 441.595. + }
{ - (2) - } { + (3) + } { - A health care facility
licensed by - } { + A health care facility licensed by the
authority and a long term care facility licensed by + } the
department shall neither assume a descriptive title nor be
represented under any descriptive title other than the
classification title established by the { + authority or the + }
department and under which { - it - } { + the facility + } is
licensed.
SECTION 732. ORS 441.094 is amended to read:
441.094. (1) No officer or employee of a hospital licensed by
the { - Department of Human Services - } { + Oregon Health
Authority + } that has an emergency department may deny to a
person an appropriate medical screening examination within the
Enrolled House Bill 2009 (HB 2009-C) Page 423
capability of the emergency department, including ancillary
services routinely available to the emergency department, to
determine whether a need for emergency medical services exists.
(2) No officer or employee of a hospital licensed by the
{ - Department of Human Services - } { + authority + } may
deny to a person diagnosed by an admitting physician as being in
need of emergency medical services the emergency medical services
customarily provided at the hospital because the person is unable
to establish the ability to pay for the services.
(3) Nothing in this section is intended to relieve a person of
the obligation to pay for services provided by a hospital.
(4) A hospital that does not have physician services available
at the time of the emergency shall not be in violation of this
section if, after a reasonable good faith effort, a physician is
unable to provide or delegate the provision of emergency medical
services.
(5) All prepaid capitated health service contracts executed by
the { - Department of Human Services - } { + authority + }
and private health maintenance organizations and managed care
organizations shall include a provision that encourages a managed
care plan to establish agreements with hospitals in the plan's
service area for payment of emergency screening examinations.
(6) As used in subsections (1) and (2) of this section, '
emergency medical services' means medical services that are
usually and customarily available at the respective hospital and
that must be provided immediately to sustain a person's life, to
prevent serious permanent disfigurement or loss or impairment of
the function of a bodily member or organ, or to provide care of a
woman in her labor where delivery is imminent if the hospital is
so equipped and, if the hospital is not equipped, to provide
necessary treatment to allow the woman to travel to a more
appropriate facility without undue risk of serious harm.
SECTION 733. ORS 441.164 is amended to read:
441.164. Upon request of a hospital, the { - Department of
Human Services - } { + Oregon Health Authority + } may grant
variances in the written staffing plan requirements based on
patient care needs or the nursing practices of the hospital.
SECTION 734. ORS 441.166 is amended to read:
441.166. (1) When a hospital learns about the need for
replacement staff, the hospital shall make every reasonable
effort to obtain registered nurses, licensed practical nurses or
certified nursing assistants for unfilled hours or shifts before
requiring a registered nurse, licensed practical nurse or
certified nursing assistant to work overtime.
(2) A hospital may not require a registered nurse, licensed
practical nurse or certified nursing assistant to work:
(a) Beyond the agreed-upon shift;
(b) More than 48 hours in any hospital-defined work week; or
(c) More than 12 consecutive hours in a 24-hour time period,
except that a hospital may require an additional hour of work
beyond the 12 hours if:
(A) A staff vacancy for the next shift becomes known at the end
of the current shift; or
(B) There is a potential harm to an assigned patient if the
registered nurse, licensed practical nurse or certified nursing
assistant leaves the assignment or transfers care to another.
(3)(a) Time spent in required meetings or receiving education
or training shall be included as hours worked for purposes of
subsection (2) of this section.
Enrolled House Bill 2009 (HB 2009-C) Page 424
(b) Time spent on call but away from the premises of the
employer may not be included as hours worked for purposes of
subsection (2) of this section.
(c) Time spent on call or on standby when the registered nurse,
licensed practical nurse or certified nursing assistant is
required to be at the premises of the employer shall be included
as hours worked for purposes of subsection (2) of this section.
(4) The provisions of this section do not apply to nursing
staff needs:
(a) In the event of a national or state emergency or
circumstances requiring the implementation of a facility disaster
plan;
(b) In emergency circumstances identified by the
{ - Department of Human Services - } { + Oregon Health
Authority + } by rule; or
(c) If a hospital has made reasonable efforts to contact all of
the on-call nursing staff or staffing agencies on the list
described in ORS 441.162 and is unable to obtain replacement
staff in a timely manner.
SECTION 735. ORS 441.170 is amended to read:
441.170. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may impose civil penalties in
the manner provided in ORS 183.745 or suspend or revoke a license
of a hospital for a violation of any provision of ORS 441.162 or
441.166. The
{ - department - } { + authority + } shall adopt by rule a
schedule establishing the amount of civil penalty that may be
imposed for any violation of ORS 441.162 or 441.166 when there is
a reasonable belief that safe patient care has been or may be
negatively impacted. A civil penalty imposed under this
subsection may not exceed $5,000. Each violation of a nursing
staff plan shall be considered a separate violation. Any license
that is suspended or revoked under this subsection shall be
suspended or revoked as provided in ORS 441.030.
(2) The { - department - } { + authority + } shall maintain
for public inspection records of any civil penalties or license
suspensions or revocations imposed on hospitals penalized under
subsection (1) of this section.
(3) The { - department - } { + authority + } shall conduct
an annual random audit of not less than seven percent of all
hospitals in this state solely to verify compliance with the
requirements of ORS 441.162, 441.166 and 441.192. Surveys made by
private accrediting organizations may not be used in lieu of the
audit required under this subsection. The { - department - }
{ + authority + } shall compile and maintain for public
inspection an annual report of the audit conducted under this
subsection.
(4) The costs of the audit required under subsection (3) of
this section may be paid out of funds from licensing fees paid by
hospitals under ORS 441.020.
SECTION 736. ORS 441.180 is amended to read:
441.180. (1) A hospital shall post a notice summarizing the
provisions of ORS 441.162, 441.166, 441.168, 441.174, 441.176,
441.178 and 441.192 in a conspicuous place on the premises of the
hospital. The notice must be posted where notices to employees
and applicants for employment are customarily displayed.
(2) Any hospital that willfully violates this section is
subject to a civil penalty not to exceed $500. Civil penalties
under this section shall be imposed by the { - Department of
Enrolled House Bill 2009 (HB 2009-C) Page 425
Human Services - } { + Oregon Health Authority + } in the
manner provided by ORS 183.745.
SECTION 737. ORS 441.630 is amended to read:
441.630. As used in ORS 441.630 to 441.680 and 441.995:
(1) 'Abuse' means:
(a) Any physical injury to a resident of a long term care
facility which has been caused by other than accidental means.
(b) Failure to provide basic care or services, which failure
results in physical harm or unreasonable discomfort or serious
loss of human dignity.
(c) Sexual contact with a resident caused by an employee, agent
or other resident of a long term care facility by force, threat,
duress or coercion.
(d) Illegal or improper use of a resident's resources for the
personal profit or gain of another person.
(e) Verbal or mental abuse as prohibited by federal law.
(f) Corporal punishment.
(g) Involuntary seclusion for convenience or discipline.
(2) 'Abuse complaint' means any oral or written communication
to the department, one of its agents or a law enforcement agency
alleging abuse.
(3) 'Department' means the Department of Human Services or a
designee of the department.
(4) 'Facility' means a long term care facility, as defined in
ORS 442.015.
(5) '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.
(6) 'Public or private official' means:
(a) Physician, including any intern or resident.
(b) Licensed practical nurse or registered nurse.
(c) Employee of the Department of Human Services, { - county
health department, community mental health and developmental
disabilities programs - } { + a community developmental
disabilities program + } or a long term care facility or person
who contracts to provide services to a long term care facility.
{ + (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 and occupational
therapists.
{ - (h) - } { + (i) + } Legal counsel for a resident or
guardian or family member of the resident.
SECTION 738. ORS 441.705 is amended to read:
441.705. As used in ORS 441.705 to 441.745:
(1) 'Direct patient care or feeding' means any care provided
directly to or for any patient related to that patient's
physical, medical and dietary well-being as defined by rules of
{ - the Department of Human Services. - } { + :
(a) The Department of Human Services when the facility is a
long term care facility, as defined in ORS 442.015, or a
residential care facility, residential training facility or
residential training home, as those terms are defined in ORS
443.400; and
Enrolled House Bill 2009 (HB 2009-C) Page 426
(b) The Oregon Health Authority if the facility is a
residential treatment facility or a residential treatment home,
as defined in ORS 443.400. + }
(2) 'Person' means a licensee { - under ORS 441.015 to
441.087, 441.525 to 441.595, 441.815, 441.820, 441.990, 442.342,
442.344 and 442.400 to 442.463, or a person whom the Director of
Human Services finds should be so licensed but is not, but does
not include any employee of such licensee or person - } { + of
a long term care facility, a residential care facility, a
residential training facility, a residential treatment facility,
a residential training home or a residential treatment home, or
an unlicensed person whom the Director of Human Services finds
should be licensed to operate a long term care facility, a
residential care facility, a residential training facility or a
residential training home, or an unlicensed person whom the
Director of the Oregon Health Authority finds should be licensed
to operate a residential treatment facility or residential
treatment home. ' Person' does not mean an employee of a
licensee or unlicensed person whom the Director of Human Services
or the Director of the Oregon Health Authority finds should be
licensed + }.
(3) 'Staff to patient ratio' means the number and training of
persons providing direct patient care as defined in rules of the
{ - department. - } { + :
(a) Department if the facility is a long term care facility, a
residential care or residential training facility or a
residential training home; or
(b) Authority if the facility is a residential treatment
facility or a residential treatment home. + }
SECTION 739. ORS 441.710 is amended to read:
441.710. (1) In addition to any other liability or penalty
provided by law, the Director of Human Services may impose a
civil penalty on a person for any of the following:
(a) Violation of any of the terms or conditions of a license
issued under ORS 441.015 to 441.087, 441.525 to 441.595, 441.815,
441.820, 441.990, 442.342, 442.344 and 442.400 to 442.463 for a
long term care facility, as defined in ORS 442.015.
(b) Violation of any rule or general order of the Department of
Human Services that pertains to a long term care facility.
(c) Violation of any final order of the director that pertains
specifically to the long term care facility owned or operated by
the person incurring the penalty.
(d) Violation of ORS 441.605 or of rules required to be adopted
under ORS 441.610.
(e) Violation of ORS 443.880 or 443.881 { + if the facility is
a residential care facility, residential training facility or
residential training home + }.
{ + (2) In addition to any other liability or penalty
provided by law, the Director of the Oregon Health Authority may
impose a civil penalty on a person for a violation of ORS 441.880
or 441.881 if the facility is a residential treatment facility or
a residential treatment home. + }
{ - (2) - } { + (3) + } { - A civil penalty may not be
imposed under this section - } { + The Director of Human
Services may not impose a penalty under subsection (1) of this
section + } for violations other than those involving direct
patient care or feeding, an adequate staff to patient ratio,
sanitation involving direct patient care or a violation of ORS
441.605 or 443.880 or 443.881 or of the rules required to be
adopted by ORS 441.610 unless a violation is found on two
Enrolled House Bill 2009 (HB 2009-C) Page 427
consecutive surveys of { - the - } { + a + } long term care
facility. The Director { + of Human Services + } in every case
shall prescribe a reasonable time for elimination of a violation:
(a) Not to exceed 30 days after first notice of a violation; or
(b) In cases where the violation requires more than 30 days to
correct, such time as is specified in a plan of correction found
acceptable by the director.
{ + (4) The Director of the Oregon Health Authority may not
impose a penalty under subsection (2) of this section for
violations other than those involving direct patient care or
feeding, an adequate staff to patient ratio, sanitation involving
direct patient care or a violation of ORS 443.880 or 443.881. The
Director of the Oregon Health Authority in every case shall
prescribe a reasonable time for elimination of a violation:
(a) Not to exceed 30 days after first notice of a violation; or
(b) In cases where the violation requires more than 30 days to
correct, such time as is specified in a plan of correction found
acceptable by the director. + }
SECTION 740. ORS 441.712 is amended to read:
441.712. (1) Any civil penalty under ORS 441.710 shall be
imposed in the manner provided by ORS 183.745.
(2) Notwithstanding ORS 183.745, the person to whom the notice
is addressed shall have 10 days from the date of service of the
notice in which to make written application for a hearing before
{ - the Director of Human Services. - } { + :
(a) The Director of Human Services if the facility is a long
term care facility, residential care facility, residential
training facility or residential training home; or
(b) The Director of the Oregon Health Authority if the facility
is a residential treatment facility or residential treatment
home. + }
SECTION 741. ORS 441.715 is amended to read:
441.715. (1)(a) After public hearing, the Director of Human
Services by rule shall adopt objective criteria for establishing
the civil penalty that may be imposed under ORS 441.710 { + (1)
and the Director of the Oregon Health Authority by rule shall
adopt objective criteria for establishing the civil penalty that
may be imposed under ORS 441.710 (2) + }. However, the civil
penalty may not exceed $500 for each violation, except as
otherwise provided in ORS 441.637 and 441.995.
(b) Notwithstanding the limitations on the civil penalty in
paragraph (a) of this subsection, for any violation involving
direct resident care or feeding, an adequate staff to resident
ratio, sanitation involving direct resident care or a violation
of ORS 441.605 or rules required to be adopted under ORS 441.610,
a penalty may be imposed for each day the violation occurs in an
amount not to exceed $500 per day.
(2) The penalties assessed under subsection (1) of this section
{ - shall - } { + may + } not exceed $6,000 in the aggregate
or as otherwise required by federal law with respect to a single
long term care facility within any 90-day period.
SECTION 742. ORS 441.720 is amended to read:
441.720. A civil penalty imposed under ORS 441.710 may be
remitted or reduced upon such terms and conditions as { + the
Director of the Oregon Health Authority or + } the Director of
Human Services considers proper and consistent with the public
health and safety.
SECTION 743. ORS 441.750 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 428
441.750. (1) Any hospital which treats as a patient a person
under 18 years of age because the person has attempted to commit
suicide:
(a) Shall cause that person to be provided with information and
referral to in-patient or out-patient community resources, crisis
intervention or other appropriate intervention by the patient's
attending physician, hospital social work staff or other
appropriate staff.
(b) Shall report statistical information to the
{ - Department of Human Services - } { + Oregon Health
Authority + } about the person described in this subsection but
is not required to report the name of the person.
(2) Any disclosure authorized by this section or any
unauthorized disclosure of information or communications made
privileged and confidential by this section shall not in any way
abridge or destroy the confidential or privileged character
thereof except for the purposes for which any authorized
disclosure is made. Any person making a disclosure authorized by
this section shall not be liable therefor, notwithstanding any
contrary provisions of law.
(3) No physician, hospital or hospital employee shall be held
criminally or civilly liable for action pursuant to this section,
provided the physician, hospital or hospital employee acts in
good faith on probable cause and without malice.
SECTION 744. ORS 441.755 is amended to read:
441.755. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall prescribe a form to be
used by hospitals to make the report required by ORS 441.750
(1)(b) and shall prescribe the frequency of such reports.
(2) The report form may include the name of the hospital
reporting, the date of birth, race and sex of person described in
subsection (1) of this section, the suicide method used by the
person and known prior attempts in the past 12 months.
(3) The { - department - } { + authority + } shall compile
the results from the reports and report the results to the
public.
SECTION 745. ORS 441.815, as amended by section 8, chapter 602,
Oregon Laws 2007, is amended to read:
441.815. (1) As used in this section, 'hospital' has the
meaning given the term in ORS 442.015.
(2) The administrator or person in charge of a hospital may not
permit a person to smoke tobacco:
(a) In the hospital; or
(b) Within 10 feet of a doorway, open window or ventilation
intake of the hospital.
(3) The Director of { - Human Services - } { + the Oregon
Health Authority + } may impose a civil penalty of not more than
$500 per day on a person for violation of subsection (2) of this
section. Civil penalties imposed against a person under this
subsection may not exceed $2,000 in any 30-day period. Civil
penalties imposed under this subsection shall be imposed in the
manner provided by ORS 183.745.
(4) The { - Department of Human Services - } { + Oregon
Health Authority + } may adopt rules necessary for the
administration of this section.
SECTION 746. ORS 441.990, as amended by section 9, chapter 602,
Oregon Laws 2007, is amended to read:
441.990. (1) Violation of ORS 441.015 (1) is a violation
punishable, upon conviction, by a fine of not more than $100 for
the first violation and not more than $500 for each subsequent
Enrolled House Bill 2009 (HB 2009-C) Page 429
violation. Each day of continuing violation after a first
conviction shall be considered a subsequent violation.
(2) Any person who willfully prevents, interferes with, or
attempts to impede in any way the work of any duly authorized
representative of the Department of Human Services in the lawful
carrying out of the provisions of ORS 441.087 (1) is guilty of a
Class C misdemeanor.
(3) The removal of the notice required by ORS 441.030
{ - (5) - } { + (4) + } by any person other than an official
of the department is a Class C misdemeanor.
SECTION 747. ORS 442.011 is amended to read:
442.011. (1) There is created in the { - Department of Human
Services - } { + Oregon Health Authority + } the Office for
Oregon Health Policy and Research. The Administrator of the
Office for Oregon Health Policy and Research shall be appointed
by the Governor and the appointment shall be subject to Senate
confirmation in the manner prescribed in ORS 171.562 and 171.565.
The administrator shall be an individual with demonstrated
proficiency in planning and managing programs with complex public
policy and fiscal aspects such as those involved in the
{ - Oregon Health Plan - } { + medical assistance program + }.
Before making the appointment, the Governor must advise the
President of the Senate and the Speaker of the House of
Representatives of the names of at least three finalists and
shall consider their recommendation in appointing the
administrator.
(2) In carrying out the responsibilities and duties of the
administrator, the administrator shall consult with and be
advised by the Oregon Health Policy { - Commission and the
Oregon Health Fund - } Board.
SECTION 748. ORS 442.011, as amended by section 15, chapter
697, Oregon Laws 2007, is amended to read:
442.011. (1) There is created in the { - Department of Human
Services - } { + Oregon Health Authority + } the Office for
Oregon Health Policy and Research. The Administrator of the
Office for Oregon Health Policy and Research shall be appointed
by the Governor and the appointment shall be subject to Senate
confirmation in the manner prescribed in ORS 171.562 and 171.565.
The administrator shall be an individual with demonstrated
proficiency in planning and managing programs with complex public
policy and fiscal aspects such as those involved in the
{ - Oregon Health Plan - } { + medical assistance program + }.
Before making the appointment, the Governor must advise the
President of the Senate and the Speaker of the House of
Representatives of the names of at least three finalists and
shall consider their recommendation in appointing the
administrator.
(2) In carrying out the responsibilities and duties of the
administrator, the administrator shall consult with and be
advised by the Oregon Health Policy { - Commission - } { +
Board + }.
SECTION 749. ORS 442.015 is amended to read:
442.015. As used in ORS chapter 441 and this chapter, unless
the context requires otherwise:
(1) 'Acquire' or 'acquisition' means obtaining equipment,
supplies, components or facilities by any means, including
purchase, capital or operating lease, rental or donation, with
intention of using such equipment, supplies, components or
facilities to provide health services in Oregon. When equipment
or other materials are obtained outside of this state,
Enrolled House Bill 2009 (HB 2009-C) Page 430
acquisition is considered to occur when the equipment or other
materials begin to be used in Oregon for the provision of health
services or when such services are offered for use in Oregon.
(2) 'Adjusted admission' means the sum of all inpatient
admissions divided by the ratio of inpatient revenues to total
patient revenues.
(3) 'Affected persons' has the same meaning as given to '
party' in ORS 183.310.
(4) 'Ambulatory surgical center' means a facility that performs
outpatient surgery not routinely or customarily performed in a
physician's or dentist's office, and is able to meet health
facility licensure requirements.
(5) 'Audited actual experience' means data contained within
financial statements examined by an independent, certified public
accountant in accordance with generally accepted auditing
standards.
(6) 'Budget' means the projections by the hospital for a
specified future time period of expenditures and revenues with
supporting statistical indicators.
(7) 'Case mix' means a calculated index for each hospital,
based on financial accounting and case mix data collection as set
forth in ORS 442.425, reflecting the relative costliness of that
hospital's mix of cases compared to a state or national mix of
cases.
{ - (8) 'Commission' means the Oregon Health Policy
Commission. - }
{ - (9) 'Department' means the Department of Human Services
of the State of Oregon. - }
{ - (10) - } { + (8) + } 'Develop' means to undertake those
activities that on their completion will result in the offer of a
new institutional health service or the incurring of a financial
obligation, as defined under applicable state law, in relation to
the offering of such a health service.
{ - (11) 'Director' means the Director of Human Services. - }
{ - (12) - } { + (9) + } 'Expenditure' or 'capital
expenditure' means the actual expenditure, an obligation to an
expenditure, lease or similar arrangement in lieu of an
expenditure, and the reasonable value of a donation or grant in
lieu of an expenditure but not including any interest thereon.
{ - (13) - } { + (10) + } 'Freestanding birthing center'
means a facility licensed for the primary purpose of performing
low risk deliveries.
{ - (14) - } { + (11) + } ' Governmental unit' means the
state, or any county, municipality or other political
subdivision, or any related department, division, board or other
agency.
{ - (15) - } { + (12) + } ' Gross revenue' means the sum
of daily hospital service charges, ambulatory service charges,
ancillary service charges and other operating revenue. 'Gross
revenue' does not include contributions, donations, legacies or
bequests made to a hospital without restriction by the donors.
{ - (16)(a) - } { + (13)(a) + } ' Health care facility'
means a hospital, a long term care facility, an ambulatory
surgical center, a freestanding birthing center or an outpatient
renal dialysis facility.
(b) 'Health care facility' does not mean:
(A) An establishment furnishing residential care or treatment
not meeting federal intermediate care standards, not following a
primarily medical model of treatment, prohibited from admitting
Enrolled House Bill 2009 (HB 2009-C) Page 431
persons requiring 24-hour nursing care and licensed or approved
under the rules of the Department of Human Services or the
Department of Corrections; or
(B) An establishment furnishing primarily domiciliary care.
{ - (17) - } { + (14) + } ' Health maintenance
organization' or 'HMO ' means a public organization or a private
organization organized under the laws of any state that:
(a) Is a qualified HMO under section 1310 (d) of the U.S.
Public Health Services Act; or
(b)(A) Provides or otherwise makes available to enrolled
participants health care services, including at least the
following basic health care services:
(i) Usual physician services;
(ii) Hospitalization;
(iii) Laboratory;
(iv) X-ray;
(v) Emergency and preventive services; and
(vi) Out-of-area coverage;
(B) Is compensated, except for copayments, for the provision of
the basic health care services listed in subparagraph (A) of this
paragraph to enrolled participants on a predetermined periodic
rate basis; and
(C) Provides physicians' services primarily directly through
physicians who are either employees or partners of such
organization, or through arrangements with individual physicians
or one or more groups of physicians organized on a group practice
or individual practice basis.
{ - (18) - } { + (15) + } 'Health services' means
clinically related diagnostic, treatment or rehabilitative
services, and includes alcohol, drug or controlled substance
abuse and mental health services that may be provided either
directly or indirectly on an inpatient or ambulatory patient
basis.
{ - (19) - } { + (16) + } ' Hospital' means a facility
with an organized medical staff, with permanent facilities that
include inpatient beds and with medical services, including
physician services and continuous nursing services under the
supervision of registered nurses, to provide diagnosis and
medical or surgical treatment primarily for but not limited to
acutely ill patients and accident victims, to provide treatment
for patients with mental illness or to provide treatment in
special inpatient care facilities.
{ - (20) - } { + (17) + } ' Institutional health services'
means health services provided in or through health care
facilities and includes the entities in or through which such
services are provided.
{ - (21) - } { + (18) + } ' Intermediate care facility'
means a facility that provides, on a regular basis,
health-related care and services to individuals who do not
require the degree of care and treatment that a hospital or
skilled nursing facility is designed to provide, but who because
of their mental or physical condition require care and services
above the level of room and board that can be made available to
them only through institutional facilities.
{ - (22) - } { + (19) + } ' Long term care facility' means
a facility with permanent facilities that include inpatient beds,
providing medical services, including nursing services but
excluding surgical procedures except as may be permitted by the
rules of the Director { + of Human Services + }, to provide
treatment for two or more unrelated patients. 'Long term care
Enrolled House Bill 2009 (HB 2009-C) Page 432
facility' includes skilled nursing facilities and intermediate
care facilities but may not be construed to include facilities
licensed and operated pursuant to ORS 443.400 to 443.455.
{ - (23) - } { + (20) + } ' Major medical equipment' means
medical equipment that is used to provide medical and other
health services and that costs more than $1 million. 'Major
medical equipment' does not include medical equipment acquired by
or on behalf of a clinical laboratory to provide clinical
laboratory services, if the clinical laboratory is independent of
a physician's office and a hospital and has been determined under
Title XVIII of the Social Security Act to meet the requirements
of paragraphs (10) and (11) of section 1861(s) of that Act.
{ - (24) - } { + (21) + } ' Net revenue' means gross
revenue minus deductions from revenue.
{ - (25) - } { + (22) + } ' New hospital' means a facility
that did not offer hospital services on a regular basis within
its service area within the prior 12-month period and is
initiating or proposing to initiate such services. 'New hospital'
also includes any replacement of an existing hospital that
involves a substantial increase or change in the services
offered.
{ - (26) - } { + (23) + } ' New skilled nursing or
intermediate care service or facility' means a service or
facility that did not offer long term care services on a regular
basis by or through the facility within the prior 12-month period
and is initiating or proposing to initiate such services. 'New
skilled nursing or intermediate care service or facility' also
includes the rebuilding of a long term care facility, the
relocation of buildings that are a part of a long term care
facility, the relocation of long term care beds from one facility
to another or an increase in the number of beds of more than 10
or 10 percent of the bed capacity, whichever is the lesser,
within a two-year period.
{ - (27) - } { + (24) + } ' Offer' means that the health
care facility holds itself out as capable of providing, or as
having the means for the provision of, specified health services.
{ - (28) - } { + (25) + } ' Operating expenses' means the
sum of daily hospital service expenses, ambulatory service
expenses, ancillary expenses and other operating expenses,
excluding income taxes.
{ - (29) - } { + (26) + } ' Outpatient renal dialysis
facility' means a facility that provides renal dialysis services
directly to outpatients.
{ - (30) - } { + (27) + } ' Person' means an individual, a
trust or estate, a partnership, a corporation (including
associations, joint stock companies and insurance companies), a
state, or a political subdivision or instrumentality, including a
municipal corporation, of a state.
{ - (31) - } { + (28) + } 'Skilled nursing facility' means
a facility or a distinct part of a facility, that is primarily
engaged in providing to inpatients skilled nursing care and
related services for patients who require medical or nursing
care, or an institution that provides rehabilitation services for
the rehabilitation of individuals who are injured or sick or who
have disabilities.
{ - (32) - } { + (29) + } 'Special inpatient care facility'
means a facility with permanent inpatient beds and other
facilities designed and utilized for special health care
purposes, including but not limited to a rehabilitation center, a
college infirmary, a chiropractic facility, a facility for the
Enrolled House Bill 2009 (HB 2009-C) Page 433
treatment of alcoholism or drug abuse, an inpatient care facility
meeting the requirements of ORS 441.065, and any other
establishment falling within a classification established by the
{ - Department of Human Services - } { + Oregon Health
Authority + }, after determination of the need for such
classification and the level and kind of health care appropriate
for such classification.
{ - (33) - } { + (30) + } 'Total deductions from gross
revenue' or ' deductions from revenue' means reductions from
gross revenue resulting from inability to collect payment of
charges. Such reductions include bad debts, contractual
adjustments, uncompensated care, administrative, courtesy and
policy discounts and adjustments and other such revenue
deductions. The deduction shall be net of the offset of
restricted donations and grants for indigent care.
SECTION 750. ORS 442.120 is amended to read:
442.120. In order to provide data essential for health planning
programs:
(1) The Office for Oregon Health Policy and Research may
request, by July 1 of each year, each general hospital to file
with the office ambulatory surgery and inpatient discharge
abstract records covering all patients discharged during the
preceding calendar year. The ambulatory surgery and inpatient
discharge abstract record for each patient must include the
following information, and may include other information deemed
necessary by the office for developing or evaluating statewide
health policy:
(a) Date of birth;
(b) Sex;
(c) Zip code;
(d) Inpatient admission date or outpatient service date;
(e) Inpatient discharge date;
(f) Type of discharge;
(g) Diagnostic related group or diagnosis;
(h) Type of procedure performed;
(i) Expected source of payment, if available;
(j) Hospital identification number; and
(k) Total hospital charges.
(2) By July 1 of each year, the office may request from
ambulatory surgical centers licensed under ORS 441.015 ambulatory
surgery discharge abstract records covering all patients admitted
during the preceding year. Ambulatory surgery discharge abstract
records must include information similar to that requested from
general hospitals under subsection (1) of this section.
(3) In lieu of abstracting and compiling the records itself,
the office may solicit the voluntary submission of such data from
Oregon hospitals or other sources to enable it to carry out its
responsibilities under this section. If such data are not
available to the office on an annual and timely basis, the office
may establish by rule a fee to be charged to each hospital.
(4) Subject to prior approval of the Oregon { - Department of
Administrative Services - } { + Health Policy Board + } and a
report to the Emergency Board, if the Legislative Assembly is not
in session, prior to adopting the fee, and within the budget
authorized by the Legislative Assembly as the budget may be
modified by the Emergency Board, the fee established under
subsection (3) of this section may not exceed the cost of
abstracting and compiling the records.
(5) The office may specify by rule the form in which the
records are to be submitted. If the form adopted by rule requires
Enrolled House Bill 2009 (HB 2009-C) Page 434
conversion from the form regularly used by a hospital, reasonable
costs of such conversion shall be paid by the office.
(6) Abstract records must include a patient identifier that
allows for the statistical matching of records over time to
permit public studies of issues related to clinical practices,
health service utilization and health outcomes. Provision of such
a patient identifier must not allow for identification of the
individual patient.
(7) In addition to the records required in subsection (1) of
this section, the office may obtain abstract records for each
patient that identify specific services, classified by
International Classification of Disease Code, for special studies
on the incidence of specific health problems or diagnostic
practices. However, nothing in this subsection shall authorize
the publication of specific data in a form that allows
identification of individual patients or licensed health care
professionals.
(8) The office may provide by rule for the submission of
records for enrollees in a health maintenance organization from a
hospital associated with such an organization in a form the
office determines appropriate to the office's needs for such data
and the organization's record keeping and reporting systems for
charges and services.
SECTION 751. ORS 442.315 is amended to read:
442.315. (1) Any new hospital or new skilled nursing or
intermediate care service or facility not excluded pursuant to
ORS 441.065 shall obtain a certificate of need from the
{ - Department of Human Services - } { + Oregon Health
Authority + } prior to an offering or development.
(2) The { - department - } { + authority + } shall adopt
rules specifying criteria and procedures for making decisions as
to the need for the new services or facilities.
(3)(a) An applicant for a certificate of need shall apply to
the { - department - } { + authority + } on forms provided
for this purpose by
{ - department - } { + authority + } rule.
(b) An applicant shall pay a fee prescribed as provided in this
section. Subject to the approval of the Oregon Department of
Administrative Services, the { - Department of Human
Services - } { + authority + } shall prescribe application
fees, based on the complexity and scope of the proposed project.
(4) The { - Department of Human Services - }
{ + authority + } shall be the decision-making authority for the
purpose of certificates of need.
(5)(a) An applicant or any affected person who is dissatisfied
with the proposed decision of the { - department - } { +
authority + } is entitled to an informal hearing in the course of
review and before a final decision is rendered.
(b) Following a final decision being rendered by the
{ - department - } { + authority + }, an applicant or any
affected person may request a reconsideration hearing pursuant to
ORS chapter 183.
(c) In any proceeding brought by an affected person or an
applicant challenging { - a department - } { + an
authority + } decision under this subsection, the
{ - department - } { + authority + } shall follow procedures
consistent with the provisions of ORS chapter 183 relating to a
contested case.
(6) Once a certificate of need has been issued, it may not be
revoked or rescinded unless it was acquired by fraud or deceit.
Enrolled House Bill 2009 (HB 2009-C) Page 435
However, if the { - department - } { + authority + } finds
that a person is offering or developing a project that is not
within the scope of the certificate of need, the
{ - department - } { + authority + } may limit the project as
specified in the issued certificate of need or reconsider the
application. A certificate of need is not transferable.
(7) Nothing in this section applies to any hospital, skilled
nursing or intermediate care service or facility that seeks to
replace equipment with equipment of similar basic technological
function or an upgrade that improves the quality or
cost-effectiveness of the service provided. Any person acquiring
such replacement or upgrade shall file a letter of intent for the
project in accordance with the rules of the { - department - }
{ + authority + } if the price of the replacement equipment or
upgrade exceeds $1 million.
(8) Except as required in subsection (1) of this section for a
new hospital or new skilled nursing or intermediate care service
or facility not operating as a Medicare swing bed program,
nothing in this section requires a rural hospital as defined in
ORS 442.470 (5)(a)(A) and (B) to obtain a certificate of need.
(9) Nothing in this section applies to basic health services,
but basic health services do not include:
(a) Magnetic resonance imaging scanners;
(b) Positron emission tomography scanners;
(c) Cardiac catheterization equipment;
(d) Megavoltage radiation therapy equipment;
(e) Extracorporeal shock wave lithotriptors;
(f) Neonatal intensive care;
(g) Burn care;
(h) Trauma care;
(i) Inpatient psychiatric services;
(j) Inpatient chemical dependency services;
(k) Inpatient rehabilitation services;
(L) Open heart surgery; or
(m) Organ transplant services.
(10) In addition to any other remedy provided by law, whenever
it appears that any person is engaged in, or is about to engage
in, any acts that constitute a violation of this section, or any
rule or order issued by the { - department - }
{ + authority + } under this section, the { - department - }
{ + authority + } may institute proceedings in the circuit
courts to enforce obedience to such statute, rule or order by
injunction or by other processes, mandatory or otherwise.
(11) As used in this section, 'basic health services' means
health services offered in or through a hospital licensed under
ORS chapter 441, except skilled nursing or intermediate care
nursing facilities or services and those services specified in
subsection (9) of this section.
SECTION 752. ORS 442.325 is amended to read:
442.325. (1) A certificate of need shall be required for the
development or establishment of a health care facility of any new
health maintenance organization.
(2) Any activity of a health maintenance organization which
does not involve the direct delivery of health services, as
distinguished from arrangements for indirect delivery of health
services through contracts with providers, shall be exempt from
certificate of need review.
(3) Nothing in ORS 244.050, 431.250, 441.015 to 441.087,
442.015 to 442.420 and 442.450 applies to any decision of a
health maintenance organization involving its organizational
Enrolled House Bill 2009 (HB 2009-C) Page 436
structure, its arrangements for financing health services, the
terms of its contracts with enrolled beneficiaries or its scope
of benefits.
(4) With the exception of certificate of need requirements,
when applicable, the licensing and regulation of health
maintenance organizations shall be controlled by ORS 750.005 to
750.095 and statutes incorporated by reference therein.
(5) It is the policy of ORS 244.050, 431.250, 441.015 to
441.087, 442.015 to 442.420 and 442.450 to encourage the growth
of health maintenance organizations as an alternative delivery
system and to provide the facilities for the provision of quality
health care to the present and future members who may enroll
within their defined service area.
(6)(a) It is also the policy of ORS 244.050, 431.250, 441.015
to 441.087, 442.015 to 442.420 and 442.450 to consider the
special needs and circumstances of health maintenance
organizations. Such needs and circumstances include the needs of
and costs to members and projected members of the health
maintenance organization in obtaining health services and the
potential for a reduction in the use of inpatient care in the
community through an extension of preventive health services and
the provision of more systematic and comprehensive health
services. The consideration of a new health service proposed by a
health maintenance organization shall also address the
availability and cost of obtaining the proposed new health
service from the existing providers in the area that are not
health maintenance organizations.
(b) The { - Department of Human Services - } { + Oregon
Health Authority + } shall issue a certificate of need for beds,
services or equipment to meet the needs or reasonably anticipated
needs of members of health maintenance organizations when beds,
services or equipment are not available from nonplan providers.
SECTION 753. ORS 442.342 is amended to read:
442.342. (1) Notwithstanding any other provision of law, a
hospital licensed under ORS 441.025, in accordance with rules
adopted by the { - Department of Human Services - }
{ + Oregon Health Authority + }, may apply for waiver from the
provisions of ORS 442.325 and section 9, chapter 1034, Oregon
Laws 1989, and the
{ - department - } { + authority + } shall grant such waiver
if, for the most recently completed hospital fiscal year
preceding the date of application for waiver and each succeeding
fiscal year thereafter, the percentage of qualified inpatient
revenue is not less than that described in subsection (2) of this
section.
(2)(a) The percentage of qualified inpatient revenue for the
first year in which a hospital is granted a waiver under
subsection (1) of this section shall not be less than 60 percent.
(b) The percentage in paragraph (a) of this subsection shall be
increased by five percentage points in each succeeding hospital
fiscal year until the percentage of qualified inpatient revenue
equals or exceeds 75 percent.
(3) As used in this section:
(a) 'Qualified inpatient revenue' means revenue earned from
public and private payers for inpatient hospital services
approved by the { - department - } { + authority + } pursuant
to rules, including:
(A) Revenue earned pursuant to Title XVIII, United States
Social Security Act, when such revenue is based on diagnostic
related group prices which include capital-related expenses or
Enrolled House Bill 2009 (HB 2009-C) Page 437
other risk-based payment programs as approved by the
{ - department - } { + authority + };
(B) Revenue earned pursuant to Title XIX, United States Social
Security Act, when such revenue is based on diagnostic related
group prices which include capital-related expenses;
(C) Revenue earned under negotiated arrangements with public or
private payers based on all-inclusive per diem rates for one or
more hospital service categories;
(D) Revenue earned under negotiated arrangements with public or
private payers based on all-inclusive per discharge or per
admission rates related to diagnostic related groups or other
service or intensity-related measures;
(E) Revenue earned under arrangements with one or more health
maintenance organizations; or
(F) Other prospectively determined forms of inpatient hospital
reimbursement approved in advance by the { - department - }
{ + authority + } in accordance with rules.
(b) 'Percentage of qualified inpatient revenue' means qualified
inpatient revenue divided by total gross inpatient revenue as
defined by administrative rule of the { - department - } { +
authority + }.
(4)(a) The { - department - } { + authority + } shall hold
a hearing to determine the cause if any hospital granted a waiver
pursuant to subsection (1) of this section fails to reach the
applicable percentage of qualified inpatient revenue in any
subsequent fiscal year of the hospital.
(b) If the { - department - } { + authority + } finds that
the failure was without just cause and that the hospital has
undertaken projects that, except for the provisions of this
section would have been subject to ORS 442.325 or section 9,
chapter 1034, Oregon Laws 1989, the { - department - }
{ + authority + } shall impose one of the penalties outlined in
paragraph (c) of this subsection.
(c)(A) A one-time civil penalty of not less than $25,000 or
more than $250,000; or
(B) An annual civil penalty equal to an amount not to exceed
110 percent of the net profit derived from such project or
projects for a period not to exceed five years.
(5) Nothing in this section shall be construed to permit a
hospital to develop a new inpatient hospital facility or provide
new services authorized by facilities defined as 'long term care
facility' under ORS 442.015 under a waiver granted pursuant to
subsection (1) of this section.
SECTION 754. ORS 442.502 is amended to read:
442.502. (1) For purposes of determining the size of a rural
hospital, beds certified by the { - Department of Human
Services - } { + Oregon Health Authority + } on the license of
the hospital as special inpatient care beds shall not be
included.
(2) As used in this section, 'special inpatient care beds '
means beds that:
(a) Are used for the treatment of patients with mental illness
or for the treatment of alcoholism or drug abuse, or are located
in a rehabilitation center, a college infirmary, a chiropractic
facility, a freestanding hospice facility, an infirmary for the
homeless or an inpatient care facility described in ORS 441.065;
(b) Are physically separate from acute inpatient care beds, at
least by being located on separate floors or wings of the same
building;
(c) Are never used for acute patient care;
Enrolled House Bill 2009 (HB 2009-C) Page 438
(d) Are staffed by dedicated direct care personnel for whom
separate employment records are maintained;
(e) Have separate medical directors; and
(f) Maintain separate admission, discharge and patient records.
SECTION 755. ORS 442.700 is amended to read:
442.700. As used in ORS 442.700 to 442.760:
(1) 'Board of governors' means the governors of a cooperative
program as described in ORS 442.720.
(2) 'Cooperative program' means a program among two or more
health care providers for the purpose of providing heart and
kidney transplant services including, but not limited to, the
sharing, allocation and referral of physicians, patients,
personnel, instructional programs, support services, facilities,
medical, diagnostic, laboratory or therapeutic services,
equipment, devices or supplies, and other services traditionally
offered by health care providers.
(3) 'Director' means the Director of Human Services.
(4) 'Health care provider' means a hospital, physician or
entity, a significant part of whose activities consist of
providing hospital or physician services in this state. For
purposes of the immunities provided by ORS 442.700 to 442.760 and
646.740, 'health care provider' includes any officer, director,
trustee, employee, or agent of, or any entity under common
ownership and control with, a health care provider.
(5) 'Hospital' means a hospital, as defined in ORS 442.015
{ - (19) - } , or a long term care facility or an ambulatory
surgical center, as those terms are defined in ORS 442.015, that
is licensed under ORS 441.015 to 441.089. 'Hospital' includes
community health programs established under ORS 430.610 to
430.695.
(6) 'Order' means a decision issued by the director under ORS
442.710 either approving or denying an application for a
cooperative program and includes modifications of an original
order under ORS 442.730 (3)(b) and ORS 442.740 (1) and (4).
(7) 'Party to a cooperative program agreement' or 'party '
means an entity that enters into the principal agreement to
establish a cooperative program and applies for approval under
ORS 442.700 to 442.760 and 646.740 and any other entity that,
with the approval of the director, becomes a member of a
cooperative program.
(8) 'Physician' means a physician defined in ORS 677.010 (13)
and licensed under ORS chapter 677.
SECTION 756. ORS 442.705 is amended to read:
442.705. (1) The Legislative Assembly finds that direct
competition among health care providers in the field of heart and
kidney transplant services may not result in the most cost
efficient and least expensive transplant services for the
citizens of this state and that it is in the public interest to
allow cooperative programs among health care providers providing
heart and kidney transplant services.
(2) The Legislative Assembly declares that, to the extent
provided in ORS 442.700 to 442.760, it is the policy and intent
of this state to displace competition among health care providers
providing heart and kidney transplant services by allowing health
care providers to enter into cooperative programs governing the
provision of heart and kidney transplant services in order to
achieve in each instance the following goals:
(a) Reduction of, or protection against, rising costs of heart
and kidney transplant services;
Enrolled House Bill 2009 (HB 2009-C) Page 439
(b) Reduction of, or protection against, rising prices for
heart and kidney transplant services;
(c) Improvement or maintenance of the quality of heart and
kidney transplant services provided in this state;
(d) Reduction of, or protection against, duplication of
resources including, without limitation, expensive medical
specialists, medical equipment and sites of service;
(e) Improvement or maintenance of efficiency in the delivery of
heart and kidney transplant services;
(f) Improvement or maintenance of public access to heart and
kidney transplant services;
(g) Increase in donations of organs for transplantation; and
(h) Improvement in the continuity of patient care.
(3) The Legislative Assembly further declares that the goals
identified in subsection (2) of this section represent the
policies of this state.
(4) The Legislative Assembly further declares that once a
cooperative program is approved under ORS 442.700 to 442.760,
there is an interest in insuring stability in the provision of
health care services by a cooperative program, to the extent
stability is consistent with achieving the goals identified in
subsection (2) of this section.
(5) The Director of { - Human Services - } { + the Oregon
Health Authority + } shall actively supervise the cooperative
program in accordance with authority under ORS 442.700 to 442.760
and 646.740.
SECTION 757. ORS 442.710 is amended to read:
442.710. (1) The Oregon Health and Science University and one
or more entities, each of which operates at least three hospitals
in a single urban area in this state, may apply to the Director
of
{ - Human Services - } { + the Oregon Health Authority + }
for approval of a cooperative program. The application shall
include an executed written copy of all agreements for the
cooperative program.
(2) An application for approval of a cooperative program shall
be made in the form and manner and shall set forth any
information regarding the proposed cooperative program that the
director may prescribe. The information shall include, but not be
limited to:
(a) A list of the names of all health care providers who
propose to provide heart and kidney transplant services under the
cooperative program, together with appropriate evidence of
compliance with any licensing or certification requirements for
those health care providers to practice in this state. In the
case of employed physicians, the list and the information to be
submitted may be limited to the employer or organizational unit
of the employer;
(b) A description of the activities to be conducted by the
cooperative program;
(c) A description of proposed anticompetitive practices listed
in ORS 442.715, any practices that the parties anticipate will
have significant anticompetitive effects and a description of
practices of the cooperative program affecting costs, prices,
personnel positions, capital expenditures and allocation of
resources;
(d) A list of the goals identified in ORS 442.705 (2) that the
cooperative program expects to achieve;
(e) A description of the proposed places and manner of
providing heart and kidney transplant services and services
Enrolled House Bill 2009 (HB 2009-C) Page 440
related to heart and kidney transplants under the cooperative
program;
(f) A proposed budget for operating the cooperative program;
(g) Satisfactory evidence of financial ability to deliver heart
and kidney transplant services in accordance with the cooperative
program;
(h) The agreement that establishes the cooperative program and
policies that shall govern it; and
(i) Other information the director believes will assist in
determining whether the cooperative program will likely achieve
the goals listed in ORS 442.705 (2).
(3) The director shall review the application in accordance
with the provisions of this section and shall grant, deny or
request modification of the application within 90 days of the
date the application is filed. The director shall hold one or
more public hearings on the application, which shall conclude no
later than 80 days after the date the application is filed. The
decision of the director on an application shall be considered an
order in a contested case for the purposes of ORS chapter 183.
(4) The director shall approve an application made under
subsection (2) of this section after:
(a) The applicants have demonstrated they will achieve at least
six of the goals of ORS 442.700 to 442.760 and 646.740, including
at least the goals identified in ORS 442.705 (2)(a) to (d); and
(b) The director has reviewed and approved the specifics of the
anticompetitive activity expected to be conducted by the
cooperative program.
(5) In evaluating the application, the director shall consider
whether a cooperative program will contribute to or detract from
achieving the goals listed in ORS 442.705 (2). The director may
weigh goals relating to circumstances that are likely to occur
without the cooperative program, and relating to existing
circumstances. The director may also consider whether any
alternative arrangements would be less restrictive of competition
while achieving the same goals.
(6) An order approving a cooperative program shall identify and
define the limits of the permitted activities for purposes of
granting antitrust immunity under ORS 442.700 to 442.760.
(7) An order approving a cooperative program shall include:
(a) Approval of specific activities listed in ORS 442.715;
(b) Approval of activities the director anticipates will have
substantial anticompetitive effects;
(c) Approval of the proposed budget of the cooperative program;
(d) The goals listed in ORS 442.705 (2) that the cooperative
program is expected to achieve; and
(e) Approval of the cooperative program as described in the
application and a finding that the cooperative program is in the
public interest.
(8) An order denying the application for a cooperative program
shall identify the findings of fact and reasons supporting
denial.
(9) Either the director or all the parties to the cooperative
program may request a modification of an application made under
this section. A request for a modification shall result in one
extension of 30 days after submission of the modified
application. The director shall issue an order under this
section within 30 days after submission of the modified
application.
SECTION 758. ORS 442.720 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 441
442.720. (1) If the Director of { - Human Services - }
{ + the Oregon Health Authority + } issues an order approving an
application for a cooperative program under ORS 442.710, the
director shall establish a board of governors to govern the
cooperative program. The board of governors shall not
constitute, for any purpose, a governmental agency.
(2) The board of governors shall consist of the president or
other chief executive officer of each health care provider that
is a party to the cooperative program agreement and the director
or a designee of the director. The designee shall serve at the
pleasure of the director. The designee shall not have any
economic or other interest in any of the health care providers
associated with the cooperative program.
(3) In governing the cooperative program, the board of
governors shall develop policy and approve budgets for the
implementation of the cooperative program.
(4) The director or designee of the director may reject any
operating or capital budget of the cooperative program upon a
finding by the director that the budget is not consistent with
the goals listed in ORS 442.705 (2) that the cooperative program
is expected to achieve.
SECTION 759. ORS 442.725 is amended to read:
442.725. Not later than 60 days following each anniversary date
of the approval of a cooperative program by the Director of
{ - Human Services - } { + the Oregon Health Authority + },
the board of governors of the cooperative program shall deliver
an annual report to the director. The report shall specifically
describe:
(1) How heart and kidney transplant services and related
services of the cooperative program are being provided in
accordance with the order;
(2) Which of the goals identified in the order are being
achieved and to what extent; and
(3) Any substantial changes in the cooperative program.
SECTION 760. ORS 442.730 is amended to read:
442.730. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall review and evaluate the annual
report delivered under ORS 442.725. The director shall:
(a) Determine the extent to which the cooperative program is
achieving the goals identified in the order;
(b) Review the activities being conducted to achieve the goals;
and
(c) Determine whether each of the activities is still necessary
and appropriate to achieve the goals.
(2) If the director determines that additional information is
needed for the review described in subsection (1) of this
section, the director may order the board of governors to provide
the information within a specified time.
(3) Within 60 days after receiving the annual report or any
additional information ordered under subsection (2) of this
section, the director shall:
(a) Approve the report if the director determines that the
cooperative program is operating in accordance with the order and
that the goals identified in the order are being adequately
achieved by the cooperative program;
(b) Modify the order as appropriate to adjust to changes in the
cooperative program approved by the director and approve the
report as provided in paragraph (a) of this subsection;
(c) Order the board of governors to make remedial changes in
anticompetitive activities not in compliance with the order and
Enrolled House Bill 2009 (HB 2009-C) Page 442
request the board of governors to report on progress not later
than a deadline specified by the director;
(d) Revoke approval of the cooperative program; or
(e) Take any of the actions set forth in ORS 442.740.
SECTION 761. ORS 442.735 is amended to read:
442.735. (1) Any person may file a complaint with the Director
of { - Human Services - } { + the Oregon Health Authority + }
requesting that a specific decision or action of a cooperative
program supervised by the director be reversed or modified, or
that approval for all or part of the activities permitted by the
order be suspended or terminated. The complaint shall allege the
reasons for the requested action and shall include any evidence
relating to the complaint.
(2) The director on the director's own initiative may at any
time request information from the board of governors concerning
the activities of the cooperative program to determine whether
the cooperative program is in compliance with the order.
SECTION 762. ORS 442.740 is amended to read:
442.740. (1) During the review of the annual report described
in ORS 442.730, after receiving a complaint under ORS 442.735, or
on the director's own initiative, the Director of { - Human
Services - } { + the Oregon Health Authority + } may take one or
more of the following actions:
(a) If the director determines that a particular decision or
action is not in accordance with the order, or that the parties
are engaging in anticompetitive activity not permitted by the
order, the director may direct the board of governors to identify
and implement corrective action to insure compliance with the
order or may modify the order.
(b) If the director determines that the cooperative program is
engaging in unlawful activity not permitted by the order or is
not complying with the directive given under paragraph (a) of
this subsection, the director may serve on the cooperative
program a proposed order directing the cooperative program to:
(A) Conform with the directive under paragraph (a) of this
subsection; or
(B) Cease and desist from engaging in the activity.
(2) The cooperative program shall have up to 30 days to comply
with a proposed order under subsection (1)(b) of this section
unless the board of governors demonstrates additional time is
needed for compliance.
(3) If the director determines that the participants in the
cooperative program are in substantial noncompliance with the
cease and desist directive, the director may seek an appropriate
injunction in the circuit courts of Marion or Multnomah Counties.
(4) If the director determines that a sufficient number of the
goals set forth in ORS 442.705 (2) are not being achieved or that
the cooperative program is engaging in activity not permitted by
the order, the director may suspend or terminate approval for all
or part of the activities approved and permitted by the order.
(5) A proposed order to be entered under subsection (1)(b) or
(4) of this section may be served upon the cooperative program
without prior notice. The cooperative program may contest the
proposed order by filing a written request for a contested case
hearing with the director not later than 20 days following the
date of the proposed order. The proposed order shall become final
if no request for a hearing is received. Unless inconsistent with
this subsection, the provisions of ORS chapter 183, as
applicable, shall govern the hearing procedure and any judicial
review.
Enrolled House Bill 2009 (HB 2009-C) Page 443
(6) The only effect of an order suspending or terminating
approval under ORS 442.700 to 442.760 shall be to withdraw the
immunities granted under ORS 442.715 (3) for anticompetitive
activity permitted by the order and taken after the effective
date of the order.
SECTION 763. ORS 442.745 is amended to read:
442.745. If parties to a cooperative program agreement provide
the Director of { - Human Services - } { + the Oregon Health
Authority + } with written or oral information that is
confidential or otherwise protected from disclosure under Oregon
law, the disclosures shall not be considered a waiver of any
right to protect the information from disclosure in other
proceedings.
SECTION 764. ORS 442.750 is amended to read:
442.750. (1) Notwithstanding the provisions of ORS 646.705 to
646.836:
(a) A cooperative program for which approval has been granted
under ORS 442.700 to 442.760 and 646.740 is a lawful program to
the extent it engages in activities permitted by the order and
supervised by the Director of { - Human Services - } { + the
Oregon Health Authority + } and is in compliance with the order;
and
(b) If the parties to a cooperative program apply to the
director as provided in ORS 442.710, the conduct of the parties
and all other participants in negotiating or entering into a
cooperative program is lawful conduct.
(2) Subsection (1)(b) of this section does not apply to persons
negotiating a cooperative program if it can be demonstrated, by a
preponderance of the evidence, that the persons do not or did not
intend to enter into a cooperative agreement.
(3) Nothing in ORS 442.700 to 442.760 and 646.740 shall be
construed to immunize any person from liability or impose
liability where none would otherwise exist under federal or state
antitrust laws for conduct in negotiating and entering into a
cooperative program for which no application was filed with the
director.
SECTION 765. ORS 442.755 is amended to read:
442.755. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall adopt rules as may be necessary
to carry out the provisions of ORS 442.700 to 442.760.
(2) The costs of program approval and supervision shall be paid
by the parties to a cooperative program agreement and the
director shall set fees for application, annual review and
supervision as necessary to fund the director's supervision of
the program.
SECTION 766. ORS 442.760 is amended to read:
442.760. Notwithstanding the provisions of ORS 183.310 (7) and
183.480, only a party to a cooperative program agreement or the
Director of { - Human Services - } { + the Oregon Health
Authority + } shall be entitled to a contested case hearing or
judicial review of an order issued pursuant to ORS 442.700 to
442.760 and 646.740.
SECTION 767. ORS 442.800 is amended to read:
442.800. (1) The Advisory Committee on Physician Credentialing
Information is established within the Office for Oregon Health
Policy and Research. The committee consists of nine members
appointed by the Administrator of the Office for Oregon Health
Policy and Research as follows:
Enrolled House Bill 2009 (HB 2009-C) Page 444
(a) Three members who are physicians licensed by the Oregon
Medical Board or representatives of physician organizations doing
business within the State of Oregon;
(b) Three representatives of hospitals licensed by the
{ - Department of Human Services - } { + Oregon Health
Authority + }; and
(c) Three representatives of health care service contractors
that have been issued a certificate of authority to transact
health insurance in this state by the Department of Consumer and
Business Services.
(2) All members appointed pursuant to subsection (1) of this
section shall be knowledgeable about national standards relating
to physician credentialing.
(3) The term of appointment for each member of the committee is
three years. If, during a member's term of appointment, the
member no longer qualifies to serve as designated by the criteria
of subsection (1) of this section, the member must resign. If
there is a vacancy for any cause, the administrator shall make an
appointment to become immediately effective for the unexpired
term.
(4) Members of the committee are not entitled to compensation
or reimbursement of expenses.
SECTION 768. ORS 442.807 is amended to read:
442.807. (1) Within 30 days of receiving the recommendations of
the Advisory Committee on Physician Credentialing Information,
the Administrator of the Office for Oregon Health Policy and
Research shall forward the recommendations to the Director of the
{ - Department of Consumer and Business Services and to the
Director of Human Services - } { + Oregon Health Authority + }.
The administrator shall request that the { - Department of
Consumer and Business Services and the Department of Human
Services - } { + Oregon Health Authority + } adopt rules to
carry out the efficient implementation and enforcement of the
recommendations of the committee.
(2) The { - Department of Consumer and Business Services and
the Department of Human Services - } { + Oregon Health
Authority + } shall:
(a) Adopt administrative rules in a timely manner, as required
by the Administrative Procedures Act, for the purpose of
effectuating the provisions of ORS 442.800 to 442.807; and
(b) Consult with each other and with the administrator to
ensure that the rules adopted by the { - Department of Consumer
and Business Services and the Department of Human Services - }
{ + Oregon Health Authority + } are identical and are consistent
with the recommendations developed pursuant to ORS 442.805 for
affected hospitals and health care service contractors.
(3) The uniform credentialing information required pursuant to
the administrative rules of the { - Department of Consumer and
Business Services and the Department of Human Services - }
{ + Oregon Health Authority + } represent the minimum uniform
credentialing information required by the affected hospitals and
health care service contractors. Nothing in ORS 442.800 to
442.807 shall be interpreted to prevent an affected hospital or
health care service contractor from requesting additional
credentialing information from a licensed physician for the
purpose of completing physician credentialing procedures used by
the affected hospital or health care service contractor.
SECTION 769. ORS 443.005 is amended to read:
443.005. As used in ORS 443.005 to 443.095:
{ + (1) 'Authority' means the Oregon Health Authority. + }
Enrolled House Bill 2009 (HB 2009-C) Page 445
{ - (1) 'Department' means the Department of Human
Services. - }
(2) 'Home health agency' means a public or private agency
providing coordinated home health services on a home visiting
basis. 'Home health agency' does not include:
(a) Any visiting nurse service or home health service conducted
by and for those who rely upon spiritual means through prayer
alone for healing in accordance with the tenets and practices of
a recognized church or religious denomination.
(b) Those home health services offered by county health
departments outside, and in addition to, programs formally
designated and funded as home health agencies.
(3) 'Home health services' means items and services furnished
to an individual by a home health agency, or by others under
arrangements with such agency, on a visiting basis, in a place of
temporary or permanent residence used as the individual's home
for the purpose of maintaining that individual at home.
SECTION 770. ORS 443.015 is amended to read:
443.015. No public or private agency or person shall establish,
conduct or maintain a home health agency or organization
providing home health services for compensation, or hold itself
out to the public as a home health agency or organization,
without first obtaining a license therefor from the
{ - Department of Human Services - } { + Oregon Health
Authority + }. The license shall be renewable annually and is not
transferable.
SECTION 771. ORS 443.035 is amended to read:
443.035. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may grant a license to a home
health agency for a calendar year, may annually renew a license
and may allow for a change of ownership, upon payment of a fee as
follows:
(a) For a new home health agency:
(A) $1,000; and
(B) An additional $1,000 for each subunit of a parent home
health agency.
(b) For renewal of a license:
(A) $600; and
(B) An additional $600 for each subunit of a parent home health
agency.
(c) For a change of ownership at a time other than the annual
renewal date:
(A) $500; and
(B) An additional $500 for each subunit of a parent home health
agency.
(2) Notwithstanding subsection (1)(c) of this section, the fee
for a change in ownership shall be $100 if a change in ownership
does not involve:
(a) The majority owner or partner; or
(b) The administrator operating the agency.
(3) All fees received pursuant to subsection (1) of this
section shall be paid over to the State Treasurer and credited to
the Public Health Account. Such moneys are appropriated
continuously to the { - Department of Human Services - }
{ + Oregon Health Authority + } for the administration of ORS
443.005 to 443.095.
SECTION 772. ORS 443.045 is amended to read:
443.045. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may deny, suspend or revoke the
license of any home health agency for failure to comply with ORS
Enrolled House Bill 2009 (HB 2009-C) Page 446
443.005 to 443.095 or with the rules of the { - department - }
{ + authority + } as authorized by ORS 443.085.
(2) License denials, suspensions and revocations, adoption of
rules and judicial review thereof shall be in accordance with ORS
chapter 183.
SECTION 773. ORS 443.055 is amended to read:
443.055. A home health agency shall have an organized governing
body, or, if a subdivision of a public or private agency or a
multifunction organization, a clearly defined local body having
responsibility for the conduct of the home health agency. Where
the governing body is functionally remote from the operation of
the home health agency, the { - Department of Human
Services - } { + Oregon Health Authority + } may approve the
designation of an appropriate part of the organization as the
governing body.
SECTION 774. ORS 443.085 is amended to read:
443.085. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules relating to
the home health agencies licensed under ORS 443.005 to 443.095,
governing:
(1) The qualifications of professional and ancillary personnel
in order to adequately furnish home health services;
(2) Standards for the organization and quality of patient care;
(3) Procedures for maintaining records; and
(4) Provision for contractual arrangements for professional and
ancillary health services.
SECTION 775. ORS 443.205 is amended to read:
443.205. As used in ORS 443.215 and 443.225, 'domiciliary care
facilities' means facilities providing residential care to
adults, including adult foster homes, group care facilities or
residential treatment, training or care facilities, established,
contracted for or operated by the Department of Human
Services { + or the Oregon Health Authority + }.
SECTION 776. ORS 443.225 is amended to read:
443.225. (1) Except as otherwise provided by subsections (3)
and (4) of this section, the capacity of all domiciliary care
facilities must be located throughout the state based on the
relationship of the population of the county in which the
additional capacity is proposed to be located to the number of
persons originating from the county { + who are + } determined
to be in need of domiciliary care { - by the Department of
Human Services - } . However, nothing in this subsection is
intended to prevent the placement of a person who is or was not a
resident of the county in a domiciliary care facility in the
county.
{ + (2) The Department of Human Services shall determine the
number of persons originating from a county who are in need of
domiciliary care if the domiciliary care facility is an adult
foster home as defined in ORS 443.705, a residential care
facility or residential training facility as those terms are
defined in ORS 443.400 or other group care facility.
(3) The Oregon Health Authority shall determine the number of
persons originating from a county who are in need of domiciliary
care if the domiciliary care facility is a residential treatment
facility as defined in ORS 443.400. + }
{ - (2) - } { + (4) + } When a county is too sparsely
populated to produce a meaningful ratio of county population to
population in need, or a county is lacking necessary support
services, the population of two or more counties may be combined.
Enrolled House Bill 2009 (HB 2009-C) Page 447
The area of the combined counties may be considered a county for
purposes of subsection (1) of this section.
{ - (3) - } { + (5) + } The computation required by
subsection (1) of this section does not require reduction in any
domiciliary care facility capacity existing on October 4, 1977.
{ - (4) - } { + (6) + } Subject to the appropriate
licensing requirements, the governing body of a county may
authorize a domiciliary care facility located in the county to
exceed the capacity limit imposed by subsection (1) of this
section upon:
(a) Request of an individual or organization operating or
proposing to operate a domiciliary care facility;
(b) Consultation with an advisory committee appointed by the
governing body and consisting of persons who are particularly
interested in the type of domiciliary care facility contemplated;
and
(c) Finding of good cause following notice and public hearing.
SECTION 776a. ORS 443.315 is amended to read:
443.315. (1) A person may not operate or maintain an in-home
care agency or purport to operate or maintain an in-home care
agency without obtaining a license from the { - Department of
Human Services - } { + Oregon Health Authority + }.
(2) The { - department - } { + authority + } shall
establish requirements and qualifications for licensure under
this section by rule. The
{ - department - } { + authority + } shall issue a license to
an applicant that has the necessary qualifications and meets all
requirements established by rule, including the payment of
required fees. An in-home care agency shall be required to
maintain administrative and professional oversight to ensure the
quality of services provided.
(3) Application for a license required under subsection (1) of
this section shall be made in the form and manner required by the
{ - department - } { + authority + } by rule and shall be
accompanied by any required fees.
(4) A license may be granted, or may be renewed annually, upon
payment of a fee as follows:
(a) For the initial licensure of an in-home care agency:
(A) $1,500; and
(B) An additional $750 for each subunit.
(b) For renewal of a license:
(A) $750; and
(B) An additional $750 for each subunit.
(c) For a change of ownership at a time other than the annual
renewal date:
(A) $350; and
(B) An additional $350 for each subunit.
(5) A license issued under this section is valid for one year.
A license may be renewed by payment of the required renewal fee
and by demonstration of compliance with requirements for renewal
established by rule.
(6) A license issued under this section is not transferable.
(7) The { - department - } { + authority + } shall conduct
an on-site inspection of each in-home care agency prior to
services being rendered and once every three years thereafter as
a requirement for licensing.
SECTION 776b. ORS 443.325 is amended to read:
443.325. The { - Department of Human Services - } { +
Oregon Health Authority + } may impose a civil penalty in the
manner provided in ORS 183.745 and deny, suspend or revoke the
Enrolled House Bill 2009 (HB 2009-C) Page 448
license of any in-home care agency licensed under ORS 443.315 for
failure to comply with ORS 443.305 to 443.350 or with rules
adopted thereunder. A failure to comply with ORS 443.305 to
443.350 includes, but is not limited to:
(1) Failure to provide a written disclosure statement to the
client or the client's representative prior to in-home care
services being rendered;
(2) Failure to provide the contracted in-home care services; or
(3) Failure to correct deficiencies identified during { - a
department - } { + an + } inspection { + by the authority + }.
SECTION 776c. ORS 443.327 is amended to read:
443.327. (1) Notwithstanding the existence and pursuit of any
other remedy, the { - Department of Human Services - } { +
Oregon Health Authority + } may, in the manner provided by law,
maintain an action in the name of the state for injunction or
other process against any person to restrain or prevent the
establishment, conduct, management or operation of an in-home
care agency without a license. The { - department - } { +
authority + } may recover attorney fees and court costs for any
such action.
(2) If an in-home care agency is found to be operating without
a valid license, the in-home care agency must provide notice to
its clients in a manner and period of time set forth by the
{ - department - } { + authority + }.
SECTION 776d. ORS 443.340 is amended to read:
443.340. The { - Department of Human Services - } { +
Oregon Health Authority + } shall adopt administrative rules
necessary for the implementation and administration of ORS
443.305 to 443.350. These rules shall include, but are not
limited to, a requirement that an in-home care agency must
conduct criminal background checks on all individuals employed by
or contracting with the agency as in-home caregivers.
SECTION 776e. ORS 443.345 is amended to read:
443.345. All moneys received pursuant to ORS 443.315, 443.325
and 443.327 shall be deposited in the State Treasury and credited
to an account designated by the { - Department of Human
Services - } { + Oregon Health Authority + }. Such moneys are
continuously appropriated to the { - department - } { +
authority + } for the administration of ORS 443.305 to 443.350.
SECTION 777. ORS 443.400 is amended to read:
443.400. As used in ORS 443.400 to 443.455 and 443.991
{ - (2) - } , unless the context requires otherwise:
(1) { - ' Department' means the Department of Human
Services - } { + ' Director' means the director of the
licensing agency for the residential facility + }.
(2) { - ' Director' means the Director of Human Services - }
{ + ' Licensing agency' means:
(a) The Department of Human Services, if the residential
facility that is licensed, or that the Director of Human Services
determines should be licensed, is a residential care facility,
residential training facility or residential training home; or
(b) The Oregon Health Authority, if the residential facility
that is licensed, or that the Director of the Oregon Health
Authority determines should be licensed, is a residential
treatment facility or residential treatment home + }.
(3) 'Resident' means any individual residing in a facility who
receives residential care, treatment or training. For purposes of
ORS 443.400 to 443.455, an individual is not considered to be a
resident if the individual is related by blood or marriage within
Enrolled House Bill 2009 (HB 2009-C) Page 449
the fourth degree as determined by civil law to the person
licensed to operate or maintain the facility.
(4) 'Residential care' means services such as supervision;
protection; assistance while bathing, dressing, grooming or
eating; management of money; transportation; recreation; and the
providing of room and board.
(5) 'Residential care facility' means a facility that provides,
for six or more socially dependent individuals or individuals
with physical disabilities, residential care in one or more
buildings on contiguous properties.
(6) 'Residential facility' means a residential care facility,
residential training facility, residential treatment facility,
residential training home or residential treatment home.
(7) 'Residential training facility' means a facility that
provides, for six or more individuals with mental retardation or
other developmental disabilities, residential care and training
in one or more buildings on contiguous properties.
(8) 'Residential training home' means a facility that provides,
for five or fewer individuals with mental retardation or other
developmental disabilities, residential care and training in one
or more buildings on contiguous properties, when so certified and
funded by the { - department - } { + Department of Human
Services + }.
(9) 'Residential treatment facility' means a facility that
provides, for six or more individuals with mental, emotional or
behavioral disturbances or alcohol or drug dependence,
residential care and treatment in one or more buildings on
contiguous properties.
(10) 'Residential treatment home' means a facility that
provides for five or fewer individuals with mental, emotional or
behavioral disturbances or alcohol or drug dependence,
residential care and treatment in one or more buildings on
contiguous properties.
(11) 'Training' means the systematic, planned maintenance,
development or enhancement of self-care skills, social skills or
independent living skills, or the planned sequence of systematic
interactions, activities or structured learning situations
designed to meet each resident's specified needs in the areas of
physical, social, emotional and intellectual growth.
(12) 'Treatment' means a planned, individualized program of
medical, psychological or rehabilitative procedures, experiences
and activities designed to relieve or minimize mental, emotional,
physical or other symptoms or social, educational or vocational
disabilities resulting from or related to the mental or emotional
disturbance, physical disability or alcohol or drug problem.
SECTION 778. ORS 443.405 is amended to read:
443.405. For purposes of ORS 443.400 to 443.455 and 443.991
{ - (2) - } , 'residential facility' does not include:
(1) A residential school;
(2) A state or local correctional facility, other than a local
facility for persons enrolled in work release programs maintained
under ORS 144.460;
(3) A youth correction facility as defined in ORS 420.005;
(4) A youth care center operated by a county juvenile
department under administrative control of a juvenile court
pursuant to ORS 420.855 to 420.885;
(5) A juvenile detention facility as defined in ORS 419A.004;
(6) A nursing home;
(7) A hospital;
(8) A place primarily engaged in recreational activities;
Enrolled House Bill 2009 (HB 2009-C) Page 450
(9) A foster home; or
(10) A place providing care and treatment on less than a
24-hour basis.
SECTION 779. ORS 443.410 is amended to read:
443.410. { + (1) + } A license issued by the Department of
Human Services is required in order to operate or maintain
{ - any residential facility for persons who have developmental,
physical or psychiatric disabilities or are socially dependent or
alcohol or drug dependent - } { + a residential care facility,
residential training facility or residential training home + }.
In the case of a combination of residents, the category of
licensure shall be determined by the Director of Human Services.
{ + (2) A license issued by the Oregon Health Authority is
required in order to operate or maintain a residential treatment
facility or residential treatment home. + }
SECTION 780. ORS 443.415 is amended to read:
443.415. (1) Applications for licensure to maintain and operate
a residential facility shall be made to the Department of Human
Services { + or the Oregon Health Authority + } on forms
provided for that purpose by the { - department - }
{ + appropriate licensing agency + }. Each application shall be
accompanied by a fee of $60 for facilities defined in ORS 443.400
(5), (7) and (9) and a fee of $30 for homes defined in ORS
443.400 (8) and (10). No fee is required of any governmentally
operated residential facility.
(2) Upon receipt of an application and fee, the
{ - department - } { + licensing agency + } shall conduct an
investigation. The { - department - } { + licensing
agency + } shall issue a license to any applicant for operation
of a residential facility in compliance with ORS 443.400 to
443.455 and the rules of the { - director - } { + licensing
agency + }. Licensure may be denied when a residential facility
is not in compliance with ORS 443.400 to 443.455 or the rules of
the
{ - Director of Human Services - } { + licensing agency + }.
Licensure shall be denied if the State Fire Marshal or other
authority has given notice of noncompliance of facilities defined
in ORS 443.400 (5), (7) and (9) pursuant to ORS 479.220.
SECTION 781. ORS 443.420, as amended by section 12, chapter 18,
Oregon Laws 2008, is amended to read:
443.420. (1) A person applying for a license under ORS 443.415
must, in the judgment of the { - Director of Human Services - }
{ + director of the licensing agency + }, be a person:
(a) Who demonstrates an understanding and acceptance of the
rules governing residential facilities;
(b) Mentally and physically capable of caring for such
residents; and
(c) Who employs or utilizes only individuals whose presence
does not jeopardize the health, safety or welfare of residents.
(2) A residential facility shall not be operated or maintained
in combination with a nursing home or hospital unless licensed,
maintained and operated as a separate and distinct part.
(3) All physical residential facilities used for residents
shall meet applicable requirements of the State Fire Marshal.
(4) Prior to licensure, a residential facility must be in
substantial compliance with applicable state and local laws,
rules, codes, ordinances and permit requirements.
(5) Prior to licensure, a residential facility that proposes to
house persons under the age of 21 years shall submit written
Enrolled House Bill 2009 (HB 2009-C) Page 451
proof of compliance with ORS 336.575 to the { - Department of
Human Services - } { + licensing agency + }.
(6) Prior to an initial licensure of a residential care
facility, the { - department - } { + licensing agency + }
shall consider:
(a) The license applicant's history of regulatory compliance
and operational experience;
(b) The need in the local community for the services offered by
the license applicant, as demonstrated by a market study produced
by the license applicant;
(c) The willingness of the license applicant to serve
underserved populations; and
(d) The willingness of the license applicant to contract with
the { - department - } { + licensing agency + } to provide
services through the state medical assistance program.
SECTION 782. ORS 443.422 is amended to read:
443.422. (1) To prevent the perpetuation of segregated housing
patterns, the Department of Human Services { + , in consultation
with the Oregon Health Authority, + } shall determine the
location and type of licensed residential facilities and the
location of facilities subject to the provisions of ORS 169.690.
(2) Before a license is issued for a residential facility as
defined in ORS 443.400, the issuing agency shall determine the
number and type of any other licensed residential facilities and
the number and type of facilities subject to the provisions of
ORS 169.690 within a 1,200 foot radius.
(3) None of the data collected under this section shall be used
in a manner that violates the Fair Housing Amendments Act of
1988.
SECTION 783. ORS 443.425 is amended to read:
443.425. (1) Licensure under ORS 443.415 is effective for two
years from the date of issue unless sooner revoked. Each license
shall state the name of the person operating the residential
facility; the name of the person who owns the facility; the
address of the premises to which the license applies and the
maximum number of residents to be maintained in such residential
facility at any time whether the residential facility is licensed
as a residential training facility, a residential treatment
facility, a residential care facility; a residential training
home or residential treatment home and such other information as
the Department of Human Services { + or the Oregon Health
Authority + } considers necessary.
(2) A license is renewable upon submission of an application to
the department { + or the authority + } and payment of a fee of
$60 for facilities licensed under ORS 443.400 (5), (7) and (9)
and a fee of $30 for homes licensed under ORS 443.400 (8) and
(10). No fee shall be required of a governmentally operated
residential facility. Filing of an application for renewal before
the date of expiration of a license extends the effective date of
expiration of the license until the { - department - }
{ + licensing agency + } has acted upon such application. The
{ - department - } { + licensing agency + } shall refuse to
renew a license if the facility is not substantially in
compliance with all applicable laws and rules, or if the State
Fire Marshal or the authorized representative thereof has given
notice of noncompliance of facilities under ORS 443.400 (5), (7)
and (9) pursuant to ORS 479.220.
SECTION 784. ORS 443.430 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 452
443.430. (1) No license under ORS 443.415 is transferable or
applicable to any location, residential facility or management
other than that indicated on the application for licensure.
{ - (2) All moneys collected under ORS 443.400 to 443.455
shall be deposited in a special account in the General Fund, and
are appropriated continuously for payment of expenses incurred by
the Department of Human Services in the administration of ORS
443.400 to 443.455. - }
{ + (2)(a) All moneys collected under ORS 443.400 to 443.455
for the purpose of licensing a residential care facility,
residential training facility or residential training home shall
be deposited in a special account in the General Fund and are
continuously appropriated for payment of expenses incurred by the
Department of Human Services in administering ORS 443.400 to
443.455.
(b) All moneys collected under ORS 443.400 to 443.455 for the
purpose of licensing a residential treatment facility or
residential treatment home shall be deposited in a special
account in the General Fund and are continuously appropriated for
payment of expenses incurred by the Oregon Health Authority in
administering ORS 443.400 to 443.455. + }
SECTION 785. ORS 443.435 is amended to read:
443.435. { + (1) + } The Director of Human Services or
authorized representative shall periodically visit and inspect
every
{ - residential facility - } { + residential care facility,
residential training facility or residential training home + } to
determine whether it is maintained and operated in accordance
with ORS 443.400 to 443.455 and the rules of the director, and to
consult with and advise management concerning methods of care,
treatment, training, records, housing and equipment. Employees of
the Department of Human Services and the State Fire Marshal or
authorized representative on request shall be permitted access to
the premises and records of individuals in { - a residential
facility - } { + the facility or home that are + } pertinent to
fire safety.
{ + (2) The Director of the Oregon Health Authority or
authorized representative shall periodically visit and inspect
every residential treatment facility or residential treatment
home to determine whether it is maintained and operated in
accordance with ORS 443.400 to 443.455 and the rules of the
director, and to consult with and advise management concerning
methods of care, treatment, training, records, housing and
equipment. Employees of the Oregon Health Authority and the State
Fire Marshal or authorized representative on request shall be
permitted access to the premises and records of individuals in
the facility or home that are pertinent to fire safety. + }
SECTION 786. ORS 443.440 is amended to read:
443.440. The Department of Human Services { + or the Oregon
Health Authority + } may revoke or suspend the license of any
residential facility that is not operated in accordance with ORS
443.400 to 443.455 or the rules adopted thereunder. Such
revocation or suspension shall be taken in accordance with rules
of the { - department - } { + licensing agency + } and ORS
chapter 183. However, in cases where an imminent danger to the
health or safety of the residents exists, a license may be
suspended immediately pending a fair hearing not later than the
10th day after such suspension.
SECTION 787. ORS 443.445 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 453
443.445. (1) No residential facility { - or home - } shall
admit individuals who require continuous nursing care except as
provided in subsection (3) of this section.
(2) Except as provided in subsection (3) of this section, if
any resident of a residential facility { - or home - }
requires nursing care for eight or more consecutive days or a
physician or the designee of a physician or a registered nurse
certifies that continued nursing care is required, the resident
shall be transferred to an appropriate health care facility for
as long as necessary.
(3) A resident of a residential { - facility or home - }
{ + care facility, residential training facility or residential
training home + } who requires nursing care in addition to
training { - , treatment - } or care needs, or any combination
thereof, may be served by that facility or home with approval
from the Department of Human Services and in accordance with the
rules of the department and consistent with rules adopted by the
Oregon State Board of Nursing under ORS 678.150 (9).
{ + (4) A resident of a residential treatment facility or
residential treatment home who requires nursing care in addition
to treatment needs may be served by that facility or home with
approval from the Oregon Health Authority and in accordance with
the rules of the authority and consistent with rules adopted by
the Oregon State Board of Nursing under ORS 678.150 (9). + }
{ - (4) - } { + (5) + } No residential facility { - or
home - } shall admit individuals of categories other than those
designated on its license without prior written consent of the
{ - department - } { + licensing agency + }.
{ - (5) - } { + (6) + } In the case of residential
facilities { - or homes - } supervised by and operated
exclusively for persons who rely upon prayer or spiritual means
for healing in accordance with the creed or tenets of a
well-recognized church or religious denomination, no medical,
psychological or rehabilitative procedures shall be required.
SECTION 788. ORS 443.450 is amended to read:
443.450. (1) { - The Director of Human Services shall adopt
rules governing - } { + For a residential care facility,
residential training facility or residential training home, the
Director of Human Services shall adopt rules governing + }:
(a) The physical properties of the { - residential
facility - } { + facility or home + };
(b) Storage, preparation and serving of food;
(c) Care { - , treatment - } or training to be provided;
(d) The number, experience and training of the staff; and
(e) Any other factors affecting the care { - , treatment - }
or training provided.
{ + (2) For a residential treatment facility or residential
treatment home, the Director of the Oregon Health Authority shall
adopt rules governing:
(a) The physical properties of the facility or home;
(b) Storage, preparation and serving of food;
(c) Treatment to be provided;
(d) The number, experience and training of the staff; and
(e) Any other factors affecting the treatment provided. + }
{ - (2) - } { + (3) + } Distinct rules shall be adopted for
homes of five or fewer residents, for facilities of six or more
but fewer than 16 residents, and for facilities for 16 or more
residents. The rules shall differentiate among categories of
residents.
Enrolled House Bill 2009 (HB 2009-C) Page 454
{ - (3) - } { + (4) + } For purposes of this section,
'categories' refers to different populations of residents,
differentiated by, but not limited to, age and need, as defined
{ + by the Department of Human Services or the authority + } by
rule.
SECTION 789. ORS 443.455 is amended to read:
443.455. { + (1) + } For purposes of imposing civil penalties,
residential facilities approved under ORS 443.400 to 443.455 are
{ - considered to be long-term care facilities, subject to ORS
441.705 to 441.745. However, the Director of Human Services shall
exercise the powers conferred under ORS 441.705 to 441.745. The
director shall by rule prescribe a schedule of penalties
appropriate to residential facilities licensed under ORS 443.400
to 443.455. - } { + subject to ORS 441.705 to 441.745.
(2) The Director of Human Services shall by rule prescribe a
schedule of penalties for residential care facilities,
residential training facilities and residential training homes
that are not in compliance with ORS 443.400 to 443.455.
(3) The Director of the Oregon Health Authority shall by rule
prescribe a schedule of penalties for residential treatment
facilities and residential treatment homes that are not in
compliance with ORS 443.400 to 443.455. + }
SECTION 790. ORS 443.460 is amended to read:
443.460. (1) The { - director - } { + Director of Human
Services + } may exempt from the license, inspection and fee
provisions of ORS 443.400 to 443.455 residential care facilities
in those counties where there is a county agency which provides
similar programs for licensing and inspection that the director
finds are equal to or superior to the requirements of ORS 443.400
to 443.455.
(2) Pursuant to an exemption as provided in subsection (1) of
this section, the director may provide funds and other resources
to the county necessary to enable the county to perform the
licensing and inspection functions.
SECTION 791. ORS 443.705 is amended to read:
443.705. As used in ORS 443.705 to 443.825:
(1) 'Adult foster home' means any family home or facility in
which residential care is provided in a homelike environment for
five or fewer adults who are not related to the provider by blood
or marriage.
{ - (2) 'Department' means the Department of Human
Services. - }
{ - (3) 'Director' means the Director of Human Services. - }
{ - (4) - } { + (2) + } 'Licensed adult foster home' means
a home which has been investigated and approved by the
{ - department - } { + licensing agency + }. This includes an
on-site inspection of the facility.
{ + (3) 'Licensing agency' means:
(a) The Department of Human Services for adult foster homes
licensed by the department.
(b) The Oregon Health Authority for adult foster homes licensed
by the authority. + }
{ - (5) - } { + (4) + } 'Provider' means any person
operating an adult foster home and includes a resident manager.
'Provider' does not include the owner or lessor of the building
in which the adult foster home is located or the owner or lessor
of the land on which the adult foster home is situated unless the
owner or lessor is also the operator of the adult foster home.
{ - (6) - } { + (5) + } 'Residential care' means the
provision of room and board and services that assist the resident
Enrolled House Bill 2009 (HB 2009-C) Page 455
in activities of daily living, such as assistance with bathing,
dressing, grooming, eating, medication management, money
management or recreation.
{ - (7) - } { + (6) + } 'Substitute caregiver' means any
person who provides care and services in an adult foster home
under the jurisdiction of the { - department - } { +
licensing agency + } in the absence of the provider or resident
manager.
SECTION 791a. ORS 443.715 is amended to read:
443.715. For purposes of ORS 443.705 to 443.825, 'adult foster
home' does not include:
(1) Any house, institution, hotel, or other similar place that
supplies board and room only, or room only, or board only, if no
resident thereof requires any element of care.
(2) Any specialized living situation for persons with physical
disabilities where the { - Department of Human Services - }
{ + licensing agency + } provides payment for personal care
services other than to an adult foster home provider.
(3) Any residential facility, as defined in ORS 443.400,
licensed and funded by the { - department - } { + licensing
agency + }.
{ - (4) Any residential treatment home, as defined in ORS
443.400, licensed and funded by the department. - }
SECTION 791b. ORS 443.720 is amended to read:
443.720. (1) The Legislative Assembly finds that:
(a) Adult foster homes provide needed care and services to
thousands of Oregonians who are elderly or have disabilities and
who might otherwise be institutionalized;
(b) The protection of the health, safety and well-being of the
residents of adult foster homes is an important function of the
{ - Department of Human Services - } { + licensing agency + };
and
(c) Consistent interpretation, application and enforcement of
regulatory standards is necessary and desirable for the
protection of adult foster home residents.
(2) It is legislative intent that:
(a) The { - department - } { + licensing agency + } provide
training and guidelines for employees assigned to licensing and
enforcement to encourage consistency; and
(b) The { - department - } { + licensing agency + } take
vigorous action to ensure that inspections and investigations are
carried out as required by law.
SECTION 791c. ORS 443.725 is amended to read:
443.725. (1) Every provider of adult foster care must be
licensed with the { - Department of Human Services - } { +
licensing agency + } before opening or operating an adult foster
home caring for adult residents.
(2) Except as provided in subsection (4) of this section, a
provider must live in the home that is to be licensed or hire a
resident manager to live in the home.
(3) Except as provided in subsection (4) of this section, there
must be a provider or substitute caregiver on duty 24 hours per
day in an adult foster home under the jurisdiction of the
{ - department - } { + licensing agency + }.
(4) The { - department - } { + licensing agency + } shall
adopt rules establishing standards for granting exceptions to the
requirements of subsections (2) and (3) of this section. The
standards must be designed to safeguard residents' health and
safety and residents' uninterrupted receipt of services.
SECTION 791d. ORS 443.730 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 456
443.730. (1) The provider shall furnish the names, addresses
and telephone numbers of the substitute caregivers employed or
used by the provider to the { - Department of Human
Services - } { + licensing agency + } upon the request of the
{ - department - } { + agency + }.
(2) The { - department - } { + licensing agency + } shall
require the provider to furnish information describing the
planned operation of the adult foster home, including the use of
substitute caregivers and other staff, as part of the license
application.
(3) The provider shall not allow a substitute caregiver or
other caregiver to provide care to a resident unless the
following standards are met and documented:
(a) The { - department - } { + licensing agency + } has
completed a criminal records check for the State of Oregon and
has completed or initiated a national criminal records check, if
appropriate under ORS 443.735 (3), for the person. The
{ - department - } { + licensing agency + } shall adopt rules
to provide for the expedited completion of a criminal records
check for the State of Oregon when requested by a licensed
provider because of an immediate staffing need.
(b) The substitute caregiver has successfully completed the
training required by the { - department - } { + licensing
agency + }.
(c) The caregiver is able to understand and communicate in oral
and written English.
(d) The provider has oriented the caregiver to the residents in
the adult foster home, their care needs and the physical
characteristics of the home.
(e) The provider has trained the caregiver to meet the routine
and emergency needs of the residents.
(4) The { - department - } { + licensing agency + } shall
establish educational requirements for substitute caregivers and
other caregivers designed to impart the practical knowledge and
skills necessary to maintain the health, safety and welfare of
residents. The training shall include a test established by the
{ - department - } { + licensing agency + } to be completed by
the caregiver. The test shall be completed by the caregiver
without the help of any other person.
SECTION 791e. ORS 443.733 is amended to read:
443.733. (1) As used in this section, 'adult foster care home
provider' means a person who operates an adult foster home in the
provider's home and who receives fees or payments from the state
for providing adult foster care home services. 'Adult foster care
home provider' does not include a person:
(a) Who is a resident manager of an adult foster home who does
not provide adult foster care home services in the resident
manager's own home or who does not have a controlling interest
in, or is not an officer or partner in, the entity that is the
provider of adult foster care home services;
(b) Who is not a natural person; or
(c) Whose participation in collective bargaining is determined
by the { - Department of Human Services - } { + licensing
agency + } to be inconsistent with this section or in violation
of state or federal law.
(2) For purposes of collective bargaining under ORS 243.650 to
243.782, the State of Oregon is the public employer of record of
adult foster care home providers.
(3) Notwithstanding ORS 243.650 (19), adult foster care home
providers are considered to be public employees governed by ORS
Enrolled House Bill 2009 (HB 2009-C) Page 457
243.650 to 243.782. Adult foster care home providers have the
right to form, join and participate in the activities of labor
organizations of their own choosing for the purposes of
representation and collective bargaining on matters concerning
labor relations. These rights shall be exercised in accordance
with the rights granted to public employees, with mediation and
interest arbitration under ORS 243.742 as the method of
concluding the collective bargaining process. Adult foster care
home providers may not strike.
(4) Notwithstanding subsections (2) and (3) of this section,
adult foster care home providers are not for any other purpose
employees of the State of Oregon or any other public body.
(5) The Oregon Department of Administrative Services shall
represent the State of Oregon in collective bargaining
negotiations with the certified or recognized exclusive
representative of an appropriate bargaining unit of adult foster
care home providers. The Oregon Department of Administrative
Services is authorized to agree to terms and conditions of
collective bargaining agreements on behalf of the State of
Oregon.
(6) Notwithstanding ORS 243.650 (1), an appropriate bargaining
unit for adult foster care home providers is any bargaining unit
recognized by the Governor in an executive order issued prior to
January 1, 2008.
(7) This section does not modify any right of an adult
receiving foster care.
SECTION 791f. ORS 443.735 is amended to read:
443.735. (1) Applications for a license to maintain and operate
an adult foster home shall be made on forms provided by the
{ - Department of Human Services - } { + licensing agency + }.
Each application shall be accompanied by a fee of $20 per bed
requested for licensing.
(2) Upon receipt of an application and fee, the
{ - department - } { + licensing agency + } shall conduct an
investigation.
(3) The { - department - } { + licensing agency + } shall
not issue an initial license unless:
(a) The applicant and adult foster home are in compliance with
ORS 443.705 to 443.825 and the rules of the { - department - }
{ + licensing agency + };
(b) The { - department - } { + licensing agency + } has
completed an inspection of the adult foster home;
(c) The { - department - } { + licensing agency + } has
completed a criminal records check under ORS 181.534 on the
applicant and any person, other than a resident, 16 years of age
or older who will be residing in the adult foster home. The
criminal records check shall be conducted in accordance with
rules adopted under ORS 181.534;
(d) The { - department - } { + licensing agency + } has
checked the record of sanctions available, including the list of
nursing assistants who have been found responsible for abuse and
whose names have been added to the registry under ORS 441.678;
and
(e) The applicant has demonstrated to the { - department - }
{ + licensing agency + } the financial ability and resources
necessary to operate the adult foster home. The
{ - department - } { + licensing agency + } shall adopt rules
as the { - department - } { + agency + } deems appropriate
that establish the financial standards an applicant must meet to
qualify for issuance of a license and that protect financial
Enrolled House Bill 2009 (HB 2009-C) Page 458
information from public disclosure. The demonstration of
financial ability under this paragraph shall include, but need
not be limited to, providing the { - department - }
{ + licensing agency + } with a list of any unsatisfied
judgments, pending litigation and unpaid taxes and notifying the
{ - department - } { + agency + } regarding whether the
applicant is in bankruptcy. If the applicant is unable to
demonstrate the financial ability and resources required by this
paragraph, the { - department - } { + licensing agency + }
may require the applicant to furnish a financial guarantee as a
condition of initial licensure.
(4) The { - department - } { + licensing agency + } may not
renew a license under this section unless:
(a) The applicant and the adult foster home are in compliance
with ORS 443.705 to 443.825 and the rules of the
{ - department - } { + licensing agency + };
(b) The { - department - } { + licensing agency + } has
completed an inspection of the adult foster home;
(c) The { - department - } { + licensing agency + } has
completed a criminal records check under ORS 181.534 on the
applicant and any person, other than a resident, 16 years of age
or older who will be residing in the adult foster home. The
criminal records check under this paragraph shall be conducted in
accordance with rules adopted under ORS 181.534; and
(d) The { - department - } { + licensing agency + } has
checked the record of sanctions available, including the list of
nursing assistants who have been found responsible for abuse and
whose names have been added to the registry under ORS 441.678.
(5)(a) In seeking an initial license and renewal of a license
when an adult foster home has been licensed for less than 24
months, the burden of proof shall be upon the provider and the
adult foster home to establish compliance with ORS 443.705 to
443.825 and the rules of the { - department - } { + licensing
agency + }.
(b) In proceedings for renewal of a license when an adult
foster home has been licensed for at least 24 continuous months,
the burden of proof shall be upon the { - department - }
{ + licensing agency + } to establish noncompliance with ORS
443.705 to 443.825 and the rules of the { - department - }
{ + agency + }.
(6)(a) Persons who have been convicted of one or more crimes
that, as determined by rules of the { - department - } { +
licensing agency + }, are substantially related to the
qualifications, functions or duties of a provider, resident
manager, substitute caregiver or other household member of an
adult foster home shall be prohibited from operating, working in
or residing in an adult foster home.
(b) The { - department - } { + licensing agency + } shall
adopt rules that distinguish the criminal convictions and types
of abuse that permanently prohibit a person from operating,
working in or living in an adult foster home from the convictions
and types of abuse that do not permanently prohibit the person
from operating, working in or living in an adult foster home.
(c) A provider may not hire, retain in employment or allow to
live in an adult foster home, other than as a resident, any
person who the provider knows has been convicted of a
disqualifying crime or has been found responsible for a
disqualifying type of abuse.
(7) A license under ORS 443.725 is effective for one year from
the date of issue unless sooner revoked. Each license shall state
Enrolled House Bill 2009 (HB 2009-C) Page 459
the name of the resident manager of the adult foster home, the
names of all providers who own the adult foster home, the address
of the premises to which the license applies, the maximum number
of residents and the classification of the home. If, during the
period covered by the license, a resident manager changes, the
provider must within 15 days request modification of the license.
The request must be accompanied by a fee of $10.
(8) No license under ORS 443.725 is transferable or applicable
to any location, persons operating the adult foster home or the
person owning the adult foster home other than that indicated on
the application for licensing.
(9) The { - department - } { + licensing agency + } shall
not issue a license to operate an additional adult foster home to
a provider unless the provider has demonstrated the
qualifications and capacity to operate the provider's existing
licensed home or homes and has demonstrated the ability to
provide care to the residents of those homes that is adequate and
substantially free from abuse and neglect.
(10) All moneys collected under ORS 443.725 to 443.780 shall be
deposited in a special account in the General Fund, and are
appropriated continuously for payment of expenses incurred by the
{ - Department of Human Services - } { + licensing
agency + }.
(11) Notwithstanding any other provision of this section or ORS
443.725 or 443.738, the { - department - } { + licensing
agency + } may issue a 60-day provisional license to a qualified
person if the
{ - department - } { + agency + } determines that an
emergency situation exists after being notified that the licensed
provider of an adult foster home is no longer overseeing
operation of the adult foster home.
SECTION 791g. ORS 443.738 is amended to read:
443.738. (1) Except as provided in subsection (3) of this
section, all providers, resident managers and substitute
caregivers for adult foster homes shall satisfactorily meet all
educational requirements established by the { - Department of
Human Services - } { + licensing agency + }. After consultation
with representatives of providers, educators, residents'
advocates and the Long Term Care Ombudsman, the
{ - department - } { + licensing agency + } shall adopt by
rule standards governing the educational requirements. The rules
shall require that a person may not provide care to any resident
prior to acquiring education or supervised training designed to
impart the basic knowledge and skills necessary to maintain the
health, safety and welfare of the resident. Each provider shall
document compliance with the educational requirements for persons
subject to the requirements.
(2) The rules required under subsection (1) of this section
shall include but need not be limited to the following:
(a) A requirement that, before being licensed, a provider
successfully completes training that satisfies a defined
curriculum, including demonstrations and practice in physical
caregiving, screening for care and service needs, appropriate
behavior towards residents with physical, cognitive and mental
disabilities and issues related to architectural accessibility;
(b) A requirement that a provider pass a test before being
licensed or becoming a resident manager. The test shall evaluate
the ability to understand and respond appropriately to emergency
situations, changes in medical conditions, physicians' orders and
Enrolled House Bill 2009 (HB 2009-C) Page 460
professional instructions, nutritional needs, residents'
preferences and conflicts; and
(c) A requirement that, after being licensed, a provider or
resident manager successfully completes continuing education as
described in ORS 443.742.
(3) After consultation with representatives of providers,
educators, residents' advocates and the Long Term Care Ombudsman,
the { - department - } { + licensing agency + } may adopt by
rule exceptions to the training requirements of subsections (1)
and (2) of this section for persons who are appropriately
licensed medical care professionals in Oregon or who possess
sufficient education, training or experience to warrant an
exception. The { - department - } { + licensing agency + } may
not make any exceptions to the testing requirements.
(4) The { - department - } { + licensing agency + } may
permit a person who has not completed the training or passed the
test required in subsection (2)(a) and (b) of this section to act
as a resident manager until the training and testing are
completed or for 60 days, whichever is shorter, if the
{ - department - } { + licensing agency + } determines that an
unexpected and urgent staffing need exists. The licensed provider
must notify the { - department - } { + licensing agency + }
of the situation and demonstrate that the provider is unable to
find a qualified resident manager, that the person has met the
requirements for a substitute caregiver for the adult foster home
and that the provider will provide adequate supervision.
(5) Providers shall serve three nutritionally balanced meals to
residents each day. A menu for the meals for the coming week
shall be prepared and posted weekly.
(6) Providers shall make available at least six hours of
activities each week which are of interest to the residents, not
including television or movies. The { - department - } { +
licensing agency + } shall make information about resources for
activities available to providers upon request. Providers or
substitute caregivers shall be directly involved with residents
on a daily basis.
(7) Providers shall give at least 30 days' written notice to
the residents, and to the legal representative, guardian or
conservator of any resident, before selling, leasing or
transferring the adult foster home business or the real property
on which the adult foster home is located. Providers shall inform
real estate licensees, prospective buyers, lessees and
transferees in all written communications that the license to
operate an adult foster home is not transferable and shall refer
them to the
{ - department - } { + licensing agency + } for information
about licensing.
(8) If a resident dies or leaves an adult foster home for
medical reasons and indicates in writing the intent to not
return, the provider may not charge the resident for more than 15
days or the time specified in the provider contract, whichever is
less, after the resident has left the adult foster home. The
provider has an affirmative duty to take reasonable actions to
mitigate the damages by accepting a new resident. However, if a
resident dies or leaves an adult foster home due to neglect or
abuse by the provider or due to conditions of imminent danger to
life, health or safety, the provider may not charge the resident
beyond the resident's last day in the home. The provider shall
refund any advance payments within 30 days after the resident
dies or leaves the adult foster home.
Enrolled House Bill 2009 (HB 2009-C) Page 461
(9) Chemical and physical restraints may be used only after
considering all other alternatives and only when required to
treat a resident's medical symptoms or to maximize a resident's
physical functioning. Restraints may not be used for discipline
of a resident or for the convenience of the adult foster home.
Restraints may be used only as follows:
(a) Psychoactive medications may be used only pursuant to a
prescription that specifies the circumstances, dosage and
duration of use.
(b) Physical restraints may be used only pursuant to a
qualified practitioner's order that specifies the type,
circumstances and duration of use in accordance with rules
adopted by the { - department - } { + licensing agency + }.
The rules adopted by the
{ - department - } { + licensing agency + } relating to
physical restraints shall include standards for use and training.
(10) If the physical characteristics of the adult foster home
do not encourage contact between caregivers and residents and
among residents, the provider shall demonstrate how regular
positive contact will occur. Providers may not place residents
who are unable to walk without assistance in a basement,
split-level, second story or other area that does not have an
exit at ground level. Nonambulatory residents shall be given
first floor rooms.
(11)(a) The provider may not transfer or discharge a resident
from an adult foster home unless the transfer or discharge is
necessary for medical reasons, for the welfare of the resident or
for the welfare of other residents, or due to nonpayment. In such
cases, the provider shall give the resident written notice as
soon as possible under the circumstances.
(b) The provider shall give the resident and the resident's
legal representative, guardian or conservator written notice at
least 30 days prior to the proposed transfer or discharge, except
in a medical emergency including but not limited to a resident's
experiencing an increase in level of care needs or engaging in
behavior that poses an imminent danger to self or others. In such
cases, the provider shall give the resident written notice as
soon as possible under the circumstances.
(c) The resident has the right to an administrative hearing
prior to an involuntary transfer or discharge. If the resident is
being transferred or discharged for a medical emergency, or to
protect the welfare of the resident or other residents, as
defined by rule, the hearing must be held within seven days of
the transfer or discharge. The provider shall hold a space
available for the resident pending receipt of an administrative
order. ORS 441.605 (4) and the rules thereunder governing
transfer notices and hearings for residents of long term care
facilities shall apply to adult foster homes.
(12) The provider may not include any illegal or unenforceable
provision in a contract with a resident and may not ask or
require a resident to waive any of the resident's rights.
(13) Any lessor of a building in which an adult foster home is
located may not interfere with the admission, discharge or
transfer of any resident in the adult foster home unless the
lessor is a provider or coprovider on the license.
SECTION 791h. ORS 443.740 is amended to read:
443.740. (1) The { - Department of Human Services - } { +
licensing agency + } shall maintain current information on all
licensed adult foster homes and shall make that information
available to prospective residents and other interested members
Enrolled House Bill 2009 (HB 2009-C) Page 462
of the public at local { - department - } offices or area
agencies on aging licensing offices throughout the state.
(2) The information shall include:
(a) The location of the adult foster home;
(b) A brief description of the physical characteristics of the
home;
(c) The name and mailing address of the provider;
(d) The license classification of the home and the date the
provider was first licensed to operate that home;
(e) The date of the last inspection, the name and telephone
number of the office that performed the inspection and a summary
of the findings;
(f) Copies of all complaint investigations involving the home,
together with the findings of the { - department - } { +
licensing agency + }, the actions taken by the
{ - department - } { + agency + } and the outcome of the
complaint investigation;
(g) An explanation of the terms used in the investigation
report;
(h) Any license conditions, suspensions, denials, revocations,
civil penalties, exceptions or other actions taken by the
{ - department - } { + licensing agency + } involving the
home; and
(i) Whether care is provided primarily by the licensed
provider, a resident manager or other arrangement.
(3) Any list of adult foster homes maintained or distributed by
the { - department - } { + licensing agency + } or a local
licensing office shall include notification to the reader of the
availability of public records concerning the homes.
SECTION 791i. ORS 443.742 is amended to read:
443.742. (1) The { - Department of Human Services - } { +
licensing agency + } shall require all providers and resident
managers to complete annually 12 hours of continuing education
approved by the
{ - department - } { + agency + }, related to:
(a) Care of the elderly and persons with disabilities; and
(b) Business operations of adult foster homes.
(2) Providers and resident managers may not fulfill the
continuing education requirements described in subsection (1) of
this section with more than four hours of continuing education
related to the business operations of adult foster homes.
(3) The { - department - } { + licensing agency + } may, by
rule, establish continuing education requirements for caregivers
who are not providers.
SECTION 791j. ORS 443.745 is amended to read:
443.745. (1) A license may be denied, suspended, revoked or
have conditions attached upon a finding by the { - Department
of Human Services - } { + licensing agency + } of any of the
following:
(a) There exists a threat to the health, safety or welfare of
any resident.
(b) There is reliable evidence of abuse, neglect or
exploitation of any resident.
(c) The facility is not operated in compliance with ORS 443.705
to 443.825 or the rules adopted thereunder.
(d) Such other circumstances as may be established by the
{ - department - } { + licensing agency + } by rule.
(2) Conditions attached to a license shall be effective upon
order of the director of { - Human Services - } { + the
licensing agency + }.
Enrolled House Bill 2009 (HB 2009-C) Page 463
(3) Suspension or revocation of a license authorized by this
section for any reason other than abuse, neglect or exploitation
of the resident shall be preceded by a hearing under ORS chapter
183 if requested by the provider.
(4) If the license is suspended or revoked for the reason of
abuse, neglect or exploitation of a resident, the provider may
request a review in writing within 10 days after notice of the
suspension or revocation. If a request is made, the director
shall review all material relating to the allegation of abuse,
neglect or exploitation and to the suspension or revocation
within 10 days of the request. The director shall determine,
based on review of the material, whether or not to sustain the
decision to suspend or revoke. If the director determines not to
sustain the decision, the license shall be restored immediately.
The decision of the director is subject to judicial review as a
contested case under ORS chapter 183.
(5) In the event the license to maintain an adult foster home
is ordered suspended or revoked, the { - department - } { +
licensing agency + } may withhold service payments until the
defective situation is corrected. For protection of residents,
the { - department - } { + licensing agency + } may arrange
for them to move.
(6) A provider whose license has been revoked or whose
application has been denied shall not be permitted to make a new
application for one year from the date the revocation or denial
is final, or for a longer period specified in the order revoking
or denying the license.
(7) The { - department - } { + licensing agency + } shall
deny the application or revoke the license of any person who
falsely represents that the person has not been convicted of a
crime.
SECTION 791k. ORS 443.755 is amended to read:
443.755. (1) The { - Department of Human Services - } { +
licensing agency + } staff shall be permitted access to enter and
inspect all licensed adult foster homes. The { - department - }
{ + licensing agency + } shall be permitted access to enter and
inspect any unlicensed adult foster home upon the receipt of an
oral or written complaint, or in case the { - department - }
{ + agency + } itself has cause to believe that an adult foster
home is operating without a license or there exists a threat to
the health, safety or welfare of any resident. The
{ - department - } { + licensing agency + } staff shall be
permitted access to the residents of adult foster homes in order
to interview residents privately and to inspect residents'
records.
(2) The state or local fire inspectors shall be permitted
access to enter and inspect adult foster homes regarding fire
safety upon request of the { - department - } { + licensing
agency + }.
(3)(a) The { - Department of Human Services - } { +
licensing agency + } shall provide to each licensed adult foster
home in the state in writing in clear concise language readily
comprehensible by the average person a copy of the inspection
report of the most recent inspection of that home conducted by
the { - department - } { + agency + }.
(b) The provider shall post the inspection report in the entry
or equally prominent place and shall, upon request, provide a
copy of the information to each resident of, or person applying
for admission to, the home, or the legal representative, guardian
or conservator of the resident or applicant.
Enrolled House Bill 2009 (HB 2009-C) Page 464
SECTION 791L. ORS 443.760 is amended to read:
443.760. (1) Adult foster homes that are certified as
residential homes as defined in ORS 197.660 shall meet all state
and local building, sanitation, utility and fire code
requirements applicable to single family dwellings. However, by
rule, the
{ - Department of Human Services - } { + licensing agency + }
may adopt more stringent standards upon a finding that there is a
significant health or safety threat to residents that
necessitates a standard not imposed on other single family
dwellings.
(2) In adopting more stringent standards, the
{ - department - } { + licensing agency + } shall consult with
the Department of Consumer and Business Services and the office
of the State Fire Marshal to insure adequate evacuation of
residents.
(3) As used in this section, 'adequate evacuation' means the
ability of a provider to evacuate all residents from the dwelling
within three minutes.
(4) If a licensed provider rents or leases the premises where
the adult foster home is located, the lessor shall charge a flat
rate for the lease or rental.
SECTION 791m. ORS 443.765 is amended to read:
443.765. (1) Complaints against adult foster homes may be filed
with the { - Department of Human Services - } { + licensing
agency + } by any person, whether or not a resident of the home.
The
{ - department - } { + licensing agency + } shall investigate
complaints regarding adult foster homes and shall adopt by rule
standards governing investigations pursuant to this section.
(2) The { - department - } { + licensing agency + } shall
prepare a notice which must be posted in a conspicuous place in
each adult foster home stating the telephone number of the
{ - department - } { + agency + } and the procedure for making
complaints.
(3) The { - department - } { + licensing agency + } shall
maintain a file of all complaints and the action taken on the
complaint, indexed by the name of the owner or operator. When the
{ - department - } { + licensing agency + } concludes the
investigation of a complaint, the
{ - department - } { + agency + } shall clearly designate the
outcome of the complaint investigation in the complaint file. The
filed complaint forms shall protect the privacy of the
complainant, the resident and the witnesses.
(4) Any person has a right to inspect and photocopy the
complaint files maintained by the { - department - } { +
licensing agency + }.
(5)(a) The owner or operator of an adult foster home may not
prohibit, discourage or use intimidation against any person to
prevent the filing of a complaint with the { - department - }
{ + licensing agency + }.
(b) If a resident, or a person acting on the resident's behalf,
files a complaint with the { - department - } { + licensing
agency + }, the owner or operator of an adult foster home may not
retaliate against the resident by:
(A) Increasing charges;
(B) Decreasing services, rights or privileges;
(C) Threatening to increase charges or decrease services,
rights or privileges;
Enrolled House Bill 2009 (HB 2009-C) Page 465
(D) Taking or threatening to take any action to coerce or
compel the resident to leave the facility; or
(E) Abusing or threatening to harass or abuse a resident in any
manner.
(c) The owner or operator of an adult foster home may not
retaliate against any person who files a complaint or any witness
or employee of a facility interviewed about the complaint,
including but not limited to retaliation by restriction of
otherwise lawful access to the adult foster home or to any
resident thereof, or, if an employee, to dismissal or harassment.
(6) The provider shall give all residents, upon admission, a
notice of the monthly rates and the house rules.
(7) Anyone participating in good faith in the filing of a
complaint pursuant to this section is immune from any liability,
civil or criminal, that might otherwise be incurred or imposed
with respect to the filing or substance of the complaint. Any
such participant shall have the same immunity with respect to
participating in any judicial proceeding resulting from the
complaint. A person does not act in good faith for the purposes
of this subsection if the substance of the complaint is false
and:
(a) The person knows that the substance of the complaint is
false; or
(b) The person makes the complaint with the intent to harm the
owner or operator of the adult foster home, or the adult foster
home, and the person shows a reckless disregard for the truth or
falsity of the substance of the complaint.
SECTION 791n. ORS 443.767 is amended to read:
443.767. (1) When the { - Department of Human Services - }
{ + licensing agency + } receives a complaint that alleges that
a resident of a licensed adult foster home has been injured,
abused or neglected, and that the resident's health or safety is
in imminent danger, or that the resident has died or been
hospitalized, the investigation shall begin immediately after the
complaint is received. If the investigator determines that the
complaint is substantiated, the { - department - } { +
licensing agency + } shall take appropriate corrective action
immediately.
(2) When the { - department - } { + licensing agency + }
receives a complaint that alleges the existence of any
circumstance that could result in injury, abuse or neglect of a
resident of a licensed adult foster home, and that the
circumstance could place the resident's health or safety in
imminent danger, the
{ - department - } { + agency + } shall investigate the
complaint promptly. If the investigator determines that the
complaint is substantiated, the { - department - } { +
agency + } shall take appropriate corrective action promptly.
(3) After public hearing, the { - department - } { +
licensing agency + } shall by rule set standards for the
procedure, content and time limits for the initiation and
completion of investigations of complaints. The time limits shall
be as short as possible and shall vary in accordance with the
severity of the circumstances alleged in the complaint. In no
event shall the investigation exceed a duration of 60 days,
unless there is an ongoing concurrent criminal investigation, in
which case the { - department - } { + licensing agency + }
may take a reasonable amount of additional time in which to
complete the investigation.
Enrolled House Bill 2009 (HB 2009-C) Page 466
(4) The { - department - } { + licensing agency + } shall
take no longer than 60 days from the completion of the
investigation report to take appropriate corrective action in the
case of any complaint that the investigator determines to be
substantiated.
(5)(a) The { - department - } { + licensing agency + }
shall mail a copy of the investigation report within seven days
of the completion of the report to:
(A) The complainant, unless the complainant requests anonymity;
(B) The resident, and any person designated by the resident to
receive information concerning the resident;
(C) The facility; and
(D) The Long Term Care Ombudsman.
(b) The copy of the report shall be accompanied by a notice
that informs the recipient of the right to submit additional
evidence.
(6) The complaint and the investigation report shall be
available to the public at the local { - department - } office
{ + of the licensing agency + } or the type B area agency on
aging, if appropriate. When the { - department - } { +
licensing agency + } or type B area agency on aging concludes the
investigation of a complaint, the
{ - department - } { + licensing agency + } or type B area
agency on aging shall clearly designate the outcome of the
complaint investigation and make the designation available to the
public together with the complaint and the investigation report.
(7) A copy of the report shall be forwarded to the
{ - department - } { + licensing agency + } whether or not
the investigation report concludes that the complaint is
substantiated.
SECTION 791o. ORS 443.775 is amended to read:
443.775. (1) The { - Department of Human Services - } { +
licensing agency + } shall adopt rules governing adult foster
homes and the level of care provided in such homes, including the
provision of care to more than one person with nursing care needs
under specified conditions and { - department - } { +
agency + } approval, such as are necessary to protect the health,
safety or welfare of the residents and to provide for an
appropriate continuum of care, but shall not be inconsistent with
the residential nature of the living accommodations and the
family atmosphere of the home. The rules shall be consistent with
rules adopted by the Oregon State Board of Nursing under ORS
678.150 (9).
(a) An exception to the limit of one resident with nursing care
needs may be granted if the provider proves to the
{ - department - } { + licensing agency + } by clear and
convincing evidence that such an exception will not jeopardize
the care, health, safety or welfare of the residents and that the
provider is capable of meeting the additional care needs of the
new resident.
(b) The { - department - } { + licensing agency + }, and
the counties acting under the exemption granted pursuant to ORS
443.780, shall report on a quarterly basis to the Legislative
Assembly on the number of exceptions granted during the quarter
pursuant to paragraph (a) of this subsection.
(2) The provider may not employ a resident manager who does not
meet the classification standard for the adult foster home.
(3) The provider shall be able to meet the night care needs of
a resident before admitting the resident. The provider shall
include night care needs in the resident's care plan.
Enrolled House Bill 2009 (HB 2009-C) Page 467
(4) The provider shall screen a prospective resident before
admitting the resident. The screening shall include but is not
limited to diagnosis, medications, personal care needs, nursing
care needs, night care needs, nutritional needs, activities and
lifestyle preferences. A copy of the screening shall be given to
the prospective resident or the prospective resident's
representative.
(5) The { - department - } { + licensing agency + } shall
make rules to assure that any employee who makes a complaint
pursuant to ORS 443.755 shall be protected from retaliation.
(6) For adult foster homes in which clients reside for whom the
{ - department - } { + licensing agency + } pays for care,
including homes in which the provider and the resident are
related, the
{ - department - } { + agency + } may require substantial
compliance with its rules relating to standards for care of the
client as a condition for paying for care.
(7) By order the director of { - Human Services - } { + the
licensing agency + } may delegate authority under this section to
personnel other than of the { - department - } { + licensing
agency + }.
(8) The { - department - } { + licensing agency + } may
commence a suit in equity to enjoin maintenance of an adult
foster home if:
(a) The home is operated without a valid license under this
section; or
(b) After the license to maintain the home is ordered suspended
or revoked, a reasonable time for placement of residents in other
facilities has been allowed but such placement has not been
accomplished.
(9) The { - department - } { + licensing agency + } shall
establish by rule the maximum capacity of adult foster homes,
including all nonrelated and related persons receiving
residential care and day care.
(10) Any person who violates a provision of ORS 443.705 to
443.825 or the rules adopted thereunder may be subjected to the
imposition of a civil penalty, to be fixed by the director by
rule, not to exceed $100 per violation, to a maximum of $250 or,
per occurrence of substantiated abuse, a maximum of $1,000.
SECTION 791p. ORS 443.780 is amended to read:
443.780. (1) The director of { - Human Services - } { + the
licensing agency + } may exempt from the license, inspection and
fee provisions of ORS 443.705 to 443.825 adult foster homes in
those counties where there is a county agency which provides
similar programs for licensing and inspection that the director
finds are equal to or superior to the requirements of ORS 443.705
to 443.825.
(2) ORS 443.775 (5) applies regardless of any exceptions
granted to a county agency.
SECTION 791q. ORS 443.785 is amended to read:
443.785. The { - Department of Human Services - } { +
licensing agency + } may not require an adult foster home that
elects to provide care for a Medicaid recipient to admit an
additional Medicaid resident under a contract with the
{ - department - } { + agency + }.
SECTION 791r. ORS 443.790 is amended to read:
443.790. (1) In addition to any other liability or penalty
provided by law, the director of { - Human Services - } { +
the licensing agency + } may impose a civil penalty on a person
for any of the following:
Enrolled House Bill 2009 (HB 2009-C) Page 468
(a) Violation of any of the terms or conditions of a license
issued under ORS 443.735.
(b) Violation of any rule or general order of the
{ - Department of Human Services - } { + licensing agency + }
that pertains to a facility.
(c) Violation of any final order of the director that pertains
specifically to the facility owned or operated by the person
incurring the penalty.
(d) Violation of ORS 443.745 or of rules required to be adopted
under ORS 443.775.
(2) The director shall impose a civil penalty of not to exceed
$500 on any adult foster home for falsifying resident or facility
records or causing another to do so.
(3) The director shall impose a civil penalty of $250 on a
provider who violates ORS 443.725 (3).
(4) The director shall impose a civil penalty of not less than
$250 nor more than $500 on a provider who admits a resident
knowing that the resident's care needs exceed the license
classification of the provider if the admission places the
resident or other residents at grave risk of harm.
(5)(a) In every case other than those involving the health,
safety or welfare of a resident, the director shall prescribe a
reasonable time for elimination of a violation but except as
provided in paragraph (b) of this subsection shall not prescribe
a period to exceed 30 days after notice of the violation.
(b) The director may approve a reasonable amount of time in
excess of 30 days if correction of the violation within 30 days
is determined to be impossible.
(6) In imposing a civil penalty, the director shall consider
the following factors:
(a) The past history of the person incurring a penalty in
taking all feasible steps or procedures necessary or appropriate
to correct any violation.
(b) Any prior violations of statutes, rules or orders
pertaining to facilities.
(c) The economic and financial conditions of the person
incurring the penalty.
(d) The immediacy and extent to which the violation threatens
or threatened the health, safety or welfare of one or more
residents.
(7) The { - department - } { + licensing agency + } shall
adopt rules establishing objective criteria for the imposition
and amount of civil penalties under this section.
SECTION 791s. ORS 443.795 is amended to read:
443.795. (1) Any civil penalty under ORS 443.790 shall be
imposed as provided in ORS 183.745.
(2) Notwithstanding ORS 183.745, the person to whom the notice
is addressed shall have 10 days from the date of service of the
notice in which to make written application for a hearing before
the director of { - Human Services - } { + the licensing
agency + }.
(3) The { - Department of Human Services - } { + licensing
agency + } shall conduct the hearing and issue the final order
within 180 days after any hearing request.
SECTION 792. ORS 443.865 is amended to read:
443.865. (1) Upon the recommendation of the Oregon Hospice
Association, the { - Department of Human Services - }
{ + Oregon Health Authority + } shall enforce compliance with
the provisions of ORS 443.860 (1), (3), (4) and (5).
Enrolled House Bill 2009 (HB 2009-C) Page 469
(2) The { - Department of Human Services - }
{ + authority + } shall adopt rules pursuant to ORS chapter 183
to implement subsection (1) of this section. Depending upon the
seriousness of the noncompliance, the enforcement mechanisms to
be used shall include, but not be limited to, the imposition of
civil penalties and the issuance of an order to cease operations.
SECTION 793. ORS 443.870 is amended to read:
443.870. (1) The Oregon Hospice Association shall maintain and
operate a registry of all certified and accredited hospice
programs and all developing hospice programs and shall make such
records available to the public.
(2) Hospice programs on the registry shall provide utilization
data requested by the Oregon Hospice Association.
(3) The Oregon Hospice Association shall compile data received
under subsection (2) of this section and annually report the data
to the { - Department of Human Services - } { + Oregon Health
Authority + }.
{ + NOTE: + } Sections 794 and 795 were deleted by amendment.
Subsequent sections were not renumbered.
SECTION 796. ORS 443.991 is amended to read:
443.991. (1) Violation of ORS 443.015 is punishable as a Class
C misdemeanor.
(2) Violation of any provision of ORS 443.400 to 443.455 is a
Class B misdemeanor.
{ + (3) + } { - In addition, - } The Department of Human
Services may commence an action to enjoin operation of a
{ - residential facility - } { + residential care facility,
residential training facility or residential training home + }:
(a) { - When a residential facility - } { + If the facility
or home + } is operated without valid licensure; or
(b) After notice of revocation has been given and a reasonable
time for placement of individuals in other facilities { + or
homes + } has been allowed.
{ + (4) The Oregon Health Authority may commence an action to
enjoin operation of a residential treatment facility or
residential treatment home:
(a) If the facility or home is operated without valid
licensure; or
(b) After notice of revocation has been given and a reasonable
time for placement of individuals in other facilities or homes
has been allowed. + }
{ - (3) - } { + (5) + } Violation of ORS 443.725 is
punishable as a Class C misdemeanor.
{ - (4) - } { + (6) + } Violation of any provision of ORS
443.755 is a Class B misdemeanor. In addition, the department may
commence an action to enjoin operation of an adult foster home:
(a) When an adult foster home is operated without a valid
license; or
(b) After notice of revocation has been given and a reasonable
time for placement of individuals in other facilities has been
allowed.
{ - (5) - } { + (7) + } Violation of ORS 443.881 is
punishable as a Class C misdemeanor.
SECTION 797. ORS 444.300 is amended to read:
444.300. (1) Subject to available funding, including gifts,
grants or donations, the { - Department of Human Services - }
{ + Oregon Health Authority + } shall establish a uniform,
statewide database for the collection of information on Type I
and Type II diabetes occurring in children in Oregon. The
purposes of the database shall be to collect and serve as a
Enrolled House Bill 2009 (HB 2009-C) Page 470
repository for data about the prevalence and incidence of
diabetes occurring in the pediatric population of this state and
to make the data available for scientific and medical research
and for assistance in making decisions about the allocation of
public resources.
(2) The database established by subsection (1) of this section
shall include data provided to the { - department - }
{ + authority + } by schools and physicians as required by ORS
444.310 and 444.320.
(3) The { - department - } { + authority + } shall adopt
rules:
(a) Necessary to carry out the purposes of ORS 444.300 to
444.330, including but not limited to the reporting format and
the effective date after which reporting by schools and
physicians shall be required; and
(b) Under which confidential data may be used by third parties
to conduct research and studies for the public good.
SECTION 798. ORS 444.310 is amended to read:
444.310. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall conduct an annual survey,
to be completed by June 15, of all public schools, public charter
schools and registered private schools in Oregon to collect data
about diabetes occurring in students. Each school surveyed shall
report to the { - department - } { + authority + } for each
student enrolled at the school who has Type 1 or Type II
diabetes:
(1) The name and address of the student;
(2) The gender of the student;
(3) The date of birth of the student;
(4) The type of diabetes diagnosed; and
(5) The date of diagnosis.
SECTION 799. ORS 444.320 is amended to read:
444.320. (1) As used in this section, 'child' means an
individual 18 years of age or younger.
(2) In accordance with ORS 444.300, upon diagnosing or first
treating a child with Type I or Type II diabetes, a physician
shall report to the { - Department of Human Services - }
{ + Oregon Health Authority + }:
(a) The name and address of the child;
(b) The gender of the child;
(c) The date of birth of the child;
(d) The type of diabetes the child has; and
(e) The date of diagnosis or first treatment by the reporting
physician.
SECTION 800. ORS 444.330 is amended to read:
444.330. All identifying information regarding individual
children that is reported to the { - Department of Human
Services - } { + Oregon Health Authority + } pursuant to ORS
444.300 to 444.330 shall be confidential and privileged. Except
as required in connection with the administration or enforcement
of public health laws or rules, no public health official,
employee, agent or other person entitled to access or use data
under ORS 444.300 to 444.330 shall be examined in an
administrative or judicial proceeding as to the existence or
contents of data in the database established under ORS 444.300 to
444.330. Research and studies conducted using confidential data
from the statewide database must be reviewed and approved by the
body used by the { - department - } { + authority + } as the
Committee for the Protection of Human Research Subjects and
established in accordance with 45 C.F.R. 46.
Enrolled House Bill 2009 (HB 2009-C) Page 471
SECTION 801. ORS 445.010 is amended to read:
445.010. As used in this chapter, unless the context requires
otherwise:
(1) 'Ambulance operator' means any person operating an
ambulance for hire.
{ + (2) 'Authority' means the Oregon Health Authority. + }
{ - (2) - } { + (3) + } 'Care' means:
(a) Treatment in and by a hospital.
(b) Professional services of a doctor.
(c) Professional services of a nurse.
(d) Medicines, substances, articles, appliances or physical
therapy supplied on the prescription or order of the doctor in
charge of the case.
(e) Transportation and services by an ambulance operator.
(f) Supplying prosthetic appliances and services.
(g) Any combination of any two or more of the services listed
in this subsection.
(h) Professional services of a licensed physical therapist.
{ - (3) - } { + (4) + } 'Claimant' means a hospital,
doctor, nurse, pharmacy, ambulance operator, supplier of
prosthetic appliances and services or licensed physical
therapist, who supplies care to an indigent patient, and who
files a claim for charges therefor pursuant to this chapter. In
respect of a hospital, it includes the operator or managing
officer thereof. 'Claimant' also means an indigent patient, or a
personal representative of the patient after the death of the
patient, but claims allowed shall be paid directly to those who
supply care to the indigent patient; and an indigent claimant, or
personal representative of the patient, has no right of appeal
under ORS 445.160 (1969 Replacement Part).
{ - (4) 'Department' means the Department of Human
Services. - }
(5) 'Doctor' means a person licensed by the appropriate board
of this state to practice one or more of the healing arts.
(6) 'Hospital' includes nursing homes and means any institution
that has a provider agreement with the { - department - } { +
authority + } and which admits and cares for patients suffering
from motor vehicle injuries and applies for the benefits of this
chapter in the manner provided in ORS 445.110.
(7) 'Indigent patient' means a person who has suffered a motor
vehicle injury and who is unable to pay the cost of the care
supplied on account of such injury and, except in the case of a
claim filed after a claim arising out of the same motor vehicle
injury has been allowed by the { - department - }
{ + authority + } or finally adjudged affirmatively by a court
on appeal, whose account therefor remains unpaid at the
expiration of 90 days after the termination of the care and who
is not entitled to the benefits of the Workers' Compensation Law
of this state or any other state or country on account of such
injury.
(8) 'Motor vehicle injury' means any personal injury suffered
by a human being, and accidentally caused in, by, or as the
proximate result of, the movement of a motor vehicle on a public
way, street or highway within this state, whether the injured
person is the operator of the vehicle, a passenger in the same or
another vehicle, a pedestrian or whatever the relationship of the
injured person to the movement of the vehicle, and whether or not
the vehicle is under the control of a human being at the time of
the injury.
Enrolled House Bill 2009 (HB 2009-C) Page 472
(9) 'Nurse' means a person registered or licensed to practice
nursing by the Oregon State Board of Nursing.
(10) 'Pharmacy' means a place of business licensed by the State
Board of Pharmacy, where drugs, medicines, prescriptions,
chemicals or poisons are compounded, dispensed or sold at retail.
(11) 'Supplier of prosthetic appliances and services' means a
place of business or person licensed to manufacture or supply
prosthetic appliances and services.
(12) 'Licensed physical therapist' means a physical therapist
within the State of Oregon licensed by the Physical Therapist
Licensing Board.
SECTION 802. ORS 445.030 is amended to read:
445.030. (1) There is created a fund to be known as the Motor
Vehicle Accident Fund, to be held and deposited by the State
Treasurer in such banks as are authorized to receive deposits of
the General Fund.
(2) All moneys received by the { - Department of Human
Services - } { + Oregon Health Authority + } under this chapter
shall forthwith be paid to the State Treasurer, and shall become
a part of the fund.
(3) The following shall be paid from the fund:
(a) All claims and benefits allowed by the { - department - }
{ + authority + } or finally adjudged affirmatively by a court
on appeal in the amounts allowed or adjudged and within the
limitations of ORS 445.060 and 445.070.
(b) All expenses of litigation incurred by the
{ - department - } { + authority + } on any appeal.
(c) All court costs and disbursements assessed against the
{ - department - } { + authority + }.
(d) All salaries, clerk hire, advances and reimbursement of
travel costs and expenses incurred by the { - department - }
{ + authority + } in the administration of this chapter.
(e) Expenses incurred by the { - department - }
{ + authority + } in the administration of the Emergency Medical
Services and Trauma Systems Program created pursuant to ORS
431.623. The total amount of all payments from the fund for
purposes of this paragraph shall be equal to $891,450 each
biennium.
(4) Liability for payment of claims or judgments thereon, or
both, and expenses authorized by this chapter shall be limited to
the fund and all additions thereto made under this chapter.
SECTION 803. ORS 445.050 is amended to read:
445.050. The { - Department of Human Services - }
{ + Oregon Health Authority + } may:
(1) Hear and determine all questions within its jurisdiction.
(2) Promulgate and enforce all rules and regulations as may be
proper in the administration and enforcement of this chapter.
SECTION 804. ORS 445.070 is amended to read:
445.070. If it is made to appear to the { - Department of
Human Services - } { + Oregon Health Authority + } that the
limitations of ORS 445.060 are not sufficient to provide
necessary and adequate care of an indigent patient and that the
condition of the indigent patient warrants such action, the
{ - department - } { + authority + }, in its sole discretion,
the exercise of which shall be conclusive and not in any wise
subject to review, may authorize the supplying of additional care
to the indigent patient of the same type as the types of initial
care authorized by this chapter and may pay for the same from the
Motor Vehicle Accident Fund. No claim for additional care shall
be enforceable under this chapter unless the
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{ - department - } { + authority + } first approves and
authorizes in writing the supplying of such additional care. No
single authorization shall be for more than:
(1) For additional care supplied by a hospital or hospitals,
$500.
(2) For additional care supplied by a doctor or doctors, $300.
(3) For additional care supplied by a nurse or nurses, $200.
(4) For additional care supplied by a pharmacy or pharmacies,
$100.
(5) For additional care supplied by an ambulance operator or
ambulance operators, $50.
(6) For additional care supplied by a supplier or suppliers of
prosthetic appliances and services, $100.
(7) For additional care supplied by a licensed physical
therapist or licensed physical therapists, $100.
SECTION 805. ORS 445.090 is amended to read:
445.090. (1) At the time of filing a claim under this chapter,
the claimant shall submit to the { - Department of Human
Services - } { + Oregon Health Authority + } such information
and data as the
{ - department - } { + authority + } may reasonably require.
(2) A claim filed under this chapter must be filed with the
{ - department - } { + authority + } within one year after
the termination of the care supplied by the claimant. However, in
computing the time there shall not be included that period
beginning when any claim under ORS chapter 656 arising out of the
same motor vehicle accident is filed by the indigent patient with
the { - department - } { + authority + }, and ending when
that claim has been finally decided.
SECTION 806. ORS 445.110 is amended to read:
445.110. Each claim shall be made in writing in the form
prescribed by the { - Department of Human Services - }
{ + Oregon Health Authority + }, and shall show, and be
accompanied by, the following matters and things:
(1) The name and last-known post-office address of the person
to whom care has been given.
(2) The number of days' care, with the dates of admission to
the hospital and of discharge therefrom or other termination of
care.
(3) The amount of the claim.
(4) A statement in writing showing the effort made by the
hospital to collect the amount of the claim, the facts indicating
the indigency of the patient, and the amount, if any, of money
received from the patient or others in payment of the account of
the patient.
(5) If reasonably obtainable, the affidavit of the indigent
patient or of the person or agency, if any, responsible for the
patient, and, if reasonably obtainable, the statement in writing
of a public or private agency engaged in the relief of the poor,
verifying the indigency of the patient. If the affidavit or
statement does not accompany the claim, and it is alleged in the
claim that such absence is owing to the fact that the affidavit
or statement is not reasonably obtainable, the claim shall set
forth the facts upon which such assertion is based.
(6) Any other information and data the { - department - }
{ + authority + } may reasonably require.
SECTION 807. ORS 445.130 is amended to read:
445.130. For the purposes of claims under ORS 445.110 and
445.120, an indigent patient who is not otherwise able to pay the
charges for care supplied shall not be deemed to be able to pay
Enrolled House Bill 2009 (HB 2009-C) Page 474
them because a third person might be held liable in an action to
recover damages on account of the motor vehicle injury, if an
action has not been commenced. If an action has been commenced,
the claim shall show that fact. In that event the
{ - Department of Human Services - } { + Oregon Health
Authority + } may suspend the determination of the claim until
the action has been terminated and from time to time require the
claimant to supply such further information and data in respect
of the action as the { - department - } { + authority + } may
deem necessary in order to determine the ultimate ability of the
patient to pay the charges for which the claim is filed.
SECTION 808. ORS 445.140 is amended to read:
445.140. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall examine and audit each
claim filed with it under this chapter. From the information and
data contained in the claim, the reports of the claimant, the
documents so accompanying and supporting the claim and such other
evidence as it may reasonably require or itself adduce, the
{ - department - } { + authority + } shall find and determine:
(1) Whether or not the claim has been filed within the time
limited in ORS 445.090.
(2) Whether or not the claim is predicated upon care supplied
to a person suffering from a motor vehicle injury.
(3) Whether or not the injured person is unable to pay the
charges for which the claim is filed, within the meaning of ORS
445.020.
(4) Whether or not the claimant has made reasonable and timely
effort to effect collection of its claim.
SECTION 809. ORS 445.150 is amended to read:
445.150. (1) If, in the matter of the claim, the
{ - Department of Human Services - } { + Oregon Health
Authority + } finds and determines in the affirmative in respect
of items listed in ORS 445.140, { - it - } { + the
authority + } shall, by its order made and filed in the matter,
allow the claim in such amount, not exceeding the limitations in
ORS 445.060 and 445.070, less such amount as has been paid on the
account.
(2) If in its judgment the maintenance of the solvency of the
Motor Vehicle Accident Fund so requires, the { - department - }
{ + authority + } may make payment in monthly installments of
any claim which has been allowed by it, or finally adjudged
affirmatively by a court on appeal.
(3) If the { - department - } { + authority + } finds and
determines in the negative in respect of any item listed in ORS
445.140, { - it - } { + the authority + }shall, by its order
made and filed therein, reject the claim.
(4) The { - department - } { + authority + } promptly shall
serve the claimant with a copy of its order, addressed to the
claimant at the claimant's last-known post-office address as
shown by the records and files of the { - department - }
{ + authority + }.
SECTION 810. ORS 445.180 is amended to read:
445.180. (1) If it comes to the knowledge of a claimant who has
received payment of a claim under this chapter that the patient
in respect of whom the claim has been paid, or any other person
chargeable by law with the care or support of the patient, has
been paid, or is able to pay, the amount of the claim, the
claimant shall diligently pursue such payment.
(2) A claimant who has received payment of a claim from the
Enrolled House Bill 2009 (HB 2009-C) Page 475
{ - Department of Human Services - } { + Oregon Health
Authority + } under this chapter shall inform the
{ - department - } { + authority + } promptly and in writing
if:
(a) The claimant receives any payment from or on behalf of the
patient in respect of whom the claim has been paid or from any
person chargeable by law with the care or support of the patient;
(b) The claimant knows or has reason to believe that the
patient or any person chargeable by law with the care or support
of the patient is able to pay the amount of the claim or any part
thereof; or
(c) The claimant or any person on behalf of the claimant
institutes an action against the patient or any person chargeable
by law with the care or support of the patient to recover all or
part of the amount of the claim.
(3) All moneys paid to or for the use or benefit of the
claimant by or on behalf of the patient shall, after deduction of
the reasonable cost of recovering them, be paid to the
{ - department - } { + authority + } for deposit in the Motor
Vehicle Accident Fund.
SECTION 811. ORS 445.185 is amended to read:
445.185. When a claimant fails to pursue payment as required by
ORS 445.180 or to pay to the { - Department of Human
Services - } { + Oregon Health Authority + } the amount
required by ORS 445.180 to be paid, the { - department - }
{ + authority + } shall, after 60 days, deduct the amount paid
by it on the claim from any subsequent payment made to the
claimant unless it is made to appear to the satisfaction of the
{ - department - } { + authority + } that:
(1) Upon due and diligent search and inquiry neither the
patient nor any person chargeable by law with the care or support
of the patient can be found;
(2) An action against the patient or a person chargeable by law
with the care or support of the patient has been instituted and
is pending; or
(3) An action has been prosecuted to final judgment, all legal
remedies for satisfaction of the judgment have been exhausted and
the judgment has not been collected.
SECTION 812. ORS 446.310 is amended to read:
446.310. As used in ORS 446.310 to 446.350, unless the context
requires otherwise:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'Camping vehicle' means either a
vacation trailer or a self-propelled vehicle or structure
equipped with wheels for highway use and that is intended for
human occupancy and is being used for vacation and recreational
purposes, but not for residential purposes, and is equipped with
plumbing, sink or toilet.
{ - (2) - } { + (3) + } 'Construction' means work regulated
by the state building code as defined in ORS 455.010.
{ - (3) 'Department' means the Department of Human
Services. - }
(4) 'Director' means the Director of { - Human Services - }
{ + the Oregon Health Authority + }.
(5) 'Health official' means a local public health administrator
appointed pursuant to ORS 431.418.
(6) 'Hostel' means any establishment having beds rented or kept
for rent on a daily basis to travelers for a charge or fee paid
or to be paid for rental or use of facilities and that is
operated, managed or maintained under the sponsorship of a
Enrolled House Bill 2009 (HB 2009-C) Page 476
nonprofit organization that holds a valid exemption from federal
income taxes under the Internal Revenue Code of 1954 as amended.
(7) 'Organizational camp' includes any area designated by the
person establishing, operating, managing or maintaining the same
for recreational use by groups or organizations that include but
are not limited to youth camps, scout camps, summer camps, day
camps, nature camps, survival camps, athletic camps, camps that
are operated and maintained under the guidance, supervision or
auspices of religious, public and private educational systems and
community service organizations.
(8) 'Picnic park' means any recreation park that is for day use
only and provides no recreation vehicle or overnight camping
spaces.
(9) 'Recreation park' means any area designated by the person
establishing, operating, managing or maintaining the same for
picnicking, overnight camping or use of recreational vehicles by
the general public or any segment of the public. 'Recreation
park' includes but is not limited to areas open to use free of
charge or through payment of a tax or fee or by virtue of rental,
lease, license, membership, association or common ownership and
further includes, but is not limited to, those areas divided into
two or more lots, parcels, units or other interests for purposes
of such use.
(10) 'Regulating agency' means, with respect to a tourist
facility, the { - Department of Human Services - } { + Oregon
Health Authority + }.
(11) 'Tourist facility' means any travelers' accommodation,
hostel, picnic park, recreation park and organizational camp.
(12) 'Travelers' accommodation' includes any establishment,
which is not a hostel, having rooms, apartments or sleeping
facilities rented or kept for rent on a daily or weekly basis to
travelers or transients for a charge or fee paid or to be paid
for rental or use of facilities.
SECTION 813. ORS 446.320 is amended to read:
446.320. (1) No person shall establish, operate, manage or
maintain a tourist facility, without a license from the Director
of { - Human Services - } { + the Oregon Health
Authority + }.
(2) Organizational camps operated under rental or leasehold
agreements may be licensed either to the landlord or to the
tenant provided that the license holder shall be responsible for
compliance with ORS 446.310 to 446.350 and the rules adopted
thereunder.
SECTION 814. ORS 446.321 is amended to read:
446.321. (1) Every applicant for licensing of a tourist
facility as defined in ORS 446.310 and required by ORS 446.320
shall pay to the { - Department of Human Services - }
{ + Oregon Health Authority + } a fee established by
{ - department - } { + the authority by + } rule. The fee may
not exceed $60, except that recreation parks shall pay an
additional fee not to exceed $2 for each space.
(2) Rules adopted pursuant to subsection (1) of this section
shall be adopted in accordance with ORS chapter 183.
SECTION 815. ORS 446.322 is amended to read:
446.322. Upon receipt of a completed application on { - a
Department of Human Services - } { + an Oregon Health
Authority + } form, required fee, and after representation by the
applicant that the facility is in compliance with the provisions
of ORS 446.310 to 446.350, and the rules adopted pursuant
thereto, and the requirements of the Department of Consumer and
Enrolled House Bill 2009 (HB 2009-C) Page 477
Business Services, the { - Department of Human Services - }
{ + authority + } shall issue a license, unless there is reason
to believe noncompliance exists.
SECTION 816. ORS 446.324 is amended to read:
446.324. (1) If any applicant for licensing or any person to
whom a license has been issued fails to comply with the
provisions of ORS 446.310 to 446.350 or with the rules adopted
pursuant thereto, the { - Department of Human Services - }
{ + Oregon Health Authority + } may deny issuance of, suspend or
revoke the license or assess a civil penalty.
(2) Hearings on the denial, suspension or revocation of a
license or on assessing a civil penalty shall be conducted as a
contested case in accordance with ORS chapter 183.
SECTION 817. ORS 446.325 is amended to read:
446.325. (1) Public entities, private persons or nonprofit
organizations described under ORS 446.265 (3), timber companies
and private utilities shall not establish or operate a recreation
park without complying with the rules of the { - Department of
Human Services - } { + Oregon Health Authority + } and securing
the approval of the Director of { - Human Services - }
{ + the Oregon Health Authority + } or designee but shall be
exempt from the licensing requirement of ORS 446.320. The
director or designee may delegate, to a health official having
sufficient environmental health specialists, the authority to
approve such recreation parks.
(2) ORS 446.310 to 446.350 do not apply to:
(a) Any structure designed for and occupied as a single family
residence in which no more than two sleeping rooms are provided
on a daily or weekly basis for the use of no more than a total of
six travelers or transients at any one time for a charge or fee
paid or to be paid for the rental or use of the facilities;
(b) Any temporary camping sites used solely and incidentally in
the course of backpacking, hiking, horseback packing, canoeing,
rafting or other expedition, unless the expedition is part of an
organizational camp program; or
(c) A yurt, as defined in ORS 446.265, that is used as a living
unit in transitional housing accommodations.
SECTION 818. ORS 446.330 is amended to read:
446.330. In accordance with ORS chapter 183, the
{ - Department of Human Services - } { + Oregon Health
Authority + } may adopt any rules necessary for the
administration of ORS 446.310 to 446.350 and 446.990, including
but not limited to rules, concerning the construction, operation
and use of tourist facilities that are necessary to protect the
health and welfare of persons using these facilities. The rules
shall pertain but not be restricted to water supply, final sewage
disposal, surface drainage, maintenance, insect and rodent
control, garbage disposal, designation and maintenance of camping
space and the cleanliness of the premises.
SECTION 819. ORS 446.335 is amended to read:
446.335. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } or designee may inspect every tourist
facility to determine whether it conforms with ORS 446.310 to
446.350 and the rules adopted pursuant thereto. A person
operating such facility shall permit the director or designee
access to all of the facility at any reasonable time.
(2) The operator of a seasonal facility which customarily is
closed for 120 days or more in any 12-month period shall notify
the director in writing of the intention to reopen at the
Enrolled House Bill 2009 (HB 2009-C) Page 478
beginning of a season. Notice shall be given at least 30 days
prior to the reopening.
SECTION 820. ORS 446.340 is amended to read:
446.340. (1) The owner or operator of a recreation park or
organizational camp is responsible for the sanitary condition of
the park grounds and buildings.
(2) If sanitary facilities are not provided in a recreation
park or organizational camp for the safe disposal of sewage or
other wastes from a camping vehicle, a notice shall be posted in
a conspicuous place stating that camping vehicles are permitted
overnight only if the vehicle's waste holding tanks are used.
(3) Notwithstanding ORS 446.330, the { - Department of Human
Services - } { + Oregon Health Authority + } shall not require
an owner or operator of a recreation park or organizational camp
to provide both toilets and dumping stations.
SECTION 821. ORS 446.345 is amended to read:
446.345. No person shall:
(1) Use kitchen or toilet facilities in a camping vehicle being
operated on a highway or parked overnight at a place where
sanitary facilities are not provided unless the person makes
provision whereby sewage and other waste materials can be held in
watertight and sanitary containers of a type approved by the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(2) Empty a container described in subsection (1) of this
section except into a public sewerage system, septic tank or
cesspool of a type approved by the { - department - }
{ + authority + }. However, in isolated areas where space is
not available in a recreation park or organizational camp and
such facilities are not available, these containers may be
emptied into the ground if all sewage and other waste materials
are buried at least one foot below the surface of the ground.
(3) When using a recreation park or organizational camp, create
an insanitary condition or deposit putrescible or nonputrescible
waste any place other than in appropriate containers designated
for such purposes.
SECTION 822. ORS 446.347 is amended to read:
446.347. (1) In addition to any other penalty provided by law,
any person who violates any rule of the { - Department of Human
Services - } { + Oregon Health Authority + } relating to the
construction, operation or maintenance of a tourist facility or
part thereof may incur a civil penalty not to exceed $1,000 per
violation.
(2) No civil penalty prescribed under subsection (1) of this
section shall be imposed until the person incurring the penalty
has received five days' advance notice in writing from the
{ - department - } { + authority + } or unless the person
incurring the penalty shall otherwise have received actual notice
of the violation not less than five days prior to the violation
for which a penalty is imposed.
SECTION 823. ORS 446.348 is amended to read:
446.348. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall adopt by rule a schedule or
schedules establishing the amount of civil penalty that may be
imposed for a particular violation.
(2) The director may impose the penalty without hearing but
only after the notice required by ORS 446.347 (2). In imposing a
penalty pursuant to the schedule or schedules adopted pursuant to
this section, the director shall consider the following factors:
Enrolled House Bill 2009 (HB 2009-C) Page 479
(a) The past history of the person incurring a penalty in
taking all feasible steps or procedures necessary or appropriate
to correct any violation.
(b) Any prior violations of statutes, rules, orders and permits
pertaining to the water system.
(c) The economic and financial conditions of the person
incurring the penalty.
(3) The penalty imposed under this section may be remitted or
mitigated upon such terms and conditions as the { - Department
of Human Services - } { + Oregon Health Authority + } considers
proper and consistent with the public health and safety.
SECTION 824. ORS 446.350 is amended to read:
446.350. The Tourist Facility Account is established in the
General Fund of the State Treasury. All moneys received under ORS
446.310 to 446.350 by the Director of { - Human Services - }
{ + the Oregon Health Authority + } shall be credited to the
Tourist Facility Account. All moneys in the account are
appropriated continuously to the { - Department of Human
Services - } { + Oregon Health Authority + } for the purpose of
administering and enforcing ORS 446.310 to 446.350.
SECTION 825. ORS 446.425 is amended to read:
446.425. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall delegate to any county board of
commissioners which requests any of the { - authority,
responsibilities - } { + duties + } and functions of the
director under ORS 446.310, 446.320, 446.330 to 446.340, 446.345,
446.350 and 446.990 if the director determines that the county is
able to carry out the rules of the { - Department of Human
Services - } { + Oregon Health Authority + } relating to fee
collection, inspections, enforcement and issuance and revocation
of permits and licenses in compliance with standards for
enforcement by the counties and monitoring by the
{ - department - } { + authority + }. Such standards shall be
established by the
{ - department - } { + authority + } in consultation with the
appropriate county officials and in accordance with ORS 431.345.
The { - department - } { + authority + } shall review and
monitor each county's performance under this subsection. In
accordance with ORS chapter 183, the director may suspend or
rescind a delegation under this subsection. If it is determined
that a county is not carrying out such rules or the delegation is
suspended, the unexpended portion of the fees collected under
subsection (2) of this section shall be available to the
{ - department - } { + authority + } for carrying out the
{ - authority, responsibility - } { + duties + } and functions
under this section.
(2) The county may determine the amount of, and retain, any fee
for any function undertaken pursuant to subsection (1) of this
section. The amount of the fees shall not exceed the costs of
administering the inspection program. The county, quarterly,
shall remit 15 percent of an amount equal to the state licensing
fee or 15 percent of the county license fee whichever is less, to
the
{ - department - } { + authority + } for consultation service
and maintenance of the statewide program.
(3) In any action, suit or proceeding arising out of county
administration of functions pursuant to subsection (1) of this
section and involving the validity of a rule adopted by the
Enrolled House Bill 2009 (HB 2009-C) Page 480
{ - department, the department - } { + authority, the
authority + } shall be made a party to the action, suit or
proceeding.
SECTION 826. ORS 447.124 is amended to read:
447.124. For the purpose of enforcing ORS 447.118 and the rules
adopted thereunder, the Department of Consumer and Business
Services, with the assistance of the { - Department of Human
Services - } { + Oregon Health Authority + }:
(1) May conduct periodic inspections of any compost toilet;
(2) Upon making a finding that a compost toilet is in violation
of the rules adopted pursuant to ORS 447.118 (2), may issue an
order requiring the owner of the dwelling served by the compost
toilet to take action necessary to correct the violation; and
(3) Upon making a finding that a compost toilet presents or
threatens to present a public health hazard creating an emergency
requiring immediate action to protect the public health, safety
or welfare, may issue an order requiring the owner of the
dwelling served by the compost toilet to take any action
necessary to remove such hazard or threat thereof. If such owner
fails to take the actions required by such order, the
{ - Department of Consumer and Business Services - }
{ + department + } shall take such action, itself or by contract
with outside parties, as necessary to remove the hazard or threat
thereof. The department shall keep a record of all necessary
expenses incurred by the department in carrying out such action,
including a reasonable charge for costs incurred and equipment
and materials utilized by the state. Any owner who fails to take
action required by an order issued under this subsection shall be
responsible for such necessary expenses incurred by the state.
Based on the record compiled by the department, an owner
responsible for expenses due to the failure of a manufacturer,
distributor or person to comply with the rules adopted under ORS
447.118 (2) shall have a setoff against the bond or other
security forfeited under ORS 447.118 (3) to the extent that such
expenses are due to such failure of the manufacturer, distributor
or person. The department shall make a finding and enter an order
against the owner for the necessary expenses. Orders issued under
this section may be appealed pursuant to ORS chapter 183 but not
as a contested case. Any amount due the department under this
subsection and not paid in full within 30 days after the order is
entered, or, if the order is appealed, within 30 days after there
is no further right to appeal, shall become a lien upon the
dwelling of the owner. The department shall file a notice of the
lien with the recording officer of the county in which the
dwelling is located and the recording officer shall record the
notice in a manner designed to appear in the mortgage records of
the county.
(4) The department may contract with any state or local agency
for the purpose of carrying out the provisions of this section.
SECTION 827. ORS 448.005 is amended to read:
448.005. As used in ORS 448.005 to 448.090, unless the context
requires otherwise:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'Bathhouse' means a structure that
contains dressing rooms, showers and toilet facilities for use
with an adjacent public swimming pool.
{ - (2) 'Department' means the Department of Human
Services. - }
(3) 'Director' means the Director of { - Human Services - }
{ + the Oregon Health Authority + }.
Enrolled House Bill 2009 (HB 2009-C) Page 481
(4) 'Person' has the meaning given that term in ORS 174.100,
but also includes municipalities, recreation districts, counties
and state agencies or instrumentalities.
(5) 'Public spa pool' means a public swimming pool or wading
pool designed primarily to direct water or air-enriched water
under pressure onto the bather's body with the intent of
producing a relaxing or therapeutic effect.
(6) 'Public swimming pool' means an artificial structure, and
its appurtenances, that contains water more than two feet deep,
is expressly designated or used with the knowledge and consent of
the owner or operator for swimming or recreational bathing, and
is for the use of any segment of the public. 'Public swimming
pool' includes, but is not limited to, swimming pools owned or
operated by:
(a) Travelers' accommodations;
(b) Recreation parks;
(c) Colleges;
(d) Schools;
(e) Organizational camps as defined in ORS 446.310;
(f) Clubs;
(g) Associations;
(h) Business establishments for their patrons or employees;
(i) Private persons and that are open to the public;
(j) Recreation districts;
(k) Municipalities;
(L) Counties; or
(m) State agencies.
(7) 'Public wading pool' means an artificial structure, and its
appurtenances, that contains water less than two feet deep, is
expressly designated or used with the knowledge and consent of
the owner or operator for wading or recreational bathing, and is
for the use of any segment of the public, whether limited to
patrons of a companion facility or not.
(8) 'Recreation park' means those facilities as defined by ORS
446.310.
(9) 'Travelers' accommodation' means those facilities as
defined by ORS 446.310.
(10) 'Variance' means written permission from the
{ - department - } { + authority + } for a public swimming
pool, public spa pool or public wading pool to be operated when
it does not comply with all the applicable rules for public
swimming pools, public spa pools or public wading pools.
SECTION 828. ORS 448.011 is amended to read:
448.011. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall make such rules pertaining
to the submission of plans for construction, issuance of permits,
design, construction, size, shape, purification equipment,
piping, operation, sanitation and accident prevention for public
swimming pools, public spa pools, public wading pools and
bathhouses as it deems necessary.
SECTION 829. ORS 448.020 is amended to read:
448.020. No person shall construct or perform a major
alteration or reconstruction of a public swimming pool, public
spa pool, public wading pool or bathhouse without a permit to do
so from the { - Department of Human Services - } { + Oregon
Health Authority + }.
SECTION 830. ORS 448.030 is amended to read:
448.030. (1) Any person desiring to construct any public
swimming pool, public spa pool, public wading pool or bathhouse
shall file application for a permit to do so with the
Enrolled House Bill 2009 (HB 2009-C) Page 482
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(2) The application shall be accompanied by a description of
the sources of water supply, amount and quality of water
available and intended to be used, method and manner of water
purification, treatment, disinfection, heating, regulating and
cleaning, lifesaving apparatus, and measures to insure safety of
bathers, measures to insure personal cleanliness of bathers,
methods and manner of washing, disinfecting, drying and storing
bathing apparel and towels, and all other information and
statistics that may be required by the { - department. The
department - } { + authority. The authority + } shall either
approve or reject the application based upon the plans submitted
and either issue or deny the construction permit.
(3) After a construction permit is issued and upon request, the
{ - department - } { + authority + } shall cause an
investigation to be made of the proposed public swimming pool,
public spa pool, public wading pool or bathhouse. If the
{ - department - } { + authority + } determines that the
public swimming pool, public spa pool, public wading pool or
bathhouse complies with the rules of the { - department - }
{ + authority + }, it shall issue a final approval which shall
authorize the issuance of a license.
(4) An applicant for a permit to construct a public swimming
pool, public spa pool, public wading pool or bathhouse to be
owned, operated or maintained by a person for profit, or in
conjunction with a travelers' accommodation or recreation park,
shall pay the { - department - } { + authority + } a plan
review fee of $100 and a construction permit fee of $200, which
entitles the holder to two inspections toward final approval. The
{ - department - } { + authority + } shall not impose any new
standards after a second or any subsequent inspection. For any
subsequent construction inspection necessary, the permit holder
shall pay $100 for each inspection.
SECTION 831. ORS 448.035 is amended to read:
448.035. (1) No person shall operate or maintain a public
swimming pool, public spa pool, public wading pool or bathhouse
without a license to do so from the { - Department of Human
Services - } { + Oregon Health Authority + }.
(2) An annual fee of $100 shall be paid for a license to
operate a public swimming pool, public spa pool, public wading
pool or bathhouse. The annual fee for a license for a second or
additional public swimming pool, public spa pool, public wading
pool or bathhouse, or any combination thereof, on the same site
shall be an amount equal to 60 percent of the fee for the first
license.
(3) Licenses issued under this section expire annually on a
date set by rule.
SECTION 832. ORS 448.037 is amended to read:
448.037. (1) A person applying for a variance shall submit a
variance application accompanied by a fee of $150 to the
{ - Department of Human Services. If the department - }
{ + Oregon Health Authority. If the authority + } approves the
application, a variance shall be granted, stating the terms and
conditions thereof.
(2) The { - department - } { + authority + } may waive the
fee for variance requests precipitated by change in the
{ - department's - } { + authority's + } rules.
Enrolled House Bill 2009 (HB 2009-C) Page 483
(3) The { - department - } { + authority + } may not
delegate the responsibility under subsection (1) of this section
under the provision of ORS 448.100.
SECTION 833. ORS 448.040 is amended to read:
448.040. For the purposes of ORS 448.005 to 448.090, the
Director of { - Human Services - } { + the Oregon Health
Authority + } may at all reasonable times enter upon any part of
the premises of public bathing and swimming places to make
examination and investigation to determine the sanitary
conditions of such places and whether ORS 448.005 to 448.090 or
the rules of the { - Department of Human Services - }
{ + Oregon Health Authority + } pertaining to public swimming
pools, public spa pools, public wading pools or bathhouses are
being violated.
SECTION 834. ORS 448.051 is amended to read:
448.051. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall inspect all public swimming
pools, public spa pools, public wading pools and bathhouses to
determine the sanitary conditions of such places and whether ORS
448.005 to 448.090 and the rules of the { - Department of Human
Services - } { + Oregon Health Authority + } pertaining to
public swimming pools, public spa pools, public wading pools and
bathhouses are being violated.
(2) If the director determines that a public swimming pool,
public spa pool, public wading pool or bathhouse is being
operated or maintained in violation of the rules of the
{ - department - } { + authority + } or is found to be
insanitary, unclean or dangerous to public health or safety the
director may suspend, revoke or deny the permit or license issued
under ORS 448.030 or 448.035 in accordance with ORS chapter 183.
SECTION 835. ORS 448.060 is amended to read:
448.060. (1) No public swimming pool, public spa pool, public
wading pool or bathhouse shall remain open to the public after
the permit or license to operate such facilities has been
suspended, denied or revoked.
(2) Any public swimming pool, public spa pool, public wading
pool or bathhouse constructed, operated or maintained contrary to
ORS 448.005 to 448.090, is a public nuisance, dangerous to
health.
(3) Such nuisance may be abated or enjoined in an action
brought by the Director of { - Human Services - } { + the
Oregon Health Authority + } or may be summarily abated in the
manner provided by law for the summary abatement of public
nuisances dangerous to health.
SECTION 836. ORS 448.100 is amended to read:
448.100. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall delegate to any county board of
commissioners that requests any of the { - authority,
responsibilities - } { + duties + } and functions of the
{ - Director of Human Services - } { + director + } under ORS
448.005, 448.011, 448.020 to 448.035, 448.040 to 448.060 and this
section if the director determines that the county is able to
carry out the rules of the { - Department of Human Services - }
{ + Oregon Health Authority + } relating to fee collection,
licensing, inspections, enforcement and issuance and revocation
of permits and certificates in compliance with standards for
enforcement by the counties and monitoring by the
{ - department - } { + authority + }. Such standards shall be
established by the
Enrolled House Bill 2009 (HB 2009-C) Page 484
{ - department - } { + authority + } in consultation with the
appropriate county officials and in accordance with ORS 431.345.
The { - department - } { + authority + } shall review and
monitor each county's performance under this subsection. In
accordance with ORS chapter 183, the director may suspend or
rescind a delegation under this subsection. If it is determined
that a county is not carrying out such rules or the delegation is
suspended, the unexpended portion of the fees collected under
subsection (2) of this section shall be available to the
{ - department - } { + authority + } for carrying out the
{ - authority, responsibility - } { + duties + } and functions
under this section.
(2) The county may determine the amount of, and retain, any fee
for any function undertaken pursuant to subsection (1) of this
section or use the fee schedules pursuant to ORS 448.030 and
448.035. A county to whom licensing, inspection and enforcement
authority has been delegated under this section shall collect and
remit to the { - department - } { + authority + } a fee to
support the activities of the { - department - }
{ + authority + } under this section. The fee shall be
established by the { - department - } { + authority + } and
the Conference of Local Health Officials based upon a budget and
formula for funding activities described in this section. The
{ - department - } { + authority + } and the Conference of
Local Health Officials shall consult with associations
representing Oregon cities, special districts and the lodging
industry in establishing the fee. In the event the
{ - department - } { + authority + } and the Conference of
Local Health Officials cannot reach agreement on the budget and
formula, the { - department - } { + authority + } shall
submit its budget proposal to the Legislative Assembly.
(3) In any action, suit or proceeding arising out of county
administration of functions pursuant to subsection (1) of this
section and involving the validity of a rule promulgated by the
{ - department, the department - } { + authority, the
authority + } shall be made a party to the action, suit or
proceeding.
SECTION 837. ORS 448.115 is amended to read:
448.115. As used in ORS 448.115 to 448.285, 454.235 and 454.255
unless the context requires otherwise:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'Connection' means the connection
between a water system and a customer that enables the customer
to receive potable water from the system.
{ - (2) - } { + (3) + } 'Construction standards' means
criteria for constructing or installing water system facilities.
{ - (3) 'Department' means the Department of Human
Services. - }
(4) 'Director' means the Director of { - Human Services - }
{ + the Oregon Health Authority + }.
(5) 'Emergency' means a condition resulting from an unusual
calamity such as a flood, an earthquake or an accidental spill of
hazardous material that can endanger the quality of the water
produced by a water system.
(6) 'Operational requirements' means requirements that
prescribe the manner in which water systems must be operated.
(7) 'Permit' means a document issued to a water system that
authorizes it to commence or continue to operate in the State of
Oregon and lists the conditions the system must meet to continue
operating.
Enrolled House Bill 2009 (HB 2009-C) Page 485
(8) 'Safe drinking water' means water that is sufficiently free
from biological, chemical, radiological or physical impurities
such that individuals will not be exposed to disease or harmful
physiological effects.
(9) 'Sanitary survey' means an on-site review of the source,
facilities, equipment, operation and maintenance of a water
system, including related land uses, for the purpose of
evaluating the capability of that water system to produce and
distribute safe drinking water.
(10) 'Special master' means the person appointed by the court
to administrate the water system.
(11) 'Variance' means permission from the agency for a water
system to provide water that does not meet water quality
standards.
(12) 'Water supplier' means any person, group of persons,
municipality, district, corporation or entity that owns or
operates a water system.
(13) 'Water system' means a system for the provision of water
for human consumption through pipes or other constructed
conveyances.
(14) 'Waterborne disease' means disease caused by chemical,
physical, radiological or biological agents epidemiologically
associated with infection, illness or disability that is
transported to human beings by water that has been ingested or
through contact as in bathing or other domestic uses.
SECTION 838. ORS 448.119 is amended to read:
448.119. Before a water system is subject to regulation under
ORS 448.119 to 448.285, 454.235 and 454.255, the system must have
at least four service connections, or it must serve water to
public or commercial premises which are used by an average of at
least 10 individuals daily at least 60 days each year. In a
housing subdivision of four or more living units where the water
service connections of individual units are only two or three per
water system, at the discretion of the Director of { - Human
Services, the Department of Human Services - } { + the Oregon
Health Authority, the Oregon Health Authority + } may regulate
the water systems within the subdivision under ORS 448.119 to
448.285, 454.235 and 454.255.
SECTION 839. ORS 448.123 is amended to read:
448.123. (1) It is the purpose of ORS 448.119 to 448.285,
454.235 and 454.255 to:
(a) Ensure that all Oregonians have safe drinking water.
(b) Provide a simple and effective regulatory program for
drinking water systems.
(c) Provide a means to improve inadequate drinking water
systems.
(2) In carrying out the purpose set forth in subsection (1) of
this section, the { - Department of Human Services - }
{ + Oregon Health Authority + } shall act in accordance with the
goal set forth in ORS 468B.155.
(3) If, in carrying out any duty prescribed by law, the
{ - department - } { + authority + } acquires information
related to ground water quality in Oregon, the
{ - department - } { + authority + } shall forward a copy of
the information to the centralized repository established
pursuant to ORS 468B.167.
SECTION 840. ORS 448.131 is amended to read:
448.131. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt water quality
Enrolled House Bill 2009 (HB 2009-C) Page 486
standards that are necessary to protect the public health through
insuring safe drinking water within a water system.
(2) In order to insure safe drinking water, the
{ - department - } { + authority + } shall prescribe:
(a) Construction standards governing the performance of a water
system insofar as they relate to the safety of drinking water.
(b) Standards for the operation of water systems in so far as
they relate to the delivery of safe drinking water.
(c) Other standards and requirements considered necessary by
the { - department - } { + authority + } to insure safe
drinking water.
(3) The { - department - } { + authority + } shall require
that construction and installation plans be submitted and
approved before construction begins on new systems or substantial
improvements are made to old systems. The { - department - }
{ + authority + } may adopt rules exempting certain water
systems from the plan review process.
(4) The { - department - } { + authority + } may impose and
collect a fee from a water supplier for reviewing construction
and installation plans.
(5) Nothing in this section authorizes the { - department - }
{ + authority + } to require alterations of existing facilities
unless alterations are necessary to insure safe drinking water.
SECTION 841. ORS 448.135 is amended to read:
448.135. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may grant variances from
standards if:
(a) There is no unreasonable risk to health;
(b) The water supplier has provided sufficient evidence to
confirm that the best available treatment techniques are unable
to treat the water in question so that it meets maximum
contaminant levels;
(c) The water supplier agrees to notify the customers of the
water supplier at appropriate intervals, as determined by the
{ - department - } { + authority + }, why the water system
is, or remains, out of compliance with standards;
(d) The water supplier agrees to adhere to a compliance
schedule, if the { - department - } { + authority + }
prescribes one, which outlines how the water supplier intends to
achieve compliance with standards. If a schedule is prescribed,
it must be reviewed and evaluated every three years; and
(e) The { - department - } { + authority + } has announced
its intention to grant a variance and has either:
(A) Held a public hearing in the affected area prior to
granting the variance; or
(B) Served notice of intent to grant the variance either
personally, or by registered or certified mail to all customers
connected to the water system, or by publication in a newspaper
in general circulation in the area. If no hearing is requested
within 10 days of the date that notice is given, the
{ - department - } { + authority + } may grant the variance.
(2) The { - Department of Human Services - }
{ + authority + } may grant variances from standards requiring
the use of a specified water treatment technique if the
{ - department - } { + authority + }:
(a) Determines that the use of a specified water treatment
technique is not necessary to protect the public health based on
the nature of the raw water source for a public water system;
(b) Has conditioned the variance as required by the federal
Safe Drinking Water Act, 42 U.S.C. 300g-4;
Enrolled House Bill 2009 (HB 2009-C) Page 487
(c) Has announced its intent to grant a variance and has
either:
(A) Held a public hearing in the area prior to granting the
variance; or
(B) Served notice of intent to grant the variance either
personally, or by registered or certified mail to all customers
connected to the water system, or by publication in a newspaper
in general circulation in the area. If no hearing is requested
within 10 days of the date that notice is given, the
{ - department - } { + authority + } may grant the variance;
and
(d) Promptly notifies the administrator of the United States
Environmental Protection Agency of any variance granted, as
required by the federal Safe Drinking Water Act, 42 U.S.C.
300g-4.
SECTION 842. ORS 448.140 is amended to read:
448.140. A water system that does not comply with the rules and
standards of the { - Department of Human Services - }
{ + Oregon Health Authority + } shall be operated only after the
water supplier has received a permit for the system from the
{ - department - } { + authority + } if:
(1) The { - department - } { + authority + } has not
granted a variance from standards as provided under ORS 448.135
to the water supplier; and
(2) The water system is providing water that does not meet
maximum contaminant standards as determined by an investigation
conducted by the { - department - } { + authority + } under
ORS 448.150.
SECTION 843. ORS 448.145 is amended to read:
448.145. (1) A permit shall be issued by the { - Department
of Human Services - } { + Oregon Health Authority + } when
there are economic or other compelling factors such that the
water supplier is unable to install the water treatment
facilities or to meet the maximum contaminant levels.
(2) The { - department - } { + authority + } shall
prescribe a compliance schedule, including interim measures to
eliminate the risk to health, which sets a specific time limit
for the water supplier operating on a permit to install the water
treatment facilities or to meet the maximum contaminant levels.
(3) For so long as the water supplier operates on a permit,
{ - it - } { + the water supplier + } must notify its
customers at least once every three months why the water system
is, or remains, out of compliance.
(4) When the { - department - } { + authority + } announces
its intention to grant a permit, { - it - } { + the
authority + } shall:
(a) Hold a public hearing in the affected area prior to
granting the permit; or
(b) Serve notice of intent to issue the permit either
personally, or by registered or certified mail to all customers
connected to the water system, or by publication in a newspaper
in general circulation in the area. If no hearing is requested
within 10 days of the date that notice is given, the
{ - department - } { + authority + } may finalize the permit.
(5) The document evidencing the permit shall contain a
statement of the conditions under which the water system may
operate.
SECTION 844. ORS 448.150 is amended to read:
448.150. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall:
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(a) Conduct periodic sanitary surveys of drinking water systems
and sources, take water samples and inspect records to ensure
that the systems are not creating an unreasonable risk to health.
The { - department - } { + authority + } shall provide
written reports of such examinations to the local health
administrators and water suppliers. The { - department - }
{ + authority + } may impose a fee on water suppliers to recover
the costs of conducting the periodic sanitary surveys.
(b) Require regular water sampling by water suppliers to
determine compliance with water quality standards established by
the { - department - } { + authority + }. These samples shall
be analyzed in a laboratory approved by the { - department - }
{ + authority + }. The results of the laboratory analysis of a
sample shall be reported to the
{ - department - } { + authority + } by the water supplier,
unless direct laboratory reporting is authorized by the water
supplier. The laboratory performing the analysis shall report the
validated results of the analysis directly to the
{ - department - } { + authority + } and to the water supplier
if the analysis shows that a sample contains contaminant levels
in excess of any maximum contaminant level specified in the water
quality standards.
(c) Investigate any water system that fails to meet the water
quality standards established by the { - department - }
{ + authority + }.
(d) Require every water supplier that provides drinking water
that is from a surface water source to conduct sanitary surveys
of the watershed as may be considered necessary by the
{ - department - } { + authority + } for the protection of
public health. The water supplier shall make written reports of
such sanitary surveys of watersheds promptly to the
{ - department - } { + authority + } and to the local health
department.
(e) Investigate reports of waterborne disease pursuant to
{ - its authority under - } ORS 431.110 and take necessary
actions as provided for in ORS 446.310, 448.030, 448.115 to
448.285, 454.235, 454.255 and 455.680 to protect the public
health and safety.
(f) Notify the Department of Environmental Quality of a
potential ground water management area if, as a result of its
water sampling under paragraphs (a) to (e) of this subsection,
the
{ - Department of Human Services - } { + authority + }
detects the presence in ground water of:
(A) Nitrate contaminants at levels greater than 70 percent of
the levels established pursuant to ORS 468B.165; or
(B) Any other contaminants at levels greater than 50 percent of
the levels established pursuant to ORS 468B.165.
(2) The notification required under subsection (1)(f) of this
section shall identify the substances detected in the ground
water and all ground water aquifers that may be affected.
SECTION 845. ORS 448.153 is amended to read:
448.153. (1) The State Drinking Water Advisory Committee is
created to advise and assist the { - Department of Human
Services - } { + Oregon Health Authority + } on policies
related to the protection, safety and regulation of public
drinking water in Oregon.
(2) The committee created under this section shall consist of
15 members appointed by the Public Health Officer. The officer
shall make the appointments after considering nominees from:
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(a) Public water systems of cities with a population greater
than 100,000;
(b) Privately owned water systems;
(c) Environmental advocacy groups;
(d) The American Council of Engineering Companies of Oregon;
(e) The Conference of Local Health Officials created by ORS
431.330;
(f) The League of Oregon Cities;
(g) The League of Women Voters of Oregon;
(h) The Oregon Association of Water Utilities;
(i) The Oregon Environmental Health Association;
(j) The Oregon Environmental Laboratory Association;
(k) The Pacific Northwest Section of the American Water Works
Association;
(L) The Special Districts Association of Oregon;
(m) Organizations representing plumbers or backflow testers;
(n) Water consumers; and
(o) Watershed councils.
(3) The committee shall adopt rules to govern its proceedings
and shall select a chair and any other officers it considers
necessary.
(4) The members shall be appointed to serve for terms of three
years. A vacancy on the committee shall be filled by appointment
by the Public Health Officer for the unexpired term.
(5) The committee shall meet regularly four times a year at
times and places fixed by the chair of the committee. The
committee may meet at other times specified by the chair or a
majority of the members of the committee.
(6) The { - Department of Human Services - } { + Oregon
Health Authority + } shall provide assistance and space for
meetings as requested by the chair of the committee.
(7) Members of the committee shall be entitled to actual and
necessary expenses as provided by ORS 292.495 (2).
SECTION 846. ORS 448.155 is amended to read:
448.155. The { - Department of Human Services - }
{ + Oregon Health Authority + }:
(1) May provide technical assistance and organize, coordinate
and conduct training for water system personnel.
(2) Shall conduct a program designed to stimulate public
participation in matters relating to water systems through public
presentations, dissemination of informational materials and other
similar efforts.
SECTION 847. ORS 448.160 is amended to read:
448.160. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall maintain a plan outlining
actions to be taken by the { - department - }
{ + authority + } during emergencies relating to water systems.
(2) The { - department - } { + authority + } may require
that a water supplier compile an emergency plan if it appears
necessary to the Director of { - Human Services - } { + the
Oregon Health Authority + }.
SECTION 848. ORS 448.165 is amended to read:
448.165. (1) Counties may develop water service plans. These
plans should encourage small water systems to combine management
functions and to consolidate where possible. Water service plans
must be in keeping with county land use plans.
(2) Cities or counties, whichever have authority to issue
building permits, must certify that the { - Department of Human
Services - } { + Oregon Health Authority + } has approved the
construction and installation plans of a proposed water system
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development and the development plan does not violate city or
county water service plans before issuing a building permit.
(3) Counties or boundary commissions are authorized to approve
the formation, consolidation and expansion of water systems not
owned by cities in keeping with county and city plans. In doing
so, counties or boundary commissions should consider whether
water service is extended in a logical fashion and water systems
have a financial base sufficient for operation and maintenance.
SECTION 849. ORS 448.170 is amended to read:
448.170. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may enter into an agreement with
a local governmental unit for the local governmental unit to
perform the duties of the
{ - department - } { + authority + } under the Oregon
Drinking Water Quality Act. The duration of the agreement, the
duties to be performed and the remuneration to be paid by the
{ - department - } { + authority + } are subject to agreement
by the { - department - } { + authority + } and the local
governmental unit.
(2) In any action, suit or proceeding arising out of county
administration of functions pursuant to ORS 446.310, 448.030,
448.115 to 448.285, 454.235, 454.255, 455.170 and 757.005 and
involving the validity of a rule adopted by the { - department,
the department - } { + authority, the authority + } shall be
made a party to the action, suit or proceeding.
SECTION 850. ORS 448.175 is amended to read:
448.175. Subject to ORS chapter 183, the { - Department of
Human Services - } { + Oregon Health Authority + }:
(1) Shall require that the water suppliers give public notice
of violations in the water system.
(2) May refuse to allow expansion of or additional connections
to a water system until the water system meets water quality
standards and requirements.
(3) May enter an order requiring a water supplier to acquire or
construct a water system that provides water { - meeting
department - } { + that meets the authority's + } standards.
When the order requires a city to acquire a water system, the
system must have the majority of its facilities within the city's
adopted urban growth boundary. When the order is entered upon a
city, the procedure described in ORS 454.235 to 454.255 shall be
followed.
(4) May enter an order requiring a water supplier that fails to
comply with the schedule prescribed under ORS 448.140 to cease
operation of the water system.
SECTION 851. ORS 448.180 is amended to read:
448.180. The { - Department of Human Services - }
{ + Oregon Health Authority + } may grant waivers on
construction standards if the
{ - department - } { + authority + } is satisfied there will
be no unreasonable risk to health.
SECTION 852. ORS 448.250 is amended to read:
448.250. (1) Whenever a water system or part thereof presents
or threatens to present a public health hazard requiring
immediate action to protect the public health, safety and
welfare, the Director of { - Human Services - } { + the
Oregon Health Authority + } may request the district attorney of
the county wherein the system is located to institute an action.
The action may be commenced without the necessity of prior
administrative procedures or hearing and entry of an order or at
any time during such administrative proceedings, if such
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proceedings have been commenced. The action may petition for a
mandatory injunction compelling the water supplier to cease and
desist operation or to make such improvements and corrections as
are necessary to remove the public health hazard or threat
thereof.
(2)(a) If the water supplier refuses to comply with the order
of the court, in addition to other remedies, the court may
appoint a special master to operate the water system. Costs of
operation and improvement during operation by the special master
are to be charged to the water supplier and may be collected by
impounding revenue due to the water supplier from customers of
the supplier; or, if those funds are insufficient, from other
revenues due to the water supplier.
(b) The court may require sale of a water system under a
special master to a responsible party if the water supplier
refuses to comply with the standards and requirements of the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(3) Cases filed under provisions of this section or any appeal
therefrom shall be given preference on the docket over all other
civil cases except those given an equal preference by statute.
(4) Nothing in this section is intended to prevent the
maintenance of actions for legal or equitable remedies relating
to private or public nuisance or for recovery of damages brought
by private persons or by the state on relation of any person.
SECTION 853. ORS 448.255 is amended to read:
448.255. (1) Whenever the Director of { - Human Services - }
{ + the Oregon Health Authority + } has reasonable grounds to
believe that a water system or part thereof is being operated or
maintained in violation of any rule adopted pursuant to ORS
448.115 to 448.285, 454.235 and 454.255, the director shall give
written notice to the water supplier responsible for the system.
(2) The notice required under subsection (1) of this section
shall include the following:
(a) Citation of the rule allegedly violated;
(b) The manner and extent of the alleged violation; and
(c) A statement of the party's right to request a hearing.
(3) The notice shall be served personally or by registered or
certified mail and shall be accompanied by an order of the
director requiring remedial action which, if taken within the
time specified in the order, will effect compliance with the rule
allegedly violated. The order shall become final unless request
for hearing is made by the party receiving the notice within 10
days from the date of personal service or the date of mailing of
the notice.
(4) The form of petition for hearing and the procedures
employed in the hearing shall be consistent with the requirements
of ORS chapter 183 and shall be in accordance with rules adopted
by the { - Department of Human Services - } { + Oregon Health
Authority + }.
(5) Hearings under this section shall be conducted by an
administrative law judge assigned from the Office of
Administrative Hearings established under ORS 183.605.
(6) The order shall be affirmed or reversed by the director
after hearing. A copy of the director's decision setting forth
findings of fact and conclusions shall be sent by registered or
certified mail to the petitioner or served personally upon the
petitioner. An appeal from such decision may be made as provided
in ORS 183.480 relating to a contested case.
SECTION 854. ORS 448.268 is amended to read:
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448.268. If, as a result of its activities under ORS 448.150,
the { - Department of Human Services - } { + Oregon Health
Authority + } confirms the presence in ground water drinking
water supplies of contaminants resulting at least in part from
suspected nonpoint source activities, the { - department - }
{ + authority + } shall declare an area of ground water concern.
The declaration shall identify the substances confirmed in the
ground water and all ground water aquifers that may be affected.
SECTION 855. ORS 448.271 is amended to read:
448.271. (1) In any transaction for the sale or exchange of
real estate that includes a well that supplies ground water for
domestic purposes, the seller of the real estate shall, upon
accepting an offer to purchase that real estate, have the well
tested for nitrates and total coliform bacteria. The
{ - Department of Human Services - } { + Oregon Health
Authority + } also may require additional tests for specific
contaminants in an area of ground water concern or ground water
management area. The seller shall submit the results of the test
required under this section to the
{ - department - } { + authority + }.
(2) The failure of a seller to comply with the provisions of
this section does not invalidate an instrument of conveyance
executed in the transaction.
SECTION 856. ORS 448.273 is amended to read:
448.273. The Legislative Assembly finds that an agreement
between this state and the federal government to assume primary
enforcement responsibility in this state for the federal Safe
Drinking Water Act is in the best interest of this state, subject
to the following assumptions:
(1) The federal government provides an annual program grant in
an amount no less than that allocated for the state in the 1984
fiscal year.
(2) The federal government provides technical assistance to
this state, as requested, in emergency situations and during
outbreaks of waterborne diseases.
(3) The federal government must negotiate an annual work plan
for the { - Department of Human Services - } { + Oregon
Health Authority + } that can be accomplished within the amount
of program grant funding available.
(4) The { - Department of Human Services - }
{ + authority + } adopts standards no less stringent than the
National Primary Drinking Water Regulations of the United States
Environmental Protection Agency.
(5) The { - Department of Human Services - }
{ + authority + } provides engineering assistance through
regional offices in at least four geographically distributed
areas in this state.
(6) In cooperation with representatives of local health
departments, the { - Department of Human Services - }
{ + authority + } develops an equitable formula for distribution
of available funds to support local health department water
programs.
(7) The primacy agreement may be canceled by the
{ - Department of Human Services - } { + authority + }, upon
90 days' notice, if at any time the federal requirements exceed
the amount of federal funding and the cancellation is approved by
the legislative review agency as defined in ORS 291.371 (1).
(8) The federal government can impose financial sanctions
against this state if the state fails to meet the objectives of
the annual negotiated work plan without reasonable explanation by
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tying the next annual funding to specific state production and by
withholding of funds a possibility if continued unexplained
failures occur but no sanction exists to interfere with other
types of federal funding in this state.
(9) The federal government may seek to enforce the safe
drinking water standards if this state fails to take timely
compliance action against a public water system that violates
such standards.
(10) Enforcement under subsection (9) of this section may be by
injunctive relief or, in the case of willful violation, civil
penalties authorized by 42 U.S.C. 300g-3 (a) and (b).
SECTION 857. ORS 448.277 is amended to read:
448.277. The { - Department of Human Services - }
{ + Oregon Health Authority + } is authorized to enter into an
agreement with the federal government to administer the federal
Safe Drinking Water Act in this state. The agreement is subject
to the legislative assumption stated in ORS 448.273. The
agreement shall remain in effect subject to annual renegotiation
of the duties to be performed and the remuneration to be received
by the { - department - } { + authority + } except that it
may be canceled by the { - department - } { + authority + },
upon 90 days' notice, if at any time the federal requirements
exceed the amount of federal funding and the cancellation is
approved by the legislative review agency as defined in ORS
291.371 (1).
SECTION 858. ORS 448.278 is amended to read:
448.278. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall establish a program for
regulating cross connections and the backflow assemblies that are
part of a water system.
(2) The { - department - } { + authority + } may assess an
annual fee on community water systems for the purpose of
implementing the cross connection and backflow assembly program
established pursuant to this section. The fee may not exceed:
(a) $30 for a water system that has 15 to 99 service
connections;
(b) $75 for a water system that has 100 to 999 service
connections;
(c) $200 for a water system that has 1,000 to 9,999 service
connections; or
(d) $350 for a water system that has 10,000 or more service
connections.
SECTION 859. ORS 448.279 is amended to read:
448.279. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } by rule shall establish a
certification program for persons who inspect cross connections
or test backflow assemblies. The program shall include minimum
qualifications necessary for a person to be certified to:
(a) Conduct a cross connection inspection; and
(b) Test a backflow assembly.
(2) Except for an employee of a water supplier as defined in
ORS 448.115, a person certified under this section must:
(a) Become licensed as a construction contractor with the
Construction Contractors Board as provided under ORS chapter 701;
or
(b) Be employed by a landscape contracting business licensed
under ORS 671.510 to 671.760.
(3) In conjunction with the certification program established
under subsection (1) of this section, the { - department - }
{ + authority + } may establish and collect a fee from an
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individual requesting certification under the program. A fee
imposed under this subsection:
(a) Is not refundable; and
(b) May not exceed the cost of administering the certification
program of the { - department - } { + authority + } for which
purpose the fee is established, as authorized by the Legislative
Assembly within the budget of the { - department - }
{ + authority + } and as the budget may be modified by the
Emergency Board.
(4) The { - department - } { + authority + } may not
require a journeyman plumber licensed under ORS chapter 693 or an
apprentice plumber, as defined in ORS 693.010, to obtain a
certification for testing backflow assemblies under the program
established under this section.
(5) All moneys collected by the { - department - }
{ + Oregon Health Authority + } under this section shall be
deposited in the General Fund to the credit of an account of the
{ - department - } { + authority + }. Such moneys are
continuously appropriated to the { - department - } { + Oregon
Health Authority + } to pay the cost of administering the
certification program established pursuant to this section and
the cost of administering water system cross connection and
backflow assembly programs.
SECTION 860. ORS 448.280 is amended to read:
448.280. (1) In addition to any other penalty provided by law:
(a) Any person who violates any rule of the { - Department of
Human Services - } { + Oregon Health Authority + } relating to
the construction, operation or maintenance of a water system or
part thereof shall incur a civil penalty not to exceed $500 for
each day of violation, except that a violation at any water
system that serves more than 10,000 people shall be subject to a
civil penalty not to exceed $1,000 for each day of violation.
(b) Any person who operates an environmental laboratory and who
purports that the laboratory is accredited under the
environmental laboratory accreditation program established under
ORS 438.615 when the laboratory is not accredited shall incur a
civil penalty in accordance with the schedule of penalties
established by rule by the Director of { - Human Services - }
{ + the Oregon Health Authority + }, in collaboration with the
accrediting authority.
(2) No civil penalty prescribed under subsection (1) of this
section shall be imposed until the person incurring the penalty
has received five days' advance notice in writing from the
{ - department - } { + authority + } or unless the person
incurring the penalty shall otherwise have received actual notice
of the violation not less than five days prior to the violation
for which a penalty is imposed.
SECTION 861. ORS 448.285 is amended to read:
448.285. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall adopt by rule a schedule or
schedules establishing the amount of civil penalty that may be
imposed for a particular violation. No civil penalty shall exceed
$500 per day, except that a violation at any water system that
serves more than 10,000 people shall be subject to a civil
penalty not to exceed $1,000 for each day of violation.
(2) The director may impose the penalty without hearing but
only after the notice required by ORS 448.280 (2). In imposing a
penalty pursuant to the schedule or schedules adopted pursuant to
this section, the director shall consider the following factors:
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(a) The past history of the person incurring a penalty in
taking all feasible steps or procedures necessary or appropriate
to correct any violation.
(b) Any prior violations of statutes, rules, orders and permits
pertaining to the water system.
(c) The economic and financial conditions of the person
incurring the penalty.
(3) The penalty imposed under this section may be remitted or
mitigated upon such terms and conditions as the { - Department
of Human Services - } { + Oregon Health Authority + } considers
proper and consistent with the public health and safety.
(4) In adopting rules or imposing penalties under this section
for violations of ORS 448.280 (1)(b), the director shall
collaborate with the accrediting authority.
SECTION 862. ORS 448.295 is amended to read:
448.295. Subject to the authority of the { - Department of
Human Services - } { + Oregon Health Authority + }, for the
purpose of protecting from pollution their domestic water supply
sources, cities shall have jurisdiction over all property:
(1) Occupied by the distribution system or by the domestic
water supply sources by and from which the city or any person or
corporation provides water to the inhabitants of the city.
(2) Acquired, owned or occupied for the purpose of preserving
or protecting the purity of the domestic water supply source.
(3) Acquired, owned or occupied by cities within the areas
draining into the domestic water supply sources.
SECTION 863. ORS 448.315 is amended to read:
448.315. The mayor or authorities having control of the
community water supply system supplying the city may appoint
special police officers who:
(1) After taking oath, shall have the powers of constables.
(2) May arrest with or without warrant any person committing,
within the territory described in ORS 448.295, for:
(a) Any offense against the purity of the domestic water supply
source or the community water supply system under state law or an
ordinance of such city; or
(b) Any violation of any rule of the { - Department of Human
Services - } { + Oregon Health Authority + } or the authorities
having control of the city water system for the protection of the
purity of the domestic water supply source or the community water
supply system.
(3) May take any person arrested for any violation under this
section before any court having jurisdiction thereof to be
proceeded with according to law.
(4) When on duty, shall wear in plain view a badge or shield
bearing the words 'Special Police' and the name of the city for
which appointed.
SECTION 864. ORS 448.330 is amended to read:
448.330. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } may prohibit the sale of water pipe
used to carry potable water and solders, fillers or brazing
material used in making up joints and fittings in this state and
the installation or use of water pipe used to carry potable water
and solders, fillers or brazing material used in making up joints
and fittings in any private or public potable water supply system
or individual water user's lines until such time as the director
determines that adequate standards exist and are practiced in the
manufacture of water pipe used to carry potable water and
solders, fillers or brazing material used in making up joints and
Enrolled House Bill 2009 (HB 2009-C) Page 496
fittings to insure that the pipe and solder do not present a
present or potential threat to the public health in this state.
(2) The director { - of Human Services - } shall adopt, by
rule, product acceptability criteria for water pipe used to carry
potable water and solders, fillers or brazing material used in
making up joints and fittings for water supply purposes which
insure that the pipe and solder do not present a threat to the
public health in this state. The { - Department of Human
Services - } { + Oregon Health Authority + } shall be
responsible for the monitoring of the sale and use of water pipe
used to carry potable water and solders, fillers or brazing
material used in making up joints and fittings for compliance
with the product acceptability criteria. The Department of
Consumer and Business Services shall cooperate with, and assist,
the { - Department of Human Services - } { + authority + } in
its monitoring efforts.
(3) No water pipe used to carry potable water or solders,
fillers or brazing material used in making up joints and fittings
which does not conform to the product acceptability criteria
adopted under subsection (2) of this section shall be sold in
this state or installed in any part of any public or private
potable water supply system or individual water user's lines.
(4) Notwithstanding subsection (1) or (3) of this section, the
director { - of Human Services - } may grant exemptions from
any prohibition of the sale or use of water pipe used to carry
potable water for the emergency repair or replacement of any
existing part of a water supply system, or for the necessary use
by a well driller in the installation of a well. The director may
require any person using water pipe used to carry potable water
under this subsection to notify the { - Department of Human
Services - } { + authority + } of the date and location of that
use.
SECTION 865. ORS 448.407 is amended to read:
448.407. To aid and advise the Environmental Quality Commission
and { - Department of Human Services - } { + the Oregon
Health Authority + } in the adoption of rules under ORS 448.410
and 448.450, the Director of the Department of Environmental
Quality and the Director of { - Human Services - } { + the
Oregon Health Authority + } shall appoint an advisory committee.
The members of the committee shall include but need not be
limited to representatives of all types of water systems.
SECTION 866. ORS 448.409 is amended to read:
448.409. On or before January 1 of each odd-numbered year, the
Department of Environmental Quality and the { - Department of
Human Services - } { + Oregon Health Authority + } shall
develop and submit a joint report to the Legislative Assembly.
The report shall include, but need not be limited to:
(1) A summary of actions taken under ORS 448.405 to 448.465,
448.992 and 448.994;
(2) An evaluation of the effectiveness of such actions; and
(3) Any information and recommendations, including legislative
recommendations the { - Department of Environmental Quality or
the Department of Human Services - } { + department or the
authority + } considers appropriate.
SECTION 867. ORS 448.410 is amended to read:
448.410. (1) The Environmental Quality Commission shall:
(a) Adopt rules necessary to carry out the provisions of ORS
448.410 to 448.430 and 448.992.
(b) Classify all sewage treatment works. In classifying the
sewage treatment works, the commission shall take into
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consideration size and type, character of wastewater to be
treated and other physical conditions affecting the sewage
treatment works and the skill, knowledge and experience required
of an operator.
(c) Certify persons qualified to supervise the operation of
sewage treatment works.
(d) Subject to the prior approval of the Oregon Department of
Administrative Services and a report to the Emergency Board prior
to adopting the fee, establish a schedule of fees for
certification under paragraph (c) of this subsection. The fees
established under the schedule shall be sufficient to pay the
costs incurred by the Department of Environmental Quality in
carrying out the provisions of ORS 448.410 to 448.430 and 448.992
and shall be within the budget authorized by the Legislative
Assembly as that budget may be modified by the Emergency Board.
(2) The commission may grant a variance from the requirements
of ORS 448.415, according to criteria established by rule by the
commission.
(3) In adopting rules under this section, the commission shall
consult with the { - Department of Human Services - }
{ + Oregon Health Authority + } in order to coordinate rules
adopted under this section with rules adopted by the
{ - Department of Human Services - } { + authority + } under
ORS 448.450.
SECTION 868. ORS 448.450 is amended to read:
448.450. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall:
(a) Adopt rules necessary to carry out the provisions of ORS
448.450 to 448.465, 448.992 and 448.994.
(b) Classify all potable water treatment plants and water
distribution systems actually used or intended for use by the
public. In classifying the potable water treatment plants and
water distribution systems, the { - department - }
{ + authority + } shall take into consideration size and type,
character of water to be treated and other physical conditions
affecting the treatment plants and distribution systems and the
skill, knowledge and experience required of an operator.
(c) Certify persons qualified to supervise the operation of a
potable water treatment plant or a water distribution system.
(d) Subject to the prior approval of the Oregon Department of
Administrative Services and a report to the Emergency Board prior
to adopting the fee, establish a schedule of fees for
certification under paragraph (c) of this subsection. The fees
established under the schedule shall be sufficient to pay the
cost of the { - Department of Human Services - }
{ + authority + } in carrying out the provisions of ORS 448.450
to 448.465, 448.992 and 448.994 and shall be within the budget
authorized by the Legislative Assembly as that budget may be
modified by the Emergency Board.
(2) Notwithstanding the authority of the { - Department of
Human Services - } { + Oregon Health Authority + } to establish
fees for certification under subsection (1)(d) of this section,
the
{ - department - } { + authority + } will not establish fees
for certification of operators of water systems serving ground
water to fewer than 150 service connections.
(3) In adopting rules under this section, the { - Department
of Human Services - } { + authority + } shall consult with the
Department of Environmental Quality in order to coordinate rules
Enrolled House Bill 2009 (HB 2009-C) Page 498
adopted under this section with rules adopted by the
Environmental Quality Commission under ORS 448.410.
SECTION 869. ORS 448.460 is amended to read:
448.460. On and after September 27, 1987, an operator holding a
current Oregon water treatment certification issued under a
voluntary certification program shall be considered certified
under the program established under ORS 448.450 at the same
classification and grade. Certification of operators by any state
that, as determined by the { - Department of Human Services - }
{ + Oregon Health Authority + }, accepts certifications made
under ORS 448.450 to 448.465, 448.992 and 448.994, shall be
accorded reciprocal treatment and shall be recognized as valid
and sufficient within the purview of ORS 448.450 to 448.465,
448.992 and 448.994, if in the judgment of the Director of
{ - Human Services - } { + the Oregon Health Authority + },
the certification requirements of such state are substantially
equivalent to the requirements of ORS 448.450 to 448.465, 448.992
and 448.994 or any rule adopted under ORS 448.450 to 448.465,
448.992 and 448.994.
SECTION 870. ORS 448.465 is amended to read:
448.465. Any fees collected pursuant to the schedule adopted
under ORS 448.450 shall be deposited in the General Fund of the
State Treasury to the credit of the { - Department of Human
Services - } { + Oregon Health Authority + }. Such fees are
continuously appropriated to the Department of Environmental
Quality to pay the cost of administering the provisions of ORS
448.450 to 448.465, 448.992 and 448.994.
SECTION 871. ORS 448.990 is amended to read:
448.990. (1) Violation of ORS 448.005 to 448.090 by any person,
firm or corporation, whether acting as principal or agent,
employer or employee, is punishable, upon conviction, by a fine
of not less than $25 nor more than $500 or by imprisonment in the
county jail not exceeding six months, or by both. Each day that
the violation continues is a separate offense.
(2) Subject to ORS 153.022, violation of any of the following
is punishable as a Class A misdemeanor:
(a) Any rule of the { - Department of Human Services - }
{ + Oregon Health Authority + } adopted pursuant to ORS 448.115
to 448.330.
(b) Any order issued by the { - department - }
{ + authority + } pursuant to ORS 448.175.
(c) ORS 448.265 or 448.315 (2)(a).
SECTION 872. ORS 450.165 is amended to read:
450.165. (1) Whenever the board deems it expedient or necessary
to cause to be constructed sewers, drains or sewage treatment
plants, the cost of which, in whole or in part, is to be paid
either by the proceeds of the sale of bonds by the district or
assessed against the property directly benefited or by both
methods in proportion, the board shall retain a registered
professional engineer to prepare plans and specifications for the
sewers, drains or sewage treatment plants, which plans and
specifications shall be filed in the office of the secretary of
the district.
(2) The district board may, however, adopt any plans and
specifications they see fit, provided the plans have been
prepared by a registered professional engineer and have been
approved by the { - Department of Human Services - }
{ + Oregon Health Authority + } and the Environmental Quality
Commission.
SECTION 873. ORS 450.845 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 499
450.845. Whenever the board deems it expedient or necessary for
the protection of the public health, safety and welfare to cause
to be constructed treatment plants or trunk or lateral sewers or
drains, or any combination thereof, the board shall determine the
proposed boundaries of the area to be directly benefited thereby
and have a registered professional engineer prepare plans and
specifications for such plants, sewers or drains. Such plans and
specifications must be approved by the
{ - Department of Human Services - } { + Oregon Health
Authority + } and the Environmental Quality Commission and shall
be filed in the office of the { + sanitary + } authority.
Parcels of land which may be served practicably by lateral sewers
or drains connected with treatment plants or trunk sewers or
drains and are not adequately served by existing plants, sewers
or drains, as the case may be, are considered to be directly
benefited by the plants, sewers or drains of the
{ + sanitary + } authority. If all or any portion of the cost of
construction is to be specially assessed against individual
property, the engineer shall include in the plans and
specifications, a description of the location and assessed value
of each lot, tract or parcel of land, or portion thereof, to be
specially benefited by the improvement, with the names of the
record owners thereof and an estimate of the unit cost of the
improvement to the specially benefited property.
SECTION 874. ORS 451.445 is amended to read:
451.445. (1) When certified copy of the findings of the
Director of { - Human Services - } { + the Oregon Health
Authority + } is filed with the county court as provided by ORS
431.740 or 431.750, the county court shall, subject to ORS
198.792, proceed to form the district to provide the facilities
described in the findings and shall enter an order in accordance
with ORS 451.485.
(2) The county court shall, within one year after making its
order under ORS 451.485, prepare plans and specifications for the
service facilities proposed to be provided within the district
and proceed in accordance with the time schedule to construct or
install the facilities.
(3) Notwithstanding the provisions of ORS 451.487, the order of
the county court under ORS 451.485 is not subject to referendum
if it is adopted in accordance with subsection (1) of this
section and as a result of proceedings conducted under ORS
431.705 to 431.760.
(4) Notwithstanding ORS 451.495, when service facilities are to
be constructed for the purpose of removing or alleviating a
danger to public health and as a result of proceedings conducted
by ORS 431.705 to 431.760, if any portion of the cost of the
service facilities is to be assessed against the property
directly benefited, ORS 451.495 (1)(c) does not apply to the
general ordinance providing for the method of assessment which
must be adopted under ORS 451.495.
SECTION 875. ORS 452.151 is amended to read:
452.151. The board may request technical advice and information
from the Oregon State University Agricultural Experiment Station
and the { - Department of Human Services - } { + Oregon
Health Authority + } regarding methods and chemicals to be used
in the control and extermination of rats and public health
vectors.
SECTION 876. ORS 452.300 is amended to read:
452.300. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall maintain a program of
Enrolled House Bill 2009 (HB 2009-C) Page 500
public health vector control, which program shall include, but
not be limited to:
(a) Monitoring and investigating public health vectors, vector
habitats and vector-borne diseases.
(b) Providing technical assistance and information to vector
control districts, local vector control programs and the public.
(c) Maintaining training programs for vector control district
personnel and other public health personnel.
(d) Coordinating and assisting vector control district programs
and other local programs in research projects.
(e) Reviewing vector control program pesticide use plans
submitted by agencies that intend to use pesticides for vector
control. Agencies must obtain { - department - }
{ + authority + } approval of their annual pesticide use plan
prior to pesticide applications.
(2) The { - department - } { + authority + } may provide an
amount not to exceed $5,000 per year in matching funds to a
district for a program to allow the district to carry out disease
surveillance in cooperation with public health personnel.
SECTION 877. ORS 452.530 is amended to read:
452.530. (1) Notwithstanding any other provisions of law the
{ - department - } { + State Department of Agriculture + }
shall administer and enforce the provisions of ORS 452.510 to
452.590.
(2) The department may make all rules and regulations for the
administration of ORS 452.510 to 452.590, and provide the
necessary forms to carry those sections into effect. This
includes the authority necessary to promulgate regulations
affecting persons and property before, during or after the
department has detected, controlled or destroyed ragweed and to
prevent the spreading or regrowth of the weed.
(3) The department may cooperate with federal agencies, the
Oregon State University, extension service, the { - Department
of Human Services - } { + Oregon Health Authority + } and all
other public and private agencies or organizations in the
administration of ORS 452.510 to 452.590. The department shall
publish and furnish information and advice concerning the control
of ragweed, the injurious consequences of ragweed pollen and the
necessity of preventing the further spread of this obnoxious
weed.
SECTION 878. ORS 453.001 is amended to read:
453.001. As used in ORS 453.001 to 453.185 and 453.605 to
453.807, unless the context requires otherwise:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) 'Department' means the Department of Human
Services. - }
(2) 'Director' means the Director of { - Human Services - }
{ + the Oregon Health Authority + }.
SECTION 879. ORS 453.005 is amended to read:
453.005. As used in ORS 453.005 to 453.135 unless the context
requires otherwise:
(1) 'Combustible' means any substance that has a flash point
above 80 degrees Fahrenheit to and including 140 degrees, as
determined by the Tagliabue Open Cup Tester.
(2) 'Commerce' means any and all commerce within the State of
Oregon and subject to the jurisdiction thereof and includes the
operation of any business or service establishment.
(3) 'Corrosive' means any substance that in contact with living
tissue will cause destruction of tissue by chemical action, but
does not refer to action on inanimate surfaces.
Enrolled House Bill 2009 (HB 2009-C) Page 501
(4) 'Electrical hazard' means an article that because of its
design or manufacture may cause personal injury or illness by
electric shock when in normal use or when subjected to reasonably
foreseeable damage or abuse.
(5) 'Extremely flammable' means any substance that has a flash
point at or below 20 degrees Fahrenheit as determined by the
Tagliabue Open Cup Tester.
(6) 'Flammable' means any substance that has a flash point of
above 20 degrees to and including 80 degrees Fahrenheit, as
determined by the Tagliabue Open Cup Tester.
(7) 'Hazardous substance' means:
(a) Any substance that is toxic, corrosive, an irritant, a
strong sensitizer, flammable, combustible, or generates pressure
through decomposition, heat or other means, if such substance or
mixture of substances may cause substantial personal injury or
substantial illness during or as a proximate result of any
customary or reasonably foreseeable handling or use, including
reasonably foreseeable ingestion by children, or any substance
that the Director of { - Human Services - } { + the Oregon
Health Authority + } finds, pursuant to the provisions of ORS
453.005 to 453.135, comes within the definition of this
paragraph.
(b) Any radioactive substance, if, with respect to such
substance as used in a particular class of article or as
packaged, the director determines that the substance is
sufficiently hazardous to require labeling in accordance with ORS
453.005 to 453.135 in order to protect the public health.
However, ' hazardous substance' does not include any source
material, special nuclear material, or by-product material as
defined in the Atomic Energy Act of 1954, as amended, and
regulations issued pursuant thereto by the Atomic Energy
Commission.
(c) Any toy or other article intended for use by children that
the director determines in accordance with ORS 453.055 presents
an electrical, thermal or mechanical hazard.
(d) Any article that is not pesticide within the meaning of the
Federal Insecticide, Fungicide, and Rodenticide Act or regulated
under ORS 616.335 to 616.385, but that is a hazardous substance
within the meaning of paragraph (a) of this subsection by reason
of bearing or containing pesticide.
(e) The following brominated flame retardant chemicals:
(A) Pentabrominated diphenyl ether; and
(B) Octabrominated diphenyl ether.
(8) 'Highly toxic' means any substance that falls within any of
the following categories:
(a) Produces death within 14 days in one-half or more of a
group of 10 or more laboratory white rats each weighing between
200 and 300 grams, at a single dose of 50 milligrams or less per
kilogram of body weight, when orally administered;
(b) Produces death within 14 days in one-half or more of a
group of 10 or more laboratory white rats each weighing between
200 and 300 grams, when inhaled continuously for a period of one
hour or less at an atmosphere concentration of 200 parts per
million by volume or less of gas or vapor or two milligrams per
liter by volume or less of mist or dust, provided such
concentration is likely to be encountered by humans when the
substance is used in any reasonably foreseeable manner; or
(c) Produces death within 14 days in one-half or more of a
group of 10 or more rabbits tested in a dosage of 200 milligrams
Enrolled House Bill 2009 (HB 2009-C) Page 502
or less per kilogram of body weight, when administered by
continuous contact with the bare skin for 24 hours or less.
(9) 'Immediate container' does not include package liners.
(10) 'Irritant' means any substance not corrosive within the
meaning of subsection (3) of this section, but that on immediate,
prolonged, or repeated contact with normal living tissue will
induce a local inflammatory reaction.
(11) 'Label' means a display of written, printed, or graphic
matter upon the immediate container of any substance, or in the
case of an article that is unpackaged or is not packaged in an
immediate container intended or suitable for delivery to the
ultimate consumer, a display of such matter directly on the
article involved or on a tag or other suitable material affixed
thereto, and a requirement made by or under authority of ORS
453.005 to 453.135 that any word, statement, or other information
appearing on the label shall not be considered to be complied
with unless such word, statement, or other information also
appears on the outside container or wrapper, if any, unless it is
easily legible through the outside container or wrapper and on
all accompanying literature where there are directions for use,
written or otherwise.
(12) 'Mechanical hazard' means an article that in normal use or
when subjected to reasonably foreseeable damage or abuse presents
an unreasonable risk of personal injury or illness, by its design
or manufacture:
(a) From fracture, fragmentation, or disassembly of the
article;
(b) From propulsion of the article or any part or accessory
thereof;
(c) From points or other protrusions, surfaces, edges,
openings, or closures;
(d) From moving parts;
(e) From lack or insufficiency of controls to reduce or stop
motion;
(f) As a result of self-adhering characteristics of the
article;
(g) Because the article or any part or accessory thereof may be
aspirated or ingested;
(h) Because of instability; or
(i) Because of any other aspect of the article's design or
manufacture.
(13) 'Misbranded hazardous substance' means a hazardous
substance that does not meet the labeling requirements of ORS
453.035.
(14) 'Poison' means:
(a) Arsenic and its preparations;
(b) Corrosive sublimate;
(c) Cyanides and preparations, including hydrocyanic acid;
(d) Hydrochloric acid and any preparation containing free or
chemically unneutralized hydrochloric acid (HCl) in a
concentration of 10 percent or more;
(e) Nitric acid or any preparation containing free or
chemically unneutralized nitric acid (HNO3) in a concentration of
five percent or more;
(f) Strychnine;
(g) Sulfuric acid and any preparation containing free or
chemically unneutralized sulfuric acid (H2SO4) in a concentration
of 10 percent or more;
(h) Solution of ammonia, U.S.P. 28 percent; or
(i) Carbolic acid.
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(15) 'Radioactive substance' means a substance that emits
ionizing radiation.
(16) 'Strong sensitizer' means a substance that will cause on
normal living tissue, through an allergic or photodynamic
process, a hypersensitivity that becomes evident on reapplication
of the same substances and that is designated as such by the
director { - of Human Services - } .
(17) 'Thermal hazard' means an article that, in normal use or
when subjected to reasonably foreseeable damage or abuse, because
of its design or manufacture presents an unreasonable risk of
personal injury or illness because of heat as from heated parts,
substances or surfaces.
(18) 'Toxic substance' means any substance, other than
radioactive substance, that has the capacity to produce personal
injury or illness to humans through ingestion, inhalation, or
absorption through any body surface.
SECTION 880. ORS 453.035 is amended to read:
453.035. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall adopt standards for the
labeling of hazardous substances. The director may permit or
require the use of a recognized generic name or may require the
common or usual name or the chemical name, if there is no common
or usual name, of the hazardous substance or of each component
which the director finds contributes substantially to its hazard.
(2) The director shall require:
(a) The word 'Danger' on substances which are extremely
flammable, corrosive or highly toxic;
(b) The word 'Warning' or 'Caution' on other hazardous
substances;
(c) An affirmative statement of the principal hazard or
hazards, such as 'Flammable,' 'Combustible,' 'Vapor Harmful,'
'Causes Burns,' 'Absorbed Through Skin,' or similar wording
descriptive of the hazard;
(d) Precautionary measures describing the action to be followed
or avoided, except when modified by rule of the director pursuant
to subsection (4) of this section;
(e) Instruction, when necessary or appropriate, for first-aid
treatment;
(f) The word 'Poison' for any hazardous substance which is
defined as 'highly toxic' in ORS 453.005;
(g) Instructions for handling and storage of packages which
require special care in handling or storage;
(h) Adequate directions for the protection of children from the
hazard if the article is intended for use by children and is not
a banned hazardous substance, or the statement 'Keep out of the
reach of children,' or its practical equivalent, if the article
is not intended for use by children; and
(i) The name and place of business of the manufacturer, packer,
distributor or seller.
(3) Any statement required by this section must be in the
English language, located prominently and in conspicuous and
legible type in contrast by typography, layout or color with
other printed matter on the label.
(4) If the director finds that, because of the size of the
package involved or because of the minor hazard presented by the
substance contained therein, or for other good and sufficient
reasons, full compliance with the labeling requirements otherwise
applicable under ORS 453.005 to 453.135 and 453.990 (2) is
impracticable or is not necessary for the adequate protection of
the public health and safety, the director may authorize the
Enrolled House Bill 2009 (HB 2009-C) Page 504
exemption of such substance from the requirements, to an extent
consistent with adequate protection of the public health and
safety.
SECTION 881. ORS 453.055 is amended to read:
453.055. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall declare to be a hazardous
substance any substance or mixture of substances which the
director finds to be within the definition of hazardous substance
in ORS 453.005.
(2) If the director finds that any hazardous substance is a
misbranded hazardous substance, the director shall require such
reasonable variations or labeling requirements in addition to
those required by ORS 453.035 as the director finds necessary for
the protection of the public health and safety. However, if the
director finds that any hazardous substance cannot be labeled
adequately to protect the public health and safety, or the
article presents an imminent danger to the public health and
safety, the director may declare the article to be a banned
hazardous substance and require its removal from commerce.
(3) If the director finds that a toy or other article intended
for use by children is a hazardous substance, bears or contains a
hazardous substance in a manner as to be susceptible of access by
a child to whom the toy or other article is entrusted or presents
an electrical, mechanical or thermal hazard, the director shall
declare a toy or other article to be a banned hazardous substance
and require its removal from commerce.
(4) If the director finds that any hazardous substance
intended, or packaged in a form suitable, for use in a household,
notwithstanding cautionary labeling as required under ORS 453.005
to 453.135 and 453.990 (2), involves a degree or nature of the
hazard by its presence or use in households that the protection
of the public health and safety can be adequately served only by
keeping the substance out of the channels of commerce, the
director shall declare the hazardous substance to be a banned
hazardous substance and require its removal from commerce.
(5) Any hazardous substance intended, or packaged in a form
suitable for use in the household or by children, which fails to
bear a label in accordance with ORS 453.035 and the standards of
the director shall be deemed to be a misbranded hazardous
substance.
(6) Any hazardous substance contained in a reused food, drug or
cosmetic container is a misbranded hazardous substance.
SECTION 882. ORS 453.065 is amended to read:
453.065. (1) Whenever the Director of { - Human Services - }
{ + the Oregon Health Authority + } or a designated
representative finds or has probable cause to believe that any
hazardous household substance is misbranded, or is a banned
hazardous substance, the director or designated representative
shall affix to such article a tag or other appropriate marking,
giving notice that such article is or is suspected of being
misbranded or is a banned hazardous substance, and has been
detained or embargoed, and warning all persons not to remove or
dispose of such article by sale or otherwise until permission for
removal or disposal is given by such agent or the court.
(2) When an article detained or embargoed under subsection (1)
of this section has been found to be misbranded or a banned
hazardous substance, the director shall petition the circuit
court of the county within which the article is detained or
embargoed for a label of condemnation of such article. However,
if the director or a designated representative finds that an
Enrolled House Bill 2009 (HB 2009-C) Page 505
article so detained or embargoed is not misbranded or a banned
hazardous substance, the director or designated representative
shall remove the tag or other marking.
(3) If the court finds that a detained or embargoed article is
misbranded or a banned hazardous substance, after entry of the
judgment, the article shall be destroyed at the expense of the
owner or claimant thereof, under supervision of the director or a
designated representative, and all court costs and fees, and
storage and other proper expenses, shall be taxed against the
owner or claimant of such article or the owner or claimant agent.
However, when the misbranding can be corrected by proper labeling
of the article, after entry of the judgment and after such costs,
fees, and expenses have been paid and a good and sufficient bond
or irrevocable letter of credit issued by an insured institution,
as defined in ORS 706.008, conditioned that such article shall be
so labeled, has been executed, the court may order that such
article be delivered to the owner or claimant thereof for such
labeling under the supervision of an agent of the director. The
expense of such supervision shall be paid by claimant. The
article shall be returned to the claimant on the representation
to the court by the director that the article is no longer in
violation of ORS 453.005 to 453.135 and 453.990 (2), and that the
expenses of such supervision have been paid.
SECTION 883. ORS 453.075 is amended to read:
453.075. (1) Any article or substance sold by its manufacturer,
distributor, or dealer that is a banned hazardous substance,
whether or not it was such at the time of its sale, shall, in
accordance with rules of the Director of { - Human Services - }
{ + the Oregon Health Authority + }, be repurchased as provided
in this section.
(2) The manufacturer or distributor of any such article shall
repurchase it from the person to whom the manufacturer or
distributor sold it, and shall:
(a) Refund to that person the purchase price paid for such
article or substance;
(b) If that person has repurchased such article or substance
pursuant to this paragraph or paragraph (a) of this subsection,
reimburse the person for any amounts paid in accordance with this
section for the return of such article or substance in connection
with its repurchase; and
(c) If the manufacturer requires the return of such article or
substance in connection with the repurchase of it, reimburse that
person for any reasonable and necessary expenses incurred in
returning it to the manufacturer.
(3) In the case of any such article or substance sold at retail
by a dealer, if the person who purchased it from the dealer
returns it to the dealer, the dealer shall refund to the
purchaser the purchase price paid for it and reimburse the person
for any reasonable and necessary transportation charges incurred
in its return.
(4) As used in this section:
(a) 'Distributor' includes a dealer who sells at wholesale an
article or substance with respect to that sale.
(b) 'Manufacturer' includes an importer for resale.
SECTION 884. ORS 453.085 is amended to read:
453.085. A person may not perform any of the following acts:
(1) The introduction or delivery for introduction into commerce
of any misbranded hazardous substance or banned hazardous
substance.
Enrolled House Bill 2009 (HB 2009-C) Page 506
(2) The alteration, mutilation, destruction, obliteration, or
removal of the whole or any part of the label of a hazardous
substance.
(3) The performance of any act with respect to a hazardous
substance while the substance is in commerce, or while the
substance is held for sale or resale after shipment in commerce,
that results in the hazardous substance being a misbranded
hazardous substance or a banned hazardous substance.
(4) The receipt of or delivery into commerce of any misbranded
hazardous substance or banned hazardous substance for pay or
otherwise.
(5) The giving of a guarantee or undertaking that is false,
except as a person who relied upon a guarantee or undertaking to
the same effect signed by, and containing the name and address
of, a person residing in the United States from whom the person
received in good faith the hazardous substance.
(6) The failure to permit entry or inspection as authorized by
ORS 453.005 to 453.135 or to permit access to and copying of any
record as authorized by ORS 453.005 to 453.135.
(7) The introduction or delivery for introduction into
commerce, or the receipt in commerce and subsequent delivery or
proffered delivery for pay or otherwise, of a hazardous substance
in a reused food, drug or cosmetic container or in a container
that, though not a reused container, is identifiable as a food,
drug or cosmetic container by its labeling or by other
identification.
(8) The use by any person to the advantage of the person, or
the revealing other than to the Director of { - Human
Services - } { + the Oregon Health Authority + } or the
authorized representative of the director or to a court of any
information acquired under authority of ORS 453.005 to 453.135
concerning any method or process that is a trade secret entitled
to protection.
(9) The sale or delivery of any poison to a minor under 18
years of age without the written order of a person 21 years of
age or over, which written order shall be retained in the records
of the seller and the poison register of the seller shall show by
the name of the purchaser the fact that the sale or delivery was
to a minor on order of an adult and show the adult's name and
address.
(10) The sale or delivery of completely denatured alcohol,
methyl alcohol (methanol), canned heat or other solidified forms
of denatured alcohol, or any preparation containing those
substances, to be used for beverage purposes.
(11) The sale or delivery of any poison without making or
causing to be made an entry in a poison register of the seller in
the manner required by law.
(12) The sale or delivery to any person of any poison without
having learned by due inquiry that such person is aware of the
poisonous character thereof and that it is desired for a lawful
purpose.
(13) The giving of a fictitious name or making any false
representations to the seller or dealer when buying any of the
poisons.
(14) The sale or delivery to any person by anyone other than a
pharmacist of a poison.
(15) The removal or disposal of any detained or embargoed
article without permission of the director { - of Human
Services - } or a designated representative.
Enrolled House Bill 2009 (HB 2009-C) Page 507
(16) The introduction or delivery for introduction into
commerce of any product containing more than one-tenth of one
percent by mass of pentabrominated diphenyl ether or
octabrominated diphenyl ether. This subsection does not apply to:
(a) Used products; or
(b) Replacement parts for products introduced into commerce
before January 1, 2006.
SECTION 885. ORS 453.095 is amended to read:
453.095. (1) The authority to adopt rules for the
administration and enforcement of ORS 453.005 to 453.135 and
453.990 (2) is vested in the Director of { - Human Services - }
{ + the Oregon Health Authority + } pursuant to ORS chapter 183.
(2) The director shall cause the rules adopted under ORS
453.005 to 453.135 and 453.990 (2) to be no less strict than
rules established pursuant to the Federal Hazardous Substances
Act.
(3) The combustibility, and extreme flammability of solids and
of the contents of self-pressurized containers shall be
determined by methods found by the director to be generally
applicable to such materials or containers, respectively, and
established by the director.
(4) Before designating any substance as a strong sensitizer,
the director, upon consideration of the frequency of occurrence
and severity of the reaction, shall find that the substance has a
significant potential for causing hypersensitivity.
SECTION 886. ORS 453.105 is amended to read:
453.105. (1) For the purposes of enforcement of ORS 453.005 to
453.135 and 453.990 (2), the Director of { - Human Services - }
{ + the Oregon Health Authority + } or a designated
representative upon presenting appropriate credentials to the
owner, operator or agent in charge, may:
(a) Enter, at reasonable times, any factory, warehouse or
establishment in which hazardous substances are manufactured,
processed, packed, or held for introduction into commerce or are
held after such introduction, or to enter any vehicle being used
to transport or hold such hazardous substances in commerce.
(b) Inspect, at reasonable times, and within reasonable limits
and in a reasonable manner, such factory, warehouse,
establishment or vehicle, and all pertinent equipment, finished
and unfinished materials, and labeling therein.
(c) Obtain samples of such materials or packages thereof, or of
such labeling.
(2) If the director or a designated representative obtains any
sample, prior to leaving the premises, the director or designated
representative shall pay or offer to pay the owner, operator, or
agent in charge for such sample and give a receipt describing the
sample obtained.
SECTION 887. ORS 453.115 is amended to read:
453.115. (1) For the purpose of enforcing the provisions of ORS
453.005 to 453.135 and 453.990 (2), carriers engaged in commerce,
and persons receiving hazardous substances in commerce or holding
such hazardous substances so received shall, upon request, permit
the Director of { - Human Services - } { + the Oregon Health
Authority + } or a designated representative at reasonable times,
to have access to and to copy all records showing the movement in
commerce of any such hazardous substances, or the holding thereof
during or after such movement, and the quantity, shipper, and
consignee thereof. Such request must be accompanied by a
statement in writing specifying the nature or kind of such
hazardous substance to which such request relates.
Enrolled House Bill 2009 (HB 2009-C) Page 508
(2) Evidence obtained under this section shall not be used in a
criminal prosecution of the person from whom obtained.
(3) Carriers shall not be subject to the other provisions of
ORS 453.005 to 453.135 and 453.990 (2) by reason of their
receipt, carriage, holding or delivery of hazardous substances in
the usual course of business as carriers.
SECTION 888. ORS 453.125 is amended to read:
453.125. In addition to the remedies provided in ORS 453.005 to
453.135 and 453.990 (2), the Director of { - Human Services - }
{ + the Oregon Health Authority + } may apply to the circuit
court for, and such court shall have jurisdiction upon hearing
and for cause shown, to grant a temporary or permanent injunction
restraining any person from violating any provision of ORS
453.085.
SECTION 889. ORS 453.135 is amended to read:
453.135. Before any violation of ORS 453.005 to 453.135 and
453.990 (2) is reported to any district attorney or police
official for the institution of a criminal proceeding, the person
against whom such proceeding is contemplated shall be given
appropriate notice and an opportunity to present the person's
views before the Director of { - Human Services - } { + the
Oregon Health Authority + } or the designated agent of the
director, either orally or in writing, in person, or by attorney,
with regard to such contemplated proceeding.
SECTION 890. ORS 453.205 is amended to read:
453.205. As used in ORS 453.205 to 453.275:
(1) 'Art or craft material' means any raw or processed material
or manufactured product marketed or being represented by the
manufacturer, repackager or principal importer as being suitable
for use in any phase of the creation of any work of visual or
graphic art of any medium. 'Art or craft material ' does not
include economic poisons subject to the Federal Insecticide,
Fungicide, and Rodenticide Act (61 Stats. 163) or drugs, devices
or cosmetics, which are subject to the Federal Food, Drug and
Cosmetics Act (52 Stats. 1040).
{ + (2) 'Authority' means the Oregon Health Authority. + }
{ - (2) 'Department' means the Department of Human
Services. - }
(3) 'Human carcinogen' means any substance listed as a human
carcinogen by the International Agency for Research on Cancer.
(4) 'Medium' includes, but is not limited to, paintings,
drawings, prints, sculpture, ceramics, enamels, jewelry, stained
glass, plastic sculpture, photographs and leather and textile
goods.
(5) 'Potential human carcinogen' means one of the following:
(a) Any substance which does not meet the definition of human
carcinogen, but for which there exists sufficient evidence of
carcinogenicity in animals, as determined by the International
Agency for Research on Cancer.
(b) Any chemical shown to be changed by the human body into a
human carcinogen.
(6) 'Toxic substance causing chronic illness' means any of the
following:
(a) Human carcinogens.
(b) Potential human carcinogens.
(c) Any substance included in the list of hazardous substances
prepared by the Department of Consumer and Business Services
pursuant to the Hazard Communication Rule, Division 155,
notwithstanding exemptions made for substances on the list which
are used in particular forms, circumstances or concentrations, if
Enrolled House Bill 2009 (HB 2009-C) Page 509
the health hazard presented by the substance is not the subject
of label statements required by federal law.
SECTION 891. ORS 453.225 is amended to read:
453.225. For the purposes of ORS 453.205 to 453.275, an art or
craft material shall be presumed to contain an ingredient which
is a toxic substance causing chronic illness if the ingredient,
whether an intentional ingredient or an impurity, is one percent
or more by weight of the mixture or product, or if the
{ - Department of Human Services - } { + Oregon Health
Authority + } determines that the toxic or carcinogenic
properties of the art or craft material are such that labeling is
necessary for the adequate protection of the public health and
safety.
SECTION 892. ORS 453.235 is amended to read:
453.235. (1) No person shall distribute any art or craft
material containing toxic substances causing chronic illness on
which the person:
(a) Has failed to affix a conspicuous label containing the
signal word 'WARNING,' to alert users of potential adverse health
effects.
(b) Has failed to affix a conspicuous label warning of the
health-related dangers of the art or craft material. If a product
contains:
(A) A human carcinogen, the warning shall contain the
statement: 'CANCER HAZARD! Overexposure may create cancer risk.
'
(B) A potential human carcinogen and does not contain a human
carcinogen, the warning shall contain the statement: 'POSSIBLE
CANCER HAZARD! Overexposure might create cancer risk. '
(C) A toxic substance causing chronic illness, the warning
shall contain, but not be limited to, the following statement or
statements where applicable:
(i) 'May cause sterility or damage to reproductive organs. '
(ii) 'May cause birth defects or harm to developing fetus. '
(iii) 'May be excreted in human milk causing harm to nursing
infant. '
(iv) 'May cause central nervous system depression or injury. '
(v) 'May cause numbness or weakness in the extremities. '
(vi) 'Overexposure may cause damage to (specify organ). '
(vii) 'Heating above (specify degrees) may cause hazardous
decomposition products. '
(D) More than one chronically toxic substance, or if a single
substance can cause more than one chronic health effect, the
required statements may be combined into one warning statement.
(c) Has failed to affix on the label a list of ingredients that
are toxic substances causing chronic illness.
(d) Has failed to affix on the label a statement or statements
of safe use and storage instructions, conforming to the following
list. The label shall contain, but not be limited to, as many of
the following risk statements as are applicable:
(A) 'Keep out of reach of children. '
(B) 'When using, do not eat, drink or smoke. '
(C) 'Wash hands after use and before eating, drinking or
smoking. '
(D) 'Keep container tightly closed. '
(E) 'Store in well-ventilated area. '
(F) 'Avoid contact with skin. '
(G) 'Wear protective clothing (specify type). '
(H) 'Wear National Institute of Occupational Safety and Health
(NIOSH) certified masks for dusts, mists or fumes. '
Enrolled House Bill 2009 (HB 2009-C) Page 510
(I) 'Wear NIOSH certified respirator with appropriate cartridge
for (specify type). '
(J) 'Wear NIOSH certified supplied air respirator. '
(K) 'Use window exhaust fan to remove vapors and ensure
adequate ventilation (specify explosion proof if necessary). '
(L) 'Use local exhaust hood (specify type). '
(M) 'Do not heat above (specify degrees) without adequate
ventilation. '
(N) 'Do not use or mix with (specify material). '
(e) Has failed to affix on the label a statement on where to
obtain more information, such as 'call your local poison control
center for more health information. '
(f) Has failed to affix on the label the name and address of
the manufacturer.
(2)(a) If the information listed in subsection (1)(d) of this
section cannot fit on the package label, a package insert shall
be required to convey all the necessary information to the
consumer. In this event, the label shall contain a statement to
refer to the package insert, such as 'CAUTION: See package insert
before use.' The language on this insert shall be nontechnical
and nonpromotional in tone and content.
(b) For purposes of this subsection, 'package insert' means a
display of written, printed or graphic matter upon a leaflet or
suitable material accompanying the art supply.
(3) The requirements set forth in this section shall not be
considered to be complied with unless the required words,
statements or other information appear on the outside container
or wrapper, or on a package insert that is easily legible through
the outside container or wrapper and is painted in a color in
contrast with the product or the package containing the product.
(4) The { - Department of Human Services - } { + Oregon
Health Authority + } may exempt a material from full compliance
with ORS 453.205 to 453.275. In considering this exemption, the
{ - department - } { + authority + } shall take into
consideration the potential for reasonably foreseeable misuse of
a material by a child.
(5) If an art or craft material complies with labeling
standards D-4236 of the American Society for Testing and
Materials (ASTM), the material complies with the provisions of
ORS 453.205 to 453.275, unless the { - department - }
{ + authority + } determines that the label on an art or craft
material does not satisfy the purposes of ORS 453.205 to 453.275.
SECTION 893. ORS 453.245 is amended to read:
453.245. (1) Art or craft material that is considered by the
{ - Department of Human Services - } { + Oregon Health
Authority + } to contain a toxic substance causing chronic
illness may not be ordered or purchased by a school or school
district for use by students in kindergarten and grades 1 through
6.
(2) Any substance that is a toxic substance causing chronic
illness may not be ordered or purchased by a school or school
district for use by students in grades 7 through 12 unless the
substance meets the labeling standards specified in ORS 453.235.
(3) If the { - department - } { + authority + } finds that,
because the chronically toxic, carcinogenic or radioactive
substances contained in an art or craft material cannot be
ingested, inhaled or otherwise absorbed into the body during any
reasonably foreseeable use of the material in a way that could
pose a potential health risk, the { - department - }
{ + authority + } may exempt the material from these
Enrolled House Bill 2009 (HB 2009-C) Page 511
requirements to the extent the { - department - } { +
authority + } determines to be consistent with adequate
protection of the public health and safety.
SECTION 894. ORS 453.255 is amended to read:
453.255. (1) By June 1, 1986, the { - Department of Human
Services - } { + Oregon Health Authority + } shall develop a
list of those art or craft materials which can be purchased or
ordered for use in kindergarten and in grades 1 through 6 and a
list of materials which, while not currently sold or
manufactured, may be reasonably suspected to still exist at some
schools. In developing the lists, the { - department - }
{ + authority + } shall consult with manufacturers of art
supplies, artists' groups, health organizations and toxicologists
as the { - department - } { + authority + } considers
appropriate.
(2) The Superintendent of Public Instruction shall distribute
the lists to all school districts and shall make the lists
available to preschools, child care centers and other businesses
and organizations which involve children in the use of art or
craft materials.
(3) The superintendent shall inform school districts of the
requirements of ORS 453.205 to 453.275 and shall encourage school
districts to dispose of art or craft materials which may contain
human carcinogens, potential human carcinogens or toxic
substances causing chronic illness, but which are not affected by
ORS 453.205 to 453.275.
SECTION 895. ORS 453.265 is amended to read:
453.265. (1) The manufacturer of any art or craft material
sold, distributed, offered for sale or exposed for sale in this
state shall supply to a national poison control network approved
by the Director of { - Human Services - } { + the Oregon
Health Authority + } the formulation information required by that
network for dissemination to poison control centers. Failure to
file formulation information with an approved poison control
network is a violation of ORS 453.205 to 453.275.
(2) The requirements set forth in ORS 453.235 shall not be
considered to be complied with unless all required words,
statements or other information accompany art or craft materials
from manufacturer to consumer, not excluding any distributor,
packager or repackager.
SECTION 896. ORS 453.342 is amended to read:
453.342. Any fire department, emergency service personnel or
law enforcement agency responding to an incident of injury to a
human, wildlife, domestic animal or property resulting from a
hazardous substance emergency shall make a report of the
incident, in writing, to the office of the State Fire Marshal.
The State Fire Marshal annually shall summarize all incidents
reported to the State Fire Marshal and the information received
as a result of the survey conducted under ORS 453.317. The State
Fire Marshal shall submit a copy of the summary to:
(1) The Governor;
(2) The Legislative Assembly;
(3) The Department of Environmental Quality;
(4) The Department of Consumer and Business Services;
(5) The Department of Transportation;
{ - (6) The Department of Human Services; - }
{ - (7) - } { + (6) + } The Environmental Health Sciences
Center at Oregon State University;
{ - (8) - } { + (7) + } The Office of Emergency Management;
{ - and - }
Enrolled House Bill 2009 (HB 2009-C) Page 512
{ + (8) The Oregon Health Authority; and + }
(9) Every public library as defined in ORS 357.400.
SECTION 897. ORS 453.347 is amended to read:
453.347. (1) The State Fire Marshal shall assist with emergency
response planning by appropriate agencies of government at the
local, state and national levels to assure that the response to a
hazardous substance fixed site or transportation accident is
swift and appropriate to minimize damage to any person, property
or wildlife. This planning shall include assisting in and
training for the preparation of localized plans setting forth
agency responsibilities for on-scene response.
(2) The State Fire Marshal may apply for funds as available to
train, equip and maintain an appropriate response capability at
the state and local level.
(3) The State Fire Marshal shall issue certificates to local
agency personnel who have completed the training.
(4) To the extent practicable, the emergency preparedness and
response program for hazardous substances as provided in this
section shall be consistent with the program for radioactive
material, wastes and substances developed by the State Department
of Energy and { - Department of Human Services - } { + the
Oregon Health Authority + } under ORS chapters 453 and 469.
SECTION 898. ORS 453.370 is amended to read:
453.370. (1) In order to maintain and ensure the effectiveness
of state programs established under ORS 453.307 to 453.414, as
well as to ensure the effectiveness of local efforts, a local
government may establish, enforce or enact a local community
right to know regulatory program provided that the local program
complies with the requirements of this section.
(2) To the extent that a local program is supported in whole or
in part by fees, those fees may be set, imposed or assessed only
by the local government that is implementing the local program.
Such fees are allowed only to the extent not otherwise prohibited
or limited by law. Such fees:
(a) Shall be adopted by ordinance as a fee schedule, after
notice and public hearing; and
(b) May not exceed $2,000 for any single facility in any
calendar year.
(3)(a) All local community right to know regulatory program
enforcement, including but not limited to penalties, may be
imposed only by a local fire official or a board established by
the local government to implement the local community right to
know regulatory program.
(b) Penalties for violations of a community right to know
regulatory program may not exceed $1,000 per day and shall be
assessed according to a schedule adopted by the local government
after notice and public hearing. Except when a local government
has reasonable grounds to find that an employer willfully and
knowingly avoided compliance with the local program, and as long
as the employer submits the required information within 30 days
following a written notification of noncompliance, penalties
shall be suspended if the employer has no history of violating
the local program.
(4) After notice and public hearing, the local government must
determine that:
(a) Existing reporting to local, state or federal agencies is
inadequate to meet the needs and concerns of the local
government;
Enrolled House Bill 2009 (HB 2009-C) Page 513
(b) The state or federal government does not collect data that
will provide substantially the same information desired by the
local government;
(c) The local government has asked the appropriate state agency
to operate the program desired by the local government and the
state agency has not committed to do so within 180 days;
(d) The Department of Environmental Quality, the State Fire
Marshal and the { - Department of Human Services - }
{ + Oregon Health Authority + } have had an opportunity to
comment on the proposed program and the local government has
responded to those comments; and
(e) The local government has provided an opportunity for
written and oral public comment on the proposed program.
(5) Any local government that operates a local community right
to know regulatory program shall:
(a) Provide for an opportunity to report data electronically;
(b) Place data reported under the program on the Internet with
instructions for the general public that explain the organization
of the data; and
(c) Keep records of data usage and otherwise document interest
in the collected data.
(6) Data and other information presented under a local
community right to know regulatory program:
(a) Shall clearly distinguish, where appropriate, public health
interpretations from the raw data;
(b) May, where feasible, indicate specifically which hazardous
substances and toxic substances are being released into the local
air, water and land; and
(c) Shall include locations where a person may obtain
epidemiological statistics related to health effects of the
hazardous substances and toxic substances, if available.
(7) For any hazardous substance or toxic substance that a local
government proposes to require an employer to report under a
local community right to know regulatory program established
pursuant to this section, the local government shall seek written
and oral public comment and provide written notice to interested
parties prior to adoption as a reporting requirement. The local
government must provide the public with an opportunity to comment
on the appropriateness of reporting on the proposed hazardous
substance or toxic substance, including but not limited to
commenting on health and environmental considerations, economic
concerns and feasibility of compliance. The local government
shall consider the comments before adopting a list or making
additions to a list of hazardous substances and toxic substances
to be reported.
(8) In administering a local community right to know regulatory
program, a local government shall establish procedures to exempt,
when reasonable, an entity from all or part of the local program
for the purpose of protecting trade secrets or where the local
government determines that the operations of the entity pose
little or no risk to the public health or the environment.
(9) Except as prohibited by federal or state law, a local
program may not differentiate between public and private
employers.
(10) Nothing in this section shall be construed to limit the
authority of a local government to:
(a) Distribute information collected under the state Community
Right to Know and Protection Act; or
(b) Adopt or enforce a local ordinance, rule or regulation
strictly necessary to comply with:
Enrolled House Bill 2009 (HB 2009-C) Page 514
(A) The Uniform Building Code as adopted and amended by the
Director of the Department of Consumer and Business Services;
(B) A uniform fire code; or
(C) Any requirement of a state or federal statute, rule or
regulation, including but not limited to those controlling
hazardous substances, toxic substances or other environmental
contaminants.
SECTION 899. ORS 453.605 is amended to read:
453.605. { + As used + } in ORS 453.605 to 453.800, unless the
context requires otherwise:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'By-product material' means
radioactive material, other than special nuclear material, that
is yielded or made radioactive by exposure to the radiation
incident to the process of producing or utilizing special nuclear
material.
{ - (2) 'Department' means the Department of Human
Services. - }
(3) 'Director' means the Director of { - Human Services - }
{ + the Oregon Health Authority + }.
(4) 'Electronic product' means any manufactured product or
device or component part of such a product or device that has an
electronic circuit which during operation can generate or emit a
physical field of radiation, such as, but not limited to
microwave ovens, laser systems or diathermy machines.
(5) 'Federal government' means the United States or any agency
or instrumentality of the United States.
(6) 'General license' means a license, effective under rules of
the { - department - } { + authority + } without the filing
of an application, to acquire, own, possess, use or transfer a
device or equipment that produces radiation, or a quantity of, or
a device or equipment that utilizes, by-product material, source
material, special nuclear material or other radioactive material
that occurs naturally or is produced artificially.
(7) 'Person' means any of the following other than the United
States Atomic Energy Commission or any successor thereto:
(a) Individual, group, association, firm, partnership,
corporation, trust, estate, agency or public or private
institution;
(b) Political subdivision or agency of this state;
(c) State other than this state or any political subdivision or
agency of a state other than this state; or
(d) The legal successor, representative, agent or agency of a
person listed in paragraphs (a) to (c) of this subsection.
(8) 'Radiation' means:
(a) Ionizing radiation including gamma rays, X-rays, alpha and
beta particles, protons, neutrons and other atomic or nuclear
particles or rays.
(b) Any electromagnetic radiation that can be generated during
the operations of electronic products and that the
{ - department - } { + authority + } has determined to
present a biological hazard to the occupational or public health
and safety but does not mean electromagnetic radiation that can
be generated during the operation of an electronic product that
is licensed by the Federal Communications Commission.
(c) Any sonic, ultrasonic or infrasonic waves that are emitted
from an electronic product as a result of the operation of an
electronic circuit in such product and that the
{ - department - } { + authority + } has determined to present
Enrolled House Bill 2009 (HB 2009-C) Page 515
a biological hazard to the occupational or public health and
safety.
(9) 'Source material' means:
(a) Uranium, thorium or any other material that the
{ - department - } { + authority + } declares to be essential
to the production of special nuclear material by an order made
after the United States Atomic Energy Commission or any successor
thereto has determined the material to be source material; or
(b) Ore that contains such a concentration of one or more
materials mentioned in paragraph (a) of this subsection that the
{ - department - } { + authority + } declares the ore to be
essential to the production of special nuclear material by an
order made after the United States Atomic Energy Commission or
any successor thereto has determined such ore to be source
material.
(10) 'Special nuclear material' means any of the following that
is not source material:
(a) Plutonium, uranium 233, uranium enriched in the isotope 233
or in the isotope 235, or any other material that the
{ - department - } { + authority + } declares to be capable
of releasing substantial quantities of atomic energy by an order
made after the United States Atomic Energy Commission or any
successor thereto has determined the material to be special
nuclear material.
(b) Material artificially enriched by any material mentioned in
paragraph (a) of this subsection.
(11) 'Specific license' means a license, issued after
application, to receive, acquire, own, possess, use, manufacture,
produce or transfer a device or equipment that produces
radiation, or a quantity of, or a device or equipment that
utilizes, by-product material, source material or special nuclear
material or other radioactive material that occurs naturally or
is produced artificially.
(12) 'X-ray machine' means a device or equipment that produces
radiation when in operation but does not utilize by-product
material, source material, special nuclear material or other
radioactive material that occurs naturally or is produced
artificially.
(13) 'X-ray machine registration' means an authorization
granted by the { - department - } { + authority + } allowing
the operation of an X-ray machine.
SECTION 900. ORS 453.635 is amended to read:
453.635. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } is the State Radiation Control
Agency, but ORS 453.605 to 453.800 do not apply to a radiation
source while it is being transported on a railroad car or in a
motor vehicle subject to and in conformity with rules adopted by
the Department of Transportation nor do they apply to any matter
other than transportation of radiation sources within the
authority of the Energy Facility Siting Council under ORS chapter
469. To protect occupational and public health and safety against
radiation hazards the { - Department of Human Services - }
{ + authority + } shall:
(a) Develop programs to evaluate hazards associated with the
use of radiation sources; and
(b) With due regard for compatibility with the regulatory
programs of the federal government, promulgate standards and make
reasonable regulations relating to registration, licensing, use,
handling, transport, storage, disposal, other than disposal
regulated by ORS 469.300 to 469.563, 469.590 to 469.619 and
Enrolled House Bill 2009 (HB 2009-C) Page 516
469.930, and control of radiation sources, including but not
limited to by-product materials, source materials and special
nuclear materials.
(2) To protect occupational and public health and safety
against radiation hazards the { - department - }
{ + authority + } or its authorized representative may:
(a) Advise, consult and cooperate with other agencies of this
state, the federal government, other states, interstate agencies,
political subdivisions of this state or other states and with
groups concerned with control of radiation sources;
(b) Encourage, participate in or conduct studies,
investigations, training, research or demonstrations relating to
control of radiation sources;
(c) Accept and administer loans, grants or other funds or
gifts, conditional or otherwise, from the federal government or
from any other source, public or private;
(d) Collect and disseminate information relating to control of
radiation sources; and
(e) Subject to any applicable provision of the State Personnel
Relations Law, appoint officers and employees and prescribe their
duties and fix their compensation.
SECTION 901. ORS 453.645 is amended to read:
453.645. The Director of { - Human Services - } { + the
Oregon Health Authority + } shall appoint a Radiation Advisory
Committee to advise the { - Department of Human Services - }
{ + Oregon Health Authority + } on matters relating to
radiological health and radiation protection. The committee
shall consist of eight persons who because of their training and
experience are qualified to advise the { - department - }
{ + authority + } on such matters and they shall serve at the
pleasure of the director. The members of the Radiation Advisory
Committee are entitled to compensation and expenses as provided
in ORS 292.495.
SECTION 902. ORS 453.665 is amended to read:
453.665. (1) Subject to subsection (2) of this section, the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall provide for the issuance, allowance,
modification, amendment, revision, suspension and revocation of
general and specific licenses that relate to by-product
materials, source materials or special nuclear materials and to
devices or equipment that utilize any of those materials. The
{ - department - } { + authority + } may not require a
specific license for the use of an X-ray machine within the
limits of the license by a licensed dentist, chiropodist or
veterinarian or by a person licensed to practice medicine,
surgery, osteopathy, chiropractic, naturopathic medicine or any
other system or method of healing. Otherwise the
{ - department - } { + authority + } may require registration
or a general or specific license or both registration and a
general or specific license with respect to any radiation source.
(2)(a) Each application for a specific license shall be in
writing and shall state such information as the
{ - department - } { + authority + } by rule determines both
to be necessary to decide the applicant's technical, insurance,
financial or other qualifications and to be reasonable and
necessary to protect occupational and public health and safety.
At any time after the filing of the application for and before
the expiration of a specific license the { - department - }
{ + authority + } may require further written statements, and
may cause inspections to be made as the
Enrolled House Bill 2009 (HB 2009-C) Page 517
{ - department - } { + authority + } considers necessary, to
determine whether the license should be granted, denied,
modified, amended, revised, suspended or revoked. An application
for a specific license or any statement relating to that
application or to any license must be signed by the applicant or
licensee.
(b) Each license shall be in such form and contain terms and
conditions the { - department - } { + authority + } considers
necessary to protect the occupational and public health and
safety.
(c) A general or specific license or right to possess or use a
radiation source under a general or specific license may not be
assigned in any manner without the approval of the
{ - department - } { + authority + }.
(d) The terms and conditions of any general or specific license
may be modified, amended or revised by rule or order.
(e) Subject to any requirement for registration, the
{ - department - } { + authority + } may by rule recognize a
license from any other state or from the federal government as
compliance with a license requirement of this section or of ORS
453.635.
(f) When the { - department - } { + authority + } finds
that a radiation source, a use of a radiation source, a user of a
radiation source or a class of such sources, uses or users will
not constitute a significant risk to the health and safety of the
public, the
{ - department - } { + authority + } may exempt the source,
use, user or class, as the case may be, from any requirement for
registration or a license.
SECTION 903. ORS 453.675 is amended to read:
453.675. (1) When in the opinion of the Governor, such
agreements will promote public health and safety and assist in
the peaceful uses of radiation sources, the Governor on behalf of
this state shall enter into agreements with the federal
government providing for discontinuance of certain of the federal
government's responsibilities with respect to radiation sources
and the assumption thereof by this state.
(2) When a person immediately before the effective date of an
agreement under subsection (1) of this section has a license from
the federal government to do anything which relates to by-product
material, source material or special nuclear material and which
on the effective date of the agreement is subject to the control
of this state, the person shall be considered to have a like
license under ORS 453.605 to 453.800 until the expiration date
specified in the license from the federal government or until the
end of the 90th day after the person receives notice from the
{ - Department of Human Services - } { + Oregon Health
Authority + } that the license will be considered expired,
whichever is earlier.
SECTION 904. ORS 453.685 is amended to read:
453.685. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } may enter at any reasonable time upon
any private or public property, with the permission of the owner
or custodian, to determine whether there is compliance with ORS
453.605 to 453.800 and rules lawfully issued pursuant thereto.
When such permission is not obtained or given, if the director
has grounds to believe that a violation of ORS 453.605 to 453.800
or rules lawfully issued pursuant thereto exists, the director
may apply to the proper judicial officer for a warrant to enter
upon the property for purposes of inspection, search or seizure
Enrolled House Bill 2009 (HB 2009-C) Page 518
consonant with the scope of ORS 453.605 to 453.800; except that
in a case where the director has grounds to believe that a
violation of ORS 453.605 to 453.800 or rules pursuant thereto
exists which presents a clear and present danger to the health,
safety or security of the state or its citizens, the director may
make such entry of property as is reasonable to abate the danger
involved and for that purpose.
(2) Upon application to the proper judicial officer for a
warrant to enter property under this section, the judicial
officer shall forthwith summarily determine whether or not
grounds to issue such warrant exists, and if the judicial officer
finds such exists, the judicial officer shall immediately issue a
warrant authorizing entry by the director upon the described
property for the purposes of ORS 453.605 to 453.800. The director
shall not be liable for injury or damage resulting from the
action taken or authorized in good faith and without malice under
the apparent authority of this section, even though such action
is later judicially determined to be unlawful.
SECTION 905. ORS 453.695 is amended to read:
453.695. (1) When the { - Department of Human Services - }
{ + Oregon Health Authority + } by regulation so requires, any
person who possesses or uses a radiation source shall cause to be
made, in the manner prescribed by the { - department - }
{ + authority + }, records relating to the receipt, storage,
transfer and disposition of the source and to such other matters
as the { - department - } { + authority + } prescribes.
(2) Any person who possesses or uses a radiation source shall
cause to be made, in the manner prescribed by the
{ - department - } { + authority + }, records showing the
radiation exposure of any individual who is affected by such
possession or use and for whom the { - department - }
{ + authority + } by regulation requires personnel monitoring.
(3)(a) Each person who possesses or uses a radiation source and
who has reason to believe that any individual has received from
that source radiation exposure in excess of the maximum
permissible exposure established for an individual by regulations
of the { - department - } { + authority + } shall give that
individual notice of the possible exposure with a copy of any
record of the exposure.
(b) Any person who possesses or uses a radiation source and
who, in connection with that possession or use, employs an
individual for whom the { - department - } { + authority + }
by regulation requires personnel monitoring, in addition to any
requirement of paragraph (a) of this subsection shall, if the
individual so requests or if regulations of the
{ - department - } { + authority + } so require, give the
individual a copy of the individual's personnel monitoring
exposure record annually and at the end of the employment.
(4) Upon the request of the { - department - }
{ + authority + } or its authorized representative, the
custodian of any record required by this section shall give a
copy of that record to the { - department - } { +
authority + } or its authorized representative.
SECTION 906. ORS 453.705 is amended to read:
453.705. When a radiation source is in the possession, custody
or control of any person who is not equipped to observe or who
fails to observe any applicable provision of or regulation
pursuant to ORS 453.605 to 453.800, upon the issuance of an
emergency order under ORS 453.807 the { - Department of Human
Enrolled House Bill 2009 (HB 2009-C) Page 519
Services - } { + Oregon Health Authority + } or its authorized
representative may cause that source to be impounded.
SECTION 907. ORS 453.715 is amended to read:
453.715. When the { - Department of Human Services - }
{ + Oregon Health Authority + } in writing notifies the Attorney
General that, in the judgment of the { - department - }
{ + authority + }, a person has engaged or is about to engage in
any act or practice that constitutes or will constitute a
violation of any provision of or regulation pursuant to ORS
453.605 to 453.800, if the { - department - }
{ + authority + } so requests, the Attorney General shall apply
to the circuit court for the county of that person's residence
for an order enjoining such act or practice, or for an order
directing compliance; and upon a showing by the
{ - department - } { + authority + } that that person has
engaged or is about to engage in any such act or practice, the
court may grant a permanent or temporary injunction or
restraining order or other order.
SECTION 908. ORS 453.745 is amended to read:
453.745. (1) Subject to the approval of the Governor, to
protect the public health and safety and to assist in the
peaceful uses of radiation sources the { - Department of Human
Services - } { + Oregon Health Authority + } may cooperate with
the federal government, other states or interstate agencies to
perform functions, including inspection, that relate to control
of radiation sources.
(2) The { - department - } { + authority + } may institute
programs to qualify personnel to carry out the provisions of ORS
453.605 to 453.800 and may make those personnel available for
participation with the federal government, other states or
interstate agencies in any program in furtherance of the purposes
of ORS 453.605 to 453.800.
SECTION 909. ORS 453.752 is amended to read:
453.752. (1) An X-ray machine may not be operated unless the
X-ray machine has a valid X-ray machine registration.
(2) Prior to issuance of an X-ray machine registration to a
hospital, the X-ray machine shall be approved by an X-ray machine
inspector employed by the { - Department of Human Services - }
{ + Oregon Health Authority + } or inspected by an accredited
radiology inspector. The inspector shall also review procedures
used during X-ray machine operation and the adequacy of the
physical surroundings and equipment used in conjunction with
operation of the X-ray machine.
(3) Prior to issuance of an X-ray machine registration to a
facility other than a hospital, the X-ray machine shall be
approved by an X-ray machine inspector employed by the
{ - department - } { + authority + }.
(4) An accredited radiology inspector conducting a registration
inspection on a hospital X-ray machine shall conduct information
gathering tests in the manner required by the
{ - department - } { + authority + }. The inspector shall
make calculations in the manner prescribed by the
{ - department - } { + authority + } and shall enter the
results and such other information as the { - department - }
{ + authority + } may require on a form provided by the
{ - department - } { + authority + }.
(5) The { - department - } { + authority + } shall evaluate
the test results submitted by an accredited radiology inspector
and shall grant a hospital X-ray machine registration provided
that all standards adopted by rule of the { - department - }
Enrolled House Bill 2009 (HB 2009-C) Page 520
{ + authority + } are met, a properly completed registration
application has been submitted by the X-ray machine owner and all
required fees have been paid.
(6) When an X-ray machine is registered by the
{ - department, the department - } { + authority, the
authority + } shall issue the X-ray machine owner a document,
sticker, plate or other device selected by the
{ - department - } { + authority + } to evidence registration
of the X-ray machine.
SECTION 910. ORS 453.754 is amended to read:
453.754. (1) Each application for an X-ray machine registration
shall be in writing and shall state such information as the
{ - Department of Human Services - } { + Oregon Health
Authority + } by regulation determines to be necessary. The
application shall be accompanied by the registration fee due
under ORS 453.757.
(2) Not less than 90 nor more than 120 days prior to the
expiration of an X-ray machine registration, the
{ - department - } { + authority + } shall mail notice to the
X-ray machine owner of the pending expiration of the
registration. The notice shall inform the owner of the
requirements for renewing the registration.
SECTION 911. ORS 453.757 is amended to read:
453.757. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall charge a biennial
registration fee for a registration granted pursuant to ORS
453.752 in the following amounts for:
(a) Hospital, radiological, chiropractic, osteopathic or
medical X-ray machine, $228.
(b) Hospital X-ray machine when X-ray machine inspection is
performed by an accredited radiology inspector, $116.
(c) Industrial or podiatry X-ray machine, $152.
(d) Dental, academic or veterinary X-ray machine, $112.
(e) Microwave oven repair facility, $112.
(2) The { - Department of Human Services - }
{ + authority + } shall charge an annual license fee for a
specific license granted pursuant to ORS 453.665 that may not
exceed $3,000 as determined by rule of the { - Department of
Human Services - } { + authority + } and approved by the Oregon
Department of Administrative Services.
(3) The fees prescribed by the { - Department of Human
Services - } { + authority + } pursuant to subsections (1)(e)
and (2) of this section are due and payable as prescribed by rule
of the { - department - } { + authority + }.
(4) The { - department - } { + authority + } shall impose a
$264 fee for accreditation as a radiology inspector and a
biennial renewal fee of $264.
(5) All moneys received by the { - department - }
{ + authority + } under subsections (1)(e) and (2) of this
section shall be paid into the State Treasury, deposited in the
General Fund to the credit of the Public Health Account, and used
exclusively by the { - department - } { + authority + } for
the purposes of ORS 453.605 to 453.800.
SECTION 912. ORS 453.761 is amended to read:
453.761. (1) An X-ray machine registration for a hospital
radiological provider shall be valid for two years, expiring in
the second year on the last day of the month of issuance.
(2) An X-ray machine registration for a chiropractic,
osteopathic or medical doctor office or clinic shall be valid for
Enrolled House Bill 2009 (HB 2009-C) Page 521
two years, expiring in the second year on the last day of the
month of issuance.
(3) An X-ray machine registration for a podiatry, dental or
veterinary office or clinic or an academic or industrial facility
shall be valid for two years, expiring in the second year on the
last day of the month of issuance.
(4) Notwithstanding subsection (1), (2) or (3) of this section,
the { - Department of Human Services - } { + Oregon Health
Authority + } shall, at the request of the X-ray machine owner,
adjust the registration expiration date of any X-ray machine to
coincide with the registration expiration date of other X-ray
machines registered to the machine owner. The
{ - department - } { + authority + } shall prorate the
registration fee accordingly.
(5) If an X-ray machine or the physical surroundings or
equipment associated with the operation of the X-ray machine does
not comply with one or more standards adopted by rule of the
{ - department, the department - } { + authority, the
authority + } may deny the registration or may grant a
provisional registration permitting temporary operation pending
compliance with { - department - } { + authority + }
standards.
(6) The { - department - } { + authority + } may require
that X-ray machines having a valid registration be repaired,
calibrated or modified or the physical surroundings or equipment
used in conjunction with the operation of the registered X-ray
machine be changed to comply with new standards adopted by rule
of the
{ - department - } { + authority + } provided that compliance
prior to expiration of the registration is determined by the
{ - department - } { + authority + } to be necessary to protect
occupational and public health and safety.
(7) The { - department - } { + authority + } may deny,
condition, suspend or revoke an X-ray machine registration if the
{ - department - } { + authority + } reasonably believes that
the X-ray machine or the physical surroundings or equipment used
in conjunction with the operation of the X-ray machine presents a
danger to the health or safety of the operator or the public.
(8) An X-ray machine registration shall terminate if the X-ray
machine is relocated for use in a physical surrounding other than
the physical surrounding the X-ray machine occupied when
inspected.
SECTION 913. ORS 453.771 is amended to read:
453.771. Upon a complaint by any person, the { - Department
of Human Services - } { + Oregon Health Authority + } may
investigate any alleged act prohibited by ORS 453.766. If, after
investigation by
{ - a department-employed - } { + an authority-employed + }
X-ray machine inspector, the { - department - }
{ + authority + } has reason to believe a prohibited act has
been committed, the { - department - } { + authority + } may
impose a civil penalty. Any person subject to a civil penalty
under this section may request a hearing before the
{ - department - } { + authority + }. The hearing shall be
conducted in accordance with ORS 183.413 to 183.470.
SECTION 914. ORS 453.775 is amended to read:
453.775. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall:
(1) Develop programs to evaluate hazards associated with the
use of X-ray machines.
Enrolled House Bill 2009 (HB 2009-C) Page 522
(2) Promulgate standards and make reasonable regulations
relating to the registration of X-ray machines, X-ray machine
operation, physical surroundings and equipment related to the
operation of X-ray machines, operator training and approved X-ray
machine operating practices.
(3) Collect and disseminate information relating to proper
X-ray machine operation.
(4) Provide technical assistance and safety information to
X-ray machine users.
SECTION 915. ORS 453.780 is amended to read:
453.780. (1) All applicants for accreditation as radiology
inspectors shall possess at a minimum one of the following
combinations of education and experience:
(a) One year of experience and one of the following:
(A) Certification by the American Board of Radiology or the
American Board of Health Physics;
(B) A doctoral degree in a physical or biological science; or
(C) A Doctor of Medicine degree or a degree recognized by the
{ - Department of Human Services - } { + Oregon Health
Authority + } as an equally qualified health professional degree.
(b) Two years of experience and a master's degree in a physical
or biological science.
(c) Four years of experience and a bachelor's degree in a
physical or biological science.
(d) Six years of experience and an associate's degree in a
physical or biological science.
(2) Experience required of an applicant includes, but is not
limited to, measuring ionizing radiation, evaluating radiation
safety and documenting radiation protection needs.
(3) In addition to meeting the education and experience
requirements of this section, applicants shall be tested on
knowledge of { - department - } { + authority + } rules
governing the X-ray machine inspection program, including but not
limited to safety requirements and inspection procedures.
Applicants shall also complete such additional written or
practical testing as the
{ - department - } { + authority + } may require.
(4) A license shall not be issued to an applicant unless the
applicant has paid all required fees.
SECTION 916. ORS 453.785 is amended to read:
453.785. (1) Accreditation as a radiology inspector shall be
valid for two years and shall expire in the second year on the
last day of the month of issuance unless renewed.
(2) Accreditation may be renewed if the radiology inspector has
complied with the continuing education requirements adopted by
rule of the { - Department of Human Services - } { + Oregon
Health Authority + } and has paid the renewal fee.
SECTION 917. ORS 453.790 is amended to read:
453.790. The { - Department of Human Services - }
{ + Oregon Health Authority + } may condition, suspend, revoke
or refuse to renew accreditation of a radiology inspector for the
following reasons:
(1) Knowingly falsifying information included on the inspection
report form supplied by the { - department - }
{ + authority + }.
(2) Substantially failing to comply with { - department - }
{ + authority + } procedures.
(3) Failing to meet { - department - } { + authority + }
accuracy requirements.
Enrolled House Bill 2009 (HB 2009-C) Page 523
(4) Such other grounds as the { - department - }
{ + authority + } may establish by rule.
SECTION 918. ORS 453.795 is amended to read:
453.795. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall:
(1) Develop testing, training and continuing education
standards for accredited radiology inspectors.
(2) Adopt rules for the proper inspection of X-ray machines for
registration purposes and for regulating the professional
activities of accredited radiology inspectors.
(3) Develop and implement audit programs using
{ - department-employed - } { + authority-employed + } X-ray
machine inspectors to monitor accredited radiology inspector
results and to monitor changes in the performance of registered
X-ray machines during the registration period. No charge shall be
made to an X-ray machine owner for an audit.
(4) Investigate and resolve complaints against accredited
radiology inspectors and their employers.
SECTION 919. ORS 453.800 is amended to read:
453.800. (1) There is created in the General Fund of the State
Treasury an X-ray Machine Inspection Account. Moneys credited to
the account are continuously appropriated to the
{ - Department of Human Services - } { + Oregon Health
Authority + } for the carrying out of ORS 453.752 to 453.795.
(2) All registration fees paid pursuant to ORS 453.757 (1) by
owners of X-ray machines, all application or renewal fees paid by
applicants for accreditation as radiology inspectors under ORS
453.757 (4) and all civil penalties collected under ORS 453.771
are credited to the X-ray Machine Inspection Account.
SECTION 920. ORS 453.805 is amended to read:
453.805. (1) Whenever it appears to the Director of { - Human
Services - } { + the Oregon Health Authority + } that a
radiation source is presenting an imminent and substantial
endangerment to the health or safety of persons, the director
may, without the necessity of prior administrative procedures or
hearing, enter an order requiring the person or persons
responsible for the radiation source to immediately take such
action as is necessary to eliminate the endangerment. The
director shall, if requested, provide a prompt hearing after such
order, in accordance with ORS chapter 183, after which the order
shall be continued, modified or revoked.
(2) If any person fails to comply with an order issued pursuant
to subsection (1) of this section, the circuit court for the
county in which the radiation source is located shall compel
compliance with the order in the same manner as with an order of
that court.
SECTION 921. ORS 453.807 is amended to read:
453.807. (1) Where the { - Department of Human Services - }
{ + Oregon Health Authority + } proposes to refuse to issue or
renew a license, to modify, amend, revise, revoke or suspend a
license or to determine compliance with or grant exemption from a
regulation of the { - department - } { + authority + },
opportunity for hearing shall be accorded as provided in ORS
chapter 183.
(2) Promulgation of rules, conduct of hearings, issuance of
orders and judicial review of rules and orders shall be in
accordance with ORS chapter 183.
SECTION 922. ORS 453.864 is amended to read:
453.864. The Director of { - Human Services - } { + the
Oregon Health Authority + } shall adopt rules to carry out ORS
Enrolled House Bill 2009 (HB 2009-C) Page 524
105.555, 431.175 and 453.855 to 453.912. The rules shall be
developed in consultation with:
(1) The State Fire Marshal or designee;
(2) The director of the Poison Control and Drug Information
Program of the Oregon Health and Science University, or a
designee thereof;
(3) The Director of the Department of Environmental Quality, or
a designee thereof;
(4) The Director of the Department of Consumer and Business
Services, or a designee thereof;
(5) The Director of Transportation, or a designee thereof; and
(6) Any other governmental agency determined appropriate by the
{ - Department of Human Services - } { + Oregon Health
Authority + } whose advice and information is necessary for the
formulation of the rules authorized by this section.
SECTION 923. ORS 453.867 is amended to read:
453.867. (1) Unless determined fit for use, pursuant to ORS
105.555, 431.175 and 453.855 to 453.912 and rules of the
{ - Department of Human Services - } { + Oregon Health
Authority + }, or as authorized by ORS 453.870, no person shall
transfer, sell, use or rent any property knowing or having
reasonable grounds to believe it was used as an illegal drug
manufacturing site.
(2) All contracts, oral or written, for the transfer, sale, use
or rent of property in violation of subsection (1) of this
section are voidable between the parties, at the instance of the
purchaser, transferee, user or renter. This subsection shall not
make voidable any promissory note or other evidence of
indebtedness or any mortgage, trust deed or other security
interest securing such a promissory note or evidence of
indebtedness, where such note or evidence and any such mortgage,
trust deed or other security interest were given to a person
other than the person transferring, selling, using or renting the
property to induce such person to finance the transfer, sale, use
or rental of the property. This section shall not impair
obligations or duties required to be performed upon termination
of a contract, as required by the provisions of the contract,
including but not limited to payment of damages or return of
refundable deposits.
SECTION 924. ORS 453.870 is amended to read:
453.870. (1) Any property that is not fit for use as determined
under ORS 453.876 may be transferred or sold if full, written
disclosure, as required by rules of the { - Department of Human
Services - } { + Oregon Health Authority + }, is made to the
prospective purchaser, attached to the earnest money receipt, if
any, and shall accompany but not be a part of the sale document
nor be recorded. However, such property shall continue to be
subject to the provisions of ORS 453.876, regardless of transfer
or sale under this section.
(2) Any transferee or purchaser who does not receive the notice
described in subsection (1) of this section may set aside the
transfer or sale as voidable and bring suit to recover damages
for any losses incurred because of the failure to give such
notice.
(3) The transferor or seller of any property described in
subsection (1) of this section shall notify the
{ - department - } { + authority + } of the transfer or sale
as required by rule of the
{ - department - } { + authority + }.
SECTION 925. ORS 453.873 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 525
453.873. For the purposes of enforcement of ORS 105.555,
431.175 and 453.855 to 453.912, the Director of { - Human
Services - } { + the Oregon Health Authority + } or a designee
thereof or the State Fire Marshal or a designee thereof, upon
presenting appropriate credentials and a warrant, if necessary,
issued under ORS 431.175 to the owner or agent of the owner, may:
(1) Enter, at reasonable times, any property that is known to
have been used as an illegal drug manufacturing site or for which
there are reasonable grounds to believe that the property has
been used as an illegal drug manufacturing site.
(2) Inspect, at reasonable times, within reasonable limits and
in a reasonable manner, property known to have been used as an
illegal drug manufacturing site or for which there are reasonable
grounds to believe the property has been used as an illegal drug
manufacturing site.
SECTION 926. ORS 453.876 is amended to read:
453.876. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } or a designee thereof, the State Fire
Marshal or a designee thereof or any law enforcement agency may
determine that property is not fit for use pursuant to ORS
105.555, 431.175 and 453.855 to 453.912 and applicable rules
adopted by the
{ - Department of Human Services - } { + Oregon Health
Authority + } and may make that determination on site. The
determination is effective immediately and renders the property
not fit for use.
(2) The owner may appeal the determination, to the agency that
made the determination, within 30 working days after the
determination, pursuant to rules of the agency, or to circuit
court.
(3) The appeal to the agency is not a contested case under ORS
chapter 183. The question on appeal is limited to whether the
site is an illegal drug manufacturing site.
(4) If a determination that property is not fit for use is made
under subsection (1) of this section, a local government or the
state may provide notice that the real property has been
determined to be an illegal drug manufacturing site and not fit
for use to:
(a) A person in each residence located within 300 feet of the
real property if the real property is located within an urban
growth boundary; or
(b) A person in each residence located within one quarter mile
of the real property if the real property is not located within
an urban growth boundary.
(5) The notice described in subsection (4) of this section
shall be in writing and shall include:
(a) The address of the real property that is determined to be
not fit for use;
(b) A statement that the determination is subject to appeal and
that the real property may be determined to be fit for use if the
appeal is successful or if the real property is certified as
decontaminated;
(c) The telephone number of the office of the { - Department
of Human Services - } { + Oregon Health Authority + } that is
responsible for overseeing the decontamination of illegal drug
manufacturing sites; and
(d) The website for the { - Department of Human Services - }
{ + Oregon Health Authority + } office responsible for
overseeing the decontamination of illegal drug manufacturing
sites that contains information on the dangers associated with
Enrolled House Bill 2009 (HB 2009-C) Page 526
real property that has been used as an illegal drug manufacturing
site.
SECTION 927. ORS 453.879 is amended to read:
453.879. When the Director of { - Human Services - }
{ + the Oregon Health Authority + } or a designee thereof, the
State Fire Marshal or designee thereof or any law enforcement
agency makes a determination that property subject to ORS
105.555, 431.175 and 453.855 to 453.912 is not fit for use, the
Director of { - Human Services - } { + the Oregon Health
Authority + } or designee thereof shall notify the Director of
the Department of Consumer and Business Services of the
determination. The Director of the Department of Consumer and
Business Services shall list the property as not fit for use
until the Director of the Department of Consumer and Business
Services is notified that the property has been certified by the
{ - Department of Human Services - } { + Oregon Health
Authority + } pursuant to ORS 453.885, or the initial
determination is reversed on appeal, or the property is
destroyed. Upon receipt of the certificate, the Director of the
Department of Consumer and Business Services shall cause the
property to be removed from the list described in this section.
SECTION 928. ORS 453.885 is amended to read:
453.885. (1) The owner of property determined to be not fit for
use under ORS 105.555, 431.175 and 453.855 to 453.912 who desires
to have the property certified as fit for use may use the
services of a contractor licensed by the { - Department of
Human Services - } { + Oregon Health Authority + } to
decontaminate the property or, upon approval by the
{ - department - } { + authority + }, the owner, or an agent
of the owner, may perform the decontamination work. The
contractor, in coordination with the owner or agent of the owner,
shall prepare and submit a written work plan for decontamination
to the { - department - } { + authority + }. If the work plan
is approved and the decontamination work is completed according
to the plan and is properly documented, the { - department - }
{ + authority + } shall certify the property as having been
decontaminated in compliance with rules of the
{ - department - } { + authority + }. Upon the completion of
the work plan, the { - department - } { + authority + } shall
require the licensed contractor's affidavit of compliance with
the approved work plan.
(2) The property owner shall notify the Director of the
Department of Consumer and Business Services of the
certification. No person who is not licensed by the
{ - Department of Human Services - } { + authority + } under
ORS 105.555, 431.175 and 453.855 to 453.912 shall advertise to
undertake or perform the work necessary to decontaminate property
determined to be not fit for use under ORS 105.555, 431.175 and
453.855 to 453.912.
(3) Upon receipt of the certificate and a request by the
property owner to remove the property from the list, the Director
of the Department of Consumer and Business Services shall cause
the property to be removed from the list.
SECTION 929. ORS 453.888 is amended to read:
453.888. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } by rule shall establish
performance standards for contractors under ORS 105.555, 431.175
and 453.855 to 453.912.
(2) The { - department - } { + authority + } shall train
and test, or may approve courses to train and test, contractors'
Enrolled House Bill 2009 (HB 2009-C) Page 527
personnel on the essential elements in assessing premises used as
an illegal drug manufacturing site to determine hazard reduction
measures needed, techniques for adequately reducing contaminants,
use of personal protective equipment and relevant federal
regulations and state rules.
(3) Upon the contractor's supervisory personnel's successful
completion of the training and testing and the contractor having
complied with the rules of the { - department - }
{ + authority + } and having paid the required fee, the
contractor shall be licensed. Licenses are renewable biennially,
as determined by rule of the
{ - department - } { + authority + }, upon supervisory
personnel's successful completion of any required refresher
course.
(4) The { - department - } { + authority + } may deny,
suspend or revoke the license of any contractor pursuant to ORS
chapter 183 for:
(a) Failing to:
(A) Perform decontamination work under the supervision of
trained personnel;
(B) File a work plan;
(C) Perform work pursuant to the plan;
(D) Pay a civil penalty imposed under ORS 105.555, 431.175 and
453.855 to 453.912; or
(E) Perform work that meets the requirements of ORS 453.903.
(b) Committing fraud or misrepresentation in:
(A) Applying for a license;
(B) Seeking approval of a work plan; or
(C) Documenting completion of the work to the
{ - department - } { + authority + }.
(5) The { - department - } { + authority + } may impose a
civil penalty not to exceed $500, in addition to or in lieu of
license denial, suspension or revocation, pursuant to ORS chapter
183.
SECTION 930. ORS 453.891 is amended to read:
453.891. Between the dates of scheduled training for
contractors under ORS 453.888, the { - Department of Human
Services - } { + Oregon Health Authority + } shall be available
to consult with licensed contractors, as well as those planning
to become licensed, on information pertinent to illegal drug
manufacturing sites, including but not limited to chemicals found
at such sites and their toxicity, new or revised decontamination
procedures, personal protective equipment and applicable federal
regulations and state rules.
SECTION 931. ORS 453.894 is amended to read:
453.894. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall establish by rule a
schedule of fees for at least the following:
(a) Initial licenses and renewal under ORS 105.555, 431.175 and
453.855 to 453.912.
(b) Training courses and examinations conducted by or on behalf
of the { - department - } { + authority + }.
(c) Reexaminations for failing the initial examinations.
(d) Review of work plans.
(2) The fees established under subsection (1) of this section
shall be based upon the costs of the { - department - }
{ + authority + } in carrying out the provisions of ORS 105.555,
431.175 and 453.855 to 453.912.
(3) If a license renewal application and fee is not received by
the { - department - } { + authority + } within 15 days after
Enrolled House Bill 2009 (HB 2009-C) Page 528
the expiration of the license, a penalty of $100 shall be added
and collected.
(4) The fees collected under this section shall be paid into
the State Treasury and deposited in the General Fund to the
credit of the Public Health Account. Such moneys are continuously
appropriated to the { - Department of Human Services to pay the
department's - } { + Oregon Health Authority to pay the
authority's + } expenses in administering the provisions of ORS
105.555, 431.175 and 453.855 to 453.912.
(5) Subject to prior approval by the Oregon Department of
Administrative Services and a report to the Emergency Board prior
to adopting the fee, any fee or change shall be within the budget
authorized by the Legislative Assembly as that budget may be
modified by the Emergency Board.
SECTION 932. ORS 453.897 is amended to read:
453.897. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall provide lists of the names
of contractors licensed under ORS 105.555, 431.175 and 453.855 to
453.912 to the Director of the Department of Consumer and
Business Services who shall distribute the lists to local
building code enforcement agencies. The local agencies shall
make the list available on request and shall supply a copy to any
property owner whose property is determined to be not fit for use
under ORS 105.555, 431.175 and 453.855 to 453.912.
SECTION 933. ORS 453.900 is amended to read:
453.900. The { - Department of Human Services - }
{ + Oregon Health Authority + } may contract with state or local
agencies or private persons to perform any inspection or to
obtain any samples relative to determining the adequacy of
decontamination work.
SECTION 934. ORS 453.903 is amended to read:
453.903. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall evaluate annually a number
of the property decontamination projects performed by licensed
contractors to determine the adequacy of the decontamination
work, using the services of an independent environmental
contractor or state or local agency. If a project fails the
evaluation and inspection, the contractor is subject to a civil
penalty and license suspension that prohibits the contractor from
performing additional work until deficiencies have been corrected
on the project. Civil penalties under this section shall be
imposed as provided in ORS 183.745.
SECTION 935. ORS 453.909 is amended to read:
453.909. Counties and cities by ordinance may prohibit use or
occupancy of or provide for regulation of any property so long as
such prohibition or regulation is consistent with ORS 105.555,
431.175 and 453.855 to 453.912 and rules of the { - Department
of Human Services - } { + Oregon Health Authority + }.
SECTION 936. ORS 453.995 is amended to read:
453.995. (1) In addition to any other liability or penalty
provided by law, the { - Department of Human Services - }
{ + Oregon Health Authority + } may impose a civil penalty on a
person for violation of:
(a) ORS 453.885; or
(b) ORS 453.005 to 453.135 or rules adopted under ORS 453.005
to 453.135 by the { - department - } { + authority + }.
(2) A civil penalty imposed under this section may not exceed
$2,000.
(3) ORS 183.745 applies to civil penalties imposed under this
section.
Enrolled House Bill 2009 (HB 2009-C) Page 529
SECTION 937. ORS 454.235 is amended to read:
454.235. (1) The governing body of the municipality, by
proposed charter amendment or ordinance, may refer the question
of acquiring and constructing a disposal or water system, as
defined in ORS 448.115, to a vote of its electors, and after
approval thereof by a majority of such electors, may authorize
the issuance of and cause to be issued bonds of the municipality
for such purposes. The bonds may be general obligation, limited
obligation or self-liquidating in character in a sum not more
than the amount authorized at such election and shall be subject
to ORS 454.205 to 454.255. The bonds may provide for payment of
principal and interest thereon from service charges to be imposed
by the governing body for services to be extended through
employment and use of the disposal or water system. If service
charges are imposed to be paid as provided in ORS 454.225, such
portion thereof as may be deemed sufficient shall be set aside as
a sinking fund for payment of interest on the bond and the
principal thereof at maturity.
(2)(a) When the Environmental Quality Commission or the
{ - Department of Human Services - } { + Oregon Health
Authority + } enters an order pursuant to ORS chapter 183 that
requires the acquisition or construction of a disposal system or
a water system in a municipality, respectively, the governing
body of the municipality shall refer to its electors the question
of a bond issue in an amount sufficient to finance the necessary
acquisition or construction of such disposal or water system. The
election shall be held within one year of the date the order of
the commission or
{ - department - } { + authority + } is entered.
(b) If, within eight months after the order of the commission
or { - department - } { + authority + }, the governing body
of the municipality has not called an election in compliance with
paragraph (a) of this subsection, the commission or
{ - department - } { + authority + }, whichever is
appropriate, may apply to the circuit court of the county in
which the municipality is located, or to the Circuit Court of
Marion County for an order compelling the holding of an election.
(c) If the electors do not approve the disposal system bond
issue, submitted pursuant to paragraph (a) or (b) of this
subsection, the commission may apply to the circuit court of the
county in which the municipality is located or to the Circuit
Court of Marion County for an order directing that
self-liquidating bonds of the municipality be issued and sold
pursuant to ORS 454.205 to 454.255, and directing that the
proceeds be applied to the acquisition or construction of a
disposal system required to comply with the final order of the
commission. If the court finds that the disposal system required
by the final order of the commission is necessary under the rules
or standards of the commission, it shall issue an order directing
that such bonds be issued and sold without elector approval in
such an amount as the court finds necessary to acquire or
construct such disposal system, and that the proceeds be applied
for such purposes.
(d) Any court proceeding authorized by paragraphs (b) and (c)
of this subsection shall be advanced on the court docket for
immediate hearing.
SECTION 938. ORS 455.680 is amended to read:
455.680. (1) Plan approval and permits shall be obtained from
the Department of Consumer and Business Services prior to
Enrolled House Bill 2009 (HB 2009-C) Page 530
construction, enlargement or alteration of any recreation park,
picnic park or organizational camp as defined in ORS 446.310.
(2) If the department determines that the work conforms to the
approved plans and specifications, it shall issue a final
approval which shall, if all other conditions of ORS 455.010 to
455.240, 455.410 to 455.450 and 455.595 to 455.740 are met,
authorize the issuance of a license by the { - Department of
Human Services - } { + Oregon Health Authority + } to operate
the park or, in the case of then currently licensed parks, shall
authorize continued operation for the remaining part of the
licensing year.
(3) In accordance with ORS 455.010 to 455.240, 455.410 to
455.450 and 455.595 to 455.740 and in consultation and agreement
with the { - Department of Human Services, the Department of
Consumer and Business Services - } { + authority, the
department + } shall adopt rules to carry out this section. The
rules adopted pursuant to this section shall be a specialty code
as defined in ORS 455.010.
SECTION 939. ORS 458.525 is amended to read:
458.525. (1) The Housing and Community Services Department
shall serve as the lead public body on hunger and homelessness
issues.
(2) The Interagency Council on Hunger and Homelessness is
established. The Director of the Housing and Community Services
Department shall chair the council. In addition to the director,
the council shall consist of 15 members as follows:
(a) One member representing each of the following:
(A) The Housing and Community Services Department.
(B) The Department of Corrections.
(C) The Economic and Community Development Department.
(D) The State Commission on Children and Families.
(E) The Department of Education.
(F) The State Department of Agriculture.
(G) The Employment Department.
(H) The Department of Veterans' Affairs.
(I) The Department of Transportation.
(J) The Oregon Youth Authority.
(K) The Department of Community Colleges and Workforce
Development.
(L) The Department of Justice.
{ + (M) The Oregon Health Authority. + }
(b) { - Three - } { + Two + } members representing the
Department of Human Services. Of the { - three - }
{ + two + } members representing that department:
(A) One shall have expertise on issues affecting services to
adults and families.
{ - (B) One shall have expertise on issues affecting health
services. - }
{ - (C) - } { + (B) + } One shall have expertise on issues
affecting services to seniors and to persons with disabilities.
(3) Each council member must be the administrative head of the
listed agency or an employee of that agency who is designated by
the administrative head and who has an agency policy-making role
affecting hunger, food programs, nutrition, homelessness or
related issues.
(4) The Hunger Relief Task Force shall adopt recommendations
and proposals as the task force deems appropriate. The council
shall be responsible for receiving the recommendations and
proposals adopted by the task force and the recommendations of
any state body relating to the issue of homelessness, and for
Enrolled House Bill 2009 (HB 2009-C) Page 531
forwarding the recommendations and proposals to state agencies or
other public or private organizations for action that the council
deems appropriate:
(a) To ensure the coordination of state agency hunger relief
efforts and homelessness relief efforts;
(b) To ensure that food and nutrition programs, other hunger
relief efforts and homelessness relief efforts operate
efficiently and effectively;
(c) To monitor the utilization of federal hunger relief efforts
and homelessness relief efforts and provide outreach to expand
underutilized programs; and
(d) To encourage the coordination of state and local programs,
public and private antipoverty programs affecting food
distribution and programs for assisting the homeless.
(5) The Director of the Housing and Community Services
Department, in collaboration with the Director of Human Services,
shall convene council meetings at least quarterly.
(6) The Director of the Housing and Community Services
Department shall provide the council with staff support the
director deems appropriate, by using Housing and Community
Services Department employees or by contract. The director shall
also provide the council with supplies as the director deems
appropriate.
SECTION 940. ORS 458.532 is amended to read:
458.532. (1) The Hunger Relief Task Force is established in the
Housing and Community Services Department. The task force shall
consist of not more than 28 members appointed as follows:
(a) The President of the Senate shall appoint one member from
among members of the Senate.
(b) The Senate Minority Leader shall appoint one member from
among members of the Senate.
(c) The Speaker of the House of Representatives shall appoint
one member from among members of the House of Representatives.
(d) The House Minority Leader shall appoint one member from
among members of the House of Representatives.
(e) The Director of the Housing and Community Services
Department, with the advice of the Director of Human
Services { + and the Director of the Oregon Health
Authority + }, shall appoint the following:
(A) One member representing the Department of Education who has
experience in child nutrition programs.
(B) One member representing the Department of Human Services
who has experience in food stamp programs.
(C) One member representing the { - Department of Human
Services - } { + Oregon Health Authority + } who has experience
in the Women, Infants and Children program.
(D) One member representing the State Department of
Agriculture.
(E) One member representing the Oregon Food Bank.
(F) One member representing United Way of America or a
successor organization.
(G) One member representing an Oregon low-income advocacy
group.
(H) One member who is a student at an institution of higher
education.
(I) One member representing the Community Action Directors of
Oregon.
(J) One member representing the food retailing industry.
(K) One member representing the food growing and processing
industries.
Enrolled House Bill 2009 (HB 2009-C) Page 532
(L) One member who is a direct service provider.
(M) One member representing county government.
(N) One member representing the migrant community.
(O) Three members representing the religious community.
(P) One member representing the Housing and Community Services
Department.
(Q) No more than six additional members having qualifications
other than those of members described in subparagraphs (A) to (P)
of this paragraph.
(2) A member serves for a three-year term. A member may be
reappointed.
(3) If there is a vacancy for any cause, the appointing
authority shall make an appointment to become immediately
effective for the unexpired term. The appointing authority may
appoint a replacement for any member of the task force who misses
more than two consecutive meetings of the task force.
(4) One-half of the task force membership constitutes a quorum
for the transaction of business.
(5) The Director of the Housing and Community Services
Department shall provide the task force with staff support the
director deems appropriate, by using Housing and Community
Services Department employees or by contract. The director shall
also provide for the payment of appropriate task force operating
expenses.
SECTION 941. ORS 459.386 is amended to read:
459.386. As used in ORS 459.386 to 459.405:
(1) 'Biological waste' includes blood and blood products,
excretions, exudates, secretions, suctionings and other body
fluids that cannot be directly discarded into a municipal sewer
system, and waste materials saturated with blood or body fluids,
but does not include diapers soiled with urine or feces.
(2) 'Cultures and stocks' includes etiologic agents and
associated biologicals, including specimen cultures and dishes
and devices used to transfer, inoculate and mix cultures, wastes
from production of biologicals, and serums and discarded live and
attenuated vaccines. 'Cultures and stocks' does not include
throat and urine cultures.
(3) 'Disposal' means the final placement of treated infectious
waste in a disposal site operating under a permit issued by a
state or federal agency.
(4) 'Infectious waste' includes biological waste, cultures and
stocks, pathological waste and sharps.
(5)(a) 'Pathological waste' includes:
(A) Biopsy materials and all human tissues;
(B) Anatomical parts that emanate from surgeries, autopsies and
obstetrical and laboratory procedures; and
(C) Animal carcasses exposed to pathogens in research and the
bedding and other waste from such animals.
(b) 'Pathological waste' does not include teeth or formaldehyde
or other preservative agents.
(6) 'Sharps' includes needles, IV tubing with needles attached,
scalpel blades, lancets, glass tubes that could be broken during
handling and syringes that have been removed from their original
sterile containers.
(7) 'Storage' means the temporary containment of infectious
waste in a manner that does not constitute treatment or disposal
of such waste.
(8) 'Transportation' means the movement of infectious waste
from the point of generation over a public highway to any
intermediate point or to the point of final treatment.
Enrolled House Bill 2009 (HB 2009-C) Page 533
(9) 'Treatment' means incineration, sterilization or other
method, technique or process approved by the { - Department of
Human Services - } { + Oregon Health Authority + } that changes
the character or composition of any infectious waste so as to
render the waste noninfectious.
SECTION 942. ORS 459.390 is amended to read:
459.390. (1) Infectious waste shall be segregated from other
wastes by separate containment at the point of generation.
Enclosures used for storage of infectious waste shall be secured
to prevent access by unauthorized persons and shall be marked
with prominent warning signs.
(2) Infectious waste, except for sharps, shall be contained in
disposable red plastic bags or containers made of other materials
impervious to moisture and strong enough to prevent ripping,
tearing or bursting under normal conditions of use. The bags or
containers shall be closed to prevent leakage or expulsion of
solid or liquid wastes during storage, collection or
transportation.
(3) Sharps shall be contained for storage, collection,
transportation and disposal in leakproof, rigid,
puncture-resistant red containers that are taped closed or
tightly lidded to prevent loss of the contents. Sharps may be
stored in such containers for more than seven days.
(4) All bags, boxes or other containers for infectious waste
and rigid containers of discarded sharps shall be clearly
identified as containing infectious waste.
(5) Infectious waste shall be stored at temperatures and only
for times established by rules of the { - Department of Human
Services - } { + Oregon Health Authority + }.
(6) Infectious waste shall not be compacted before treatment
and shall not be placed for collection, storage or transportation
in a portable or mobile trash compactor.
(7) Infectious waste contained in disposable bags as specified
in this section shall be placed for collection, storage, handling
or transportation in a disposable or reusable pail, carton, box,
drum, dumpster, portable bin or similar container. The container
shall have a tight-fitting cover and be kept clean and in good
repair. The container may be of any color and shall be
conspicuously labeled with the international biohazard symbol and
the words 'Biomedical Waste' on the sides so as to be readily
visible from any lateral direction when the container is upright.
(8) Each time a reusable container for infectious waste is
emptied, the container shall be thoroughly washed and
decontaminated unless the surfaces of the container have been
protected from contamination by a disposable red liner, bag or
other device removed with the waste.
(9) Trash chutes shall not be used to transfer infectious waste
between locations where it is contained or stored.
(10) Generators that produce 50 pounds or less of infectious
waste in any calendar month shall be exempt from the specific
requirements of subsections (5), (7) and (8) of this section.
SECTION 943. ORS 459.395 is amended to read:
459.395. (1) Pathological wastes shall be treated by
incineration in an incinerator that provides complete combustion
of waste to carbonized or mineralized ash. The ash shall be
disposed of as provided in rules adopted by the Environmental
Quality Commission. However, if the Department of Environmental
Quality determines that incineration is not reasonably available
within a wasteshed, pathological wastes may be disposed of in the
same manner provided for cultures and stocks.
Enrolled House Bill 2009 (HB 2009-C) Page 534
(2) Cultures and stocks shall be incinerated as described in
subsection (1) of this section or sterilized by other means
prescribed by { - Department of Human Services - } { + Oregon
Health Authority + } rule. Sterilized waste may be disposed of in
a permitted land disposal site if it is not otherwise classified
as hazardous waste.
(3) Liquid or soluble semisolid biological wastes may be
discharged into a sewage treatment system that provides secondary
treatment of waste.
(4) Sharps and biological wastes may be incinerated as
described in subsection (1) of this section or sterilized by
other means prescribed by { - Department of Human Services - }
{ + authority + } rule. Sharps may be disposed of in a
permitted land disposal site only if the sharps are in containers
as required in ORS 459.390 (3) and are placed in a segregated
area of the landfill.
(5) Other methods of treatment and disposal may be approved by
rule of the { - Environmental Quality Commission - }
{ + commission + }.
SECTION 944. ORS 466.135 is amended to read:
466.135. Upon receipt of an application for a hazardous waste
disposal site permit, the Department of Environmental Quality
shall cause copies of the application to be sent to affected
state agencies, including the { - Department of Human
Services - } { + Oregon Health Authority + }, the Public
Utility Commission, the State Fish and Wildlife Commission and
the Water Resources Director. Each agency shall respond by making
a recommendation as to whether the permit application should be
granted. If the { - Department of Human Services - }
{ + Oregon Health Authority + } recommends against granting the
permit, the Environmental Quality Commission must refuse to issue
the permit. Recommendation from other agencies shall be
considered as evidence in determining whether to grant the
permit.
SECTION 945. ORS 466.280 is amended to read:
466.280. Upon receipt of an application for a PCB disposal
facility permit, the Department of Environmental Quality shall
cause copies of the application to be sent to affected state
agencies, including the { - Department of Human Services - }
{ + Oregon Health Authority + }, the Public Utility Commission,
the State Fish and Wildlife Commission and the Water Resources
Director. Each agency shall respond within the period specified
by the Department of Environmental Quality by making a written
recommendation as to whether the permit application should be
granted. Recommendation from other agencies shall be considered
in determining whether to grant the permit.
SECTION 946. ORS 466.605 is amended to read:
466.605. As used in ORS 466.605 to 466.680 and 466.990 (3) and
(4):
(1) 'Barrel' means 42 U.S. gallons at 60 degrees Fahrenheit.
(2) 'Cleanup' means the containment, collection, removal,
treatment or disposal of oil or hazardous material; site
restoration; and any investigations, monitoring, surveys, testing
and other information gathering required or conducted by the
Department of Environmental Quality.
(3) 'Cleanup costs' means all costs associated with the cleanup
of a spill or release incurred by the state, its political
subdivision or any person with written approval from the
department when implementing ORS 466.205, 466.605 to 466.680,
466.990 (3) and (4) and 466.995 (2) or 468B.320.
Enrolled House Bill 2009 (HB 2009-C) Page 535
(4) 'Commission' means the Environmental Quality Commission.
(5) 'Department' means the Department of Environmental Quality.
(6) 'Director' means the Director of the Department of
Environmental Quality.
(7) 'Hazardous material' means one of the following:
(a) A material designated by the commission under ORS 466.630.
(b) Hazardous waste as defined in ORS 466.005.
(c) Radioactive waste as defined in ORS 469.300, radioactive
material identified by the Energy Facility Siting Council under
ORS 469.605 and radioactive substances as defined in ORS 453.005.
(d) Communicable disease agents as regulated by the
{ - Department of Human Services - } { + Oregon Health
Authority + } under ORS 431.035 to 431.530, 433.001 to 433.045
and 433.110 to 433.770.
(e) Hazardous substances designated by the United States
Environmental Protection Agency under section 311 of the Federal
Water Pollution Control Act, P.L. 92-500, as amended.
(8) 'Oils' or 'oil' includes gasoline, crude oil, fuel oil,
diesel oil, lubricating oil, sludge, oil refuse and any other
petroleum related product.
(9) 'Person' means an individual, trust, firm, joint stock
company, corporation, partnership, association, municipal
corporation, political subdivision, interstate body, the state
and any agency or commission thereof and the federal government
and any agency thereof.
(10) 'Reportable quantity' means one of the following:
(a) A quantity designated by the commission under ORS 466.625.
(b) The lesser of:
(A) The quantity designated for hazardous substances by the
United States Environmental Protection Agency pursuant to section
311 of the Federal Water Pollution Control Act, P.L. 92-500, as
amended;
(B) The quantity designated for hazardous waste under ORS
466.005 to 466.385, 466.990 (1) and (2) and 466.992;
(C) Any quantity of radioactive material, radioactive substance
or radioactive waste;
(D) If spilled into waters of the state, or escape into waters
of the state is likely, any quantity of oil that would produce a
visible oily slick, oily solids, or coat aquatic life, habitat or
property with oil, but excluding normal discharges from properly
operating marine engines; or
(E) If spilled on land, any quantity of oil over one barrel.
(c) Ten pounds unless otherwise designated by the commission
under ORS 466.625.
(11) 'Respond' or 'response' means:
(a) Actions taken to monitor, assess and evaluate a spill or
release or threatened spill or release of oil or hazardous
material;
(b) First aid, rescue or medical services, and fire
suppression; or
(c) Containment or other actions appropriate to prevent,
minimize or mitigate damage to the public health, safety, welfare
or the environment which may result from a spill or release or
threatened spill or release if action is not taken.
(12) 'Spill or release' means the discharge, deposit,
injection, dumping, spilling, emitting, releasing, leaking or
placing of any oil or hazardous material into the air or into or
on any land or waters of the state, as defined in ORS 468B.005,
except as authorized by a permit issued under ORS chapter 454,
459, 459A, 468, 468A, 468B or 469, ORS 466.005 to 466.385,
Enrolled House Bill 2009 (HB 2009-C) Page 536
466.990 (1) and (2) or 466.992 or federal law or while being
stored or used for its intended purpose.
(13) 'Threatened spill or release' means oil or hazardous
material is likely to escape or be carried into the air or into
or on any land or waters of the state.
SECTION 947. ORS 466.615 is amended to read:
466.615. Nothing in ORS 466.605 to 466.680, 466.990 (3) and (4)
and 466.995 (2) is intended to grant the Environmental Quality
Commission or the Department of Environmental Quality authority
over any radioactive substance regulated by the { - Department
of Human Services - } { + Oregon Health Authority + } under ORS
chapter 453, or any radioactive material or waste regulated by
the State Department of Energy or Energy Facility Siting Council
under ORS chapter 469.
SECTION 948. ORS 468.035 is amended to read:
468.035. (1) Subject to policy direction by the Environmental
Quality Commission, the Department of Environmental Quality:
(a) Shall encourage voluntary cooperation by the people,
municipalities, counties, industries, agriculture, and other
pursuits, in restoring and preserving the quality and purity of
the air and the waters of the state in accordance with rules and
standards established by the commission.
(b) May conduct and prepare, independently or in cooperation
with others, studies, investigations, research and programs
pertaining to the quality and purity of the air or the waters of
the state and to the treatment and disposal of wastes.
(c) Shall advise, consult, and cooperate with other agencies of
the state, political subdivisions, other states or the federal
government, in respect to any proceedings and all matters
pertaining to control of air or water pollution or for the
formation and submission to the legislature of interstate
pollution control compacts or agreements.
(d) May employ personnel, including specialists and
consultants, purchase materials and supplies, and enter into
contracts necessary to carry out the purposes set forth in 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.
(e) Shall conduct and supervise programs of air and water
pollution control education, including the preparation and
distribution of information regarding air and water pollution
sources and control.
(f) Shall provide advisory technical consultation and services
to units of local government and to state agencies.
(g) Shall develop and conduct demonstration programs in
cooperation with units of local government.
(h) Shall serve as the agency of the state for receipt of
moneys from the federal government or other public or private
agencies for the purposes of air and water pollution control,
studies or research and to expend moneys after appropriation
thereof for the purposes given.
(i) Shall make such determination of priority of air or water
pollution control projects as may be necessary under terms of
statutes enacted by the Congress of the United States.
(j) Shall seek enforcement of the air and water pollution laws
of the state.
(k) Shall institute or cause to be instituted in a court of
competent jurisdiction, proceedings to compel compliance with any
rule or standard adopted or any order or permit, or condition
thereof, issued pursuant to ORS 448.305, 454.010 to 454.040,
Enrolled House Bill 2009 (HB 2009-C) Page 537
454.205 to 454.255, 454.505 to 454.535, 454.605 to 454.755 and
ORS chapters 468, 468A and 468B.
(L) Shall encourage the formulation and execution of plans in
conjunction with air and water pollution control agencies or with
associations of counties, cities, industries and other persons
who severally or jointly are or may be the source of air or water
pollution, for the prevention and abatement of pollution.
(m) May determine, by means of field studies and sampling, the
degree of air or water pollution in various regions of the state.
(n) May perform such other and further acts as may be
necessary, proper or desirable to carry out effectively the
duties, powers and responsibilities of the department as set
forth in 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.
(o) Shall coordinate any activities of the department related
to a watershed enhancement project approved by the Oregon
Watershed Enhancement Board under ORS 541.375 with activities of
other cooperating state and federal agencies participating in the
project.
(2) Nothing in this section shall affect the authority of the
{ - Department of Human Services - } { + Oregon Health
Authority + } to make and enforce rules:
(a) Regarding the quality of water for human or animal
consumption pursuant to ORS 448.115 to 448.325, 624.010 to
624.121 and 624.310 to 624.430; and
(b) Regarding the quality of water for public swimming places
pursuant to ORS 431.110.
(3) Nothing in this section shall prevent the State Department
of Agriculture or the State Forestry Department from
independently receiving moneys from a public or private agency
for the purposes of preventing or controlling air or water
pollution resulting from agricultural or silvicultural activities
or soil erosion, or for research related to such purposes.
(4)(a) In awarding a public contract under ORS 279.835 to
279.855 or ORS chapter 279A, 279B or 279C for a removal or
remedial action pursuant to ORS 465.200 to 465.545, a corrective
action or cleanup action pursuant to ORS 466.005 to 466.385,
466.605 to 466.680 or 466.706 to 466.882 or a removal pursuant to
ORS 468B.005 to 468B.030, 468B.035, 468B.048 to 468B.085,
468B.090, 468B.093, 468B.095 and 468B.300 to 468B.500, the
department, and the Oregon Department of Administrative Services,
when administering the establishment of such a contract on behalf
of the Department of Environmental Quality under ORS 279A.050 and
279A.140, shall subtract from the amount of any bid or proposal
the hazardous waste management fees and solid waste fees that
would be required by law to be paid to the department for waste
that would be disposed of at a solid waste disposal site or a
hazardous waste or PCB disposal facility, based on the bid or
proposal. The amount to be subtracted shall be established on the
basis of reasonable preprocurement estimates of the amount of
waste that would be disposed of under the contract and that would
be subject to those fees.
(b) The subtraction for fees under paragraph (a) of this
subsection shall apply only to a contract reasonably anticipated
to involve the disposal of no less than 50 tons of hazardous
waste or no less than 500 tons of solid waste. The Legislative
Assembly finds that making accurate advance estimates of amounts
of waste that would be disposed of in projects of this character
is technically challenging and requires the application of
Enrolled House Bill 2009 (HB 2009-C) Page 538
professional discretion. Therefore, no award of a contract under
this subsection shall be subject to challenge, under ORS
279B.410, 279B.415 or 279C.460 or otherwise, on the ground of the
inaccuracy or claimed inaccuracy of any such estimate.
(c) The subtraction for fees under paragraph (a) of this
subsection shall not apply to the establishment, by or on behalf
of the department, of master contracts by which the department
engages the services of a contractor over a period of time for
the purpose of issuing work orders for the performance of
environmental activities on a project or projects for which the
amounts of waste to be disposed of were not reasonably identified
at the inception of the master contracts. However, the department
shall require any contractor under a master contract to apply the
subtraction for fees under paragraph (a) of this subsection in
the selection of any subcontractor to perform the removal of
waste in amounts equaling or exceeding the amounts set forth in
paragraph (b) of this subsection. Nothing in this subsection
shall be construed to prohibit the department or the Oregon
Department of Administrative Services from establishing contracts
pursuant to this section through contracting procedures
authorized by ORS 279.835 to 279.855 and ORS chapters 279A, 279B
and 279C that do not require the solicitation of bids or
proposals.
SECTION 949. ORS 468.055 is amended to read:
468.055. In addition to the authority granted under ORS 190.003
to 190.130, when authorized by the Environmental Quality
Commission and the { - Department of Human Services - }
{ + Oregon Health Authority + }, the Director of the Department
of Environmental Quality and the Director of { - Human
Services - } { + the Oregon Health Authority + } may contract
on behalf of their respective agencies for the purposes of
carrying out the functions of either agency, defining areas of
responsibility, furnishing services or employees by one to the
other and generally providing cooperative action in the interests
of public health and the quality of the environment in Oregon.
Each contracting agency is directed to maintain liaison with the
other and to cooperate with the other in all matters of joint
concern or interest.
SECTION 950. ORS 468.060 is amended to read:
468.060. On its own motion after public hearing, the
Environmental Quality Commission may grant specific authorization
to the { - Department of Human Services - } { + Oregon Health
Authority + } or to any county, district or city board of health
to enforce any rule of the commission relating to air or water
pollution or solid wastes.
SECTION 951. ORS 468A.707 is amended to read:
468A.707. (1) The Environmental Quality Commission by rule
shall:
(a) Establish an asbestos abatement program that assures the
proper and safe abatement of asbestos hazards through contractor
licensing and worker training.
(b) Establish the date after which a contractor must be
licensed under ORS 468A.720 and a worker must hold a certificate
under ORS 468A.730.
(c) Establish criteria and provisions for granting an extension
of time for contractor licensing and worker certification, which
may consider the number of workers and the availability of
accredited training courses.
(2) The program established under subsection (1) of this
section shall include at least:
Enrolled House Bill 2009 (HB 2009-C) Page 539
(a) Criteria for contractor licensing and training;
(b) Criteria for worker certification and training;
(c) Standardized training courses; and
(d) A procedure for inspecting asbestos abatement projects.
(3) In establishing the training requirements under subsections
(1) and (2) of this section, the commission shall adopt different
training requirements that reflect the different levels of
responsibility of the contractor or worker, so that within the
category of contractor, sublevels shall be separately licensed or
exempted and within the category of worker, sublevels shall be
separately certified or exempted. The commission shall
specifically address as a separate class, those contractors and
workers who perform small scale, short duration renovating and
maintenance activity. As used in this subsection, 'small scale,
short duration renovating and maintenance activity' means a task
for which the removal of asbestos is not the primary objective of
the job, including but not limited to:
(a) Removal of asbestos-containing insulation on pipes;
(b) Removal of small quantities of asbestos-containing
insulation on beams or above ceilings;
(c) Replacement of an asbestos-containing gasket on a valve;
(d) Installation or removal of a small section of drywall; or
(e) Installation of electrical conduits through or proximate to
asbestos-containing materials.
(4) The Department of Environmental Quality, on behalf of the
commission, shall consult with the Department of Consumer and
Business Services and the { - Department of Human Services - }
{ + Oregon Health Authority + } about proposed rules for the
asbestos abatement program to assure that the rules are
compatible with all other state and federal statutes and
regulations related to asbestos abatement.
(5) The Department of Environmental Quality shall cooperate
with the Department of Consumer and Business Services and the
{ - Department of Human Services - } { + Oregon Health
Authority + } to promote proper and safe asbestos abatement work
practices and compliance with the provisions of ORS 279B.055
(2)(g), 279B.060 (2)(g), 279C.365 (1)(j), 468.126, 468A.135 and
468A.700 to 468A.760.
SECTION 952. ORS 468B.150 is amended to read:
468B.150. As used in ORS 448.268, 448.271 and 468B.150 to
468B.190:
(1) 'Area of ground water concern' means an area of the state
subject to a declaration by the Department of Environmental
Quality under ORS 468B.175 or the { - Department of Human
Services - } { + Oregon Health Authority + } under ORS 448.268.
(2) 'Contaminant' means any chemical, ion, radionuclide,
synthetic organic compound, microorganism, waste or other
substance that does not occur naturally in ground water or that
occurs naturally but at a lower concentration.
(3) 'Ground water management area' means an area in which
contaminants in the ground water have exceeded the levels
established under ORS 468B.165, and the affected area is subject
to a declaration under ORS 468B.180.
(4) 'Fertilizer' has the meaning given that term in ORS
633.311.
(5) 'Pesticide' has the meaning given that term in ORS 634.006.
SECTION 953. ORS 469.525 is amended to read:
469.525. Notwithstanding any other provision of this chapter,
no waste disposal facility for any radioactive waste shall be
Enrolled House Bill 2009 (HB 2009-C) Page 540
established, operated or licensed within this state, except as
follows:
(1) Wastes generated before June 1, 1981, through industrial or
manufacturing processes which contain only naturally occurring
radioactive isotopes which are disposed of at sites approved by
the Energy Facility Siting Council in accordance with ORS
469.375.
(2) Medical, industrial and research laboratory wastes
contained in small, sealed, discrete containers in which the
radioactive material is dissolved or dispersed in an organic
solvent or biological fluid for the purpose of liquid
scintillation counting and experimental animal carcasses shall be
disposed of or treated at a hazardous waste disposal facility
licensed by the Department of Environmental Quality and in a
manner consistent with rules adopted by the Department of
Environmental Quality after consultation with and approval by the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(3) Maintenance of radioactive coal ash at the site of a
thermal power plant for which a site certificate has been issued
pursuant to this chapter shall not constitute operation of a
waste disposal facility so long as such coal ash is maintained in
accordance with the terms of the site certificate as amended from
time to time as necessary to protect the public health and
safety.
SECTION 954. ORS 469.533 is amended to read:
469.533. Notwithstanding ORS chapter 401, the State Department
of Energy in cooperation with the { - Department of Human
Services - } { + Oregon Health Authority + } and the Office of
Emergency Management shall establish rules for the protection of
health and procedures for the evacuation of people and
communities who would be affected by radiation in the event of an
accident or a catastrophe in the operation of a nuclear power
plant or nuclear installation.
SECTION 955. ORS 469.559 is amended to read:
469.559. (1) Notwithstanding the authority of the
{ - Department of Human Services - } { + Oregon Health
Authority + } pursuant to ORS 453.605 to 453.800 to regulate
radiation sources or the requirements of ORS 469.525, the Energy
Facility Siting Council may enter into and carry out cooperative
agreements with the Secretary of Energy pursuant to Title I and
the Nuclear Regulatory Commission pursuant to Title II of the
Uranium Mill Tailings Radiation Control Act of 1978, Public Law
95-604, and perform or cause to be performed any and all acts
necessary to be performed by the state, including the acquisition
by condemnation or otherwise, retention and disposition of land
or interests therein, in order to implement that Act and rules,
standards and guidelines adopted pursuant thereto. The Energy
Facility Siting Council may adopt, amend or repeal rules in
accordance with ORS chapter 183 and may receive and disburse
funds in connection with the implementation and administration of
this section.
(2) The Energy Facility Siting Council and the State Department
of Energy may enter into and carry out cooperative agreements and
arrangements with any agency of the federal government
implementing the Comprehensive Environmental Response,
Compensation, and Liability Act, as amended, 42 U.S.C. section
9601 et seq., to clean up wastes and contaminated material,
including overburden, created by uranium mining before June 29,
1989. Any such project need not obtain a site certificate from
Enrolled House Bill 2009 (HB 2009-C) Page 541
the council, but shall nevertheless comply with all applicable,
relevant or appropriate state standards including but not limited
to those set forth in ORS 469.375 and rules adopted by the
council and other state agencies to implement such standards.
(3) The Governor may do any and all things necessary to
implement the requirements of the federal Acts referred to in
subsections (1) and (2) of this section.
(4) Notwithstanding ORS 469.553, after June 25, 1979, no site
certificate is required for the cleanup and disposal of an
inactive or abandoned uranium mill tailings site as authorized
under subsection (1) of this section and Title I of the Uranium
Mill Tailings Radiation Control Act of 1978, Public Law 95-604.
SECTION 956. ORS 469.611 is amended to read:
469.611. Notwithstanding ORS chapter 401:
(1) The Director of the State Department of Energy shall
coordinate emergency preparedness and response with appropriate
agencies of government at the local, state and national levels to
ensure that the response to a radioactive material transportation
accident is swift and appropriate to minimize damage to any
person, property or wildlife. This program shall include the
preparation of localized plans setting forth agency
responsibilities for on-scene response.
(2) The director shall:
(a) Apply for federal funds as available to train, equip and
maintain an appropriate response capability at the state and
local level; and
(b) Request all available training and planning materials.
(3) The { - Department of Human Services - } { + Oregon
Health Authority + } shall maintain a trained and equipped
radiation emergency response team available at all times for
dispatch to any radiological emergency. Before arrival of the
team at the scene of a radiological accident, the { - Director
of the State Department of Energy - } { + director + } may
designate other technical advisors to work with the local
response agencies.
(4) The { - Department of Human Services - }
{ + authority + } shall assist the { - Director of the State
Department of Energy - } { + director + } to ensure that all
emergency services organizations along major transport routes for
radioactive materials are offered training and retraining in the
proper procedures for identifying and dealing with a radiological
accident pending the arrival of persons with technical expertise.
The { - Department of Human Services - } { + authority + }
shall report annually to the { - Director of the State
Department of Energy - } { + director + } on training of
emergency response personnel.
SECTION 957. ORS 471.190 is amended to read:
471.190. (1) The holder of a temporary sales license may sell
at retail by the drink wine, malt beverages, cider and distilled
liquor. Distilled liquor served by the holder of a temporary
sales license must be purchased from a retail sales agent of the
Oregon Liquor Control Commission. The holder of a temporary sales
license must provide food service as required by commission rule.
(2) A temporary sales license may be issued only to:
(a) Nonprofit or charitable organizations that are registered
with the state.
(b) A political committee that has filed a statement of
organization under ORS 260.039 or 260.042.
(c) State agencies.
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(d) Local governments, and agencies and departments of local
governments.
(e) Persons not otherwise described in this subsection, as long
as the applicant submits a plan that is approved by the
commission detailing how minors will be prevented from gaining
access to alcoholic beverages and how minors will be prevented
from gaining access to any portion of the licensed premises
prohibited to minors under ORS 471.430 (3) or any rule adopted by
the commission.
(3) The holder of a temporary sales license may sell wine, malt
beverages or cider in factory-sealed containers for consumption
off the licensed premises.
(4) The commission may by rule establish additional eligibility
requirements for temporary sales licenses.
(5) Subject to such qualifications as the commission may
establish by rule, persons who hold a full or limited on-premises
sales license are eligible for temporary sales licenses.
(6) A person holding a temporary sales license is not required
to obtain a temporary restaurant license or mobile unit license
under ORS chapter 624 if only wine, malt beverages and cider in
single-service containers are served and only nonperishable food
items that are exempted from licensure by the
{ - Department of Human Services - } { + Oregon Health
Authority + } are served.
(7) Employees and volunteers serving alcoholic beverages for a
nonprofit or charitable organization licensed under this section
are not required to have server permits nor to complete an
alcohol server education program and examination under ORS
471.542. The commission by rule may establish education
requirements for servers described in this subsection.
(8) Notwithstanding ORS 471.392 to 471.400, a temporary sales
license may be issued to a nonprofit trade association that has a
membership primarily comprised of persons that hold winery
licenses issued under ORS 471.223 or grower sales privilege
licenses issued under ORS 471.227.
SECTION 958. ORS 471.235 is amended to read:
471.235. (1) A wholesale malt beverage and wine license shall
allow the importation, storage, transportation, wholesale sale
and distribution to licensees of the Oregon Liquor Control
Commission, and the export of wine, cider and malt beverages, and
the importation and sale to the commission and the export of wine
of alcoholic content in excess of 21 percent alcohol by volume.
No such licensee shall sell any alcoholic liquor for consumption
upon the licensed premises. However, a wholesale malt beverage
and wine licensee may sell naturally fermented wine or cider in
quantities of not less than four gallons nor more than 55 gallons
at any one time to consumers for consumption not on the licensed
premises. Wholesale malt beverage and wine licensees may sell
malt beverages containing not more than eight percent alcohol by
volume in quantities not less than five gallons to any unlicensed
organization, lodge, picnic party or private gathering. Such malt
beverages shall not be sold by such unlicensed group. A wholesale
malt beverage and wine license shall permit the licensee also to
sell malt beverages at wholesale only, to persons holding
licenses authorizing them to resell such beverages at retail.
Employees of wholesale malt beverage and wine licensees may serve
sample tastings of malt beverages, cider and wine at alcoholic
beverage industry trade shows, seminars and conventions and at
alcoholic beverage industry sample tastings for employees of
retail licensees.
Enrolled House Bill 2009 (HB 2009-C) Page 543
(2) Nothing in subsection (1) of this section shall be
considered to prohibit the transportation or wholesale sale or
distribution of malt beverage or wine by a wholesale malt
beverage and wine licensee to any alcoholic treatment center
licensed by the { - Department of Human Services - }
{ + Oregon Health Authority + }.
(3) A wholesale malt beverage and wine licensee may impose an
additional handling fee on any wine sold to any retailer in this
state if the quantity of wine sold to the retailer is less than
the smallest multiple-package case available to be sold and the
handling fee is uniform for all licensees.
SECTION 959. ORS 471.333 is amended to read:
471.333. (1) Except as provided in subsections (2) and (3) of
this section, the Oregon Liquor Control Commission shall not
refuse to issue, cancel or suspend a license under ORS 471.313,
471.315 or 471.425 for maintaining an insanitary establishment.
(2) The commission may refuse to issue, cancel or suspend a
license under ORS 471.313, 471.315 or 471.425 for maintaining an
insanitary establishment in violation of a city ordinance
relating to sanitation only if the licensee is convicted of
violating the ordinance.
(3) The commission may refuse to issue, cancel or suspend a
license under ORS 471.313, 471.315 or 471.425 for maintaining an
insanitary establishment in violation of ORS 447.010 to 447.156
and 447.992 or the laws, orders or rules relating to public
health of the { - Department of Human Services - } { + Oregon
Health Authority + } or the State Department of Agriculture only
when the agency charged with enforcing those laws, orders or
rules finds that the licensee is in violation of them and renders
a final order adverse to the licensee.
SECTION 960. ORS 471.432 is amended to read:
471.432. When a person is ordered to undergo assessment and
treatment as provided in ORS 471.430, the court shall require the
person to do all of the following:
(1) Pay to the court the fee described under ORS 813.030 in
addition to any fine imposed under ORS 471.430.
(2) Complete an examination by an agency or organization
designated by the court to determine whether the person has a
problem condition involving alcohol as described in ORS 813.040.
The designated agencies or organizations must meet the standards
set by the Director of { - Human Services - } { + the Oregon
Health Authority + } to perform the diagnostic assessment and
treatment of problem drinking and alcoholism and must be
certified by the
{ - Director of Human Services - } { + director + }.
(3) Complete a treatment program, paid at the expense of the
person convicted, as follows:
(a) If the examination required under this section shows that
the person has a problem condition involving alcohol, a program
for rehabilitation for alcoholism approved by the { - Director
of Human Services - } { + director + }.
(b) If the examination required by this section shows that the
person does not have a problem condition involving alcohol, an
alcohol information program approved by the { - Director of
Human Services - } { + director + }.
SECTION 961. ORS 471.547 is amended to read:
471.547. The Oregon Liquor Control Commission shall establish
an Alcohol Server Education Advisory Committee consisting of
persons representing the commission, the Oregon State Police, the
Oregon District Attorneys Association, the { - Department of
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Human Services - } { + Oregon Health Authority + }, the
Department of Transportation, at least one person who is a
service permittee under ORS 471.360, a nonprofit organization the
purpose of which is to reduce the incidence of drunk driving, and
not more than three associations representing retail licensees
and two associations representing insurance companies to assist
in:
(1) The development of the standards, curriculum and materials
for the alcohol server education courses required under ORS
471.542;
(2) The examination required by ORS 471.542, and procedures for
administering that examination;
(3) The certification procedures, enforcement policies and
penalties for alcohol server education course instructors and
providers; and
(4) The development of time requirements for completion of an
alcohol server education course and examination and conditions
for probationary extension.
SECTION 962. ORS 471.732 is amended to read:
471.732. (1) The Legislative Assembly finds and declares that
the regulation of health and sanitation matters in premises
licensed by the Oregon Liquor Control Commission under this
chapter can best be performed by the { - Department of Human
Services - } { + Oregon Health Authority + } and the State
Department of Agriculture.
(2) It is the policy of the Legislative Assembly and the intent
of ORS 471.333 and 624.010 and this section that premises
licensed by the Oregon Liquor Control Commission under this
chapter shall be subject to the laws governing health and
sanitation matters, including any applicable licensing
requirements, and to the rules adopted thereunder by the
{ - Department of Human Services and the State Department of
Agriculture - } { + authority and the department + }.
SECTION 963. ORS 475.225 is amended to read:
475.225. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall carry out educational
programs designed to prevent and deter misuse and abuse of
controlled substances. In connection with these programs it may:
(a) Promote better recognition of the problems of misuse and
abuse of controlled substances within the regulated industry and
among interested groups and organizations;
(b) Assist the regulated industry and interested groups and
organizations in contributing to the reduction of misuse and
abuse of controlled substances;
(c) Consult with interested groups and organizations to aid
them in solving administrative and organizational problems;
(d) Evaluate procedures, projects, techniques and controls
conducted or proposed as part of educational programs on misuse
or abuse of controlled substances;
(e) Disseminate the results of research on misuse and abuse of
controlled substances to promote a better public understanding of
what problems exist and what can be done to combat them; and
(f) Assist in the education and training of state and local law
enforcement officials in their efforts to control misuse and
abuse of controlled substances.
(2) The { - department - } { + authority + } shall
encourage research on the medical use, misuse and abuse of
controlled substances. In connection with the research, and in
furtherance of the enforcement of ORS 475.005 to 475.285 and
475.840 to 475.980, it may:
Enrolled House Bill 2009 (HB 2009-C) Page 545
(a) Establish methods to assess accurately the physiological,
psychological and social effects of controlled substances and
identify their medical uses, relative hazard potential, and
potential for abuse;
(b) Make studies and undertake programs of research to:
(A) Develop new or improved approaches, techniques, systems,
equipment and devices to strengthen the enforcement of ORS
475.005 to 475.285 and 475.840 to 475.980;
(B) Determine patterns of use, misuse and abuse of controlled
substances and the social effects thereof; and
(C) Improve methods for preventing, predicting, understanding
and dealing with the misuse and abuse of controlled substances;
or
(c) Enter into contracts with public agencies, institutions of
higher education, and private organizations or individuals for
the purpose of conducting research, demonstrations or special
projects which bear directly on misuse and abuse of controlled
substances.
(3) The { - department - } { + authority + } may enter into
contracts for educational and research activities without
performance bonds and without regard to ORS 279A.125, 279A.140,
279B.025, 279B.240, 279B.270, 279B.275, 279B.280, 459A.475,
459A.480, 459A.485 and 459A.490.
SECTION 964. ORS 475.302 is amended to read:
475.302. As used in ORS 475.300 to 475.346:
(1) 'Attending physician' means a physician licensed under ORS
chapter 677 who has primary responsibility for the care and
treatment of a person diagnosed with a debilitating medical
condition.
{ + (2) 'Authority' means the Oregon Health Authority. + }
{ - (2) - } { + (3) + } 'Debilitating medical condition'
means:
(a) Cancer, glaucoma, agitation due to Alzheimer's disease,
positive status for human immunodeficiency virus or acquired
immune deficiency syndrome, or treatment for these conditions;
(b) A medical condition or treatment for a medical condition
that produces, for a specific patient, one or more of the
following:
(A) Cachexia;
(B) Severe pain;
(C) Severe nausea;
(D) Seizures, including but not limited to seizures caused by
epilepsy; or
(E) Persistent muscle spasms, including but not limited to
spasms caused by multiple sclerosis; or
(c) Any other medical condition or treatment for a medical
condition adopted by the { - department - } { + authority + }
by rule or approved by the { - department - }
{ + authority + } pursuant to a petition submitted pursuant to
ORS 475.334.
{ - (3) - } { + (4) + } 'Delivery' has the meaning given
that term in ORS 475.005. 'Delivery' does not include transfer of
marijuana by a registry identification cardholder to another
registry identification cardholder if no consideration is paid
for the transfer.
{ - (4) 'Department' means the Department of Human
Services. - }
(5) 'Designated primary caregiver' means an individual 18 years
of age or older who has significant responsibility for managing
the well-being of a person who has been diagnosed with a
Enrolled House Bill 2009 (HB 2009-C) Page 546
debilitating medical condition and who is designated as such on
that person's application for a registry identification card or
in other written notification to the { - department - }
{ + authority + }. ' Designated primary caregiver' does not
include the person's attending physician.
(6) 'Marijuana' has the meaning given that term in ORS 475.005.
(7) 'Marijuana grow site' means a location where marijuana is
produced for use by a registry identification cardholder and that
is registered under the provisions of ORS 475.304.
(8) 'Medical use of marijuana' means the production,
possession, delivery, or administration of marijuana, or
paraphernalia used to administer marijuana, as necessary for the
exclusive benefit of a person to mitigate the symptoms or effects
of the person's debilitating medical condition.
(9) 'Production' has the meaning given that term in ORS
475.005.
(10) 'Registry identification card' means a document issued by
the { - department - } { + authority + } that identifies a
person authorized to engage in the medical use of marijuana and
the person's designated primary caregiver, if any.
(11) 'Usable marijuana' means the dried leaves and flowers of
the plant Cannabis family Moraceae, and any mixture or
preparation thereof, that are appropriate for medical use as
allowed in ORS 475.300 to 475.346. 'Usable marijuana' does not
include the seeds, stalks and roots of the plant.
(12) 'Written documentation' means a statement signed by the
attending physician of a person diagnosed with a debilitating
medical condition or copies of the person's relevant medical
records.
SECTION 965. ORS 475.303 is amended to read:
475.303. (1) There is created the Advisory Committee on Medical
Marijuana in the { - Department of Human Services - }
{ + Oregon Health Authority + }, consisting of 11 members
appointed by the Director of { - Human Services - } { + the
Oregon Health Authority + }.
(2) The director shall appoint members of the committee from
persons who possess registry identification cards, designated
primary caregivers of persons who possess registry identification
cards and advocates of the Oregon Medical Marijuana Act.
(3) The committee shall advise the director on the
administrative aspects of the Oregon Medical Marijuana Program,
review current and proposed administrative rules of the program
and provide annual input on the fee structure of the program.
(4) The committee shall meet at least four times per year, at
times and places specified by the director.
(5) The { - department - } { + authority + } shall provide
staff support to the committee.
(6) All agencies of state government, as defined in ORS
174.111, are directed to assist the committee in the performance
of its duties and, to the extent permitted by laws relating to
confidentiality, to furnish information and advice that the
members of the committee consider necessary to perform their
duties.
SECTION 966. ORS 475.304 is amended to read:
475.304. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall establish by rule a
marijuana grow site registration system to authorize production
of marijuana by a registry identification cardholder, a
designated primary caregiver who grows marijuana for the
cardholder or a person who is responsible for a marijuana grow
Enrolled House Bill 2009 (HB 2009-C) Page 547
site. The marijuana grow site registration system adopted must
require a registry identification cardholder to submit an
application to the { - department - } { + authority + } that
includes:
(a) The name of the person responsible for the marijuana grow
site;
(b) The address of the marijuana grow site;
(c) The registry identification card number of the registry
cardholder for whom the marijuana is being produced; and
(d) Any other information the { - department - }
{ + authority + } considers necessary.
(2) The { - department - } { + authority + } shall issue a
marijuana grow site registration card to a registry
identification cardholder who has met the requirements of
subsection (1) of this section.
(3) A person who has been issued a marijuana grow site
registration card under this section must display the
registration card at the marijuana grow site at all times when
marijuana is being produced.
(4) A marijuana grow site registration card must be obtained
and posted for each registry identification cardholder for whom
marijuana is being produced at a marijuana grow site.
(5) All usable marijuana, plants, seedlings and seeds
associated with the production of marijuana for a registry
identification cardholder by a person responsible for a marijuana
grow site are the property of the registry identification
cardholder and must be provided to the registry identification
cardholder upon request.
(6)(a) The { - department - } { + authority + } shall
conduct a criminal records check under ORS 181.534 of any person
whose name is submitted as a person responsible for a marijuana
grow site.
(b) A person convicted of a Class A or Class B felony under ORS
475.840 to 475.920 for the manufacture or delivery of a
controlled substance in Schedule I or Schedule II may not be
issued a marijuana grow site registration card or produce
marijuana for a registry identification cardholder for five years
from the date of conviction.
(c) A person convicted more than once of a Class A or Class B
felony under ORS 475.840 to 475.920 for the manufacture or
delivery of a controlled substance in Schedule I or Schedule II
may not be issued a marijuana grow site registration card or
produce marijuana for a registry identification cardholder.
(7) A registry identification cardholder or the designated
primary caregiver of the cardholder may reimburse the person
responsible for a marijuana grow site for the costs of supplies
and utilities associated with the production of marijuana for the
registry identification cardholder. No other costs associated
with the production of marijuana for the registry identification
cardholder, including the cost of labor, may be reimbursed.
SECTION 967. ORS 475.306 is amended to read:
475.306. (1) A person who possesses a registry identification
card issued pursuant to ORS 475.309 may engage in, and a
designated primary caregiver of such a person may assist in, the
medical use of marijuana only as justified to mitigate the
symptoms or effects of the person's debilitating medical
condition.
(2) A person who is a registry identification cardholder must
possess the registry identification card when using or
Enrolled House Bill 2009 (HB 2009-C) Page 548
transporting marijuana in a location other than the residence of
the cardholder.
(3) The { - Department of Human Services - } { + Oregon
Health Authority + } shall define by rule when a marijuana plant
is mature and when it is immature. The rule shall provide that a
plant that has no flowers and that is less than 12 inches in
height and less than 12 inches in diameter is a seedling or a
start and is not a mature plant.
SECTION 968. ORS 475.309 is amended to read:
475.309. (1) Except as provided in ORS 475.316, 475.320 and
475.342, a person engaged in or assisting in the medical use of
marijuana is excepted from the criminal laws of the state for
possession, delivery or production of marijuana, aiding and
abetting another in the possession, delivery or production of
marijuana or any other criminal offense in which possession,
delivery or production of marijuana is an element if the
following conditions have been satisfied:
(a) The person holds a registry identification card issued
pursuant to this section, has applied for a registry
identification card pursuant to subsection (9) of this section,
is the designated primary caregiver of the cardholder or
applicant, or is the person responsible for a marijuana grow site
that is producing marijuana for the cardholder and is registered
under ORS 475.304; and
(b) The person who has a debilitating medical condition, the
person's primary caregiver and the person responsible for a
marijuana grow site that is producing marijuana for the
cardholder and is registered under ORS 475.304 are collectively
in possession of, delivering or producing marijuana for medical
use in amounts allowed under ORS 475.320.
(2) The { - Department of Human Services - } { + Oregon
Health Authority + } shall establish and maintain a program for
the issuance of registry identification cards to persons who meet
the requirements of this section. Except as provided in
subsection (3) of this section, the { - department - }
{ + authority + } shall issue a registry identification card to
any person who pays a fee in the amount established by the
{ - department - } { + authority + } and provides the
following:
(a) Valid, written documentation from the person's attending
physician stating that the person has been diagnosed with a
debilitating medical condition and that the medical use of
marijuana may mitigate the symptoms or effects of the person's
debilitating medical condition;
(b) The name, address and date of birth of the person;
(c) The name, address and telephone number of the person's
attending physician;
(d) The name and address of the person's designated primary
caregiver, if the person has designated a primary caregiver at
the time of application; and
(e) A written statement that indicates whether the marijuana
used by the cardholder will be produced at a location where the
cardholder or designated primary caregiver is present or at
another location.
(3) The { - department - } { + authority + } shall issue a
registry identification card to a person who is under 18 years of
age if the person submits the materials required under subsection
(2) of this section, and the custodial parent or legal guardian
with responsibility for health care decisions for the person
under 18 years of age signs a written statement that:
Enrolled House Bill 2009 (HB 2009-C) Page 549
(a) The attending physician of the person under 18 years of age
has explained to that person and to the custodial parent or legal
guardian with responsibility for health care decisions for the
person under 18 years of age the possible risks and benefits of
the medical use of marijuana;
(b) The custodial parent or legal guardian with responsibility
for health care decisions for the person under 18 years of age
consents to the use of marijuana by the person under 18 years of
age for medical purposes;
(c) The custodial parent or legal guardian with responsibility
for health care decisions for the person under 18 years of age
agrees to serve as the designated primary caregiver for the
person under 18 years of age; and
(d) The custodial parent or legal guardian with responsibility
for health care decisions for the person under 18 years of age
agrees to control the acquisition of marijuana and the dosage and
frequency of use by the person under 18 years of age.
(4) A person applying for a registry identification card
pursuant to this section may submit the information required in
this section to a county health department for transmittal to the
{ - Department of Human Services - } { + authority + }. A
county health department that receives the information pursuant
to this subsection shall transmit the information to the
{ - Department of Human Services - } { + authority + } within
five days of receipt of the information. Information received by
a county health department pursuant to this subsection shall be
confidential and not subject to disclosure, except as required to
transmit the information to the { - Department of Human
Services - } { + authority + }.
(5)(a) The { - department - } { + authority + } shall
verify the information contained in an application submitted
pursuant to this section and shall approve or deny an application
within thirty days of receipt of the application.
(b) In addition to the authority granted to the
{ - department - } { + authority + } under ORS 475.316 to deny
an application, the
{ - department - } { + authority + } may deny an application
for the following reasons:
(A) The applicant did not provide the information required
pursuant to this section to establish the applicant's
debilitating medical condition and to document the applicant's
consultation with an attending physician regarding the medical
use of marijuana in connection with such condition, as provided
in subsections (2) and (3) of this section;
(B) The { - department - } { + authority + } determines
that the information provided was falsified; or
(C) The applicant has been prohibited by a court order from
obtaining a registry identification card.
(c) Denial of a registry identification card shall be
considered a final { - department - } { + authority + }
action, subject to judicial review. Only the person whose
application has been denied, or, in the case of a person under
the age of 18 years of age whose application has been denied, the
person's parent or legal guardian, shall have standing to contest
the { - department's - } { + authority's + } action.
(d) Any person whose application has been denied may not
reapply for six months from the date of the denial, unless so
authorized by the { - department - } { + authority + } or a
court of competent jurisdiction.
Enrolled House Bill 2009 (HB 2009-C) Page 550
(6)(a) If the { - department - } { + authority + } has
verified the information submitted pursuant to subsections (2)
and (3) of this section and none of the reasons for denial listed
in subsection (5)(b) of this section is applicable, the
{ - department - } { + authority + } shall issue a serially
numbered registry identification card within five days of
verification of the information. The registry identification card
shall state:
(A) The cardholder's name, address and date of birth;
(B) The date of issuance and expiration date of the registry
identification card;
(C) The name and address of the person's designated primary
caregiver, if any;
(D) Whether the marijuana used by the cardholder will be
produced at a location where the cardholder or designated primary
caregiver is present or at another location; and
(E) Any other information that the { - department - }
{ + authority + } may specify by rule.
(b) When the person to whom the { - department - }
{ + authority + } has issued a registry identification card
pursuant to this section has specified a designated primary
caregiver, the { - department - } { + authority + } shall
issue an identification card to the designated primary caregiver.
The primary caregiver's registry identification card shall
contain the information provided in paragraph (a) of this
subsection.
(7)(a) A person who possesses a registry identification card
shall:
(A) Notify the { - department - } { + authority + } of any
change in the person's name, address, attending physician or
designated primary caregiver.
(B) If applicable, notify the designated primary caregiver of
the cardholder and the person responsible for the marijuana grow
site that produces marijuana for the cardholder of any change in
status including, but not limited to:
(i) The assignment of another individual as the designated
primary caregiver of the cardholder;
(ii) The assignment of another individual as the person
responsible for a marijuana grow site producing marijuana for the
cardholder; or
(iii) The end of the eligibility of the cardholder to hold a
valid registry identification card.
(C) Annually submit to the { - department - }
{ + authority + }:
(i) Updated written documentation from the cardholder's
attending physician of the person's debilitating medical
condition and that the medical use of marijuana may mitigate the
symptoms or effects of the person's debilitating medical
condition; and
(ii) The name of the person's designated primary caregiver if a
primary caregiver has been designated for the upcoming year.
(b) If a person who possesses a registry identification card
fails to comply with this subsection, the card shall be deemed
expired. If a registry identification card expires, the
identification card of any designated primary caregiver of the
cardholder shall also expire.
(8)(a) A person who possesses a registry identification card
pursuant to this section and who has been diagnosed by the
person's attending physician as no longer having a debilitating
medical condition or whose attending physician has determined
Enrolled House Bill 2009 (HB 2009-C) Page 551
that the medical use of marijuana is contraindicated for the
person's debilitating medical condition shall return the registry
identification card and any other associated Oregon Medical
Marijuana Program cards to the { - department - }
{ + authority + } within 30 calendar days of notification of the
diagnosis or notification of the contraindication.
(b) If, due to circumstances beyond the control of the registry
identification cardholder, a cardholder is unable to obtain a
second medical opinion about the cardholder's continuing
eligibility to use medical marijuana before the 30-day period
specified in paragraph (a) of this subsection has expired, the
{ - department - } { + authority + } may grant the cardholder
additional time to obtain a second opinion before requiring the
cardholder to return the registry identification card and any
associated cards.
(9) A person who has applied for a registry identification card
pursuant to this section but whose application has not yet been
approved or denied, and who is contacted by any law enforcement
officer in connection with the person's administration,
possession, delivery or production of marijuana for medical use
may provide to the law enforcement officer a copy of the written
documentation submitted to the { - department - } { +
authority + } pursuant to subsection (2) or (3) of this section
and proof of the date of mailing or other transmission of the
documentation to the { - department - } { + authority + }.
This documentation shall have the same legal effect as a registry
identification card until such time as the person receives
notification that the application has been approved or denied.
(10) A registry identification cardholder has the primary
responsibility of notifying the primary caregiver and person
responsible for the marijuana grow site that produces marijuana
for the cardholder of any change in status of the cardholder. If
the { - department - } { + authority + } is notified by the
cardholder that a primary caregiver or person responsible for a
marijuana grow site has changed, the { - department - }
{ + authority + } shall notify the primary caregiver or the
person responsible for the marijuana grow site by mail at the
address of record confirming the change in status and informing
the caregiver or person that their card is no longer valid and
must be returned to the { - department - } { + authority + }.
(11) The { - department - } { + authority + } shall revoke
the registry identification card of a cardholder if a court has
issued an order that prohibits the cardholder from participating
in the medical use of marijuana or otherwise participating in the
Oregon Medical Marijuana Program under ORS 475.300 to 475.346.
The cardholder shall return the registry identification card to
the { - department - } { + authority + } within seven
calendar days of notification of the revocation. If the
cardholder is a patient, the patient shall return the patient's
card and all other associated Oregon Medical Marijuana Program
cards.
(12) The { - department - } { + authority + } and employees
and agents of the { - department - } { + authority + } acting
within the course and scope of their employment are immune from
any civil liability that might be incurred or imposed for the
performance of or failure to perform duties required by this
section.
SECTION 969. ORS 475.312 is amended to read:
475.312. (1) If a person who possesses a registry
identification card issued pursuant to ORS 475.309 chooses to
Enrolled House Bill 2009 (HB 2009-C) Page 552
have a designated primary caregiver, the person must designate
the primary caregiver by including the primary caregiver's name
and address:
(a) On the person's application for a registry identification
card;
(b) In the annual updated information required under ORS
475.309; or
(c) In a written, signed statement submitted to the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(2) A person described in this section may have only one
designated primary caregiver at any given time.
SECTION 970. ORS 475.316 is amended to read:
475.316. (1) No person authorized to possess, deliver or
produce marijuana for medical use pursuant to ORS 475.300 to
475.346 shall be excepted from the criminal laws of this state or
shall be deemed to have established an affirmative defense to
criminal charges of which possession, delivery or production of
marijuana is an element if the person, in connection with the
facts giving rise to such charges:
(a) Drives under the influence of marijuana as provided in ORS
813.010;
(b) Engages in the medical use of marijuana in a public place
as that term is defined in ORS 161.015, or in public view or in a
correctional facility as defined in ORS 162.135 (2) or youth
correction facility as defined in ORS 162.135 (6);
(c) Delivers marijuana to any individual who the person knows
is not in possession of a registry identification card;
(d) Delivers marijuana for consideration to any individual,
even if the individual is in possession of a registry
identification card;
(e) Manufactures or produces marijuana at a place other than a
marijuana grow site authorized under ORS 475.304; or
(f) Manufactures or produces marijuana at more than one
address.
(2) In addition to any other penalty allowed by law, a person
who the { - Department of Human Services - } { + Oregon
Health Authority + } finds has willfully violated the provisions
of ORS 475.300 to 475.346, or rules adopted under ORS 475.300 to
475.346, may be precluded from obtaining or using a registry
identification card for the medical use of marijuana for a period
of up to six months, at the discretion of the
{ - department - } { + authority + }.
SECTION 971. ORS 475.320 is amended to read:
475.320. (1)(a) A registry identification cardholder or the
designated primary caregiver of the cardholder may possess up to
six mature marijuana plants and 24 ounces of usable marijuana.
(b) Notwithstanding paragraph (a) of this subsection, if a
registry identification cardholder has been convicted of a Class
A or Class B felony under ORS 475.840 to 475.920 for the
manufacture or delivery of a controlled substance in Schedule I
or Schedule II, the registry identification cardholder or the
designated primary caregiver of the cardholder may possess one
ounce of usable marijuana at any given time for a period of five
years from the date of the conviction.
(2) A person authorized under ORS 475.304 to produce marijuana
at a marijuana grow site:
(a) May produce marijuana for and provide marijuana to a
registry identification cardholder or that person's designated
primary caregiver as authorized under this section.
Enrolled House Bill 2009 (HB 2009-C) Page 553
(b) May possess up to six mature plants and up to 24 ounces of
usable marijuana for each cardholder or caregiver for whom
marijuana is being produced.
(c) May produce marijuana for no more than four registry
identification cardholders or designated primary caregivers
concurrently.
(d) Must obtain and display a marijuana grow site registration
card issued under ORS 475.304 for each registry identification
cardholder or designated primary caregiver for whom marijuana is
being produced.
(e) Must provide all marijuana produced for a registry
identification cardholder or designated primary caregiver to the
cardholder or caregiver at the time the person responsible for a
marijuana grow site ceases producing marijuana for the cardholder
or caregiver.
(f) Must return the marijuana grow site registration card to
the registry identification cardholder to whom the card was
issued when requested to do so by the cardholder or when the
person responsible for a marijuana grow site ceases producing
marijuana for the cardholder or caregiver.
(3) Except as provided in subsections (1) and (2) of this
section, a registry identification cardholder, the designated
primary caregiver of the cardholder and the person responsible
for a marijuana grow site producing marijuana for the registry
identification cardholder may possess a combined total of up to
six mature plants and 24 ounces of usable marijuana for that
registry identification cardholder.
(4)(a) A registry identification cardholder and the designated
primary caregiver of the cardholder may possess a combined total
of up to 18 marijuana seedlings or starts as defined by rule of
the { - Department of Human Services - } { + Oregon Health
Authority + }.
(b) A person responsible for a marijuana grow site may possess
up to 18 marijuana seedlings or starts as defined by rule of the
{ - department - } { + authority + } for each registry
identification cardholder for whom the person responsible for the
marijuana grow site is producing marijuana.
SECTION 972. ORS 475.331 is amended to read:
475.331. (1)(a) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall create and maintain a list
of the persons to whom the { - department - }
{ + authority + } has issued registry identification cards, the
names of any designated primary caregivers and the addresses of
authorized marijuana grow sites. Except as provided in
subsection (2) of this section, the list shall be confidential
and not subject to public disclosure.
(b) The { - department - } { + authority + } shall develop
a system by which authorized employees of state and local law
enforcement agencies may verify at all times that a person is a
lawful possessor of a registry identification card or the
designated primary caregiver of a lawful possessor of a registry
identification card or that a location is an authorized marijuana
grow site.
(2) Names and other identifying information from the list
established pursuant to subsection (1) of this section may be
released to:
(a) Authorized employees of the { - department - }
{ + authority + } as necessary to perform official duties of the
{ - department - } { + authority + }; and
Enrolled House Bill 2009 (HB 2009-C) Page 554
(b) Authorized employees of state or local law enforcement
agencies, only as necessary to verify that a person is a lawful
possessor of a registry identification card or the designated
primary caregiver of a lawful possessor of a registry
identification card or that a location is an authorized marijuana
grow site. Prior to being provided identifying information from
the list, authorized employees of state or local law enforcement
agencies shall provide to the { - department - }
{ + authority + } adequate identification, such as a badge
number or similar authentication of authority.
(3) Authorized employees of state or local law enforcement
agencies that obtain identifying information from the list as
authorized under this section may not release or use the
information for any purpose other than verification that a person
is a lawful possessor of a registry identification card or the
designated primary caregiver of a lawful possessor of a registry
identification card or that a location is an authorized marijuana
grow site.
SECTION 973. ORS 475.334 is amended to read:
475.334. Any person may submit a petition to the
{ - Department of Human Services - } { + Oregon Health
Authority + } requesting that a particular disease or condition
be included among the diseases and conditions that qualify as
debilitating medical conditions under ORS 475.302. The
{ - department - } { + authority + } shall adopt rules
establishing the manner in which the { - department - }
{ + authority + } will evaluate petitions submitted under this
section. Any rules adopted pursuant to this section shall require
the { - department - } { + authority + } to approve or deny a
petition within 180 days of receipt of the petition by the
{ - department - } { + authority + }. Denial of a petition
shall be considered a final { - department - }
{ + authority + } action subject to judicial review.
SECTION 974. ORS 475.338 is amended to read:
475.338. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt all rules necessary
for the implementation and administration of ORS 475.300 to
475.346.
SECTION 975. ORS 475.565 is amended to read:
475.565. (1) In addition to any other penalty provided by law:
(a) A person who violates ORS 475.525 shall incur a civil
penalty in an amount of at least $2,000 and not more than
$10,000; and
(b) The court may order other equitable remedies including but
not limited to injunctive relief.
(2) Any fines collected under this section shall be forwarded
to the State Treasurer for deposit in the General Fund to the
credit of the { - Department of Human Services - } { + Oregon
Health Authority + }. The moneys shall be used for the
development and implementation of drug abuse prevention
activities and adolescent treatment.
SECTION 976. ORS 476.030 is amended to read:
476.030. (1) The State Fire Marshal shall enforce all statutes,
and make rules relating to:
(a) The prevention of fires.
(b) The storage and use of combustibles and explosives.
(c) The maintenance and regulation of structural fire safety
features in occupied structures and overseeing the safety of and
directing the means and adequacy of exit in case of fire from
factories, asylums, hospitals, churches, schools, halls,
Enrolled House Bill 2009 (HB 2009-C) Page 555
theaters, amphitheaters, all buildings, except private
residences, which are occupied for sleeping purposes, and all
other places where large numbers of persons work, live or
congregate from time to time for any purpose except that
structural changes shall not be required in buildings built,
occupied and maintained in conformity with state building code
regulations applicable at the time of construction.
(d) Standards for equipment used for fire protection purposes
within this state including standard thread for fire hose
couplings and hydrant fittings.
(2) The State Fire Marshal and deputies shall have such powers
and perform such other duties as are prescribed by law.
(3) If, in the opinion of the State Fire Marshal, a
governmental subdivision of the state has enacted adequate
regulations generally conforming to state and national standards
concerning fire prevention, fire safety measures and building
construction requirements for safety, and if the governmental
subdivision provides reasonable enforcement of its regulations,
the State Fire Marshal may exempt the area subject to such
regulation either partially or fully from the statutes, rules and
regulations administered by the State Fire Marshal. Prior to
adoption of any such exemption, the State Fire Marshal may
request from the Department of Public Safety Standards and
Training consideration of and recommendations regarding the
exemption. The exemption may extend for a two-year period, and
may be renewed from time to time, but may be canceled by the
State Fire Marshal following 30 days' written notice if the State
Fire Marshal finds that the governmental subdivision's
regulations or enforcement thereof are not reasonably sufficient.
The governmental subdivision shall furnish a copy of such
regulations to the State Fire Marshal and shall file with the
State Fire Marshal any amendment thereto within 30 days before
the effective date of such amendment. The State Fire Marshal
shall designate a person or division within such governmental
subdivision as an approved authority for exercising functions
relating to fire prevention, fire safety measures and building
construction. Upon request of a local official having enforcement
responsibility and a showing of unusual fire hazard or other
special circumstances, the State Fire Marshal shall make
investigation and appropriate recommendations.
(4) The State Fire Marshal may investigate or cause an
investigation to be made to determine the probable cause, origin
and circumstances of any fire and shall classify such findings as
the State Fire Marshal may find appropriate to promote fire
protection and prevention.
(5) The State Fire Marshal shall provide training in fire
safety inspection to the Department of Human Services, area
agencies { - , community mental health and developmental
disabilities programs - } { + , the Oregon Health Authority,
community mental health programs, developmental disabilities
programs + } and { - to - } designees of the Long Term Care
Ombudsman. If an adult foster home has been inspected by the
Department of Human Services { + , the Oregon Health Authority,
an area agency, a community mental health program or a
developmental disabilities program + } { - , an area agency or
community mental health and developmental disabilities
program - } and the agency conducting the inspection reasonably
believes that the adult foster home is not in compliance with
applicable fire safety rules, the agency conducting the
inspection may request the State Fire Marshal to inspect or cause
Enrolled House Bill 2009 (HB 2009-C) Page 556
an inspection to be made. If a designee of the Long Term Care
Ombudsman, in the course of visiting an adult foster home,
believes that the adult foster home is not in compliance with
applicable fire safety rules, the designee shall report the
problem to the appropriate agency to request a fire safety
inspection by the office of the State Fire Marshal or by a
designated representative of the office of the State Fire
Marshal.
(6) Upon the request of the Department of Human Services { + ,
the Oregon Health Authority, an area agency, a community mental
health program or a developmental disabilities program + },
{ - an area agency or community mental health and developmental
disabilities program, - } the State Fire Marshal shall inspect
or cause an inspection to be made to determine if the adult
foster home is in compliance with rules jointly adopted by the
Department of Human Services and the State Fire Marshal
establishing fire safety standards for adult foster homes.
(7) As used in subsections (5) and (6) of this section:
(a) 'Adult foster home' has the meaning given that term in ORS
443.705.
(b) 'Area agency' has the meaning given that term in ORS
410.040.
{ - (c) 'Community mental health and developmental
disabilities program' means a program established under ORS
430.620. - }
{ + (c) 'Community mental health program' means a program
established under ORS 430.620 (1)(b).
(d) 'Developmental disabilities program' means a program
established under ORS 430.620 (1)(a). + }
SECTION 977. ORS 478.260 is amended to read:
478.260. (1) The district board shall select a fire chief
qualified by actual experience as a firefighter and fire
precautionist, or otherwise, and assistants, volunteer or
otherwise, and fix their compensation. The fire chief shall be
responsible for the equipment and properties of the district.
Under the direction of the board, the fire chief shall be
responsible for the conduct of the { + fire + } department.
(2) The board, with advice and counsel of the fire chief, shall
select the location of the fire house or houses or headquarters
of the fire department of the district. Such sites shall be
chosen with a view to the best service to the residents and
properties of the whole district and may be acquired by purchase
or exercise of the powers of eminent domain in the manner
provided by ORS chapter 35. The board may purchase apparatus and
equipment as needed by the district, and provide a water system,
ponds or reservoirs for the storage of water for fire-fighting
purposes. Or the board may contract with water companies or
districts, or both, for water service and facilities at a rate of
compensation mutually agreed upon. The board also may divide the
district into zones or subdivisions and provide an adequate
system or code of fire alarms or signals by telephone, bell,
whistle, siren or other means of communication.
(3) A district may operate or acquire and operate, or contract
for the operation of, emergency medical service equipment and
vehicles both within and without the boundaries of the district.
A district may conduct ambulance operations only in conformance
with a county plan adopted under ORS 682.062 for ambulance
services and ambulance service areas and with rules of the
{ - Department of Human Services - } { + Oregon Health
Authority + } relating to such services and service areas.
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Service authorized under a county plan includes authorization for
a district to provide ambulance services by intergovernmental
agreement with any other unit of local government designated by
the plan to provide ambulance services.
(4) As used in this section, 'ambulance services' has the
meaning given that term in ORS 682.027.
SECTION 978. ORS 479.215 is amended to read:
479.215. (1) Except as provided in subsection (3) of this
section or in ORS 479.217, the Department of Human Services
{ - shall - } { + or the Oregon Health Authority may + } not
issue an initial license or an initial certificate of approval to
any institution when the State Fire Marshal, or an approved
representative as provided in subsection (3) of this section,
notifies in writing that the institution is not in substantial
compliance with all applicable laws and rules relating to safety
from fire established pursuant to ORS 476.030.
(2) On January 1st of each year or as soon thereafter as
practicable { + , + } the department { + and the authority + }
shall furnish the State Fire Marshal with a complete list of all
institutions licensed or approved by { - it - } { + the
department or the authority + } within the State of Oregon.
(3) The State Fire Marshal, deputy or the approved authority
shall make or have made at least once each year an inspection of
any such licensed or approved institution to determine its
substantial compliance with the laws and rules as provided in
subsection (1) of this section. If any required corrective
measures are not completed within the reasonable time fixed or an
extension thereof made by order of the inspecting authority, the
department { + or the Oregon Health Authority + } shall be
notified of the fact of noncompliance and appropriate action
shall be initiated in accordance with provisions of ORS 476.030
and 479.170. Except as provided in ORS 479.217, if, at any time,
the State Fire Marshal, or deputy, or the approved authority
notifies the department { + or the Oregon Health Authority + }
in writing that an institution is not in substantial compliance
with all applicable laws and rules as provided in subsection (1)
of this section, the { - department - } { + licensing
agency + } shall deny, withhold, suspend or revoke the license or
certificate of approval of the institution.
(4) When an area has been exempted by the State Fire Marshal
under ORS 476.030, certification, annual inspection and
notification of noncompliance when appropriate, shall be made and
performed by the approved authority of the governmental
subdivision having jurisdiction in such area.
SECTION 979. ORS 479.217 is amended to read:
479.217. (1) In lieu of an inspection approval by the State
Fire Marshal or the approved authority of a governmental
subdivision having jurisdiction in an area exempted by the State
Fire Marshal, under ORS 479.215 for institutions licensed under
ORS 412.001 to 412.161, 418.005 to 418.025, 418.205 to 418.315,
418.625 to 418.685, 418.647, 441.015 to 441.087, 441.525 to
441.595, 441.815, 441.820, 441.990 { + , + } { - and - }
442.400 to 442.463 or
{ - licensed by the Department of Human Services in accordance
with ORS - } 443.400 to 443.455, the State Fire Marshal or the
approved authority may issue a temporary permit which meets the
requirements of ORS 479.215 for licensing of such institutions.
The temporary permit may be issued only when it appears that:
(a) The facilities for protection from fire in an institution
are adequate so that the institution can operate without
Enrolled House Bill 2009 (HB 2009-C) Page 558
jeopardizing the health or safety of its residents or patients;
and
(b) The institution can comply with all applicable laws and
rules relating to safety from fire within a period of two years
from the date of issuance of the temporary permit.
(2) In issuing the temporary permit, the State Fire Marshal or
approved authority of the governmental subdivision having
jurisdiction in an exempt area may require that during the
two-year period in which the temporary permit is in effect:
(a) Plans for compliance with all applicable laws and rules
relating to safety from fire be submitted with the application
for a temporary permit;
(b) Periodic reports be submitted on the progress of the plans
for compliance; and
(c) Special temporary provisions specified by the State Fire
Marshal or the approved authority be maintained for the
protection from fire of the residents or patients of the
institution.
(3) If at any time, the State Fire Marshal or the approved
authority determines that the facilities for protection from fire
at the institution are no longer adequate to protect the
residents or patients or that the requirements imposed under
subsection (2) of this section are not being maintained, the
State Fire Marshal or the approved authority shall cancel the
temporary permit and shall notify the { - Department of Human
Services - } { + licensing agency + } of such cancellation.
(4) Extensions and renewals may be granted on the temporary
permit.
SECTION 980. ORS 479.220 is amended to read:
479.220. When application is made for the initial issuance or
reinstatement of a license or certificate of approval to operate
and maintain an institution, or for an enlargement or addition to
a licensed or approved institution, the { - Department of Human
Services - } { + licensing agency + } shall notify in writing
the State Fire Marshal, and the State Fire Marshal or deputy, or
the approved authority in the case of an institution located in
an area exempted under ORS 476.030, shall within 30 days inspect
the institution as authorized by ORS 476.150 and within that time
shall notify the { - department - } { + licensing agency + }
in writing when the institution is not substantially in
compliance with all applicable laws and rules.
SECTION 981. ORS 480.225 is amended to read:
480.225. (1) A person is eligible for a certificate of
possession under ORS 480.235 if:
(a) The person has not been convicted, or found guilty except
for insanity under ORS 161.295, of a misdemeanor involving
violence, as defined in ORS 166.470, within the previous four
years. A person who has been so convicted is eligible under this
subsection following the expiration of seven years after the date
of final and unconditional discharge from all imprisonment,
probation and parole resulting from the conviction.
(b) The person has not been convicted, or found guilty except
for insanity under ORS 161.295, of, and is not under indictment
for, any felony.
(c) The person is not a fugitive from justice, has no
outstanding warrants for arrest and is not free on any form of
pretrial release for any offenses listed in paragraphs (a) and
(b) of this subsection.
(d) The person has not been determined to be mentally ill under
ORS 426.130 and 430.397 to 430.401 or mentally retarded under ORS
Enrolled House Bill 2009 (HB 2009-C) Page 559
427.290. A person who previously has been so determined is
eligible under this subsection if, at the time of application for
such a certificate, the person produces a certified copy of a
full discharge from the proper state hospital. The
{ - Department of Human Services - } { + Oregon Health
Authority + } shall provide the State Fire Marshal with direct
electronic access to the { - department's - }
{ + authority's + } database of information identifying persons
meeting the criteria of this section who were committed or
subject to an order under ORS 426.130. The State Fire Marshal and
the
{ - Department of Human Services - } { + authority + } shall
enter into an agreement describing the access to information
under this subsection.
(e) The person is at least 21 years of age.
(f) The person does not use a fictitious name or make a
material misrepresentation in application for such a certificate.
(g)(A) The person has not been convicted of, and is not under
indictment for, a criminal offense involving a controlled
substance as defined in ORS 475.005, other than the offense of
driving under the influence of intoxicants.
(B) Notwithstanding subparagraph (A) of this paragraph, a
person who has had a certificate denied or revoked due to
conviction of a criminal offense involving a controlled substance
is eligible under this section following the expiration of seven
years after the date of final and unconditional discharge from
all imprisonment, probation and parole resulting from the
conviction.
(h) The person has been discharged from the jurisdiction of the
juvenile court for more than four years for an act that, if
committed by an adult, would constitute a felony or a misdemeanor
involving violence, as defined in ORS 166.470.
(i) The person is not the subject of a restraining order that
alleges the person's possession of explosives presents a credible
threat to another person.
(j) The person has passed an examination administered by the
State Fire Marshal that assesses the person's knowledge of safety
in the transportation and storage of explosives as required under
federal and state laws and regulations pertaining to explosives.
The State Fire Marshal shall examine each applicant prior to
issuance of a certificate of possession to the applicant. The
State Fire Marshal may by rule establish and collect an
examination fee in an amount necessary to cover the cost of
administering the examination.
(k) The person certifies on the application for a certificate
of possession that all explosives in the person's possession will
be used, stored and transported in accordance with federal, state
and local requirements.
(L) The person certifies that all explosives will be possessed,
used, stored and transported in accordance with federal, state
and local requirements.
(2) Subsection (1)(a) and (b) of this section does not apply to
a conviction or indictment that has been expunged from a person's
record under the laws of this state or equivalent laws of another
jurisdiction.
SECTION 982. ORS 497.162 is amended to read:
497.162. (1) Upon application of the Oregon Youth
Authority { + , the Oregon Health Authority + } or the Department
of Human Services, the State Fish and Wildlife Commission shall
issue, without fee, a license to angle for the temporary use of
Enrolled House Bill 2009 (HB 2009-C) Page 560
any person in a state institution as { - defined - }
{ + described + } in ORS 179.610, any student in a youth
correction facility or related camps or programs operated by the
Oregon Youth Authority, any child placed by the department and
under the care of a foster home or a private nonprofit
child-caring agency certified by the department, or any person in
{ - a department alternatives - } { + an alternative + } to
state hospitalization program as { - defined - }
{ + described + } in ORS 430.630 (2)(b) or (c). The licenses
issued under this subsection shall be in bearer form and, subject
to applicable laws and regulations relating to angling, shall be
used as the { - authority or department - } { + agency
applying for the license + } directs.
(2) Upon application of the Department of Human Services, the
commission shall issue, without fee, a license to take shellfish
for the temporary use of any child placed by the department and
under the care of a foster home or a private nonprofit
child-caring agency certified by the department. The licenses
issued under this subsection shall be in bearer form and, subject
to applicable laws and regulations relating to taking shellfish,
shall be used as the department directs.
(3) Upon application of the director of any veteran's
administration hospital or domiciliary within this state, the
commission shall issue, without fee, to each hospital or
domiciliary 30 licenses to angle or to take shellfish for the
temporary use of any person who is a patient or resident in the
hospital or domiciliary. The licenses issued under this
subsection shall be in bearer form and, subject to applicable
laws and regulations relating to angling and to taking shellfish,
shall be used as the director of the hospital or domiciliary
provides.
SECTION 983. ORS 527.710 is amended to read:
527.710. (1) In carrying out the purposes of ORS 527.610 to
527.770, 527.990 (1) and 527.992, the State Board of Forestry
shall adopt, in accordance with applicable provisions of ORS
chapter 183, rules to be administered by the State Forester
establishing standards for forest practices in each region or
subregion.
(2) The rules shall ensure the continuous growing and
harvesting of forest tree species. Consistent with ORS 527.630,
the rules shall provide for the overall maintenance of the
following resources:
(a) Air quality;
(b) Water resources, including but not limited to sources of
domestic drinking water;
(c) Soil productivity; and
(d) Fish and wildlife.
(3)(a) In addition to its rulemaking responsibilities under
subsection (2) of this section, the board shall collect and
analyze the best available information and establish inventories
of the following resource sites needing protection:
(A) Threatened and endangered fish and wildlife species
identified on lists that are adopted, by rule, by the State Fish
and Wildlife Commission or are federally listed under the
Endangered Species Act of 1973 as amended;
(B) Sensitive bird nesting, roosting and watering sites;
(C) Biological sites that are ecologically and scientifically
significant; and
(D) Significant wetlands.
Enrolled House Bill 2009 (HB 2009-C) Page 561
(b) The board shall determine whether forest practices would
conflict with resource sites in the inventories required by
paragraph (a) of this subsection. If the board determines that
one or more forest practices would conflict with resource sites
in the inventory, the board shall consider the consequences of
the conflicting uses and determine appropriate levels of
protection.
(c) Based upon the analysis required by paragraph (b) of this
subsection, and consistent with the policies of ORS 527.630, the
board shall adopt rules appropriate to protect resource sites in
the inventories required by paragraph (a) of this subsection.
(4) Before adopting rules under subsection (1) of this section,
the board shall consult with other agencies of this state or any
of its political subdivisions that have functions with respect to
the purposes specified in ORS 527.630 or programs affected by
forest operations. Agencies and programs subject to consultation
under this subsection include, but are not limited to:
(a) Air and water pollution programs administered by the
Department of Environmental Quality under ORS chapters 468A and
468B and ORS 477.013 and 477.515 to 477.532;
(b) Mining operation programs administered by the Department of
Geology and Mineral Industries under ORS 516.010 to 516.130 and
ORS chapter 517;
(c) Game fish and wildlife, commercial fishing, licensing,
wildlife and bird refuge and fish habitat improvement tax
incentive programs administered by the State Department of Fish
and Wildlife under ORS 272.060, 315.134 and ORS chapters 496,
498, 501, 506 and 509;
(d) Park land, Willamette River Greenway, scenic waterway and
recreation trail programs administered by the State Parks and
Recreation Department under ORS 358.480 to 358.545, 390.310 to
390.368, 390.805 to 390.925, 390.950 to 390.989 and 390.121;
(e) The programs administered by the Columbia River Gorge
Commission under Public Law 99-663 and ORS 196.110 and 196.150;
(f) Removal and fill, natural heritage conservation and natural
heritage conservation tax incentive programs administered by the
State Land Board and the Department of State Lands under ORS
196.800 to 196.900 and 273.553 to 273.591;
(g) Federal Safe Drinking Water Act programs administered by
the { - Department of Human Services - } { + Oregon Health
Authority + } under ORS 448.273 to 448.990;
(h) Natural heritage conservation programs administered by the
Natural Heritage Advisory Council under ORS 273.553 to 273.591;
(i) Open space land tax incentive programs administered by
cities and counties under ORS 308A.300 to 308A.330;
(j) Water resources programs administered by the Water
Resources Department under ORS 536.220 to 536.540; and
(k) Pesticide control programs administered by the State
Department of Agriculture under ORS chapter 634.
(5) In carrying out the provisions of subsection (4) of this
section, the board shall consider and accommodate the rules and
programs of other agencies to the extent deemed by the board to
be appropriate and consistent with the purposes of ORS 527.630.
(6) The board shall adopt rules to meet the purposes of another
agency's regulatory program where it is the intent of the board
to administer the other agency's program on forestland and where
the other agency concurs by rule. An operation performed in
compliance with the board's rules shall be deemed to comply with
the other agency's program.
Enrolled House Bill 2009 (HB 2009-C) Page 562
(7)(a) The board may enter into cooperative agreements or
contracts necessary in carrying out the purposes specified in ORS
527.630.
(b) The State Forestry Department shall enter into agreements
with appropriate state agencies for joint monitoring of the
effectiveness of forest practice rules in protecting forest
resources and water quality.
(8) If, based upon the study completed pursuant to section 15
(2)(f), chapter 919, Oregon Laws 1991, the board determines that
additional rules are necessary to protect forest resources
pursuant to ORS 527.630, the board shall adopt forest practice
rules that reduce to the degree practicable the adverse impacts
of cumulative effects of forest practices on air and water
quality, soil productivity, fish and wildlife resources and
watersheds. Such rules shall include a process for determining
areas where adverse impacts from cumulative effects have occurred
or are likely to occur, and may require that a written plan be
submitted for harvests in such areas.
(9)(a) The State Forester, in cooperation with the State
Department of Fish and Wildlife, shall identify streams for which
restoration of habitat would be environmentally beneficial. The
State Forester shall select as a priority those streams where
restoration efforts will provide the greatest benefits to fish
and wildlife, and to streambank and streambed stability.
(b) For those streams identified in paragraph (a) of this
subsection, the State Forester shall encourage landowners to
enter into cooperative agreements with appropriate state agencies
for conduct of restoration activities.
(c) The board, in consultation with appropriate state agencies,
shall study and identify methods for restoring or enhancing fish
and wildlife populations through restoration and rehabilitation
of sites beneficial to fish and wildlife.
(d) The board shall adopt rules to implement the findings of
this subsection.
(10) In addition to its responsibilities under subsections (1)
to (3) of this section, the board shall adopt rules to reduce the
risk of serious bodily injury or death caused by a rapidly moving
landslide directly related to forest practices. The rules shall
consider the exposure of the public to these safety risks and
shall include appropriate practices designed to reduce the
occurrence, timing or effects of rapidly moving landslides. As
used in this subsection, 'rapidly moving landslide' has the
meaning given that term in ORS 195.250.
SECTION 984. ORS 537.532 is amended to read:
537.532. (1) Notwithstanding any other provision of law, the
injection into aquifers of water that complies with drinking
water standards established by the { - Department of Human
Services - } { + Oregon Health Authority + } under ORS 448.273
under an aquifer storage and recovery limited license or permit:
(a) Shall not be considered a waste, contaminant or pollutant;
(b) Shall be exempt from the requirement to obtain a discharge
permit under ORS 468B.050 or 468B.053 or a concentration limit
variance from the Department of Environmental Quality;
(c) Shall comply with all other applicable local, state or
federal laws; and
(d) May be located within or outside an urban growth boundary
in conformance with land use laws.
(2) In order to continue to protect the high quality of
Oregon's aquifers for present and future uses, the Legislative
Assembly recognizes the need to minimize concentrations of
Enrolled House Bill 2009 (HB 2009-C) Page 563
constituents in the injection source water that are not naturally
present in the aquifer. Each aquifer storage and recovery limited
license or permit shall include conditions to minimize, to the
extent technically feasible, practical and cost-effective, the
concentration of constituents in the injection source water that
are not naturally present in the aquifer. In no case may an
aquifer storage and recovery limited license or permit establish
concentration limits for water to be injected in excess of the
standards established by the { - Department of Human
Services - } { + authority + } under ORS 448.273 or the maximum
measurable levels established by the Environmental Quality
Commission under ORS 468B.165, whichever are more stringent.
(3) Except as otherwise provided, if the injection source water
contains constituents regulated under ORS 448.273 or 468B.165
that are detected at greater than 50 percent of the established
levels, the aquifer storage and recovery limited license or
permit may require the permittee to employ, or continue the
employment of, technically feasible, practical and cost-effective
methods to minimize concentrations of such constituents in the
injection source water. Constituents that have a secondary
maximum contaminant level or constituents that are associated
with disinfection of the water may be injected into the aquifer
up to the standards established under ORS 448.273.
(4) The Water Resources Department may, based upon valid
scientific data, further limit certain constituents in the
injection source water if the department finds the constituents
will interfere with or pose a threat to the maintenance of the
water resources of the state for present or future beneficial
uses.
SECTION 985. ORS 537.534 is amended to read:
537.534. (1) In accordance with this section, the Water
Resources Commission shall establish rules for the permitting and
administration of aquifer storage and recovery projects. The
rules shall establish the Water Resources Department as the sole
permitting agency for the projects, but the Department of
Environmental Quality and the { - Department of Human
Services - } { + Oregon Health Authority + } may comment on
permits for a project and recommend conditions to be included on
the permit. When necessary, the applicant also shall obtain land
use and development approval from a local government.
(2) Notwithstanding the provisions of ORS 537.130, the Water
Resources Commission shall establish by rule a procedure to allow
a person to obtain a limited license to store and use water
injected into an underground aquifer for aquifer storage and
recovery testing purposes for a short term or fixed duration
after the person complies with the notice provision set forth in
ORS 537.144. The rules shall provide a 30-day public comment
period before issuance of a limited license. The Water Resources
Department may attach conditions to the limited license regarding
monitoring, sampling and rates of recovery up to 100 percent of
the injection quantity. Aquifer storage and recovery under a
limited license may be conditioned by the Water Resources
Department to protect existing ground water rights that rely upon
the receiving aquifer and the injection source water. The Water
Resources Department may revoke or modify the limited license to
use the stored water acquired under a limited license if that use
causes injury to any other water right or to a minimum perennial
streamflow. The Water Resources Director may issue a limited
license for aquifer storage and recovery purposes for a term of
Enrolled House Bill 2009 (HB 2009-C) Page 564
not more than five years. The license may be renewed if the
applicant demonstrates further testing is necessary.
(3) To obtain a limited license for aquifer storage and
recovery, the applicant shall provide to the Water Resources
Department:
(a) Well construction information;
(b) Test results of the quality of the injection source water;
(c) Test results of the quality of the receiving aquifer water;
(d) The proposed injected water storage time, recovery rates
and recovery schedule;
(e) Preliminary hydrogeologic information including a
description of the aquifer, estimated flow direction and rate of
movement, allocation of surface water, springs or wells within
the area affected by aquifer storage and recovery wells;
(f) The fee established by rule by the commission pursuant to
ORS 536.050 (1)(L); and
(g) Any other information required by rule of the commission.
(4) Only after completion of a test program under a limited
license issued under subsection (3) of this section may the
applicant apply for a permanent aquifer storage and recovery
permit. Each application for an aquifer storage and recovery
permit shall be accompanied by the fee set forth in ORS 536.050
for examination of an application for a permit to store water.
The Water Resources Department shall be the sole permitting
agency for the project and may place conditions on the permit
consistent with rules adopted by the commission, but the
Department of Environmental Quality and the { - Department of
Human Services - } { + Oregon Health Authority + } may review,
comment on and recommend conditions to be included on the permit.
When necessary, the applicant shall obtain land use and
development approval from a local government. Where existing
water rights for the injection source water have been issued, the
Water Resources Department shall receive comments from interested
parties or agencies, but the public interest review standards
shall apply only to the matters raised by the aquifer storage and
recovery permit application in the same manner as any new water
right application, not to the underlying water rights. If new
water rights for injection source water and aquifer storage and
recovery are necessary, then the public interest review standards
shall apply to the new permit application in the same manner as
any new water right application. The Water Resources Director may
refer policy matters to the commission for decision.
(5) The commission shall adopt rules consistent with this
section to implement an aquifer storage and recovery program. The
rules shall include:
(a) Requirements for reporting and monitoring the aquifer
storage and recovery project aquifer impacts and for constituents
reasonably expected to be found in the injection source water.
(b) Provisions that allow any person operating an aquifer
storage and recovery project under a permit, upon approval by the
Water Resources Department, to recover up to 100 percent of the
water stored in the aquifer storage facility if valid scientific
data gathered during operations under the limited license or
permit demonstrate that the injected source water is not lost
through migration or other means and that ground water otherwise
present in the aquifer has not been irretrievably lost as a
result of aquifer storage or retrieval. The Water Resources
Department may place such other conditions on withdrawal of
stored water necessary to protect the public health and
Enrolled House Bill 2009 (HB 2009-C) Page 565
environment, including conditions allowing reconsideration of the
permit to comply with ORS 537.532.
(c) The procedure for allowing the Department of Environmental
Quality and the { - Department of Human Services - } { +
Oregon Health Authority + } to comment on and recommend permit
conditions.
(6) The use of water under a permit as injection source water
for an aquifer storage and recovery project up to the limits
allowed in subsection (5)(b) of this section shall not affect the
priority date of the water right permit or otherwise affect the
right evidenced by the permit.
(7) The holder of a permit for aquifer storage and recovery
shall apply for a transfer or change of use if the use of
recovered water is different from that which is allowed in the
source water permit or certificate.
SECTION 986. ORS 541.845 is amended to read:
541.845. (1) In accordance with the applicable provisions of
ORS chapter 183, the Water Resources Commission may adopt rules
necessary to carry out ORS 541.700 to 541.855.
(2) In adopting rules establishing guidelines or criteria for
awarding loans or grants for drinking water projects, the
commission shall coordinate the Water Resources Department's
rulemaking process with the Economic and Community Development
Department and the { - Department of Human Services - }
{ + Oregon Health Authority + } in order to ensure that rules
adopted under this subsection are consistent with rules adopted
under ORS 285B.563 and 431.120. The rules adopted under this
subsection shall:
(a) Require the installation of meters on all new active
service connections from any municipal drinking water
distribution lines funded under ORS 285B.560 to 285B.599,
431.120, 541.700, 541.705, 541.755, 541.765, 541.830 and 541.845;
and
(b) Require a plan, to be adopted by the municipality, for
installation of meters on all service connections throughout the
drinking water system.
(3) As used in this section, 'service connection' does not
include fire hydrants, fire sprinkler system connections, line
blow-offs and drains, standby emergency interties, valve
controlled drinking fountains and other similar intermittently
used connections.
SECTION 987. ORS 545.101 is amended to read:
545.101. (1) When a subdivision is platted after September 13,
1975, under ORS 92.010 to 92.190, if the subdivision has three or
more tracts on each acre of land within the subdivision, the
subdivision shall be excluded and taken from the district
pursuant to ORS 545.097 to 545.126 at the time that the plat is
approved by the appropriate governing body.
(2) The exclusion provided in subsection (1) of this section
shall not apply to a district which:
(a) Also supplies domestic water approved by the
{ - Department of Human Services - } { + Oregon Health
Authority + } to the subdivision; or
(b) Agrees to supply water to the subdivision. A district may
require as a condition of any agreement that:
(A) The subdivider install underground pipe from the district's
designated point of delivery to each lot or parcel in the
subdivision as shown on the plat approved by the appropriate
governing body;
Enrolled House Bill 2009 (HB 2009-C) Page 566
(B) The subdivider install a meter or other adequate measuring
device at the delivery point to the subdivision and for each lot
or parcel;
(C) The subdivider provide adequate easements for the delivery
system and make provision for the maintenance and repair of the
delivery system; and
(D) The subdivider provide any other measures that the district
considers necessary for the proper and efficient delivery of
water to the subdivision and for the efficient administration of
such delivery.
(3) Nothing in subsection (2)(b) of this section requires a
district to agree to deliver water to a subdivision.
SECTION 988. ORS 547.045 is amended to read:
547.045. (1) Whenever any diking or drainage district is sought
to be created and organized or is created and organized in the
manner provided by law, within the boundaries of which are
located any lands belonging to the state that have been acquired
or used by or for any state institution described in ORS 179.321,
the Director of Human Services { + or the Director of the Oregon
Health Authority + } may sign any petition or objections thereto
for the organization of such district and exercise on behalf of
the state with respect to the district and the land therein
belonging to the state, all the rights and privileges of a
landowner within the district.
(2) Whenever any such district or proposed district includes
any lands belonging to any public body as defined in ORS 174.109,
the presiding officer of such public body, or other member of the
governing body of such public body, when thereto authorized by a
resolution of the governing body thereof, may sign such petition
or objection thereto on behalf of the public body, and exercise
with respect to the district and the land therein belonging to
the public body, all the rights and privileges of a landowner in
the district, including the right to be a supervisor of the
district.
(3) Lands belonging to a public body as defined in ORS 174.109
shall be subject to the same burdens and liabilities and entitled
to the same benefits as lands in the district belonging to
private individuals. The Department of Human Services { + or the
Oregon Health Authority + } may pay from any appropriations made
for the operation and maintenance of any institution, the lands
of which have been included in any diking or drainage district,
any charges billed to the department or any assessments levied
against such lands by the diking or drainage district.
SECTION 989. ORS 561.740 is amended to read:
561.740. (1) The Director of Agriculture and an appointee of
the { - Director of Human Services - } { + Director of the
Oregon Health Authority + } who has experience in health program
administration may enter into memoranda of understanding or other
intergovernmental agreements on behalf of this state for the
purpose of furthering collaboration between this state and
federal agencies that regulate the growing of biopharmaceutical
crops. A memorandum or other agreement entered into under this
section shall be designed to increase state input to the federal
biopharm permitting system on biopharmaceutical crop issues and
requirements of specific interest to this state.
(2) To the extent authorized under federal and state law, or
under any memorandum of understanding or other agreement entered
into under subsection (1) of this section, the Director of
Agriculture and the appointee of the Director of { - Human
Enrolled House Bill 2009 (HB 2009-C) Page 567
Services - } { + the Oregon Health Authority + }, or their
designees:
(a) Notwithstanding ORS 192.410 to 192.505, shall refuse to
disclose any biopharm permit application or related
biopharmaceutical crop information received from the United
States Department of Agriculture's Animal and Plant Health
Inspection Service, or from any successor to that service, that
the United States Department of Agriculture has determined to be
confidential business information.
(b) May review biopharm permit applications and
biopharmaceutical crop information submitted to the United States
Department of Agriculture.
(c) May administer and conduct site inspections and monitoring
of any biopharmaceutical crops grown in Oregon.
(d) If there is evidence that biopharmaceutical crops are
endangering Oregon agriculture, horticulture or forest production
or public health, may take appropriate enforcement action.
(e) May charge a biopharm permit applicant or holder fees for
state oversight, services or activities under this section. Fees
charged under this paragraph may not total more than $10,000 and
must be reasonably calculated to reimburse the state for the
actual cost of the oversight, services or activities. Fees
collected under this paragraph shall be deposited to the credit
of the Department of Agriculture Service Fund and are
continuously appropriated to the State Department of Agriculture
for the purpose of carrying out this section.
SECTION 990. ORS 609.652 is amended to read:
609.652. As used in ORS 609.654:
(1)(a) 'Aggravated animal abuse' means any animal abuse as
described in ORS 167.322.
(b) 'Aggravated animal abuse' does not include:
(A) Good animal husbandry, as defined in ORS 167.310; or
(B) Any exemption listed in ORS 167.335.
(2) 'Law enforcement agency' means:
(a) Any city or municipal police department.
(b) Any county sheriff's office.
(c) The Oregon State Police.
(d) A law enforcement division of a county or municipal animal
control agency that employs sworn officers.
(3) 'Public or private official' means:
(a) A physician, including any intern or resident.
(b) A dentist.
(c) A school employee.
(d) A licensed practical nurse or registered nurse.
(e) An employee of the Department of Human Services { + ,
Oregon Health Authority + }, State Commission on Children and
Families, Child Care Division of the Employment Department, the
Oregon Youth Authority, a county health department, a community
mental health
{ - and - } { + program, a community + } developmental
disabilities program, a county juvenile department, a licensed
child-caring agency or an alcohol and drug treatment program.
(f) A peace officer.
(g) A psychologist.
(h) A member of the clergy.
(i) A licensed clinical social worker.
(j) An optometrist.
(k) A chiropractor.
(L) A certified provider of foster care, or an employee
thereof.
Enrolled House Bill 2009 (HB 2009-C) Page 568
(m) An attorney.
(n) A naturopathic physician.
(o) A licensed professional counselor.
(p) A licensed marriage and family therapist.
(q) A firefighter or emergency medical technician.
(r) A court appointed special advocate, as defined in ORS
419A.004.
(s) A child care provider registered or certified under ORS
657A.030 and 657A.250 to 657A.450.
(t) A member of the Legislative Assembly.
SECTION 991. ORS 616.010 is amended to read:
616.010. The duty of administration and enforcement of all
regulatory legislation applying to:
(1) The production, processing and distribution of all food
products or commodities of agricultural origin shall, in addition
to such further legislation as shall specifically name the State
Department of Agriculture as the administering agency, be
performed by the department to the exclusion of any other
department not so specifically named.
(2) The sanitation of establishments where food or drink is
consumed on the premises where sold, or to sanitary practices
used in such establishments, shall be performed by the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
SECTION 992. ORS 616.015 is amended to read:
616.015. In order to more effectively utilize the agencies of
the state in the public interest and without unnecessary
duplication and expense, the relationship between the production,
processing and distribution of food and the public health hereby
is recognized. Therefore there shall be the fullest cooperation
between the { - Department of Human Services - } { + Oregon
Health Authority + } and the State Department of Agriculture.
SECTION 993. ORS 616.020 is amended to read:
616.020. (1) In addition to any { - Department of Human
Services - } { + Oregon Health Authority + } survey,
investigation or inquiry authorized by law that involves the
production, processing or distribution of agricultural products,
the { - Department of Human Services - } { + authority + }
shall make such further surveys, investigations or inquiries as
may be requested by the Director of Agriculture for the purpose
of showing the manner in which the production, processing or
distribution of agricultural products may affect the public
health.
(2) In order that maximum protection to the public health may
result from the activities of the { - Department of Human
Services - } { + authority + } and the State Department of
Agriculture, the { - Department of Human Services - }
{ + authority + } shall notify the Director of Agriculture in
writing of any contemplated survey that affects or may affect
agricultural products that are under the regulation of the
{ - State Department of Agriculture - } { + department + }.
The notice shall cover in detail the scope of the survey under
consideration, and the reasons therefor. However, this section
shall not be construed as prohibiting the { - Department of
Human Services - } { + authority + } from taking immediate
action in any case where such action seems necessary in the
interests of public health. The written notice is not required in
the case of a survey instituted on the request of the Director of
Agriculture.
Enrolled House Bill 2009 (HB 2009-C) Page 569
(3) Not less than 30 days after the completion of any such
survey, the { - Department of Human Services - }
{ + authority + } shall file with the Director of Agriculture a
certified copy of its report. The report shall include the
findings of the { - Department of Human Services - }
{ + authority + } with respect to all matters covered thereby.
Whenever the findings in the report of any survey, investigation
or inquiry made by the { - Department of Human Services - }
{ + authority + } show any hazard to public health existing
incident to the production, processing or distribution of any
agricultural commodity, the State Department of Agriculture shall
take such action as may be necessary and within the scope of its
resources to remove such hazards.
SECTION 994. ORS 616.077 is amended to read:
616.077. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt any rules necessary
to implement the policy established in ORS 616.073.
(2) Rules adopted by the { - Department of Human Services - }
{ + authority + } under subsection (1) of this section to
implement the policy of the State of Oregon to prohibit the use
of sulfites in fresh foods and foods to be consumed without
cooking do not apply to a food processing establishment licensed
under ORS 616.695 to 616.755.
SECTION 995. ORS 616.330 is amended to read:
616.330. ORS 616.205 to 616.215, 616.225 to 616.256, 616.286,
616.295, 616.310, 616.315, 616.325, 616.341, 616.350 to 616.366,
616.790, 616.992, rules adopted by the { - Department of Human
Services - } { + Oregon Health Authority + } under ORS 616.077
(1) and this section do not apply to alcoholic beverages.
SECTION 996. ORS 616.711 is amended to read:
616.711. (1) No license or duplicate of a license, as
prescribed in ORS 616.706, is necessary for food establishments
where the principal activity is the receiving, storage, sorting,
cleaning and packing of fresh fruits and vegetables.
(2) All provisions of ORS 616.695 to 616.755 other than
licensing apply to food establishments set forth in subsection
(1) of this section.
(3) The provisions of ORS 616.695 to 616.755 do not apply to:
(a) Restaurants, bed and breakfast facilities, commissaries,
vending machines and mobile food and beverage units licensed
under ORS 624.010 to 624.121, 624.310 to 624.430 or those which
are exempted under ORS 624.330.
(b) Food service facilities not preparing food for distribution
to the public or to institutional facilities licensed and
regulated by the Department of Human Services { + or the Oregon
Health Authority + }.
(c) Shellfish operations licensed under ORS chapter 622.
(d) A person processing, manufacturing or packaging food for
family use or consumption.
(e) Commercial transit salvage operations not involving sale of
food to the general public.
SECTION 997. ORS 616.745 is amended to read:
616.745. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may, by rule, define certain
communicable diseases which may be spread to the public through
the handling of food in food establishments.
(2) No owner or employer shall require, permit or suffer any
person to work, nor shall any person work, in a food
establishment who is affected with a disease described in
subsection (1) of this section.
Enrolled House Bill 2009 (HB 2009-C) Page 570
SECTION 998. ORS 619.095 is amended to read:
619.095. (1) Game meat donated to charitable organizations
shall be inspected by the State Department of Agriculture to
determine fitness for human consumption as provided in ORS
603.045 and 619.031 or shall be inspected and determined fit for
human consumption by employees of the State Department of Fish
and Wildlife or the Department of State Police who have been
trained by the State Department of Agriculture in the procedures
provided in ORS 603.045 and 619.031, and shall be processed by an
establishment approved by the State Department of Agriculture as
provided in ORS 619.026 and 619.031 and may be served for human
consumption by charitable organizations.
(2) As used in subsection (1) of this section:
(a) 'Charitable organization' means the Department of Human
Services, { + Oregon Health Authority, + } Oregon Youth
Authority, Department of Corrections institutions, low-income
nutritional centers, public school nutritional centers, senior
nutritional centers, state hospitals and other charitable
organizations or public institutions approved by the State
Department of Fish and Wildlife.
(b) 'Game meat' includes antelope, bighorn sheep, deer, elk,
moose and mountain goat.
SECTION 999. ORS 624.010 is amended to read:
624.010. As used in ORS 624.010 to 624.121, unless the context
requires otherwise:
{ + (1) 'Authority' means the Oregon Health Authority. + }
{ - (1) - } { + (2) + } 'Bed and breakfast facility' means
any establishment located in a structure designed for a single
family residence and structures appurtenant thereto, regardless
of whether the owner or operator of the establishment resides in
any of the structures, that:
(a) Has more than two rooms for rent on a daily basis to the
public; and
(b) Offers a breakfast meal as part of the cost of the room.
{ - (2) 'Department' means the Department of Human
Services. - }
(3) 'Director' means the Director of { - Human Services - }
{ + the Oregon Health Authority + }.
(4) 'Limited service restaurant' means a restaurant serving
only individually portioned prepackaged foods prepared from an
approved source by a commercial processor and nonperishable
beverages.
(5) 'Restaurant' includes any establishment where food or drink
is prepared for consumption by the public or any establishment
where the public obtains food or drink so prepared in form or
quantity consumable then and there, whether or not it is consumed
within the confines of the premises where prepared, and also
includes establishments that prepare food or drink in consumable
form for service outside the premises where prepared, but does
not include railroad dining cars, bed and breakfast facilities or
temporary restaurants.
(6) 'Temporary restaurant' means any establishment operating
temporarily in connection with any fair, carnival, circus or
similar public gathering or entertainment, food product promotion
or any other event where food is prepared or served for
consumption by the public. 'Temporary restaurant' does not
include:
(a) An establishment where food is prepared and served by a
fraternal, social or religious organization only to its own
members and guests.
Enrolled House Bill 2009 (HB 2009-C) Page 571
(b) An approved school lunchroom where food is prepared and
served for school and community activities, where the preparation
and service are under the direction of the school lunchroom
supervisor.
(c) A food product promotion where only samples of a food or
foods are offered to demonstrate the characteristics of the food
product. For the purposes of this paragraph, a sample shall not
include a meal, an individual hot dish or a whole sandwich.
(d) A private residence, or part thereof, including the
grounds, areas and facilities held out for the use of the
occupants generally, for which a temporary sales license is
issued under ORS 471.190 for a period not exceeding one day.
SECTION 1000. ORS 624.020 is amended to read:
624.020. (1) A person may not operate a restaurant or bed and
breakfast facility without a license to do so from the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(2) Application for the license shall be in writing in the form
prescribed by the { - department - } { + authority + } and
shall contain the name and address of the applicant and any other
information that the { - department - } { + authority + } may
require. The fee for a license is as provided in ORS 624.490. A
license expires annually on December 31 or on such date as may be
specified by { - department - } { + authority + } rule.
(3) The Director of { - Human Services - } { + the Oregon
Health Authority + } may suspend, deny or revoke any license for
violation of any of the applicable provisions of ORS 624.010 to
624.121 or any rule adopted under ORS 624.010 to 624.121.
(4) Procedures for denial, revocation or suspension of a
license are as provided in ORS chapter 183.
(5) The licensee shall post evidence of the license in public
view at the customary entrance of the restaurant or bed and
breakfast facility. A person other than the director may not
deface or remove evidence of a license.
(6) A license is not transferable. The { - department - }
{ + authority + } may not issue a refund representing any unused
portion of a license.
SECTION 1001. ORS 624.036 is amended to read:
624.036. When the { - Department of Human Services - }
{ + Oregon Health Authority + } determines that public health
hazards are nonexistent, the { - department - }
{ + authority + } may, by rule, exempt certain types of
confection operations from the license requirements of ORS
624.010 to 624.121.
SECTION 1002. ORS 624.041 is amended to read:
624.041. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall make all rules necessary
for the enforcement of ORS 624.010 to 624.121, including such
rules concerning the construction and operation of restaurants,
bed and breakfast facilities and temporary restaurants as are
reasonably necessary to protect the public health of persons
using these facilities. The rules shall provide for, but need
not be restricted to, the following:
(1) A water supply adequate in quantity and safe for human
consumption.
(2) Disposal of sewage, refuse and other wastes in a manner
that will not create a nuisance or a health hazard.
(3) The cleanliness and accessibility of toilets and
handwashing facilities.
(4) The cleanliness of the premises.
Enrolled House Bill 2009 (HB 2009-C) Page 572
(5) The refrigeration of perishable foods.
(6) The storage of food for protection against dust, dirt and
contamination.
(7) Equipment of proper construction and cleanliness of such
equipment.
(8) The control of insects and rodents.
(9) The cleanliness and grooming of food workers.
(10) Exclusion of unauthorized persons from food preparation
and storage areas.
(11) Review of proposed plans for the construction or
remodeling of facilities subject to licensing under this chapter.
SECTION 1003. ORS 624.046 is amended to read:
624.046. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall allow a bed and breakfast
facility to conduct food service operations for its patrons in
rooms used by the owner or operator, provided that:
(1) Such rooms are not used as sleeping quarters; and
(2) Persons not employed by the facility shall be excluded from
such rooms during breakfast meal hours.
SECTION 1004. ORS 624.051 is amended to read:
624.051. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall allow restaurants with an
occupancy capacity of no more than 15 persons, including
employees and patrons, to have only one toilet fixture and
adjacent lavatory on the premises. This single toilet fixture
shall comply with all { - department - } { + authority + }
standards for construction, maintenance, cleanliness,
accessibility and others, not in conflict with the state building
code, that the { - department - } { + authority + } might
provide.
SECTION 1005. ORS 624.060 is amended to read:
624.060. (1) At least once every six months the Director of
{ - Human Services - } { + the Oregon Health Authority + }
shall inspect every restaurant located within the jurisdiction of
the director. At least once a year the director shall inspect
every bed and breakfast facility located within the jurisdiction
of the director. The person operating the restaurant or bed and
breakfast facility shall, upon the request of the director,
permit access to all parts of the establishment.
(2) A copy of each inspection report shall be given to the
restaurant or bed and breakfast facility operator or person in
charge of the restaurant or bed and breakfast facility, and
another copy shall be filed with the records of the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(3) During each inspection, the director shall { - insure - }
{ + ensure + } that restaurants or bed and breakfast
establishments that hold valid liquor licenses have properly
posted the appropriate sign required by ORS 471.551.
(4) After each inspection, notice regarding compliance with ORS
624.010 to 624.121 by the restaurant or bed and breakfast
facility shall be posted at the customary entrance of the
restaurant or bed and breakfast facility in public view and shall
not be removed by any person except the director.
(5) If the director discovers the violation of any provision of
ORS 624.010 to 624.121, the director shall make a second
inspection after the lapse of such time as the director deems
necessary for the defect to be remedied. When a violation noted
on an inspection has been remedied, that violation shall not
cumulate with violations noted on a second inspection.
Enrolled House Bill 2009 (HB 2009-C) Page 573
SECTION 1006. ORS 624.070 is amended to read:
624.070. Samples of food, drink and other substances may be
taken and examined by the Director of { - Human Services - }
{ + the Oregon Health Authority + } as often as may be necessary
for the detection of unwholesomeness or adulteration. The
director may condemn and forbid the sale of, or cause to be
removed or destroyed, any food or drink which is unwholesome or
adulterated.
SECTION 1007. ORS 624.073 is amended to read:
624.073. (1) If the Director of { - Human Services - }
{ + the Oregon Health Authority + } determines that a critical
violation of ORS 624.010 to 624.121, or any rule promulgated
pursuant thereto, exists in a restaurant or bed and breakfast
facility and the critical violation constitutes a potential
danger to the public health, the director may revoke, suspend or
refuse to issue the license required by ORS 624.020 if, after a
reasonable time has been given for correction of the violation,
but not longer than 14 days, the violation continues to exist.
The director shall reinstate a license that has been revoked or
suspended if the director determines that the violation has been
corrected.
(2) Notwithstanding ORS 624.020, if the director determines
that a critical violation of ORS 624.010 to 624.121, or any rule
promulgated pursuant thereto, exists in a restaurant or bed and
breakfast facility and the critical violation constitutes an
imminent or present danger to the public health, the director may
order immediate correction, use of an approved alternative
procedure or closure of the restaurant or bed and breakfast
facility by written notice thereof to the operator. The
inspection report carrying a statement ordering closure and
specifying the reasons therefor signed by the director and
delivered to the operator may serve as the written notice of the
closure. The director shall use inspection forms that clearly
display notice that procedures are available to the licensee
under ORS chapter 183 for appeal of the closure order. A copy of
the notice shall be filed with the records of the
{ - Department of Human Services - } { + Oregon Health
Authority + }. The closure order shall have the effect of an
immediate revocation of the operator's license. If requested, the
director shall provide a prompt hearing after the closure in
accordance with ORS chapter 183.
(3) If the director determines that closure of the restaurant
or bed and breakfast facility is necessary because failure to
correct a critical violation or implement an approved alternative
procedure constitutes a potential danger to the public health, or
failure to correct a critical violation or implement an approved
alternative procedure constitutes an imminent or present danger
to the public health, the director shall:
(a) Notify the owner or person in charge of the restaurant or
bed and breakfast facility that such restaurant or bed and
breakfast facility shall not be used for food service purposes
until the critical violations specified in the inspection report
have been corrected; and
(b) Post a notice of closure upon the restaurant or bed and
breakfast facility at the customary entrance to the restaurant or
bed and breakfast facility in public view to the effect that the
restaurant or bed and breakfast facility is closed for operation
because a critical violation exists.
Enrolled House Bill 2009 (HB 2009-C) Page 574
(4)(a) No person shall remove a notice of closure from a
restaurant or bed and breakfast facility until the violation
which caused the notice to be posted has been corrected.
(b) No person shall operate a restaurant or bed and breakfast
facility upon which a notice of closure has been posted until the
violation which caused the notice to be posted has been corrected
and the notice has been removed.
(5) The director shall define clearly the criteria and rules
for conformance to acceptable food service practices used to
determine the restaurant or bed and breakfast facility sanitation
score to insure statewide uniformity in the inspection and
licensing processes. Critical violations which constitute a
potential danger to the public health and critical violations
which constitute an imminent or present danger to the public
health shall be clearly defined. Minimum acceptable food service
standard procedures shall be clearly defined by setting a minimum
acceptable sanitation score for a licensed restaurant or bed and
breakfast facility.
(6) If a restaurant or bed and breakfast facility obtains a
sanitation score of less than the minimum acceptable standard,
the restaurant or bed and breakfast facility operator or person
in charge of the restaurant or bed and breakfast facility shall
be notified of impending closure if, after reinspection within 30
days, the sanitation score does not meet minimum acceptable food
service standards. If closure action is taken after reinspection,
the restaurant or bed and breakfast facility may not be operated
until the restaurant or bed and breakfast facility operator
submits a plan for correction of the violations that receives the
approval of the director and a subsequent inspection of the
restaurant or bed and breakfast facility produces a sanitation
score that meets minimum acceptable food service standards.
(7) The { - department - } { + authority + } may establish
a more frequent inspection schedule for a restaurant licensed
under ORS 624.020 that fails to meet specific minimum standards
established by the
{ - department. The department - } { + authority. The
authority + } may charge a fee for costs associated with the
performance of additional inspections.
(8) As used in this section, 'imminent' means impending or
likely to develop without delay.
SECTION 1008. ORS 624.077 is amended to read:
624.077. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall make such rating surveys
as are necessary to obtain uniform enforcement of ORS 624.010 to
624.121 throughout the state, and shall prepare and disseminate
information pertaining to educational programs for the purpose of
encouraging compliance with ORS 624.010 to 624.121 on the part of
owners, managers and employees of eating and drinking
establishments.
SECTION 1009. ORS 624.080 is amended to read:
624.080. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may, by rule, define certain
communicable diseases which may be spread to the public by
employees of a restaurant, bed and breakfast facility or
temporary restaurant.
(2) No person who is affected with a communicable disease
described in subsection (1) of this section or is a carrier of
such disease shall work in any restaurant, bed and breakfast
facility or temporary restaurant. No restaurant, bed and
breakfast facility or temporary restaurant shall employ any such
Enrolled House Bill 2009 (HB 2009-C) Page 575
person or any person suspected of being affected with any
communicable disease or of being a carrier of such disease. If
the restaurant, bed and breakfast facility or temporary
restaurant manager suspects that any employee has contracted any
disease in a communicable form or has become a carrier of such
disease the manager shall notify the Director of { - Human
Services - } { + the Oregon Health Authority + } immediately. A
placard containing this subsection shall be posted in all toilet
rooms.
(3) When suspicion arises as to the possibility of transmission
of infection from any restaurant, bed and breakfast facility or
temporary restaurant employee, the director may require any or
all of the following measures:
(a) The immediate exclusion of the employee from all
restaurants, bed and breakfast facilities and temporary
restaurants; and
(b) Adequate medical examinations of the employee and
associates of the employee, with such laboratory examinations as
may be indicated.
SECTION 1010. ORS 624.086 is amended to read:
624.086. (1) A person may not operate a temporary restaurant
without first procuring a license to do so from the
{ - Department of Human Services - } { + Oregon Health
Authority + }. The temporary restaurant license shall be posted
in a conspicuous place on the premises of the licensee.
(2) Application for a temporary restaurant license shall be in
writing in the form prescribed by the { - department - }
{ + authority + } and shall contain the name and address of the
applicant, the specific location of the temporary restaurant and
any other information the { - department - }
{ + authority + } may require.
(3) All temporary restaurant licenses shall terminate 30 days
after issuance unless within the 30 days the temporary restaurant
is discontinued or is moved from the specific location for which
the license was issued. If within 30 days after issuance the
temporary restaurant is discontinued or moved from the specific
location for which the license was issued, the license shall
terminate upon the discontinuance or the removal.
(4) Except as provided in ORS 624.106 and subsection (6) of
this section, every applicant for a temporary restaurant license
or renewal thereof shall pay to the { - department - }
{ + authority + } the appropriate license fee under ORS 624.490.
(5) The Director of { - Human Services - } { + the Oregon
Health Authority + } may suspend, deny or revoke any temporary
restaurant license if it appears, after a reasonable time has
been given for correction of a sanitation violation, that the
applicant does not meet applicable minimum sanitation standards
as outlined in ORS 624.010 to 624.121 or any rule adopted
thereunder. Any suspension, denial or revocation action shall be
taken in accordance with ORS chapter 183.
(6) Notwithstanding any other provision of this section or ORS
624.490:
(a) Each temporary restaurant operating on an intermittent
basis, in a grouping of six or more, at the same specific
location two or more times within a 30-day period shall be issued
one license for each 30-day period.
(b) The total annual amount of license fees for temporary
restaurants described in paragraph (a) of this subsection may not
exceed the maximum annual license fee for a restaurant that is
Enrolled House Bill 2009 (HB 2009-C) Page 576
situated in the county in which the temporary restaurant is
situated.
SECTION 1011. ORS 624.091 is amended to read:
624.091. (1) At least once during the operation of a temporary
restaurant, the Director of { - Human Services - } { + the
Oregon Health Authority + } shall inspect the facilities and
operation. The person operating the temporary restaurant shall,
upon request of the director, permit access to all parts of the
establishment.
(2) One copy of the inspection report shall be posted by the
director somewhere on the establishment premises; and the report
shall not be defaced or removed by any person except the director
until the temporary restaurant license is terminated. Another
copy of the inspection report shall be filed with the records of
the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
SECTION 1012. ORS 624.096 is amended to read:
624.096. When the violation of any provision of ORS 624.010 to
624.121 or any rule promulgated thereunder comes to the attention
of the Director of { - Human Services - } { + the Oregon
Health Authority + } and if the violation is of such a nature as
to constitute a serious hazard to the health of the public,
immediate closure of the temporary restaurant may be secured upon
notification of the operator in writing. The inspection report
carrying a statement ordering closure and signed by the director
delivered to the operator may serve as the written notice of the
closure. A copy of this notice shall be filed with the records of
the { - Department of Human Services - } { + Oregon Health
Authority + }. The closure order shall have the effect of an
immediate revocation of the operator's license. The director
shall, if requested, provide a prompt hearing after closure in
accordance with ORS chapter 183.
SECTION 1013. ORS 624.106 is amended to read:
624.106. (1)(a) Notwithstanding ORS 624.086 (3) and (4), the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall issue a license to a benevolent organization
to operate a temporary restaurant pursuant to this section if the
benevolent organization has notified the { - department - }
{ + authority + }, orally or in writing, of its intention to
operate a temporary restaurant. The { - department - } { +
authority + } shall provide at least one place in each county at
which such notification may be made.
(b) Not more than 13 temporary restaurant licenses per year may
be issued pursuant to this section to each benevolent
organization.
(c) No license fee or inspection fee shall be charged for a
temporary restaurant licensed pursuant to this section.
(2) The { - department - } { + authority + } shall issue a
temporary benevolent restaurant license to each provider of
restaurant service at a special event arranged by a benevolent
organization. The license shall be provided without fee to each
restaurant service provider who files with the benevolent
organization a signed statement that the service provider
receives no profit from restaurant services performed at the
special event. The statement shall be subject to inspection by
the { - department - } { + authority + } at the time
inspections are made pursuant to ORS 624.111. For the purpose of
licenses issued pursuant to this subsection, a particular
Enrolled House Bill 2009 (HB 2009-C) Page 577
benevolent organization may arrange only one special event per
calendar year.
(3) All licenses issued pursuant to this section shall
terminate three days after issuance unless within the three days
the temporary restaurant is discontinued or is moved from the
specific location for which the license was issued. If within
three days after issuance the temporary restaurant is
discontinued or moved from the specific location for which the
license was issued, the license shall terminate upon the
discontinuance or the removal.
SECTION 1014. ORS 624.111 is amended to read:
624.111. (1) At any time during the operation of a temporary
restaurant licensed pursuant to ORS 624.106, the Director of
{ - Human Services - } { + the Oregon Health Authority + }
may inspect the facilities and operation.
(2) The benevolent organization operating the temporary
restaurant shall, upon request of the director, permit access to
all parts of the establishment.
SECTION 1015. ORS 624.116 is amended to read:
624.116. The Director of { - Human Services - } { + the
Oregon Health Authority + } may declare that an extraordinary
situation exists and may apply alternative food service criteria
in an establishment operated to prepare or serve food or
beverages to indigent or needy persons by a benevolent
organization, as defined by ORS 624.101, without charge or
solicitation from those served.
SECTION 1016. ORS 624.121 is amended to read:
624.121. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall appoint a State Food
Service Advisory Committee. The committee shall consist of
volunteer representatives from a cross section of the food
service industry, the general public, appropriate local and state
groups, county environmental health specialists and other
appropriate state agencies, including the State Department of
Agriculture. In addition to such other duties as may be
prescribed by the { - Department of Human Services - } { +
authority + }, the committee, not later than January 1 of each
year in which a biennial session of the Legislative Assembly
convenes, shall submit to the { - department - }
{ + authority + } and the Legislative Assembly recommendations
regarding the implementation of ORS 624.020, 624.060, 624.073,
624.495 and 624.510.
SECTION 1017. ORS 624.165 is amended to read:
624.165. (1) Subject to ORS 624.070, game meat that has been
donated to a charitable organization and has been inspected and
processed as provided in ORS 619.095 may be served for human
consumption by that charitable organization.
(2) As used in subsection (1) of this section:
(a) 'Charitable organization' means the Department of Human
Services, { + Oregon Health Authority, + } Oregon Youth
Authority, Department of Corrections institutions, low-income
nutritional centers, public school nutritional centers, senior
nutritional centers, state hospitals and other charitable
organizations or public institutions approved by the State
Department of Fish and Wildlife.
(b) 'Game meat' includes antelope, bighorn sheep, deer, elk,
moose and mountain goat.
SECTION 1018. ORS 624.310 is amended to read:
624.310. As used in ORS 624.310 to 624.430 unless the context
requires otherwise:
Enrolled House Bill 2009 (HB 2009-C) Page 578
(1) 'Approved' means approved by the administrator.
{ + (2) 'Authority' means the Oregon Health Authority. + }
{ - (2) - } { + (3) + } 'Commissary' means commissary
catering establishment, restaurant or any other place in which
food, beverage, ingredients, containers or supplies are kept,
handled, prepared or stored, and from which vending machines or
mobile units are serviced.
{ - (3) 'Department' means the Department of Human
Services. - }
(4) 'Director' means the Director of { - Human Services - }
{ + the Oregon Health Authority + }.
(5) 'Employee' means any operator or any person employed by an
operator who handles any food, beverage, or ingredient to be
dispensed through vending machines or mobile units, or who comes
into contact with product contact surfaces of the container,
equipment, utensils or packaging materials, used in connection
with vending machines or mobile unit operations, or who otherwise
services or maintains one or more such machines or units.
(6) 'Food' means any raw, cooked or processed edible substance,
beverage or ingredient used or intended for use in whole, or in
part, for human consumption.
(7) 'Machine location' means the room, enclosure, space or area
where one or more vending machines are installed and are in
operation.
(8) 'Mobile unit' means any vehicle on which food is prepared,
processed or converted or which is used in selling and dispensing
food to the ultimate consumer.
(9) 'Operator' means any person, who by contract, agreement or
ownership is responsible for operating a commissary or warehouse
or furnishing, installing, servicing, operating or maintaining
one or more vending machines or mobile units.
(10) 'Person' means any individual, partnership, corporation,
company, firm, institution, association or any other public or
private entity.
(11) 'Product contact surface' means any surface of the vending
machine or mobile unit, appurtenance or container which comes
into direct contact with any food, beverage or ingredient.
(12) 'Readily perishable food' means any food, beverage or
ingredient consisting in whole or in part of milk, milk products,
eggs, meat, fish, poultry, or any other food capable of
supporting rapid and progressive growth of microorganisms which
can cause food infections or food intoxications. However,
'readily perishable food' does not include products in
hermetically sealed containers processed by heat to prevent
spoilage or dehydrated, dry or powdered products which are so low
in moisture content as to preclude development of microorganisms.
(13) 'Single-service article' means any utensil, container,
implement or wrapper intended for use only once in the
preparation, storage, display, service or consumption of food or
beverage.
(14) 'Utensil' means any kitchenware, tableware, glassware,
cutlery, container, cleaning brush or other equipment that comes
into contact with food or product contact surfaces during
cleaning of vending machines, mobile units or commissary
equipment, or during storage, preparation, serving, dispensing or
consumption of food.
(15) 'Vending machine' means any self-service device offered
for public use which, upon insertion of a coin, coins, currency
or token, or by other means, dispenses unit servings of food or
Enrolled House Bill 2009 (HB 2009-C) Page 579
beverage, either in bulk or package, without the necessity of
replenishing the device between each vending operation.
(16) 'Warehouse' means any place where food, utensils,
single-service articles, cleaning or servicing supplies for
vending machines, mobile units or commissaries are stored.
SECTION 1019. ORS 624.320 is amended to read:
624.320. (1) A person may not operate a vending machine,
warehouse, commissary or mobile unit without first procuring a
license to do so from the { - Department of Human Services - }
{ + Oregon Health Authority + }. The operator shall post the
license in a conspicuous place in the warehouse or commissary.
The operator shall affix a card, emblem or other device clearly
showing the name and address of the licensee and the serial
number of the license to each vending machine or mobile unit as
the case may be.
(2) Application for the license shall be in writing in the form
prescribed by the { - department - } { + authority + } and
shall contain the following information:
(a) Name and address of the applicant.
(b) Location of all warehouses or commissaries.
(c) Locations where supplies are kept.
(d) Locations where vending machines or mobile units are
stored, repaired or renovated.
(e) Identity and form of food to be dispensed through vending
machines.
(f) Number of each type of vending machine on location.
(3) The operator must keep the specific locations of the
vending machines and specific itineraries of the mobile units on
file at the operator's business office and readily available to
the { - department - } { + authority + }. If the mobile unit
is moved to a delegate county other than a delegate county that
licensed the mobile unit, the operator shall notify the
{ + local + } health department for the county to which the
mobile unit is moved prior to operating the mobile unit within
that county. The operator shall furnish the { - department - }
{ + authority + } with written details of the conversion of any
vending machine to dispense products other than those for which
the license was issued.
SECTION 1020. ORS 624.330 is amended to read:
624.330. (1) Vending machines dispensing only ball chewing gum,
nutmeats and the following prepackaged foods: Candy, chewing gum,
nutmeats, potato chips, pretzels, popcorn, cookies, crackers and
bottled or canned soft drink beverages shall be exempt from the
provisions of ORS 624.320 and 624.430.
(2) The { - Department of Human Services - } { + Oregon
Health Authority + } may, by rule, exempt certain other types of
vending machines from the license requirements of ORS 624.310 to
624.430 when it appears that there is no danger to the life and
health of the people of this state.
(3) The provisions of ORS 624.310 to 624.430 do not include
commissaries, mobile units or vending machines which are
presently licensed and inspected by the State Department of
Agriculture or United States Public Health Service.
SECTION 1021. ORS 624.340 is amended to read:
624.340. The Director of { - Human Services - } { + the
Oregon Health Authority + } may deny, suspend or revoke a license
in accordance with ORS chapter 183 in any case where the director
finds that there has been a substantial failure to comply with
the provisions of ORS 624.310 to 624.430 or the rules promulgated
under ORS 624.310 to 624.430.
Enrolled House Bill 2009 (HB 2009-C) Page 580
SECTION 1022. ORS 624.370 is amended to read:
624.370. (1) At least once every six months, the Director of
{ - Human Services - } { + the Oregon Health Authority + }
shall inspect every commissary and warehouse, and a
representative number of each operator's mobile units and vending
machines. The director shall be granted access at reasonable
times to all parts of the commissary and shall have access,
either in the company of an employee or otherwise, to the
interior of all vending machines or mobile units of the operator
at such times as the director considers necessary to
{ - insure - } { + ensure + } compliance with the provisions
of ORS 624.310 to 624.430.
(2) Samples of food, drink and other substances may be taken
and examined by the director as often as may be necessary for the
detection of unwholesomeness or adulteration. The director may
condemn and prohibit the sale of or cause to be removed or
destroyed, any food or drink which contains any toxic,
contaminated, filthy, putrid, decomposed or diseased substance or
if it is otherwise unfit for human consumption.
(3) One copy of the inspection report shall be posted by the
director upon an inside wall of the commissary or placed in the
mobile unit. The inspection report shall not be defaced or
removed by any person except the director. A copy of the
inspection report on vending machines shall be sent to the
operator. Another copy of each inspection report shall be filed
with the records of the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(4) If the director discovers the violation of any provision of
ORS 624.310 to 624.430 or any rule promulgated thereunder, the
director shall make a second inspection after the lapse of such
time as the director considers necessary for the defect to be
remedied.
(5) If a violation is of a nature so as to constitute a danger
to the health of the people of this state, the director may order
immediate closure of the commissary, mobile unit, or vending
machine and shall, within 24 hours of the time of inspection,
mail to or serve personally on the licensee a copy of the
inspection report signed by the director showing thereon the
particular facility closed and the reason. The director shall, if
requested, hold a hearing in accordance with ORS chapter 183.
SECTION 1023. ORS 624.380 is amended to read:
624.380. (1) No person affected with a communicable disease
described in ORS 624.080 (1) or is a carrier of such disease
shall work in any commissary, mobile unit or in the servicing of
vending machines nor shall any operator employ any such person or
any person suspected of being affected with any communicable
disease or of being a carrier of such disease. If the operator
suspects that any employee has an infectious disease in a
communicable form or may be a carrier of such a disease the
operator shall notify the Director of { - Human Services - }
{ + the Oregon Health Authority + } immediately. A placard
containing this section shall be posted in all toilet rooms.
(2) When, in the opinion of the director, there is a
possibility of transmission of infection from any person or
employee, the director may require the immediate exclusion of
such person or employee from all commissaries, mobile units and
vending machines and may require a medical examination of the
person or employee and associates of the person or employee
including such laboratory examinations as may be indicated.
Enrolled House Bill 2009 (HB 2009-C) Page 581
SECTION 1024. ORS 624.390 is amended to read:
624.390. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall make reasonable rules for
carrying out the provisions of ORS 624.310 to 624.430, including
but not limited to the following:
(1) Construction and operation of commissaries, mobile units
and vending machines.
(2) Water supply adequate in quantity and safe for human
consumption.
(3) Disposal of sewage, refuse and other wastes in a manner
that will not create a nuisance or health hazard.
(4) Cleanliness of premises and facilities.
(5) Refrigeration of perishable foods and the wholesomeness of
all food and beverage ingredients.
(6) Protection of food, utensils, wrapping and serving
materials against dust, dirt and contamination.
(7) Equipment of proper construction and the maintenance of
such equipment.
(8) Approved plumbing.
(9) Sanitary facilities for employees in commissaries.
(10) Control and exclusion of insects and rodents.
(11) Labeling of foods or beverages.
(12) Exclusion of vending machines dispensing chemicals,
sanitizers, detergents, economic poisons and such other compounds
of similar nature from immediate areas where food and beverage
vending machines are located.
(13) Approval of plans for commissaries, mobile units and
vending machines.
SECTION 1025. ORS 624.400 is amended to read:
624.400. The { - Department of Human Services - }
{ + Oregon Health Authority + } shall make such surveys as are
necessary to obtain uniform enforcement of ORS 624.310 to 624.430
throughout the state and shall prepare and disseminate
information and shall cooperate with and assist local health
departments in educational programs for the purpose of
encouraging compliance with ORS 624.310 to 624.430 on the part of
operators and employees of vending machines and mobile units.
SECTION 1026. ORS 624.410 is amended to read:
624.410. (1) Foods from commissaries or other sources outside
the jurisdiction of the { - Department of Human Services - }
{ + Oregon Health Authority + } may be sold in the local
jurisdiction if such commissaries or other sources of supply
conform to the provisions of ORS 624.310 to 624.430 and the rules
promulgated under ORS 624.310 to 624.430 or to substantially
equivalent provisions.
(2) The { - department - } { + authority + } shall
investigate and survey the system of regulations in effect for
commissaries or sources of supply outside the state. Upon
determination that the regulations in effect are of a quality
substantially equal to the rules of ORS 624.310 to 624.430, the
{ - department - } { + authority + } may permit such
commissaries or sources of supply to be used in the state.
SECTION 1027. ORS 624.430 is amended to read:
624.430. (1) Except as provided in ORS 624.330, every applicant
for a license to operate a commissary, vending machine, warehouse
or mobile unit shall pay to the { - Department of Human
Services - } { + Oregon Health Authority + } the appropriate
annual fee set forth in ORS 624.490.
(2) All licenses issued under ORS 624.320 expire annually on a
date set by { - department - } { + authority + } rule. A
Enrolled House Bill 2009 (HB 2009-C) Page 582
license is not transferable. The { - department - }
{ + authority + } may not issue a refund representing any unused
portion of a license. The { - department - } { +
authority + } may not refund fees submitted with applications
that have been denied.
SECTION 1028. ORS 624.490 is amended to read:
624.490. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may charge the following fees
for the issuance or renewal of licenses:
(a) $157.50 for a bed and breakfast facility.
(b) $210 for a limited service restaurant.
(c) For a restaurant in accordance with seating capacity, as
follows:
(A) $367.50 for 0 to 15 seats;
(B) $414.75 for 16 to 50 seats;
(C) $472.50 for 51 to 150 seats; and
(D) $525 for more than 150 seats.
(d) For a temporary restaurant, except as provided in ORS
624.086 and 624.106:
(A) $36.75 for an event lasting one day; and
(B) $52.50 for an event lasting two days or longer.
(e) $262.50 for a commissary.
(f) $105 for each warehouse.
(g) $131.50 for each mobile unit.
(h) For vending machines in accordance with the number of
machines covered by the license as follows:
(A) $26.25 for 1 to 10 machines;
(B) $52.50 for 11 to 20 machines;
(C) $78.75 for 21 to 30 machines;
(D) $105 for 31 to 40 machines;
(E) $131.25 for 41 to 50 machines;
(F) $157.50 for 51 to 75 machines;
(G) $210 for 76 to 100 machines;
(H) $367.50 for 101 to 250 machines;
(I) $577.50 for 251 to 500 machines;
(J) $787.50 for 501 to 750 machines;
(K) $966 for 751 to 1,000 machines;
(L) $1,260 for 1,001 to 1,500 machines; and
(M) $1,575 for more than 1,500 machines.
(2) To reinstate a license other than a temporary restaurant
license after the expiration date, the operator must pay a
reinstatement fee of $100 in addition to the license fee required
under subsection (1) of this section. If the operator reinstates
the license more than 30 days after the expiration date, the
reinstatement fee shall increase by $100 on the 31st day
following the expiration date and on that day of the month in
each succeeding month until the license is reinstated.
(3) The { - department - } { + Oregon Health Authority + }
or a local public health authority may exempt or reduce the
license fee for restaurants operated by benevolent organizations,
as defined in ORS 624.101, that provide food or beverages
primarily to children, the elderly, the indigent or other needy
populations if the persons receiving the food or beverages are
not required to pay the full cost of the food or beverages.
SECTION 1029. ORS 624.495 is amended to read:
624.495. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall adopt rules establishing a
foodborne illness prevention program for the purpose of
protecting the public health. Unless an agreement entered into
under ORS 624.530 provides otherwise, the program may include,
Enrolled House Bill 2009 (HB 2009-C) Page 583
but need not be limited to, provisions for preventing the spread
of communicable disease through food service facilities that are
subject to licensing by the { - department - }
{ + authority + } under this chapter and for effective and rapid
response to terrorism events related to those facilities.
(2) A program established by the { - department - }
{ + Oregon Health Authority + } under this section must provide
for a local public health authority that enters into an
intergovernmental agreement under ORS 624.510 to undertake
primary responsibility for the delivery of program services
within the jurisdiction of the local { + public health + }
authority. A program must also provide for extensive monitoring
and review by the { - department - } { + Oregon Health
Authority + } of local public health authority performance of
program services under an intergovernmental agreement.
(3) The { - department - } { + Oregon Health Authority + }
shall consult with groups representing local health officials
within the state and statewide restaurant associations in the
development of rules adopted under this section and prior to
preparing an intergovernmental agreement delegating
administration and enforcement of all or part of the foodborne
illness prevention program to a local public health authority.
SECTION 1030. ORS 624.510 is amended to read:
624.510. (1) The Director of { - Human Services - } { + the
Oregon Health Authority + } shall enter into an intergovernmental
agreement with each local public health authority established
under ORS 431.375, delegating to the local { + public health + }
authority the administration and enforcement within the
jurisdiction of the
{ - authority - } { + local public health authority + } of
the powers, duties and functions of the { - Director of Human
Services - } { + director + } under ORS 624.010 to 624.121,
624.310 to 624.430, 624.650 and 624.992. The intergovernmental
agreement must describe the powers, duties and functions of the
local public health authority relating to fee collection,
licensing, inspections, enforcement, civil penalties and issuance
and revocation of permits and certificates, standards for
enforcement by the local { + public health + } authority and the
monitoring to be performed by the { - Department of Human
Services. The department - } { + Oregon Health Authority. The
Oregon Health Authority + } shall establish the descriptions and
standards in consultation with the local public health authority
officials and in accordance with ORS 431.345. The
intergovernmental agreement must be a part of the local annual
plan submitted by the local public health authority under ORS
431.385. The { - department - } { + Oregon Health
Authority + } shall review the performance of the local public
health authority under any expiring intergovernmental agreement.
The review shall include criteria to determine if provisions of
ORS 624.073 are uniformly applied to all licensees within the
jurisdiction of the local public health authority. In accordance
with ORS chapter 183, the director may suspend or rescind an
intergovernmental agreement under this subsection. If the
{ - department - } { + Oregon Health Authority + } suspends
or rescinds an intergovernmental agreement, the unexpended
portion of the fees collected under subsection (2) of this
section shall be available to the { - department - }
{ + Oregon Health Authority + } for carrying out the powers,
duties and functions under this section.
Enrolled House Bill 2009 (HB 2009-C) Page 584
(2) A local public health authority shall collect fees on
behalf of the { - department - } { + Oregon Health
Authority + } that are adequate to cover the administration and
enforcement costs incurred by the local public health authority
under this section and the cost of oversight by the
{ - department - } { + Oregon Health Authority + }. If the fee
collected by a local public health authority for a license or
service is more than 20 percent above or below the fee for that
license or service charged by the { - department, the
department - } { + Oregon Health Authority, the Oregon Health
Authority + } shall analyze the local public health authority fee
process and determine whether the local public health authority
used the proper cost elements in determining the fee and whether
the amount of the fee is justified. Cost elements may include,
but need not be limited to, expenses related to administration,
program costs, salaries, travel expenses and { - department - }
{ + Oregon Health Authority + } consultation fees. If the
{ - department - } { + Oregon Health Authority + } determines
that the local public health authority did not use the proper
cost elements in determining the fee or that the amount of the
fee is not justified, the { - department - } { + Oregon Health
Authority + } may order the local public health authority to
reduce any fee to a level supported by the
{ - department's - } { + Oregon Health Authority's + }
analysis of the fee process.
(3) The { - department - } { + Oregon Health Authority + },
after consultation with groups representing local health
officials in the state, shall by rule assess a remittance from
each local public health authority to which health enforcement
powers, duties or functions have been delegated under subsection
(1) of this section. The amount of the remittance must be
specified in the intergovernmental agreement. The remittance
shall supplement existing funds for consultation services and
development and maintenance of the statewide food service
program. The
{ - department - } { + Oregon Health Authority + } shall
consult with groups representing local health officials in the
state and statewide restaurant associations in developing the
statewide food service program.
(4) In any action, suit or proceeding arising out of local
public health authority administration of functions pursuant to
subsection (1) of this section and involving the validity of a
rule adopted by the { - department, the department - }
{ + Oregon Health Authority, the Oregon Health Authority + }
shall be made a party to the action, suit or proceeding.
SECTION 1031. ORS 624.530 is amended to read:
624.530. Notwithstanding any provision of ORS 624.010 to
624.121 or 624.310 to 624.430 or statutes administered by the
State Department of Agriculture, the Director of { - Human
Services - } { + the Oregon Health Authority + } and the
Director of Agriculture jointly shall adopt rules and enter into
interagency agreements necessary to ensure that only one of the
agencies inspects and licenses any facility that is subject to
regulation by both agencies.
SECTION 1032. ORS 624.550 is amended to read:
624.550. An intergovernmental agreement described in ORS
624.510 must encourage and authorize a local public health
authority to which health enforcement powers, duties or functions
have been delegated pursuant to ORS 624.510 to appoint a food
service advisory committee consisting of volunteer
Enrolled House Bill 2009 (HB 2009-C) Page 585
representatives from a cross section of the food service industry
and the general public. A committee established by a local public
health authority may:
(1) Make recommendations to the local public health authority
regarding the administration and enforcement by the local
authority of powers, duties and functions under an existing or
proposed intergovernmental agreement; and
(2) Review and provide to the { - Department of Human
Services - } { + Oregon Health Authority + } an evaluation of
the effectiveness of this chapter and any foodborne illness
prevention program adopted by the { - department - }
{ + Oregon Health Authority + } by rule under ORS 624.495.
SECTION 1033. ORS 624.570 is amended to read:
624.570. (1)(a) Except as provided in subsection (6) of this
section, any person involved in the preparation or service of
food in a restaurant or food service facility licensed under ORS
624.020 or 624.320 must successfully complete a food handler
training program and earn a certificate of program completion
within 30 days after the date of hire. The person shall
thereafter maintain a valid completion certificate at all times
during the employment.
(b) A food handler training program offered by the
{ - Department of Human Services - } { + Oregon Health
Authority + } or the designated agent of the { - department - }
{ + authority + }, or offered by a local public health authority
or designated agent of the { - local authority and approved by
the department, - } { + local public health authority that has
been approved by the Oregon Health Authority, + } is valid in any
jurisdiction in the state for the purpose of obtaining the
certificate of completion under subsection (2) of this section.
(2) If a person successfully completes the food handler
training program required in subsection (1) of this section and
pays the appropriate fee, the { - department - } { + Oregon
Health Authority + }, a local public health authority or a
designated agent shall issue a certificate of completion. A food
handler certificate of completion expires three years after the
date of issuance.
(3) All local public health authorities exercising powers,
duties and functions pursuant to ORS 624.510, shall ensure the
provision of food handler training programs within the
jurisdiction of the local public health authority. The
{ - department - } { + Oregon Health Authority + } shall
establish and maintain food handler training programs in counties
without authority delegated under ORS 624.510.
(4) The { - department - } { + Oregon Health Authority + }
shall establish by rule all provisions necessary to administer
and enforce the provisions of this section, including but not
limited to:
(a) Minimum standards for program content and delivery; and
(b) The establishment of minimum requirements for successful
completion of the training.
(5) The { - department - } { + Oregon Health Authority + },
a local public health authority or a designated agent shall
charge a program fee to program participants. The program fee may
not exceed $10. A program provider may assess a new program fee
each time a participant takes or retakes all or part of a program
or certification exam. A fee not exceeding $5 may be charged for
duplicate certificates of completion.
(6) Persons involved in the preparation or service of food in a
temporary restaurant are not required to complete a food handler
Enrolled House Bill 2009 (HB 2009-C) Page 586
training program, but the temporary restaurant shall have at
least one person who has completed the food handler training
program on the premises at all times.
SECTION 1034. ORS 624.630 is amended to read:
624.630. A person may not construct or extensively remodel a
facility subject to licensure under this chapter without first
submitting construction or remodeling plans to the
{ - Department of Human Services - } { + Oregon Health
Authority + } and paying a fee to the
{ - department - } { + authority + } for review of the plans.
The fee shall be assessed in the following amounts:
(1) For initial construction:
(a) Of a full service restaurant, $250.
(b) Of a bed and breakfast facility, $75.
(c) Of a commissary, $125.
(d) Of a warehouse, $50.
(e) Of a limited service restaurant, $75.
(f) Of a mobile unit, $75.
(2) For remodeling:
(a) Of a full service restaurant, $100.
(b) Of any facility other than a full service restaurant, $50.
SECTION 1035. ORS 624.650 is amended to read:
624.650. (1) Notwithstanding any provision of ORS 624.010,
624.086, 624.091, 624.510 or 624.530, a temporary restaurant as
defined under ORS 624.010 that is a mobile unit as defined under
ORS 624.310 may be required to pay a fee not to exceed $25 for
inspection services if the mobile unit is licensed by:
(a) The { - Department of Human Services - } { + Oregon
Health Authority + } under ORS 624.320 or a local public health
authority acting pursuant to an intergovernmental agreement to
conduct inspections in accordance with ORS 624.370;
(b) The State Department of Agriculture or the United States
Public Health Service as provided under ORS 624.330; or
(c) Another jurisdiction and permitted to be used in this state
under ORS 624.410.
(2) This section does not prohibit the { - Department of
Human Services - } { + Oregon Health Authority + } or a local
public health authority delegated authority under an
intergovernmental agreement described in ORS 624.510 from
enforcing ORS 624.380 or 624.420 or rules adopted by the
{ - department - } { + Oregon Health Authority + } pursuant to
ORS 624.390.
SECTION 1036. ORS 624.670 is amended to read:
624.670. All moneys received by the { - Department of Human
Services - } { + Oregon Health Authority + } under this chapter
shall be paid into the State Treasury, deposited in the General
Fund to the credit of the Public Health Account and used
exclusively by the
{ - department - } { + authority + } for the purpose of
carrying out the provisions of this chapter.
SECTION 1037. ORS 624.990 is amended to read:
624.990. (1) Violation of any provision of ORS 624.010 to
624.121 or rules of the { - Department of Human Services - }
{ + Oregon Health Authority + } promulgated under ORS 624.010 to
624.121 is a Class C misdemeanor.
(2) Violation of any provision of ORS 624.310 to 624.430 or
rules of the { - department - } { + authority + } promulgated
under ORS 624.310 to 624.430 is a Class B misdemeanor.
SECTION 1038. ORS 624.992 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 587
624.992. (1) In addition to any other penalty provided by law,
the { - Department of Human Services - } { + Oregon Health
Authority + } may impose a civil penalty on any person for
violation of ORS 624.020 (1), 624.060 (1), 624.060 (4), 624.070,
624.073, 624.320, 624.370, 624.380 or 624.430 or rules adopted
under ORS 624.010 to 624.121 or 624.390.
(2) After public hearing, the { - Department of Human
Services - } { + authority + } by rule shall adopt objective
criteria for establishing the civil penalty that may be imposed
under subsection (1) of this section.
(3) Civil penalties under subsection (1) of this section shall
be imposed in the manner provided by ORS 183.745.
(4) A local public health authority delegated civil penalty
power under an intergovernmental agreement described in ORS
624.510 shall implement that power in accordance with protocols
and limits established by the { - Department of Human
Services - } { + Oregon Health Authority + } by rule. The local
public health authority's civil penalty power applies only to
imminent and present dangers to public health and to operation
without a license.
SECTION 1039. ORS 628.270 is amended to read:
628.270. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may, by rule, define certain
communicable diseases which may be spread to the public through
the handling of food in refrigerated locker plants.
(2) No person who has a communicable or infectious disease
described in subsection (1) of this section shall be permitted to
work in or about any refrigerated locker plant or to handle any
food in connection with the operation of such plant.
(3) In the discretion of the State Department of Agriculture,
an employee of a locker plant may be required to furnish a
certificate of health from a physician duly accredited by the
{ - Department of Human Services - } { + authority + } for
the purpose of issuing such certificates. If such certificate is
required under municipal ordinance upon examination deemed
adequate by the
{ - Department of Human Services - } { + authority + }, a
certificate issued in compliance with such ordinance is
sufficient under this section.
(4) Any health certificate required by this section shall be
revoked by the { - Department of Human Services - }
{ + authority + } at any time that the holder thereof is found,
upon physical examination of such holder, to have any
communicable or infectious disease. Refusal of any person
employed in such locker plant to submit to proper and reasonable
physical examination, upon written demand by the { - Department
of Human Services or the State Department of Agriculture - }
{ + authority or the department + }, is cause for revocation of
the employee's health certificate and also is sufficient reason
for revocation of the locker plant's license unless the employee
immediately is removed from any work or operation in or about
such locker plant involving the handling of food.
SECTION 1040. ORS 634.550 is amended to read:
634.550. (1) There is created a Pesticide Analytical and
Response Center with a governing board consisting of the
following members:
(a) The Director of Agriculture or designee.
(b) The State Forester or designee.
(c) The State Fish and Wildlife Director or designee.
Enrolled House Bill 2009 (HB 2009-C) Page 588
(d) The Director of the Department of Environmental Quality or
designee.
(e) The Director of { - Human Services - } { + the Oregon
Health Authority + } or designee.
(f) The Administrator of the Occupational Safety and Health
Division or designee.
(g) The State Fire Marshal or designee.
(h) The Director of the Poison Control and Drug Information
Program of the Oregon Health and Science University or designee.
(i) One citizen from the state at large appointed jointly by
the Director of Agriculture and the Director of { - Human
Services - } { + the Oregon Health Authority + }.
(2) The Director of Agriculture shall appoint an administrator
for the Pesticide Analytical and Response Center, who shall be
responsible to the board for performance of the duties of the
center and the board.
(3) The Director of Agriculture or designee and the Director of
{ - Human Services - } { + the Oregon Health Authority + } or
designee shall alternate as chairperson of the board for terms of
one year each. When one is serving as chairperson, the other
shall serve as vice chairperson.
(4) The board shall seek expert consultation from the extension
service toxicology program, the Center for Research on
Occupational and Environmental Toxicology and such other sources
as may be needed.
(5) The functions of the board are to:
(a) Direct the activities and priorities of the administrator
of the center.
(b) Centralize receiving of information relating to actual or
alleged health and environmental incidents involving pesticides.
(c) Mobilize expertise necessary for timely and accurate
investigation of pesticide incidents and analyses of associated
samples.
(d) Identify trends and patterns of problems related to
pesticide use.
(e) Make recommendations for action to a state agency when a
majority of the board considers that such action may be warranted
on the basis of the findings of an incident investigation or on
the basis of identification of a trend or pattern of problems.
Recommended actions may include, but not be limited to,
regulatory action, modification of administrative rules, proposal
of new legislation, public education and consultation to
industry.
(f) Report in a standardized format the results of the
investigations of pesticide incidents.
(g) Establish by consensus, procedures for carrying out its
responsibilities within the limits of available resources.
(h) Prepare and submit to each session of the Legislative
Assembly a report of the activities of the center that includes a
record of recommendations made by the board and the actions
resulting from the board's work.
(6) Upon receipt of a recommendation from the board, a state
agency shall respond in a timely manner to inform the board of
actions taken or the reasons for taking no action on the
recommendation.
(7) Any medical information received by a member of the board
or by a staff member of the center in the course of carrying out
the duties of the center or the board shall be held confidential
as provided in ORS 192.518 to 192.529 and 433.008.
Enrolled House Bill 2009 (HB 2009-C) Page 589
(8) The functions of the board do not supersede the regulatory
authority of any agency and are not in lieu of the regulatory
authority of any agency.
SECTION 1041. ORS 656.319 is amended to read:
656.319. (1) With respect to objection by a claimant to denial
of a claim for compensation under ORS 656.262, a hearing thereon
shall not be granted and the claim shall not be enforceable
unless:
(a) A request for hearing is filed not later than the 60th day
after the mailing of the denial to the claimant; or
(b) The request is filed not later than the 180th day after
mailing of the denial and the claimant establishes at a hearing
that there was good cause for failure to file the request by the
60th day after mailing of the denial.
(2) Notwithstanding subsection (1) of this section, a hearing
shall be granted even if a request therefor is filed after the
time specified in subsection (1) of this section if the claimant
can show lack of mental competency to file the request within
that time. The period for filing under this subsection shall not
be extended more than five years by lack of mental competency,
nor shall it extend in any case longer than one year after the
claimant regains mental competency.
(3) With respect to subsection (2) of this section, lack of
mental competency shall apply only to an individual suffering
from such mental disorder, mental illness or nervous disorder as
is required for commitment or voluntary admission to a treatment
facility pursuant to ORS 426.005 to 426.223 and 426.241 to
426.380 and the rules of the { - Department of Human
Services - } { + Oregon Health Authority + }.
(4) With respect to objections to a reconsideration order under
ORS 656.268, a hearing on such objections shall not be granted
unless a request for hearing is filed within 30 days after the
copies of the reconsideration order were mailed to the parties.
(5) With respect to objection by a claimant to a notice of
refusal to close a claim under ORS 656.268, a hearing on the
objection shall not be granted unless the request for hearing is
filed within 60 days after copies of the notice of refusal to
close were mailed to the parties.
(6) A hearing for failure to process or an allegation that the
claim was processed incorrectly shall not be granted unless the
request for hearing is filed within two years after the alleged
action or inaction occurred.
(7) With respect to objection by a claimant to a notice of
closure issued under ORS 656.206, a hearing on the objection
shall not be granted unless the request for hearing is filed
within 60 days after the notice of closure was mailed to the
claimant.
SECTION 1042. ORS 657.010, as amended by section 17, chapter
45, Oregon Laws 2008, is amended to read:
657.010. As used in this chapter, unless the context requires
otherwise:
(1) 'Base year' means the first four of the last five completed
calendar quarters preceding the benefit year.
(2) 'Benefits' means the money allowances payable to unemployed
persons under this chapter.
(3) 'Benefit year' means a period of 52 consecutive weeks
commencing with the first week with respect to which an
individual files an initial valid claim for benefits, and
thereafter the 52 consecutive weeks period beginning with the
first week with respect to which the individual next files an
Enrolled House Bill 2009 (HB 2009-C) Page 590
initial valid claim after the termination of the individual's
last preceding benefit year except that the benefit year shall be
53 weeks if the filing of an initial valid claim would result in
overlapping any quarter of the base year of a previously filed
initial valid claim.
(4) 'Calendar quarter' means the period of three consecutive
calendar months ending on March 31, June 30, September 30 or
December 31, or the approximate equivalent thereof, as the
Director of the Employment Department may, by regulation,
prescribe.
(5) 'Contribution' or 'contributions' means the taxes, as
defined in subsection (13) of this section, that are the money
payments required by this chapter, or voluntary payments
permitted, to be made to the Unemployment Compensation Trust
Fund.
(6) 'Educational institution,' including an institution of
higher education as defined in subsection (9) of this section,
means an institution:
(a) In which participants, trainees or students are offered an
organized course of study or training designed to transfer to
them knowledge, skills, information, doctrines, attitudes or
abilities from, by or under the guidance of an instructor or
teacher;
(b) That is accredited, registered, approved, licensed or
issued a permit to operate as a school by the Department of
Education or other government agency, or that offers courses for
credit that are transferable to an approved, registered or
accredited school;
(c) In which the course or courses of study or training that it
offers may be academic, technical, trade or preparation for
gainful employment in a recognized occupation; and
(d) In which the course or courses of study or training are
offered on a regular and continuing basis.
(7) 'Employment office' means a free public employment office
or branch thereof, operated by this state or maintained as a part
of a state-controlled system of public employment offices.
(8) 'Hospital' means an organization that has been licensed,
certified or approved by the { - Department of Human
Services - } { + Oregon Health Authority + } as a hospital.
(9) 'Institution of higher education' means an educational
institution that:
(a) Admits as regular students only individuals having a
certificate of graduation from a high school, or the recognized
equivalent of such a certificate;
(b) Is legally authorized in this state to provide a program of
education beyond high school;
(c) Provides an educational program for which it awards a
bachelor's or higher degree, or provides a program that is
acceptable for full credit toward such a degree, a program of
post-graduate or post-doctoral studies, or a program of training
to prepare students for gainful employment in a recognized
occupation; and
(d) Is a public or other nonprofit institution.
(10) 'Internal Revenue Code' means the federal Internal Revenue
Code, as amended and in effect on December 31, 2007.
(11) 'Nonprofit employing unit' means an organization, or group
of organizations, described in section 501(c)(3) of the Internal
Revenue Code that is exempt from income tax under section 501(a)
of the Internal Revenue Code.
Enrolled House Bill 2009 (HB 2009-C) Page 591
(12) 'State' includes, in addition to the states of the United
States of America, the District of Columbia and Puerto Rico.
However, for all purposes of this chapter the Virgin Islands
shall be considered a state on and after the day on which the
United States Secretary of Labor first approves the Virgin
Islands' law under section 3304(a) of the Federal Unemployment
Tax Act as amended by Public Law 94-566.
(13) 'Taxes' means the money payments to the Unemployment
Compensation Trust Fund required, or voluntary payments
permitted, by this chapter.
(14) 'Valid claim' means any claim for benefits made in
accordance with ORS 657.260 if the individual meets the
wages-paid-for-employment requirements of ORS 657.150.
(15) 'Week' means any period of seven consecutive calendar days
ending at midnight, as the director may, by regulation,
prescribe. The director may by regulation prescribe that a '
week' shall be 'in,' 'within,' or 'during' the calendar quarter
that includes the greater part of such week.
SECTION 1043. ORS 657.880 is amended to read:
657.880. In order to provide health care coverage for eligible
unemployed individuals, the Employment Department, upon approval
and funding by the Emergency Board, is authorized:
(1) To deduct an amount from unemployment compensation
otherwise payable to an individual and to use the amount so
deducted to pay for health care coverage if the individual
voluntarily elects to have such deduction made, and such
deduction is made under a program which meets applicable federal
requirements and has been approved in accordance with the
provisions of this section and ORS 657.885.
(2) To certify to the { - Department of Human Services - }
{ + Oregon Health Authority + } those unemployed individuals
eligible to receive health care coverage pursuant to criteria
established by or pursuant to federal law in order to receive
federal funds for obtaining such coverage.
(3) To enter into contracts with other appropriate federal or
state agencies.
SECTION 1044. ORS 657.885 is amended to read:
657.885. For purposes of this section and ORS 657.880, the term
'health care coverage' means coverage under:
(1) Health insurance policies issued by qualified insurers and
health care service contractors;
(2) Contracts entered into by and between the State of Oregon
and qualified insurers and health care service contractors; and
(3) The medical assistance program administered by the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
SECTION 1045. ORS 657A.260 is amended to read:
657A.260. (1) After consultation with appropriate agencies and
interested persons, the Child Care Division by rule shall
establish minimum standards for child care facilities and the
operation thereof and for the administration of ORS 657A.030 and
657A.250 to 657A.450.
(2) In establishing minimum standards of health and safety, the
division shall consult with the { - Department of Human
Services - } { + Oregon Health Authority + } and the State Fire
Marshal and shall give consideration to their recommendations and
to all basic requirements for the protection of the children to
receive child care, including the criteria prescribed in ORS
657A.290, and may adopt rules applicable to different categories
of child care facilities, considering:
Enrolled House Bill 2009 (HB 2009-C) Page 592
(a) The numbers and ages of the children to receive care in the
child care facility.
(b) The number, experience and training of the staff of the
child care facility.
(c) The types and qualities of equipment and other factors in
the physical plant of the child care facility.
(d) Any other factor affecting the care provided in the child
care facility.
SECTION 1046. ORS 657A.400 is amended to read:
657A.400. (1) An authorized representative of the
{ - Department of Human Services - } { + Oregon Health
Authority + } may inspect the premises of a child care facility
certified under ORS 657A.280 to determine whether the facility is
in conformity with applicable laws and regulations relating to
health and sanitation.
(2) An authorized representative of the { - Department of
Human Services - } { + authority + } shall inspect any child
care facility when requested to do so by the Child Care Division
in accordance with arrangements under ORS 657A.420 and shall
submit written findings to the Child Care Division. The Child
Care Division shall not issue or renew any certification for any
child care facility for which an inspection by the
{ - Department of Human Services - } { + authority + } has
been requested unless an authorized representative of the
{ - Department of Human Services - } { + authority + } submits
a written finding that the facility is in compliance with
applicable laws and regulations relating to health and
sanitation.
(3) An environmental health specialist's inspection may be
performed by a private consultant so long as the consultant is
registered under ORS chapter 700.
SECTION 1047. ORS 657A.410 is amended to read:
657A.410. (1) In the event that any authorized representative
of the Child Care Division, { - Department of Human
Services - } { + Oregon Health Authority + } or other agency is
denied access to any premises for the purpose of making an
inspection in the administration of ORS 181.537, 657A.030 and
657A.250 to 657A.450, the representative shall not inspect the
premises without a search warrant.
(2) Application for a search warrant to inspect the premises
shall be made to any magistrate authorized to issue a warrant of
arrest. The application must be supported by an affidavit filed
with the magistrate showing probable cause for the inspection by
stating the purpose and extent of the proposed inspection, the
statutes and rules which provide the basis for inspection,
whether it is a routine or periodic inspection, an on-site review
or an investigation instituted by complaint and other specific or
general information concerning the premises.
(3) If the magistrate is satisfied that there is probable cause
to believe that the grounds of the application exist, the
magistrate shall issue the search warrant specifying the purpose
and extent of the inspection, on-site review or investigation of
the premises covered by the warrant.
SECTION 1048. ORS 657A.420 is amended to read:
657A.420. The Child Care Division may enter into cooperative
arrangements with the { - Department of Human Services, - }
{ + Oregon Health Authority, + } the State Fire Marshal and
other public agencies for the provision of services in the
inspection of child care facilities in the administration of ORS
181.537, 657A.030 and 657A.250 to 657A.450. The arrangements
Enrolled House Bill 2009 (HB 2009-C) Page 593
shall designate which services shall be reimbursed and the rate
and manner of reimbursement.
SECTION 1049. ORS 675.360 is amended to read:
675.360. (1) The Legislative Assembly hereby declares that the
comprehensive treatment of sex offenders who are subject to the
supervision of the criminal justice and juvenile justice systems
and the { - Department of Human Services - } { + Oregon
Health Authority + } is necessary in order to work toward the
elimination of sex offenses. The Legislative Assembly hereby
recognizes that sex offender therapists who examine and treat sex
offenders therefore occupy a vital role in protecting the public
from sex offenders who remain in the community prior to or
following disposition or who will reenter the community following
a period of incarceration.
(2) The Legislative Assembly further finds that the
qualifications, practices, techniques and levels of effectiveness
of sex offender therapists vary widely and that the court's
ability to effectively determine appropriate sentencing and
monitoring for sex offenders, thus curtailing the incidence of
recidivism in such offenders and enhancing the protection of
victims and potential victims, is undermined by a lack of
regulated standards of practice and professional responsibility.
(3) The Legislative Assembly recognizes the right of sex
offender therapists to practice, consistent with the paramount
requirement of public safety. Public safety is best served by
regulating sex offender therapists whose clients are being
treated under alternative sentencing or disposition, parole,
post-prison supervision, supervision by a county juvenile
department or custody of the { - Department of Human
Services - } { + Oregon Health Authority + } or the Oregon
Youth Authority.
(4) ORS 675.375 establishes the titles certified clinical sex
offender therapist and certified associate sex offender
therapist. ORS 675.360 to 675.410 do not prohibit others from
providing services to treat sex offenders. However, only those
certified under ORS 675.360 to 675.410 shall represent the
designated titles to the public. Adult and juvenile parole and
probation authorities and the { - Department of Human
Services - } { + Oregon Health Authority + } may restrict their
referrals to those providers who are certified under ORS 675.360
to 675.410.
SECTION 1050. ORS 675.365 is amended to read:
675.365. As used in ORS 675.360 to 675.410:
(1) 'Certified associate sex offender therapist' means a person
who is certified under ORS 675.375 or 675.380 to provide services
for the treatment and rehabilitation of sex offenders while under
the direct supervision of a certified clinical sex offender
therapist.
(2) 'Certified clinical sex offender therapist' means a person
who is certified under ORS 675.375 or 675.380 to provide services
for the treatment and rehabilitation of sex offenders and who may
supervise certified associate sex offender therapists.
(3) 'Certified sex offender therapist' means a certified
clinical sex offender therapist or a certified associate sex
offender therapist.
(4) 'Direct supervision' means a minimum of two hours of
supervision by a certified clinical sex offender therapist for
each 45 hours of direct clinical contact with a sex offender.
(5) 'Sex offender' means a person convicted or adjudicated of a
sex crime, as defined in ORS 181.594, or a sexual offense, as
Enrolled House Bill 2009 (HB 2009-C) Page 594
provided in ORS 163.305 to 163.467, and mandated by a court, a
releasing authority, including the Oregon Youth Authority, or the
{ - Department of Human Services - } { + Oregon Health
Authority + } to successfully complete a sex offender treatment
program.
(6) 'Sex offender treatment' means the process of evaluation,
assessment and reformation of sex offenders.
SECTION 1051. ORS 676.160 is amended to read:
676.160. As used in ORS 676.165 to 676.180, 'health
professional regulatory board' means the:
(1) State Board of Examiners for Speech-Language Pathology and
Audiology;
(2) State Board of Chiropractic Examiners;
(3) State Board of Clinical Social Workers;
(4) Oregon Board of Licensed Professional Counselors and
Therapists;
(5) Oregon Board of Dentistry;
(6) Board of Examiners of Licensed Dietitians;
(7) State Board of Massage Therapists;
(8) State Mortuary and Cemetery Board;
(9) Board of Naturopathic Examiners;
(10) Oregon State Board of Nursing;
(11) Board of Examiners of Nursing Home Administrators;
(12) Oregon Board of Optometry;
(13) State Board of Pharmacy;
(14) Oregon Medical Board;
(15) Occupational Therapy Licensing Board;
(16) Physical Therapist Licensing Board;
(17) State Board of Psychologist Examiners;
(18) Board of Radiologic Technology;
(19) Oregon State Veterinary Medical Examining Board; and
(20) { - Department of Human Services - } { + Oregon Health
Authority + } to the extent that the { - department - }
{ + authority + } certifies emergency medical technicians.
SECTION 1052. ORS 677.290 is amended to read:
677.290. (1) All moneys received by the Oregon Medical Board
under this chapter shall be paid into the General Fund in the
State Treasury and placed to the credit of the Oregon Medical
Board Account which is established. Such moneys are appropriated
continuously and shall be used only for the administration and
enforcement of this chapter.
(2) Notwithstanding subsection (1) of this section, the board
may maintain a revolving account in a sum not to exceed $50,000
for the purpose of receiving and paying pass-through moneys
relating to peer review pursuant to its duties under ORS 441.055
{ - (6) and - } (7) { + and (8) + } and in administering
programs pursuant to its duties under this chapter relating to
the education and rehabilitation of licensees in the areas of
chemical substance abuse, inappropriate prescribing and medical
competence. The creation of and disbursement of moneys from the
revolving account shall not require an allotment or allocation of
moneys pursuant to ORS 291.234 to 291.260. All moneys in the
account are continuously appropriated for purposes set forth in
this subsection.
(3) Each year $10 shall be paid to the Oregon Health and
Science University for each actively in-state registered
physician under ORS 677.265 which amount is continuously
appropriated to the Oregon Health and Science University to be
used in maintaining a circulating library of medical and surgical
books and publications for the use of practitioners of medicine
Enrolled House Bill 2009 (HB 2009-C) Page 595
in this state, and when not so in use to be kept at the library
of the School of Medicine and accessible to its students. The
balance of the money received by the board is appropriated
continuously and shall be used only for the administration and
enforcement of this chapter, but any part of the balance may,
upon the order of the board, be paid into the circulating library
fund.
SECTION 1053. ORS 677.491 is amended to read:
677.491. (1) Whenever any physician determines or reasonably
suspects the injury or death of a person to be toy-related, the
physician shall, in accordance with rules adopted under
subsection (5) of this section, report the physician's findings
to the Director of { - Human Services - } { + the Oregon
Health Authority + }.
(2) The director of any hospital, health care facility, health
maintenance organization, public health center, medical center or
emergency medical treatment facility where any physician has made
a determination or has a reasonable suspicion under subsection
(1) of this section as to whether an injury or death is
toy-related, shall, in accordance with the rules adopted under
subsection (5) of this section, report that physician's findings
to the Director of { - Human Services - } { + the Oregon
Health Authority + }.
(3) The Director of { - Human Services - } { + the Oregon
Health Authority + } shall review, organize and keep a record of
the information set forth in the reports of toy-related injuries
and deaths submitted by physicians under this section. The
director, on a regular basis, shall make the information recorded
under this section available to the United States Consumer
Product Safety Commission for inclusion in its Injury or
Potential Injury Incident Data Base. The information so recorded
shall also be made available to the public for a fee determined
by the director.
(4) If the { - Director of Human Services - }
{ + director + } determines that a specific toy or item poses an
immediate danger or potential threat to the safety of the
citizens of this state, the director shall immediately issue a
public notice warning the public, retail sellers and distributors
of the director's findings and recommendations concerning that
toy or item.
(5) The { - Director of Human Services - } { + director + }
shall adopt rules to implement this section.
SECTION 1054. ORS 677.510 is amended to read:
677.510. (1) A person licensed to practice medicine under this
chapter shall not use the services of a physician assistant
without the prior approval of the Oregon Medical Board. The
application shall state the name of the physician assistant,
describe the manner and extent to which the physician assistant's
services would be used and supervised, state the education,
training and experience of the physician assistant and provide
such other information in such a form as the board may require.
(2) The board may approve or reject an application, or it may
modify the proposed use of the services of the physician
assistant and approve the application as modified. When it
appears to the board that the services of a physician assistant
are being used in a manner inconsistent with the approval
granted, the board may withdraw its approval. If a hearing is
requested by the physician or the physician assistant upon the
rejection of an application, or upon the withdrawal of an
Enrolled House Bill 2009 (HB 2009-C) Page 596
approval, a hearing shall be conducted in accordance with ORS
677.200.
(3)(a) The supervising physician may have a different specialty
from the physician assistant. A physician assistant may be
supervised by no more than four physicians. A physician may
supervise four physician assistants. A supervising physician may
designate a physician to serve as the agent of the supervising
physician for a predetermined period of time.
(b) The board may review and approve applications from
physicians serving federally designated underserved populations,
or physicians in federally designated health professional
shortage areas, federally designated medically underserved areas
or areas designated as medically disadvantaged and in need of
primary health care providers by the Director of { - Human
Services - } { + the Oregon Health Authority + } or the Office
of Rural Health to supervise more than four physician assistants,
and applications from physician assistants to be supervised by
more than four physicians. A physician assistant may render
services in an emergency room and other hospital settings, a
nursing home, a corrections institution and any site included in
the practice description.
(4) A licensed physician assistant may make application to the
board for emergency drug dispensing authority. The board shall
consider the criteria adopted by the Physician Assistant
Committee under ORS 677.545 (4) in reviewing the application.
Such emergency dispensing shall be of drugs prepared or
prepackaged by a licensed pharmacist, manufacturing drug outlet
or wholesale drug outlet authorized to do so under ORS chapter
689.
(5) A physician assistant for whom an application under
subsection (1) of this section has been approved by the board on
or after January 2, 2006, shall submit to the board, within 24
months after the approval, documentation of completion of:
(a) A pain management education program approved by the board
and developed in conjunction with the Pain Management Commission
established under ORS 409.500; or
(b) An equivalent pain management education program, as
determined by the board.
SECTION 1055. ORS 677.515 is amended to read:
677.515. (1) This chapter does not prohibit a person from
rendering medical services:
(a) If the person has satisfactorily completed an educational
program for physician assistants, approved by the Oregon Medical
Board, for physician assistants;
(b) If the services are rendered under the supervision and
control of a person licensed under this chapter to practice
medicine and the use of the physician assistant's services has
been approved by the board as provided by ORS 677.510; and
(c) If the person is licensed as a physician assistant as
provided by ORS 677.495 and 677.505 to 677.525.
(2) This chapter does not prohibit a student enrolled in an
approved program for educating physician assistants from
rendering medical services if the services are rendered in the
course of the program.
(3) Notwithstanding subsections (1) and (2) of this section,
the degree of independent judgment that a physician assistant may
exercise shall be determined by the supervising physician and the
physician assistant in accordance with a practice description
approved by the board.
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(4) A physician assistant may provide medical services to
patients in a setting where a supervising physician does not
regularly practice if the following conditions exist:
(a) Direct communication either in person or by telephone,
radio, radiotelephone, television or similar means is maintained;
and
(b) The medical services provided by the physician assistant
are reviewed by a supervising physician on a regularly scheduled
basis as determined by the board.
(5) A supervising physician, upon the approval of the board and
in accordance with the rules established by the board, may
delegate to the physician assistant the authority to administer
and dispense limited emergency medications and to prescribe
medications pursuant to this section and ORS 677.535 to 677.545.
Neither the board nor the Physician Assistant Committee shall
limit the privilege of administering, dispensing and prescribing
to population groups federally designated as underserved, or to
geographic areas of the state that are federally designated
health professional shortage areas, federally designated
medically underserved areas or areas designated as medically
disadvantaged and in need of primary health care providers by the
Director of
{ - Human Services - } { + the Oregon Health Authority + } or
the Office of Rural Health. All prescriptions written pursuant to
this subsection shall bear the name, office address and telephone
number of the supervising physician.
(6) Nothing in this chapter is intended to require or prohibit
a physician assistant from practicing in a hospital licensed
pursuant to ORS 441.015 to 441.089.
(7) Prescriptions for medications prescribed by a physician
assistant in accordance with this section and ORS 475.005,
677.010, 677.500, 677.510 and 677.535 to 677.545 and dispensed by
a licensed pharmacist may be filled by the pharmacist according
to the terms of the prescription, and the filling of such a
prescription shall not constitute evidence of negligence on the
part of the pharmacist if the prescription was dispensed within
the reasonable and prudent practice of pharmacy.
SECTION 1056. ORS 677.805 is amended to read:
677.805. As used in ORS 677.805 to 677.840:
(1) 'Ankle' means the tibial plafond and its posterolateral
border or posterior malleolus, the medial malleolus, the distal
fibula or lateral malleolus, and the talus.
(2) 'Board' means the Oregon Medical Board.
(3) 'Podiatric physician and surgeon' means a podiatric
physician and surgeon whose practice is limited to treating
ailments of the human foot, ankle and tendons directly attached
to and governing the function of the foot and ankle.
(4) 'Podiatry' means the diagnosis or the medical, physical or
surgical treatment of ailments of the human foot, ankle and
tendons directly attached to and governing the function of the
foot and ankle, except treatment involving the use of a general
or spinal anesthetic unless the treatment is performed in a
hospital certified in the manner described in ORS 441.055
{ - (2) - } { + (3) + } or in an ambulatory surgical center
licensed by the { - Department of Human Services - }
{ + Oregon Health Authority + } and is under the supervision of
or in collaboration with a physician licensed to practice
medicine by the Oregon Medical Board. 'Podiatry' does not include
the administration of general or spinal anesthetics or the
amputation of the entire foot.
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SECTION 1057. ORS 677.812 is amended to read:
677.812. Surgery of the ankle as defined in ORS 677.805 must be
conducted:
(1) In a hospital certified in the manner described in ORS
441.055 { - (2) - } { + (3) + } or in an ambulatory surgical
center licensed by the { - Department of Human Services - }
{ + Oregon Health Authority + }; and
(2) By a podiatric physician and surgeon who meets the
qualifications for ankle surgery established by rule of the
Oregon Medical Board.
SECTION 1058. ORS 678.153 is amended to read:
678.153. The Department of Human Services { + , the Oregon
Health Authority + } and the Oregon State Board of Nursing shall
enter into an interagency agreement to share the results of
nationwide criminal records checks conducted under ORS 181.534 on
subject individuals who are subject to criminal records checks by
{ - both - } the department { + , the authority + } and the
board.
SECTION 1059. ORS 678.362 is amended to read:
678.362. (1) As used in this section:
(a) 'Circulating nurse' means a registered nurse who is
responsible for coordinating the nursing care and safety needs of
the patient in the operating room and who also meets the needs of
operating room team members during surgery.
(b) 'Type I ambulatory surgical center' means a licensed health
care facility for the performance of outpatient surgical
procedures including, but not limited to, cholesystectomies,
tonsillectomies or urological procedures, involving general
anesthesia or a relatively high infection control consideration.
(2)(a) The duties of a circulating nurse performed in an
operating room of a Type I ambulatory surgical center or a
hospital shall be performed by a registered nurse licensed under
ORS 678.010 to 678.410.
(b) In any case requiring anesthesia or conscious sedation, a
circulating nurse shall be assigned to, and present in, an
operating room for the duration of the surgical procedure unless
it becomes necessary for the circulating nurse to leave the
operating room as part of the surgical procedure. While assigned
to a surgical procedure, a circulating nurse may not be assigned
to any other patient or procedure.
(c) Nothing in this section precludes a circulating nurse from
being relieved during a surgical procedure by another circulating
nurse assigned to continue the surgical procedure.
(3) At the request of a Type I ambulatory surgical center or a
hospital, the { - Department of Human Services - } { + Oregon
Health Authority + } may grant a variance from the requirements
of this section based on patient care needs or the nursing
practices of the surgical center or hospital.
SECTION 1060. ORS 678.440 is amended to read:
678.440. (1) It is the intent of the Legislative Assembly to
require that nursing assistants be adequately trained.
(2) The Oregon State Board of Nursing shall prepare curricula
and standards for training programs for nursing assistants. Such
curricula and standards shall provide for additional training for
nursing assistants to administer noninjectable medications.
(3) The Department of Human Services may impose civil penalties
or revoke the license of any { - health care facility - }
{ + long term care facility + } that employs any untrained
nursing assistant for a period of more than eight weeks without
Enrolled House Bill 2009 (HB 2009-C) Page 599
providing for the training prescribed by the board. Any license
which is revoked shall be revoked as provided in ORS 441.030.
{ + (4) The Oregon Health Authority may impose civil
penalties or revoke the license of any health care facility that
employs any untrained nursing assistant for a period of more than
eight weeks without providing for the training prescribed by the
board. Any license which is revoked shall be revoked as provided
in ORS 441.030. + }
{ - (4) - } { + (5) + } As used in this section, 'nursing
assistant ' means a person who assists licensed nursing personnel
in the provision of nursing care.
SECTION 1061. ORS 678.730 is amended to read:
678.730. (1) Any individual is qualified for licensure as a
nursing home administrator who:
(a) Meets the training or experience and other standards
established by rules of the Board of Examiners of Nursing Home
Administrators. The board shall accept one year of experience as
an administrator serving a dual facility in lieu of any residency
or intern requirement established pursuant to this paragraph; and
(b) Has passed an examination as provided in ORS 678.740.
(2) Each license as a nursing home administrator may be renewed
by the board upon compliance by the licensee with the
requirements of ORS 678.760 and by presenting evidence of the
completion of the continuing education work required by the
board. The board may require up to 50 hours of continuing
education in any one-year period.
(3) In establishing educational standards pursuant to
subsection (1)(a) of this section, the board shall require a
baccalaureate degree from an accredited school of higher
education. However, the educational requirement does not apply to
any person who:
(a) Was a licensed administrator in any jurisdiction of the
United States prior to January 1, 1983; or
(b) Was an administrator of a dual facility meeting the
experience requirements pursuant to subsection (1)(a) of this
section.
(4) Notwithstanding the requirements established under
subsection (1) of this section, upon the request of the governing
body of a hospital, as defined in ORS 442.015 { - (19) - } ,
the board shall deem a health care administrator to have met the
requirements for licensure as a nursing home administrator if the
health care administrator possesses an advanced degree in
management and has at least 10 years of experience in health care
management.
SECTION 1062. ORS 680.205 is amended to read:
680.205. (1) A dental hygienist issued a permit to act as a
limited access permit dental hygienist under ORS 680.200 shall be
authorized to render all services within the scope of practice of
dental hygiene, as defined in ORS 679.010, without the
supervision of a dentist and as authorized by the limited access
permit to:
(a) Patients or residents of the following facilities or
programs who, due to age, infirmity or disability, are unable to
receive regular dental hygiene treatment:
(A) Nursing homes as defined in ORS 678.710;
(B) Adult foster homes as defined in ORS 443.705;
(C) Residential care facilities as defined in ORS 443.400;
(D) Adult congregate living facilities as defined in ORS
441.525;
(E) Mental health residential programs administered by the
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{ - Department of Human Services - } { + Oregon Health
Authority + };
(F) Facilities for mentally ill persons, as those terms are
defined in ORS 426.005;
(G) Facilities for persons with mental retardation, as those
terms are defined in ORS 427.005;
(H) Local correctional facilities and juvenile detention
facilities as those terms are defined in ORS 169.005, regional
correctional facilities as defined in ORS 169.620, youth
correction facilities as defined in ORS 420.005, youth care
centers as defined in ORS 420.855, and Department of Corrections
institutions as defined in ORS 421.005; or
(I) Public and nonprofit community health clinics.
(b) Adults who are homebound.
(c) Students or enrollees of nursery schools and day care
programs and their siblings under 18 years of age, Job Corps and
other similar employment training facilities, primary and
secondary schools, including private schools and public charter
schools, and persons entitled to benefits under the Women,
Infants and Children Program.
(2) The Oregon Board of Dentistry may authorize the provision
of dental hygiene services by a limited access permit dental
hygienist at locations or to populations that are underserved or
lack access to dental hygiene services.
(3) At least once each calendar year, a dental hygienist issued
a permit to act as a limited access permit dental hygienist shall
refer each patient or resident to a dentist who is available to
treat the patient or resident.
(4) This section does not authorize a limited access permit
dental hygienist to administer local anesthesia, denture soft
lines, temporary restorations and radiographs except under the
general supervision of a dentist licensed under ORS chapter 679,
or to administer nitrous oxide except under the indirect
supervision of a dentist licensed under ORS chapter 679.
(5) A limited access permit dental hygienist may assess the
need for and appropriateness of sealants, apply sealants and
write prescriptions for all applications of fluoride in which
fluoride is applied or supplied to patients.
(6) A person granted a limited access permit under ORS 680.200
shall also procure all other permits or certificates required by
the board under ORS 679.250.
SECTION 1063. ORS 682.017 is amended to read:
682.017. (1) In accordance with ORS chapter 183, the
{ - Department of Human Services - } { + Oregon Health
Authority + } may adopt and may when necessary amend or repeal
such rules as are necessary for carrying out this chapter.
(2) The { - department - } { + authority + } is authorized
and directed to establish appropriate rules in accordance with
the provisions of ORS chapter 183 concerning the administration
of this chapter. Such rules may deal with, but are not limited
to, such matters as criteria for requirements, types and numbers
of emergency vehicles including supplies and equipment carried,
requirements for the operation and coordination of ambulances and
other emergency care systems, criteria for the use of two-way
communications, procedures for summoning and dispatching aid and
other necessary and proper matters.
SECTION 1064. ORS 682.019 is amended to read:
682.019. The { - Department of Human Services - }
{ + Oregon Health Authority + } may receive and disburse such
Enrolled House Bill 2009 (HB 2009-C) Page 601
federal funds as may be available for carrying out any of the
provisions of ORS 820.330 to 820.380 or this chapter.
SECTION 1065. ORS 682.025 is amended to read:
682.025. As used in this chapter, unless the context requires
otherwise:
(1) 'Ambulance' or 'ambulance vehicle' means any privately or
publicly owned motor vehicle, aircraft or watercraft that is
regularly provided or offered to be provided for the emergency
transportation of persons who are ill or injured or who have
disabilities.
(2) 'Ambulance service' means any person, governmental unit,
corporation, partnership, sole proprietorship or other entity
that operates ambulances and that holds itself out as providing
prehospital care or medical transportation to persons who are ill
or injured or who have disabilities.
{ + (3) 'Authority' means the Oregon Health Authority. + }
{ - (3) - } { + (4) + } 'Board' means the Oregon Medical
Board.
{ - (4) 'Department' means the Department of Human
Services. - }
(5) 'Emergency care' means the performance of acts or
procedures under emergency conditions in the observation, care
and counsel of persons who are ill or injured or who have
disabilities; in the administration of care or medications as
prescribed by a licensed physician, insofar as any of these acts
is based upon knowledge and application of the principles of
biological, physical and social science as required by a
completed course utilizing an approved curriculum in prehospital
emergency care. However, 'emergency care' does not include acts
of medical diagnosis or prescription of therapeutic or corrective
measures.
(6) 'Emergency medical technician' or 'EMT' means a person who
has received formal training in prehospital and emergency care,
and is state certified to attend any person who is ill or injured
or who has a disability. Police officers, firefighters, funeral
home employees and other personnel serving in a dual capacity one
of which meets the definition of ' emergency medical technician'
are 'emergency medical technicians' within the meaning of this
chapter.
(7) 'First responder' means a person who has successfully
completed a first responder training course approved by the
{ - department - } { + authority + } and:
(a) Has been examined and certified as a first responder by an
authorized representative of the { - department - }
{ + authority + } to perform basic emergency and nonemergency
care procedures; or
(b) Has been otherwise designated as a first responder by an
authorized representative of the { - department - }
{ + authority + } to perform basic emergency and nonemergency
care procedures.
(8) 'Fraud or deception' means the intentional
misrepresentation or misstatement of a material fact, concealment
of or failure to make known any material fact, or any other means
by which misinformation or false impression knowingly is given.
(9) 'Governmental unit' means the state or any county,
municipality or other political subdivision or any department,
board or other agency of any of them.
(10) 'Highway' means every public way, thoroughfare and place,
including bridges, viaducts and other structures within the
Enrolled House Bill 2009 (HB 2009-C) Page 602
boundaries of this state, used or intended for the use of the
general public for vehicles.
(11) 'Nonemergency care' means the performance of acts or
procedures on a patient who is not expected to die, become
permanently disabled or suffer permanent harm within the next 24
hours, including but not limited to observation, care and counsel
of a patient and the administration of medications prescribed by
a physician licensed under ORS chapter 677, insofar as any of
those acts are based upon knowledge and application of the
principles of biological, physical and social science and are
performed in accordance with scope of practice rules adopted by
the Oregon Medical Board in the course of providing prehospital
care as defined by this section.
(12) 'Owner' means the person having all the incidents of
ownership in an ambulance service or an ambulance vehicle or
where the incidents of ownership are in different persons, the
person, other than a security interest holder or lessor, entitled
to the possession of an ambulance vehicle or operation of an
ambulance service under a security agreement or a lease for a
term of 10 or more successive days.
(13) 'Patient' means a person who is ill or injured or who has
a disability and who is transported in an ambulance.
(14) 'Person' means any individual, corporation, association,
firm, partnership, joint stock company, group of individuals
acting together for a common purpose or organization of any kind
and includes any receiver, trustee, assignee or other similar
representative thereof.
(15) 'Prehospital care' means that care rendered by emergency
medical technicians as an incident of the operation of an
ambulance as defined by this chapter and that care rendered by
emergency medical technicians as incidents of other public or
private safety duties, and includes, but is not limited to, '
emergency care' as defined by this section.
(16) 'Scope of practice' means the maximum level of emergency
or nonemergency care that an emergency medical technician may
provide.
(17) 'Standing orders' means the written protocols that an
emergency medical technician follows to treat patients when
direct contact with a physician is not maintained.
(18) 'Supervising physician' means a medical or osteopathic
physician licensed under ORS chapter 677, actively registered and
in good standing with the board, who provides direction of
emergency or nonemergency care provided by emergency medical
technicians.
(19) 'Unprofessional conduct' means conduct unbecoming a person
certified in emergency care, or detrimental to the best interests
of the public and includes:
(a) Any conduct or practice contrary to recognized standards of
ethics of the medical profession or any conduct or practice which
does or might constitute a danger to the health or safety of a
patient or the public or any conduct, practice or condition which
does or might impair an emergency medical technician's ability
safely and skillfully to practice emergency or nonemergency care;
(b) Willful performance of any medical treatment which is
contrary to acceptable medical standards; and
(c) Willful and consistent utilization of medical service for
treatment which is or may be considered inappropriate or
unnecessary.
SECTION 1066. ORS 682.028 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 603
682.028. (1) It is unlawful for any person or governmental unit
to:
(a) Intentionally make any false statement on an application
for an ambulance service license, ambulance vehicle license or
for certification as an emergency medical technician or first
responder or on any other documents required by the
{ - Department of Human Services - } { + Oregon Health
Authority + }; or
(b) Make any misrepresentation in seeking to obtain or retain a
certification or license.
(2) Any violation described in subsection (1) of this section
is also grounds for denial, suspension or revocation of a
certification or license under ORS 682.220.
SECTION 1067. ORS 682.031 is amended to read:
682.031. (1) As used in this section, 'political subdivision'
includes counties, cities, districts, authorities and other
public corporations and entities organized and existing under
statute or charter.
(2) An ordinance of any political subdivision regulating
ambulance services or emergency medical technicians shall not
require less than is required under ORS 820.300 to 820.380, or
this chapter or the rules adopted by the { - Department of
Human Services - } { + Oregon Health Authority + } under this
chapter.
(3) When a political subdivision enacts an ordinance regulating
ambulance services or emergency medical technicians, the
ordinance must comply with the county plan for ambulance services
and ambulance service areas adopted under ORS 682.062 by the
county in which the political subdivision is situated and with
the rules of the { - department - } { + Oregon Health
Authority + } relating to such services and service areas. The
determination of whether the ordinance is in compliance with the
county plan shall be made by the county governing body.
SECTION 1068. ORS 682.039 is amended to read:
682.039. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } shall appoint a State Emergency
Medical Service Committee composed of 18 members as follows:
(a) Seven physicians licensed under ORS chapter 677 whose
practice consists of routinely treating emergencies such as
cardiovascular illness or trauma, appointed from a list submitted
by the Oregon Medical Board.
(b) Four emergency medical technicians whose practices consist
of routinely treating emergencies, including but not limited to
cardiovascular illness or trauma, at least one of whom is at the
lowest level of emergency medical technician certification
established by the { - department - } { + authority + } at
the time of appointment. EMTs appointed pursuant to this
paragraph shall be selected from lists submitted by each area
trauma advisory board. The lists shall include nominations from
entities including but not limited to organizations that
represent emergency care providers in Oregon.
(c) One volunteer ambulance operator, one person representing
governmental agencies that provide ambulance services and one
person representing a private ambulance company.
(d) One hospital administrator.
(e) One nurse who has served at least two years in the capacity
of an emergency department nurse.
(f) One representative of an emergency dispatch center.
(g) One community college or licensed career school
representative.
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(2) The committee shall include at least one resident but no
more than three residents from each region served by one area
trauma advisory board at the time of appointment.
(3) Appointments shall be made for a term of four years in a
manner to preserve insofar as possible the representation of the
organization described in subsection (1) of this section.
Vacancies shall be filled for any unexpired term as soon as the
{ - department - } { + authority + } can make such
appointments. The committee shall choose its own chairperson and
shall meet at the call of the chairperson or the { - department
administrator - } { + Director of the Oregon Health
Authority + }.
(4) The State Emergency Medical Service Committee shall:
(a) Advise the { - department - } { + authority + }
concerning the adoption, amendment and repeal of rules authorized
by this chapter;
(b) Assist the Emergency Medical Services and Trauma Systems
Program in providing state and regional emergency medical
services coordination and planning;
(c) Assist communities in identifying emergency medical service
system needs and quality improvement initiatives;
(d) Assist the Emergency Medical Services and Trauma Systems
Program in prioritizing, implementing and evaluating emergency
medical service system quality improvement initiatives identified
by communities;
(e) Review and prioritize rural community emergency medical
service funding requests and provide input to the Rural Health
Coordinating Council; and
(f) Review and prioritize funding requests for rural community
emergency medical service training and provide input to the Area
Health Education Center program.
(5) The chairperson of the committee shall appoint a
subcommittee on EMT certification and discipline, consisting of
five physicians and four EMTs. The subcommittee shall advise the
{ - department - } { + authority + } and the board on the
adoption, amendment, repeal and application of rules concerning
ORS 682.204 to 682.220 and 682.245. The decisions of this
subcommittee shall not be subject to the review of the full State
Emergency Medical Service Committee.
(6) Members are entitled to compensation as provided in ORS
292.495.
SECTION 1069. ORS 682.045 is amended to read:
682.045. (1) A license for an ambulance service or the
operation of ambulance vehicles shall be obtained from the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(2) Applications for licenses shall be upon forms prescribed by
the { - department - } { + authority + } and shall contain:
(a) The name and address of the person or governmental unit
owning the ambulance service or vehicle.
(b) If other than the applicant's true name, the name under
which the applicant is doing business.
(c) In the case of an ambulance vehicle, a description of the
ambulance, including the make, model, year of manufacture,
registration number and the insignia name, monogram or other
distinguishing characteristics to be used to designate the
applicant's ambulance vehicles.
(d) The location and description of the principal place of
business of the ambulance service, and the locations and
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descriptions of the place or places from which its ambulance is
intended to operate.
(e) Such other information as the { - department - }
{ + authority + } may reasonably require to determine compliance
with ORS 820.350 to 820.380 and this chapter and the rules
adopted thereunder.
(3) Except in the case of governmental units, the application
shall be accompanied by future responsibility filing of the type
described under ORS 806.270.
SECTION 1070. ORS 682.047 is amended to read:
682.047. (1) When applications have been made as required under
ORS 682.045, the { - Department of Human Services - }
{ + Oregon Health Authority + } shall issue licenses to the
owner if it is found that the ambulance service and ambulance
comply with the requirements of ORS 820.350 to 820.380 and this
chapter and the rules adopted thereunder.
(2) Each license unless sooner suspended or revoked shall
expire on the next June 30 or on such date as may be specified by
{ - department - } { + authority + } rule.
(3) The { - department - } { + authority + } may initially
issue a license for less than a 12-month period or for more than
a 12-month period not to exceed 15 months.
(4) Licenses shall be issued only to the owner of the ambulance
service and only for the ambulance named in the application and
shall not be transferable to any other person, governmental unit,
ambulance service or ambulance.
(5) Licenses shall be displayed as prescribed by the rules of
the { - department - } { + authority + }.
(6) The { - department - } { + authority + } shall provide
for the replacement of any current license that becomes lost,
damaged or destroyed. A replacement fee of $10 shall be charged
for each replacement license.
(7) Nonrefundable fees in the following amounts shall accompany
each initial and each subsequent annual application to obtain a
license to operate an ambulance service and ambulance:
(a) $75 for an ambulance service having a maximum of four
full-time paid positions;
(b) $250 for an ambulance service having five or more full-time
paid positions;
(c) $45 for each ambulance license if the ambulance is owned
and operated by an ambulance service that has a maximum of four
full-time paid positions; and
(d) $80 for each ambulance license if the ambulance is owned
and operated by an ambulance service having five or more
full-time paid positions.
(8) The fees established under subsection (7) of this section
do not apply to an ambulance or vehicle described under ORS
682.035.
SECTION 1071. ORS 682.051 is amended to read:
682.051. (1) A person or governmental unit commits the offense
of unlawful operation of an unlicensed ambulance { - if, on and
after July 1, 1983, - } or the offense of unlawful operation of
an unlicensed ambulance service if { - , on and after July 1,
1994, - } the person or governmental unit advertises or operates
in this state a motor vehicle, aircraft or watercraft ambulance
that:
(a) Is not operated by an ambulance service licensed under this
chapter;
(b) Is not licensed under this chapter; and
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(c) Does not meet the minimum requirements established under
this chapter by the { - Department of Human Services - }
{ + Oregon Health Authority + } in consultation with the State
Emergency Medical Service Committee for that type of ambulance.
(2) As used in this section, 'governmental unit' and ' person'
have the meaning given those terms in ORS 682.025.
(3) This section does not apply to any ambulance or any person
if the ambulance or person is exempted by ORS 682.035 or 682.079
from regulation by the { - Department of Human Services - }
{ + authority + }.
(4) Authority of political subdivisions to regulate ambulance
services or to regulate or allow the use of ambulances is limited
under ORS 682.031.
(5) The offense described in this section, unlawful operation
of an unlicensed ambulance or ambulance service, is a Class A
misdemeanor. Each day of continuing violation shall be considered
a separate offense.
(6) In addition to the penalties prescribed by subsection (5)
of this section, the { - Department of Human Services - }
{ + authority + } may impose upon a licensed ambulance service a
civil penalty not to exceed $5,000 for each violation of this
chapter and the rules adopted thereunder. Each day of continuing
violation shall be considered a separate violation for purposes
of this subsection.
SECTION 1072. ORS 682.056 is amended to read:
682.056. (1) Upon the request of the designated official of an
ambulance service as defined in ORS 682.051, a first responder as
defined in ORS 682.025, the emergency medical services system
authority in the county in which a prehospital care event
occurred or the { - Department of Human Services - }
{ + Oregon Health Authority + }, a hospital licensed under ORS
chapter 441 may provide to the requester the following
information:
(a) The disposition of the person who was the subject of the
prehospital care event from the emergency department or other
intake facility of the hospital, including but not limited to:
(A) Whether the person was admitted to the hospital; and
(B) If the person was admitted, to what unit the person was
assigned;
(b) The diagnosis given the person in the emergency department
or other intake facility; and
(c) Whether within the first hour after the person arrived at
the hospital, the person received one or more medical procedures
on a list that the { - Department of Human Services - }
{ + authority + } shall establish by rule.
(2) Information provided pursuant to subsection (1) of this
section shall be:
(a) Treated as a confidential medical record and not disclosed;
(b) Considered privileged data under ORS 41.675 and 41.685; and
(c) Used only for legitimate medical quality assurance and
quality improvement activities.
(3) A hospital may charge a fee reasonably related to the
actual cost of providing the information requested pursuant to
this section.
(4) For purposes of this section, 'emergency medical services
system' has the meaning given in ORS 41.685.
SECTION 1073. ORS 682.062 is amended to read:
682.062. (1) Each county shall develop a plan for the county or
two or more contiguous counties may develop a plan relating to
the need for and coordination of ambulance services and establish
Enrolled House Bill 2009 (HB 2009-C) Page 607
one or more ambulance service areas consistent with the plan for
the efficient and effective provision of ambulance services.
(2) Each person, city or rural fire protection district within
the county that provides or desires to provide ambulance services
shall notify the county in writing if the person, city or
district wants to be consulted prior to the adoption or amendment
of a county plan for ambulance services.
(3) Prior to adopting or amending a plan under subsection (1)
of this section, a county shall notify each person, city or
district that notified the county under subsection (2) of this
section of its desire to be consulted. The county governing body
shall consult with and seek advice from such persons, cities and
districts with regard to the plan and to the boundaries of any
ambulance service areas established under the plan. After such
consultation, the county shall adopt or amend a plan in the same
manner as the county enacts nonemergency ordinances.
(4) Any plan developed and any service area established
pursuant to subsection (1) of this section shall be submitted to
the { - Department of Human Services - } { + Oregon Health
Authority + }.
(5) The { - department - } { + authority + }, in
consultation with the appropriate bodies specified in subsection
(1) of this section, shall adopt rules pursuant to ORS chapter
183 that specify those subjects to be addressed and considered in
any plan for ambulance services and areas under subsection (1) of
this section and those subjects to be addressed and considered in
the adoption of any such plan. The rules shall be uniform, as far
as practicable, but take into consideration unique circumstances
of local districts.
(6) The { - department - } { + authority + } shall review a
plan submitted under subsection (4) of this section for
compliance with the rules of the { - department - }
{ + authority + } adopted under subsection (5) of this section.
Not later than 60 days after receiving the plan, the
{ - department - } { + authority + } shall approve the plan
if it complies with the rules or disapprove the plan. The
{ - department - } { + authority + } shall give written notice
of such action to the county and, when a plan is not approved,
the notice shall indicate specifically how the plan does not
comply with the rules of the { - department - }
{ + authority + }. The county shall modify the plan to comply
with the rules and shall submit the modified plan to the
{ - department - } { + authority + } for review under this
subsection.
(7) The rules adopted under subsection (5) of this section
shall be enforceable by the { - department - }
{ + authority + } in a proceeding in circuit court for equitable
relief.
(8) This section does not require a county to establish more
than one ambulance service area within the county.
SECTION 1074. ORS 682.068 is amended to read:
682.068. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + }, in consultation with the State
Emergency Medical Service Committee, shall adopt rules specifying
minimum requirements for ambulance services, and for staffing and
medical and communications equipment requirements for all types
of ambulances. The rules shall define the requirements for
advanced life support and basic life support units of emergency
vehicles, including equipment and emergency medical technician
Enrolled House Bill 2009 (HB 2009-C) Page 608
staffing of the passenger compartment when a patient is being
transported in emergency circumstances.
(2) The { - department - } { + authority + } may waive any
of the requirements imposed by this chapter in medically
disadvantaged areas as determined by the Director of { - Human
Services - } { + the Oregon Health Authority + }, or upon a
showing that a severe hardship would result from enforcing a
particular requirement.
(3) The { - department - } { + authority + } shall exempt
from rules adopted under this section air ambulances that do not
charge for the provision of ambulance services.
SECTION 1075. ORS 682.075 is amended to read:
682.075. (1) Subject to any law or rule pursuant thereto
relating to the construction or equipment of ambulances, the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall, with the advice of the State Emergency
Medical Service Committee appointed under ORS 682.039 and in
accordance with ORS chapter 183, adopt and when necessary amend
or repeal rules relating to the construction, maintenance,
capacity, sanitation, emergency medical supplies and equipment of
ambulances.
(2) In order for an owner to secure and retain a license for an
ambulance under this chapter, it shall meet the requirements
imposed by rules of the { - department - } { + authority + }.
The requirements may relate to construction, maintenance,
capacity, sanitation and emergency medical supplies and equipment
on ambulances. Such requirements shall include, but are not
limited to, requirements relating to space in patient
compartments, access to patient compartments, storage facilities,
operating condition, cots, mattresses, stretchers, cot and
stretcher fasteners, bedding, oxygen and resuscitation equipment,
splints, tape, bandages, tourniquets, patient convenience
accessories, cleanliness of vehicle and laundering of bedding.
SECTION 1076. ORS 682.079 is amended to read:
682.079. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may grant exemptions or
variances from one or more of the requirements of ORS 820.330 to
820.380 or this chapter or the rules adopted thereunder to any
class of vehicles if it finds that compliance with such
requirement or requirements is inappropriate because of special
circumstances which would render compliance unreasonable,
burdensome or impractical due to special conditions or cause, or
because compliance would result in substantial curtailment of
necessary ambulance service. Such exemptions or variances may be
limited in time or may be conditioned as the
{ - department - } { + authority + } considers necessary to
protect the public welfare.
(2) In determining whether or not a variance shall be granted,
the advice of the State Emergency Medical Service Committee shall
be received and in all cases the equities involved and the
advantages and disadvantages to the welfare of patients and the
owners of vehicles shall be weighed by the { - department - }
{ + authority + }.
(3) Rules under this section shall be adopted, amended or
repealed in accordance with ORS 183.330.
SECTION 1077. ORS 682.085 is amended to read:
682.085. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } or its authorized
representatives may at reasonable times inspect ambulances and
Enrolled House Bill 2009 (HB 2009-C) Page 609
ambulance services licensed or subject to being licensed under
this chapter.
(2) The { - department - } { + authority + } may suspend or
revoke a license if the ambulance service owner fails to take
corrective action required pursuant to an inspection of an
ambulance or ambulance service under this section.
SECTION 1078. ORS 682.105 is amended to read:
682.105. (1) In order to secure and retain a license under this
chapter, the owner of an ambulance or ambulance service, other
than a governmental unit, shall file and maintain with the
{ - Department of Human Services - } { + Oregon Health
Authority + } proof of ability to respond in damages for
liability arising from the ownership, operation, use or
maintenance of the ambulance, or arising from the delivery of
prehospital care, in the amount of:
(a) $100,000 because of bodily injury to or death of one person
in any one accident;
(b) Subject to that limit for one person, $300,000 because of
bodily injury to or death of two or more persons in any one
accident;
(c) $20,000 because of injury to or destruction of the property
of others in any one accident; and
(d) $500,000 because of injury arising from the negligent
provision of prehospital care to any individual.
(2) Proof of financial responsibility under subsection (1) of
this section may be given by filing with the { - department - }
{ + authority, + } for the benefit of the owner:
(a) A certificate of insurance issued by an insurance carrier
licensed to transact insurance in this state showing that the
owner has procured and that there is in effect a motor vehicle
liability policy for the limits of financial responsibility
mentioned in subsection (1)(a) to (c) of this section designating
by explicit description all motor vehicles with respect to which
coverage is granted thereby and insuring the named insured and
all other persons using any such motor vehicle with insured's
consent against loss from the liabilities imposed by law for
damages arising out of the ownership, operation, use or
maintenance of any such motor vehicle, and that there is in
effect a professional liability policy for the limit of financial
responsibility described in subsection (1)(d) of this section
insuring the named insured and all other persons engaged in the
provision of prehospital care under the auspices of the licensed
ambulance service against loss from the liabilities imposed by
law for damages arising out of the provision of prehospital care;
(b) A bond conditioned for the paying in behalf of the
principal, the limits of financial responsibility mentioned in
subsection (1) of this section; or
(c) A certificate of the State Treasurer that such owner has
deposited with the State Treasurer the sum of $320,000 in cash,
in the form of an irrevocable letter of credit issued by an
insured institution as defined in ORS 706.008 or in securities
such as may legally be purchased by fiduciaries or for trust
funds of a market value of $320,000.
SECTION 1079. ORS 682.107 is amended to read:
682.107. (1) When insurance is the method chosen to prove
financial responsibility, the certificate of insurance shall be
signed by an authorized company representative and shall contain
the following information:
(a) The date on which the policy was issued.
(b) The name and address of the named insured.
Enrolled House Bill 2009 (HB 2009-C) Page 610
(c) The policy number.
(d) The amount of coverage in terms of the liability limits
stated in ORS 682.105.
(2) The policy of insurance for which the certificate is given
shall not be canceled or terminated except upon the giving of 10
days' prior written notice to the { - Department of Human
Services - } { + Oregon Health Authority + }. However, an
insurance policy subsequently procured and certified to the
{ - department - } { + authority + } shall, on the date the
certificate is filed with the { - department - }
{ + authority + }, terminate the insurance previously certified
with respect to any owner or vehicle designated in both
certificates.
(3) The vehicle policy need not insure any liability under any
worker's compensation, nor any liability on account of bodily
injury to or death of an employee of the insured while engaged in
the employment of the insured, or while engaged in the operation,
maintenance or repair of a vehicle nor any liability for damage
to property owned by, rented to, in charge of or transported by
the insured.
(4) The requirements for a vehicle liability policy and
certificate of insurance may be fulfilled by the policies and
certificates of one or more insurance carriers which policies and
certificates together meet such requirements.
SECTION 1080. ORS 682.109 is amended to read:
682.109. ORS 682.111 to 682.117 apply to a bond, letter of
credit or certificate evidencing deposit with the
{ - Department of Human Services - } { + Oregon Health
Authority + } that is the method chosen to prove financial
responsibility under this chapter. The dollar amounts required
for the bonds, letters of credit or deposits shall be $320,000.
SECTION 1081. ORS 682.111 is amended to read:
682.111. A bond used to comply with financial responsibility
requirements under this chapter must meet all of the following
requirements:
(1) The bond must be in the amount required by ORS 682.109.
(2) The bond must be approved by a judge of a court of record
in this state.
(3) The bond must contain a provision that it cannot be
canceled except upon the giving of 10 days' prior written notice
to the { - Department of Human Services - } { + Oregon Health
Authority + }.
(4) The bond must be provided by either of the following:
(a) A surety company.
(b) Two persons who are residents of Oregon and who each own
real property in this state having together equities at least of
the value required for the bond under ORS 682.109.
(5) If the bond is provided by real property owners in this
state, the bond must contain a schedule of the real property
owned by each of the sureties that will be used to meet the
financial responsibility requirements of this chapter.
(6) The bond must be conditioned to pay, on behalf of the
principal, the limits of financial responsibility requirements
under this chapter.
(7) The bond must be conditioned to pay, on behalf of the
principal, judgments against a person for liability described in
ORS 682.105 and must be subject to action under ORS 682.113.
(8) The bond is subject to any rules adopted by the
{ - department - } { + authority + } relating to such bonds.
SECTION 1082. ORS 682.117 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 611
682.117. (1) A person may satisfy the financial responsibility
requirements of ORS 682.105 by depositing with the
{ - Department of Human Services - } { + Oregon Health
Authority + } the following:
(a) Cash;
(b) Legally issued general obligations of the United States,
the agencies and instrumentalities of the United States and the
States of Oregon, Washington, Idaho and California;
(c) Certificates of deposit or other similar instruments if the
instruments are insured by the Federal Deposit Insurance
Corporation; or
(d) Any combination of cash or instruments described in this
subsection.
(2) The { - department - } { + authority + } shall hold the
deposit under terms and conditions that the { - department - }
{ + authority + } designates by rule. The { - department - }
{ + authority + } may deliver the deposit to the State
Treasurer, who shall receive and hold the deposit subject to the
order of the { - department - } { + authority + }. The
depositor shall reimburse the State Treasurer for any expenses
incurred by the State Treasurer in mailing, insuring, shipping or
delivering the cash or instruments in the deposit.
(3) The { - department - } { + authority + }, by order, may
authorize the State Treasurer to use the deposit as follows:
(a) To satisfy any execution on a judgment that is against the
person making the deposit for any liability described in ORS
682.105 and that results from a cause of action that accrued
after the deposit was made; or
(b) To release any or all of the deposit to the depositor or
other person as the { - department - } { + authority + }
considers appropriate.
(4) While deposited with the { - department - }
{ + authority + }, the cash or instruments in the deposit are
not subject to attachment or execution unless the attachment or
execution arises out of a judgment against the person making the
deposit for any liability described in ORS 682.105 and that
results from a cause of action that accrued after the deposit was
made.
(5) The { - department - } { + authority + } shall issue
the depositor a certificate evidencing the deposit.
SECTION 1083. ORS 682.208 is amended to read:
682.208. (1) For any person to be certified as an emergency
medical technician or first responder, an application for
certification shall be made to the { - Department of Human
Services - } { + Oregon Health Authority + }. The application
shall be upon forms prescribed by the { - department - }
{ + authority + } and shall contain:
(a) The name and address of the applicant.
(b) The name and location of the training course successfully
completed by the applicant and the date of completion.
(c) Certification that to the best of the applicant's knowledge
the applicant is physically and mentally qualified to act as an
emergency medical technician or first responder, is free from
addiction to controlled substances or alcoholic beverages, or if
not so free, has been and is currently rehabilitated and is free
from epilepsy or diabetes, or if not so free, has been free from
any lapses of consciousness or control occasioned thereby for a
period of time as prescribed by rule of the { - department - }
{ + authority + }.
Enrolled House Bill 2009 (HB 2009-C) Page 612
(d) Such other information as the { - department - }
{ + authority + } may reasonably require to determine compliance
with applicable provisions of this chapter and the rules adopted
thereunder.
(2) The application shall be accompanied by proof as prescribed
by rule of the { - department - } { + authority + } of the
applicant's successful completion of a training course approved
by the { - department - } { + authority + }, and if an
extended period of time has elapsed since the completion of the
course, of a satisfactory amount of continuing education.
(3) The { - department - } { + authority + } shall adopt a
schedule of minimum educational requirements in emergency and
nonemergency care for emergency medical technicians and first
responders. The
{ - department - } { + authority + }, with the advice of the
State Emergency Medical Service Committee, may establish levels
of emergency medical technician certification as may be necessary
to serve the public interest. A course approved by the
{ - department - } { + authority + } shall be designed to
protect the welfare of out-of-hospital patients, to promote the
health, well-being and saving of the lives of such patients and
to reduce their pain and suffering.
SECTION 1084. ORS 682.212 is amended to read:
682.212. (1) A nonrefundable initial application fee shall be
submitted with the initial application for emergency medical
technician and first responder certification. In addition, a
nonrefundable examination fee shall be submitted for the
following purposes:
(a) First responder written examination;
(b) Emergency medical technician written examination;
(c) Emergency medical technician practical examination; and
(d) A fee deemed necessary by the { - Department of Human
Services - } { + Oregon Health Authority + } to cover the fee
charged by the national examination agency or other examination
service utilized by the { - department - } { + authority + }
for the purpose of examining candidates for emergency medical
technician certification.
(2) Subject to the review of the Oregon Department of
Administrative Services, the fees and charges established under
this section shall not exceed the cost of administering the
regulatory program of the { - Department of Human Services - }
{ + authority + } pertaining to the purpose for which the fee or
charge is established, as authorized by the Legislative Assembly
for the
{ - department's - } { + authority's + } budget, as the
budget may be modified by the Emergency Board.
(3) All moneys received by the { - department - }
{ + authority + } under this chapter shall be paid into the
General Fund in the State Treasury and placed to the credit of
the { - department - } { + authority + } account and such
moneys hereby are appropriated continuously and shall be used
only for the administration and enforcement of this chapter.
SECTION 1085. ORS 682.216 is amended to read:
682.216. (1) When application has been made as required under
ORS 682.208, the { - Department of Human Services - }
{ + Oregon Health Authority + } shall certify the applicant as
an emergency medical technician or as a first responder if it
finds:
(a) The applicant has successfully completed a training course
approved by the { - department - } { + authority + }.
Enrolled House Bill 2009 (HB 2009-C) Page 613
(b) The applicant's physical and mental qualifications have
been certified as required under ORS 682.208.
(c) No matter has been brought to the attention of the
{ - department - } { + authority + } which would disqualify
the applicant.
(d) A nonrefundable fee has been paid to the
{ - department - } { + authority + } pursuant to ORS 682.212.
(e) The applicant for emergency medical technician
certification is 18 years of age or older and the applicant for
first responder is 16 years of age or older.
(f) The applicant has successfully completed examination as
prescribed by the { - department - } { + authority + }.
(g) The applicant meets other requirements prescribed by rule
of the { - department - } { + authority + }.
(2) The { - department - } { + authority + } may provide
for the issuance of a provisional certification for emergency
medical technicians.
(3) The { - department - } { + authority + } may issue by
indorsement certification for emergency medical technician
without proof of completion of an approved training course to an
emergency medical technician who is licensed to practice
emergency care in another state of the United States or a foreign
country if, in the opinion of the { - department - }
{ + authority + }, the applicant meets the requirements of
certification in this state and can demonstrate to the
satisfaction of the { - department - } { + authority + }
competency to practice emergency care. The { - department - }
{ + authority + } shall be the sole judge of credentials of any
emergency medical technician applying for certification without
proof of completion of an approved training course.
(4) Each person holding a certificate under ORS 682.208 and
this section shall submit, at the time of application for renewal
of the certificate to the { - department - }
{ + authority + }, evidence of the applicant's satisfactory
completion of { - a department - } { + an authority + }
approved program of continuing education and other requirements
prescribed by rule by the { - department - }
{ + authority + }.
(5) The { - department - } { + authority + } shall
prescribe criteria and approve programs of continuing education
in emergency and nonemergency care to meet the requirements of
this section.
(6) The { - department - } { + authority + } shall include
a fee pursuant to ORS 682.212 for late renewal and for issuance
of any duplicate certificate. Each certification issued under
this section, unless sooner suspended or revoked, shall expire
and be renewable after a period of two years. Each certificate
must be renewed on or before June 30 of every second year or on
or before such date as may be specified by { - department - }
{ + authority + } rule. The { - department - } { +
authority + } by rule shall establish a schedule of certificate
renewals under this subsection and shall prorate the fees to
reflect any shorter certificate period.
(7) Nothing in this chapter authorizes an emergency medical
technician or first responder to operate an ambulance without a
driver license as required under the Oregon Vehicle Code.
SECTION 1086. ORS 682.220 is amended to read:
682.220. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may deny, suspend or revoke
licenses for ambulances and ambulance services in accordance with
Enrolled House Bill 2009 (HB 2009-C) Page 614
the provisions of ORS chapter 183 for a failure to comply with
any of the requirements of ORS 820.350 to 820.380 and this
chapter or the rules adopted thereunder.
(2) The certification of an emergency medical technician may be
denied, suspended or revoked in accordance with the provisions of
ORS chapter 183 for any of the following reasons:
(a) A failure to have completed successfully { - a
department - } { + an authority + } approved course.
(b) In the case of provisional certifications, failure to have
completed successfully { - a department - } { + an
authority + } approved course.
(c) Failure to meet or continue to meet the physical and mental
qualifications required to be certified under ORS 682.208.
(d) The use of fraud or deception in receiving a certificate.
(e) Practicing skills beyond the scope of practice established
by the Oregon Medical Board under ORS 682.245.
(f) Rendering emergency or nonemergency care under an assumed
name.
(g) The impersonation of another EMT.
(h) Unprofessional conduct.
(i) Obtaining a fee by fraud or misrepresentation.
(j) Habitual or excessive use of intoxicants or drugs.
(k) The presence of a mental disorder that demonstrably affects
an EMT's performance, as certified by two psychiatrists retained
by the { - department - } { + authority + }.
(L) Subject to ORS 670.280, conviction of any criminal offense
that reasonably raises questions about the ability of the EMT to
perform the duties of an EMT in accordance with the standards
established by this chapter. A copy of the record of conviction,
certified to by the clerk of the court entering the conviction,
shall be conclusive evidence of the conviction.
(m) Suspension or revocation of an emergency medical technician
certificate issued by another state:
(A) For a reason that would permit the { - department - }
{ + authority + } to suspend or revoke a certificate issued
under this chapter; and
(B) Evidenced by a certified copy of the order of suspension or
revocation.
(n) Gross negligence or repeated negligence in rendering
emergency medical assistance.
(o) Rendering emergency or nonemergency care without being
certified except as provided in ORS 30.800.
(p) Rendering emergency or nonemergency care as an EMT without
written authorization and standing orders from a supervising
physician who has been approved by the board in accordance with
ORS 682.245.
(q) Refusing an invitation for an interview with the
{ - department - } { + authority + } as specified in this
section.
(3) The { - department - } { + authority + } may
investigate any evidence that appears to show that an EMT
certified by the { - department - } { + authority + } is or
may be medically incompetent, guilty of unprofessional or
dishonorable conduct or mentally or physically unable to safely
function as an EMT. The { - department - } { + authority + }
may investigate the off-duty conduct of an EMT to the extent that
such conduct may reasonably raise questions about the ability of
the EMT to perform the duties of an EMT in accordance with the
standards established by this chapter. Upon receipt of a
complaint about an EMT or applicant, the { - department - }
Enrolled House Bill 2009 (HB 2009-C) Page 615
{ + authority + } shall conduct an investigation as described
under ORS 676.165. An investigation shall be conducted in
accordance with ORS 676.175.
(4) Any health care facility licensed under ORS 441.015 to
441.087 and 441.820, any medical or osteopathic physician
licensed under ORS chapter 677, any owner of an ambulance
licensed under this chapter or any EMT certified under this
chapter shall report to the { - department - }
{ + authority + } any information the person may have that
appears to show that an EMT is or may be medically incompetent,
guilty of unprofessional or dishonorable conduct or mentally or
physically unable to safely function as an EMT.
(5) If, in the opinion of the { - department - }
{ + authority + }, it appears that the information provided to
it under provisions of this section is or may be true, the
{ - department - } { + authority + } may request an interview
with the EMT. At the time the { - department - } { +
authority + } requests an interview, the EMT shall be provided
with a general statement of the issue or issues of concern to the
{ - department - } { + authority + }. The request shall
include a statement of the procedural safeguards available to the
EMT, including the right to end the interview on request, the
right to have counsel present and the following statement: 'Any
action proposed by the
{ - Department of Human Services - } { + Oregon Health
Authority + } shall provide for a contested case hearing. '
(6) Information regarding an ambulance service provided to the
{ - department - } { + authority + } pursuant to this section
is confidential and shall not be subject to public disclosure,
nor shall it be admissible as evidence in any judicial
proceeding. Information that the { - department - }
{ + authority + } obtains as part of an investigation into
emergency medical technician or applicant conduct or as part of a
contested case proceeding, consent order or stipulated agreement
involving emergency medical technician or applicant conduct is
confidential as provided under ORS 676.175. Information
regarding an ambulance service does not become confidential due
to its use in a disciplinary proceeding against an emergency
medical technician.
(7) Any person who reports or provides information to the
{ - department - } { + authority + } under this section and
who provides information in good faith shall not be subject to an
action for civil damage as a result thereof.
(8) In conducting an investigation under subsection (3) of this
section, the { - department - } { + authority + } may:
(a) Take evidence;
(b) Take depositions of witnesses, including the person under
investigation, in the manner provided by law in civil cases;
(c) Compel the appearance of witnesses, including the person
under investigation, in the manner provided by law in civil
cases;
(d) Require answers to interrogatories; and
(e) Compel the production of books, papers, accounts, documents
and testimony pertaining to the matter under investigation.
(9) The { - department - } { + authority + } may issue
subpoenas to compel compliance with the provisions of subsection
(8) of this section. If any person fails to comply with a
subpoena issued under this subsection, or refuses to testify on
matters on which the person may lawfully be interrogated, a court
may compel obedience as provided in ORS 183.440.
Enrolled House Bill 2009 (HB 2009-C) Page 616
SECTION 1087. ORS 682.224 is amended to read:
682.224. (1) The { - Department of Human Services - }
{ + Oregon Health Authority + } may discipline, as provided in
this section, an ambulance service or any person certified as an
emergency medical technician or first responder in this state who
has:
(a) Admitted the facts of a complaint which alleges facts which
establish that such person is guilty of violation of one or more
of the grounds for suspension or revocation of a certificate as
set forth in ORS 682.220 or that an ambulance service has
violated the provisions of this chapter or the rules adopted
thereunder.
(b) Been found guilty in accordance with ORS chapter 183 of
violation of one or more of the grounds for suspension or
revocation of certification as set forth in ORS 682.220 or that
an ambulance service has violated the provisions of this chapter
or the rules adopted thereunder.
(2) The purpose of disciplining an EMT under this section is to
ensure that the EMT will provide services that are consistent
with the obligations of this chapter. Prior to taking final
disciplinary action, the { - department - } { + authority + }
shall determine if the EMT has been disciplined for the
questioned conduct by the EMT's employer or supervising
physician. The { - department - } { + authority + } shall
consider any such discipline or any other corrective action in
deciding whether additional discipline or corrective action by
the { - department - } { + authority + } is appropriate.
(3) In disciplining an EMT or ambulance service as authorized
by subsection (1) of this section, the { - department - }
{ + authority + } may use any or all of the following methods:
(a) Suspend judgment.
(b) Issue a letter of reprimand.
(c) Issue a letter of instruction.
(d) Place the EMT or ambulance service on probation.
(e) Suspend the EMT certificate or ambulance service license.
(f) Revoke the EMT certificate or ambulance service license.
(g) Place limitations on the certificate of the EMT to practice
emergency or nonemergency care in this state or place limitations
on the license of the ambulance service.
(h) Take such other disciplinary action as the
{ - department - } { + authority + } in its discretion finds
proper, including assessment of the costs of the disciplinary
proceedings as a civil penalty or assessment of a civil penalty
not to exceed $5,000, or both.
(4) In addition to the action authorized by subsection (3) of
this section, the { - department - } { + authority + } may
temporarily suspend a certificate or license without a hearing,
simultaneously with the commencement of proceedings under ORS
chapter 183 if the
{ - department - } { + authority + } finds that evidence in
its possession indicates that a continuation in practice of the
EMT or operation of the ambulance service constitutes an
immediate danger to the public.
(5) If the { - department - } { + authority + } places any
EMT or ambulance service on probation as set forth in subsection
(3)(d) of this section, the { - department - }
{ + authority + } may determine, and may at any time modify, the
conditions of the probation and may include among them any
reasonable condition for the purpose of protection of the public
and for the purpose of the rehabilitation of the EMT or ambulance
Enrolled House Bill 2009 (HB 2009-C) Page 617
service, or both. Upon expiration of the term of probation,
further proceedings shall be abated if the EMT or ambulance
service has complied with the terms of the probation.
(6) If an EMT certified in this state is suspended, the holder
of the certificate may not practice during the term of
suspension.
(7) If an ambulance service licensed in this state is
suspended, the ambulance service may not operate in this state
during the term of the suspension, provided that the
{ - department - } { + authority + } shall condition such
suspension upon such arrangements as may be necessary to
{ - assure - } { + ensure + } the continued availability of
ambulance service in the area served by that ambulance service.
Upon expiration of the term of suspension, the certificate or
license shall be reinstated by the { - department - }
{ + authority + } if the conditions for which the certificate or
license was suspended no longer exist.
(8) Whenever an EMT certificate or ambulance service license is
denied or revoked for any cause, the { - department - }
{ + authority + } may, in its discretion, after the lapse of two
years from the date of such revocation, upon written application
by the person formerly certified or licensed and after a hearing,
issue or restore the EMT certificate or ambulance service
license.
(9) Civil penalties under this section shall be imposed as
provided in ORS 183.745.
SECTION 1088. ORS 682.245 is amended to read:
682.245. (1) The Oregon Medical Board shall adopt by rule a
scope of practice for emergency medical technicians at such
levels as may be established by the { - Department of Human
Services - } { + Oregon Health Authority + } and for first
responders.
(2) The board shall adopt by rule standards for the
qualifications and responsibilities of supervising physicians.
(3) The standing orders for emergency medical technicians and
first responders may not exceed the scope of practice defined by
the board.
(4) No emergency medical technician shall provide patient care
or treatment without written authorization and standing orders
from a supervising physician who has been approved by the board.
(5) The policies and procedures for applying and enforcing this
section may be delegated in whole or in part to the
{ - department - } { + authority + }.
SECTION 1089. ORS 682.991 is amended to read:
682.991. (1) Violation of any provision of ORS 682.028, 682.047
(5) or 682.204 is a Class A misdemeanor. Each day of continuing
violation shall be considered a separate offense.
(2) Violation of any provision of this chapter is a
misdemeanor. In any prosecution for such violation it shall be
sufficient to sustain a conviction to show a single act of
conduct in violation of any of the provisions of this chapter and
it shall not be necessary to show a general course of such
conduct.
(3) In addition to the penalties under this section, the
{ - Department of Human Services - } { + Oregon Health
Authority + } may assess civil penalties of up to $5,000 per
violation against any entity or person licensed under this
chapter or subject to licensure under this chapter.
SECTION 1090. ORS 685.055 is amended to read:
Enrolled House Bill 2009 (HB 2009-C) Page 618
685.055. The Director of { - Human Services shall - }
{ + the Oregon Health Authority may + } not discriminate between
licensed naturopathic physicians and any other person authorized
by law to render professional services that a licensed
naturopathic physician may render, when such services are
required. If the
{ - Department of Human Services - } { + Oregon Health
Authority + } is responsible for paying for such services, the
services shall be paid for in the same manner and under the same
standards as similar professional services.
SECTION 1091. ORS 685.160 is amended to read:
685.160. (1) There hereby is created the Board of Naturopathic
Examiners in the { - Department of Human Services - } { +
Oregon Health Authority + }. The board shall consist of seven
members appointed by the Governor for terms of three years
commencing July 1, and until their successors are appointed and
qualified. A majority of the members of the board constitutes a
quorum. If there is a vacancy for any cause, the Governor shall
appoint a member to serve for the remainder of the unexpired
term. All appointments of members of the board by the Governor
are subject to confirmation by the Senate in the manner provided
in ORS 171.562 and 171.565.
(2) Of the membership of the Board of Naturopathic Examiners:
(a) All members must be citizens of this state.
(b) Five members shall be naturopaths who have each practiced
continuously in this state for the five years immediately prior
to the date of appointment.
(c) Two shall be members of the general public who do not
possess the qualifications set forth in paragraph (b) of this
subsection.
(3) The board shall carry into effect the provisions of this
chapter and is authorized to issue licenses to practice
naturopathic medicine in this state. The possession of a common
seal by the board hereby is authorized.
SECTION 1092. ORS 688.545 is amended to read:
688.545. (1)(a) There is created in the { - Department of
Human Services - } { + Oregon Health Authority + } a Board of
Radiologic Technology consisting of nine members who shall be
appointed by the Governor. Each member of the board shall be a
citizen of the United States and a resident of the State of
Oregon. Each appointed member is entitled to vote.
(b) Of the members of the board:
(A) One shall be a radiologist;
(B) At least one shall be a lay person;
(C) At least one shall be a limited permit holder; and
(D) At least five shall be licensed practicing radiologic
technologists, one of whom shall be a radiation therapist.
(2) The section manager of the Radiation Protection Services
Section of the { - Department of Human Services - }
{ + Oregon Health Authority + }, or a person appointed by the
section manager, shall be an advisory member of the board for the
purpose of providing counsel and shall not be entitled to vote.
(3) The term of office of the members of the board shall be
three years and a member may be reappointed to serve not more
than two full terms.
(4) Members of the board shall be entitled to compensation and
expenses as provided in ORS 292.495.
(5) The board shall annually elect a board chairperson and a
vice chairperson from the members of the board.
Enrolled House Bill 2009 (HB 2009-C) Page 619
(6) For the purpose of transacting its business, the board
shall meet at least once every three months at times and places
designated by resolution. Special meetings may also be held at
such times as the board may elect or at the call of the
chairperson. Notification of the time, place and purpose of any
special meeting shall be sent to all members of the board at
least 15 days before the date of the meeting. All meetings are
subject to ORS 192.610 to 192.690.
(7) Five members of the board shall constitute a quorum for the
transaction of business at any meeting. Five affirmative votes
shall be required to take action.
SECTION 1093. ORS 688.595 is amended to read:
688.595. The section manager of the Radiation Protection
Services Section of the { - Department of Human Services - }
{ + Oregon Health Authority + } shall enforce the provisions of
ORS 688.405 to 688.605 and shall conduct, under the direction of
the Board of Radiologic Technology, inspections in furtherance of
the purposes of ORS 688.405 to 688.605.
SECTION 1094. ORS 688.625 is amended to read:
688.625. As used in ORS 688.625 to 688.665:
(1) 'Dialysis facility or center' means a place awarded
conditional or unconditional status by the federal Centers for
Medicare and Medicaid Services.
(2) 'End stage renal disease' means a condition that requires
either the replacement of kidney functions through renal
transplantation or the permanent assistance of those functions
through dialysis.
(3) 'Hemodialysis technician' means a person certified by the
{ - Department of Human Services - } { + Oregon Health
Authority + } under ORS 688.650.
SECTION 1095. ORS 688.630 is amended to read:
688.630. { - After January 1, 2000, it is unlawful: - }
(1) { + It is unlawful + } for any person to act as a
hemodialysis technician without being certified by the
{ - Department of Human Services - } { + Oregon Health
Authority + }.
(2) { + It is unlawful + } for any dialysis facility or center
to authorize a person to act for it as a hemodialysis technician
without being certified by the { - department - }
{ + authority + }.
SECTION 1096. ORS 688.635 is amended to read:
688.635. (1) A person certified as a hemodialysis technician
may, under the direct supervision of a physician licensed under
ORS chapter 677 or a registered nurse licensed under ORS 678.010
to 678.410, perform functions as determined by rules adopted by
the { - Department of Human Services - } { + Oregon Health
Authority + }, in consultation with the Oregon Medical Board and
the Oregon State Board of Nursing.
(2) A hemodialysis technician shall not:
(a) Administer medications by oral, intramuscular, intravenous
or subcutaneous means except as specified under rules adopted by
the { - department - } { + authority + } pursuant to
subsection (1) of this section.
(b) Determine the frequency, duration or nature of dialysis
treatments or alter any treatment prescribed by a licensed health
professional.
(c) Engage in any health care activity requiring a license
except as authorized under rules adopted by the
{ - department - } { + authority + } pursuant to subsection
(1) of this section.
Enrolled House Bill 2009 (HB 2009-C) Page 620
SECTION 1097. ORS 688.640 is amended to read:
688.640. (1) For any person to be certified as a hemodialysis
technician, an application for certification shall be made to the
{ - Department of Human Services - } { + Oregon Health
Authority + }. The application shall be upon forms prescribed by
the { - department - } { + authority + } and shall contain:
(a) The name and address of the applicant.
(b) The name and location of the training course successfully
completed by the applicant and the date of completion and, if an
extended period of time has elapsed since the completion of the
training, of the required amount of continuing education.
(c) Such other information as the { - department - }
{ + authority + } may reasonably require to determine compliance
with applicable provisions of ORS 688.625 to 688.665 and the
rules adopted thereunder.
(2) The { - department - } { + authority + }, in
consultation with the Oregon Medical Board and the Oregon State
Board of Nursing, shall adopt rules establishing initial training
and continuing education requirements.
SECTION 1098. ORS 688.645 is amended to read:
688.645. (1) An initial application fee shall be submitted with
the application for hemodialysis technician certification. If the
applicant is taking an examination administered by the
{ - Department of Human Services - } { + Oregon Health
Authority + }, an additional fee shall be charged for the
examination.
(2) The { - department - } { + authority + } may charge a
fee for late renewal of a certificate and for issuance of any
duplicate certificate.
(3) Subject to the review of the Oregon Department of
Administrative Services, the fees and charges established under
this section shall not exceed the cost of administering the
certification program of the { - Department of Human
Services - } { + authority + } pertaining to the purpose for
which the fee or charge is established, as authorized by the
Legislative Assembly for the
{ - Department of Human Services' - } { + authority's + }
budget, as the budget may be modified by the Emergency Board.
(4) All moneys received by the { - department - }
{ + authority + } under ORS 688.625 to 688.665 shall be paid
into the General Fund in the State Treasury and placed to the
credit of the { - department - } { + authority + } account
and such moneys hereby are appropriated continuously and shall be
used only for the administration and enforcement of ORS 688.625
to 688.665.
SECTION 1099. ORS 688.650 is amended to read:
688.650. (1) When application has been made as required under
ORS 688.640, the { - Department of Human Services - }
{ + Oregon Health Authority + } shall certify the applicant as a
hemodialysis technician if it finds:
(a) The applicant has successfully completed the training
requirement adopted by the { - department - }
{ + authority + }.
(b) A fee has been paid to the { - department - }
{ + authority + } pursuant to ORS 688.645.
(c) The applicant has successfully completed an examination
administered by the { - department - } { + authority + } or
administered by another public or private entity and approved by
the { - department - } { + authority + }.
Enrolled House Bill 2009 (HB 2009-C) Page 621
(d) The applicant meets any other requirements prescribed by
rule of the { - department - } { + authority + }.
(2) The { - department - } { + authority + } may provide
for the issuance of a temporary or provisional certification for
a person to practice as a hemodialysis technician until the
person has taken and passed the next held certification
examination available to the person and has received a
certificate. The { - department - } { + authority + } may
impose any conditions or limitations on a temporary or
provisional certificate that the { - department - }
{ + authority + } considers reasonable and necessary to protect
the public. A temporary or provisional certificate may be held
only by a person who:
(a) Has not received a failing grade on a certification
examination approved or administered by the { - department - }
{ + authority + }; and
(b)(A) Has successfully completed the initial training required
by { - department - } { + authority + } rule; or
(B) Is currently working in this or another state as a
hemodialysis technician and is enrolled in a program offering the
initial training required by { - department - }
{ + authority + } rule.
(3) Each person holding a certificate under this section shall
submit, at the time of application for renewal of the certificate
to the { - department - } { + authority + }, evidence of the
applicant's satisfactory completion of any continuing education
requirements prescribed by rule by the { - department - }
{ + authority + }.
(4) The { - department - } { + authority + } shall
prescribe criteria and approve programs of continuing education.
(5) Each certification issued under this section, unless sooner
suspended or revoked, shall expire and be renewable after a
period of two years. Each certificate must be renewed on or
before June 30 of every second year or on or before such date as
may be specified by { - department rule. The department - }
{ + authority rule. The authority + } by rule shall establish a
schedule of certificate renewals under this subsection and shall
prorate the fees to reflect any shorter certificate period.
SECTION 1100. ORS 688.655 is amended to read:
688.655. (1) The certification of a hemodialysis technician may
be denied, suspended or revoked in accordance with the provisions
of ORS chapter 183 for any of the following:
(a) Failure to complete continuing education requirements.
(b) The use of fraud or deception in receiving a certificate.
(c) Habitual or excessive use of intoxicants or drugs.
(d) The presence of a mental disorder that demonstrably affects
a technician's performance, as certified by two psychiatrists
retained by the { - Department of Human Services - } { +
Oregon Health Authority + }.
(e) Conviction of a criminal offense that the
{ - department - } { + authority + } considers reasonably
related to the fitness of the person to practice hemodialysis.
(f) Suspension or revocation of a hemodialysis technician
certificate issued by another state.
(g) Gross negligence or repeated negligence in rendering
hemodialysis care.
(h) Any reason identified by { - department - }
{ + authority + } rule as rendering the applicant unfit to
perform the duties of a hemodialysis technician.
Enrolled House Bill 2009 (HB 2009-C) Page 622
(2) The { - department - } { + authority + } may
investigate any evidence that appears to show that a hemodialysis
technician certified by the { - department - }
{ + authority + } is or may be medically incompetent or is or
may be guilty of unprofessional or dishonorable conduct or is or
may be mentally or physically unable to safely function as a
hemodialysis technician.
(3) Any dialysis facility or center, any hemodialysis
technician certified under ORS 688.650, any physician licensed
under ORS chapter 677 or any registered nurse licensed under ORS
678.010 to 678.410 shall report to the { - department - }
{ + authority + } any information the person may have that
appears to show that a hemodialysis technician is or may be
medically incompetent or is or may be guilty of unprofessional or
dishonorable conduct or is or may be mentally or physically
unable to safely function as a hemodialysis technician.
(4) Information provided to the { - department - }
{ + authority + } pursuant to this section is confidential and
shall not be subject to public disclosure, n