Chapter 316 Oregon Laws 1999

Session Law

AN ACT

SB 312

Relating to Mental Health and Developmental Disability Services Division; creating new provisions; amending ORS 30.297, 30.298, 243.140, 279.800, 390.124, 418.205, 430.215, 443.405 and 723.188; and declaring an emergency.

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

SECTION 1. ORS 430.215 is amended to read:

430.215. The Mental Health and Developmental Disability Services Division 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) Psychiatric residential and day treatment services for children [and specialized services for children with severe cognitive, physical and medical impairments] with mental or emotional disturbances.

SECTION 2. 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 facilities, other than local facilities for persons enrolled in work release programs maintained under ORS 144.460;

(b) Youth correction facilities as defined in ORS 420.005;

(c) Youth care centers operated by a county juvenile department under administrative control of a juvenile court pursuant to ORS 420.855 to 420.885; and

(d) Juvenile detention facilities as defined in ORS 419A.004;

(3) A nursing home;

(4) A hospital;

(5) A place primarily engaged in recreational activities;

(6) A foster home; or

(7) A place providing care and treatment on less than a 24-hour basis. [; or]

[(8) A child-caring agency or residential school or other organization certified or licensed by the State Office for Services to Children and Families under ORS 418.205 to 418.327.]

SECTION 3. ORS 418.205 is amended to read:

418.205. As used in ORS 418.205 to 418.310 and 418.992 to 418.998, unless the context requires otherwise:

(1) "Child" means an unmarried person under 18 years of age.

(2)(a) "Child-caring agency" [includes] means any private agency or private organization providing:

[(a)] (A) Day treatment for disturbed children;

[(b)] (B) Adoption placement services;

[(c)] (C) Residential care, including but not limited to foster care or residential treatment for children; or

[(d)] (D) Other similar services for children.

(b) "Child-caring agency" does not include residential homes or facilities or foster care homes certified or licensed by the Mental Health and Developmental Disability Services Division.

(3) "Private" means not owned, operated or administered by any governmental agency or unit.

SECTION 4. As used in this section and section 5 of this 1999 Act:

(1) "Child" means a person under 18 years of age for whom developmental disability services are planned and provided.

(2)(a) "Developmental disability child foster home" means any home maintained by a person who has under the care of the person, in the home, a child found eligible for developmental disability services for the purpose of providing the child with supervision, food and lodging. The child must be unrelated to the person by blood or marriage and be unattended by the child's parent or guardian.

(b) "Developmental disability child foster home" does not include:

(A) A boarding school that is essentially and primarily engaged in educational work;

(B) A home in which a child is provided with room and board by a school district board; or

(C) A foster home under the direct supervision of a private child-caring agency.

(3) "Division" means the Mental Health and Developmental Disability Services Division.

SECTION 5. (1) A person may not operate a developmental disability child foster home without having a certificate issued by the Mental Health and Developmental Disability Services Division.

(2) A person may apply for a certificate to operate a developmental disability child foster home by submitting an application to the division on a form furnished by the division.

(3) Upon receipt of an application under subsection (2) of this section, the division shall cause an investigation to be made of the applicant and the applicant's home. The division shall determine whether to issue a certificate to the applicant and, if a certificate is to be issued, whether to issue a conditional certificate or a regular certificate. The certificate shall be in the form prescribed by the division by rule.

(4) After notice and an opportunity for hearing as provided in ORS 183.310 to 183.482, the division may deny, refuse to renew or revoke a certificate to operate a developmental disability child foster home. A person whose application for a certificate has been denied, not renewed or revoked may appeal the decision to the Court of Appeals in the manner provided in ORS 183.480 for the review of orders in contested cases.

(5) The division may adopt rules to carry out the intent and purposes of this section and section 4 of this 1999 Act.

SECTION 5a. (1) Whenever, in any rule, or in any document, record or proceeding authorized thereby, reference is made to the State Office for Services to Children and Families, or any employee thereof, whose duties, functions or powers relating to the certification of developmental disability child foster homes are assigned to the Mental Health and Developmental Disability Services Division by this 1999 Act, such reference is considered to describe the Mental Health and Developmental Disability Services Division that by this 1999 Act is charged with carrying out such duties, functions and powers.

(2) The lawful rules of the State Office for Services to Children and Families with respect to the certification of developmental disability child foster homes continue in effect until superseded or rescinded by rules lawfully adopted by the Mental Health and Developmental Disability Services Division.

SECTION 6. ORS 30.297 is amended to read:

30.297. (1) Notwithstanding ORS 125.235, the State Office for Services to Children and Families is liable for damages resulting from the intentional torts of a foster child who is:

(a) Residing in a foster home that has been certified by the office under the provisions of ORS 418.625 to 418.645, even though the child may be temporarily absent from that home; or

(b) Residing in an approved home that is receiving payment from the office under the provisions of ORS 418.027 or under the provisions of ORS 420.810 and 420.815, even though the child may be temporarily absent from that home.

(2) Notwithstanding ORS 125.235, the Mental Health and Developmental Disability Services Division is liable for damages resulting from the intentional torts of a foster child who is residing in a developmental disability child foster home that has been certified by the division under the provisions of sections 4 and 5 of this 1999 Act, even though the foster child may be temporarily absent from that home.

[(2)] (3) Except as otherwise provided in this section, the liability of the office and the division under this section shall be subject to the same requirements and limitations provided in ORS 30.260 to 30.300, and a claim under this section shall be treated as a claim for damages within the scope of ORS 30.260 to 30.300 for the purposes of ORS 278.120.

[(3)] (4) Notwithstanding [subsection] subsections (1) and (2) of this section:

(a) The office and the division shall not be liable for any damages arising out of the operation of a motor vehicle by a foster child; and

(b) The office and the division shall only be liable for theft by a foster child upon a showing by clear and convincing evidence that the foster child committed the theft.

[(4)] (5) For the purposes of this section:

(a) "Division" means the Mental Health and Developmental Disability Services Division.

[(a)] (b) "Foster child" means:

(A) A minor child under the custody or guardianship of the office by reason of appointment pursuant to ORS chapter 125, 419A, 419B or 419C;

(B) A minor child under the physical custody of the office pursuant to a voluntary agreement with the parent under ORS 418.015 (1);

(C) A minor child placed in a certified foster home, pending hearing, by any person authorized by the office to make that placement; [and]

(D) A person under 21 years of age who has been placed in an approved home that is receiving payment from the office under the provisions of ORS 418.027 or under the provisions of ORS 420.810 and 420.815; or

(E) A child residing in a developmental disability child foster home certified under sections 4 and 5 of this 1999 Act.

[(b)] (c) "Office" means the State Office for Services to Children and Families.

SECTION 7. ORS 390.124 is amended to read:

390.124. In accordance with any applicable provision of ORS 183.310 to 183.550, the State Parks and Recreation Commission may adopt rules necessary to carry out the duties, functions and powers imposed by law upon the commission and the State Parks and Recreation Department. The rules may provide reasonable charges for use of accommodations provided at areas established and maintained by the department. Rules adopted pursuant to this section shall be duly entered in the minutes and records of the department. However, the department by rule shall authorize the use of any state park, individual campsite or day use fee area without charge, upon proper identification by:

(1) Foster parents described in ORS 243.140 (1) and their children, when accompanied by their foster children[, to use any state park, individual campsite or day use fee area without charge, upon proper identification].

(2) A person maintaining a developmental disability child foster home certified under sections 4 and 5 of this 1999 Act and the person's children, when accompanied by a foster child residing in the home.

SECTION 8. ORS 243.140 is amended to read:

243.140. (1) Persons whose homes are certified as a foster home by the State Office for Services to Children and Families under ORS 418.630 and as defined in ORS 418.625 (2) may participate in a health benefit plan available to state employees pursuant to ORS 243.105 to 243.285 at the expense of the foster parent. For such purposes, foster parents shall be considered eligible employees.

(2) A person who maintains a developmental disability child foster home that is certified by the Mental Health and Developmental Disability Services Division under sections 4 and 5 of this 1999 Act may participate in a health benefit plan available to state employees pursuant to ORS 243.105 to 243.285 at the expense of the person. For such purposes, the person maintaining the home shall be considered an eligible employee.

[(2)] (3) Persons who participate in the health benefit plan pursuant to [subsection] subsections (1) and (2) of this section may also participate in a dental plan available to state employees pursuant to ORS 243.105 to 243.285 at the expense of the foster parent or the person maintaining the developmental disability child foster home.

SECTION 9. ORS 723.188 is amended to read:

723.188. (1) Notwithstanding any other provision of this chapter, a credit union that provides in its articles of incorporation or bylaws for membership of employees of the State of Oregon shall also permit membership of any person:

(a) Serving as a foster parent in a foster home certified by the State Office for Services to Children and Families [of the Department of Human Resources] under ORS 418.625 to 418.645; and

(b) Maintaining a developmental disability child foster home certified by the Mental Health and Developmental Disability Services Division under sections 4 and 5 of this 1999 Act.

(2) A [foster parent] person eligible for membership in a credit union under subsection (1) of this section shall comply with all other membership requirements applicable to any other person eligible for membership in the credit union.

SECTION 10. ORS 279.800 is amended to read:

279.800. As used in ORS 279.800 to 279.833, unless the context requires otherwise:

(1) "Department" means the Oregon Department of Administrative Services.

(2) "Residential facility" has the meaning given that term in ORS 443.400 and 443.405 and includes developmental disability child foster homes, as defined in section 4 of this 1999 Act.

(3) "Sheltered workshop" has the meaning given that term in ORS 344.710.

(4) "State agency" or "agency" has the meaning given that term in ORS 291.002.

(5) "Work activity center" means a nonprofit facility established and operated by a private organization, agency or institution to provide therapeutic activities for disabled individuals whose physical or mental impairment is so severe as to make their productive capacity inconsequential. Therapeutic activities include those activities which focus on teaching basic living skills, social-recreational skills and work skills.

SECTION 11. ORS 30.298 is amended to read:

30.298. (1) Except as otherwise provided in this section, the State Office for Services to Children and Families is liable, without regard to fault, for injury to the person of foster parents or damage to the property of foster parents caused by a foster child if:

(a) The foster child resides in a foster home that is maintained by the foster parents and that has been certified by the office under the provisions of ORS 418.625 to 418.645; or

(b) The foster child is residing in an approved home that is maintained by the foster parents and that is receiving payment from the office under the provisions of ORS 418.027 or under the provisions of ORS 420.810 and 420.815.

(2) Except as otherwise provided in this section, the Mental Health and Developmental Disability Services Division is liable, without regard to fault, for injury to the person of foster parents or damage to the property of foster parents caused by a foster child if the foster child is residing in a developmental disability child foster home that has been certified by the division under the provisions of sections 4 and 5 of this 1999 Act.

[(2)] (3) Except as otherwise provided in this section, the liability of the office and division under this section shall be subject to the same requirements and limitations provided in ORS 30.260 to 30.300, and a claim under this section shall be treated as a claim for damages within the scope of ORS 30.260 to 30.300 for the purposes of ORS 278.120.

[(3)] (4) Notwithstanding ORS 30.260 to 30.300:

(a) In no event shall the liability of the office and division under this section exceed $5,000 for any number of claims arising out of a single occurrence;

(b) The liability of the office and division under this section is limited to economic damages, and in no event shall the office and division be liable for noneconomic damages;

(c) The office [is] and division are liable under this section only to the extent the loss is not covered by other insurance; and

(d) No claim shall be allowed under this section unless written notice of the claim is delivered to the Oregon Department of Administrative Services within 90 days after the alleged loss or injury.

[(4)] (5) The office and division shall not be liable under this section for:

(a) Damage to or destruction of currency, securities or any other intangible property;

(b) The unexplained disappearance of any property; or

[(5)] (6) In no event shall the [office's] liability of the office and division under this section for damage to property exceed the difference between the fair market value of the property immediately before its damage or destruction and its fair market value immediately thereafter. The office and division shall not be liable for the costs of any betterments to the property that may be required by code, statute or other law as a condition of repair, replacement or reconstruction.

[(6)] (7) The liability imposed under this section is in addition to that imposed for the intentional torts of a foster child under ORS 30.297, but any amounts paid under this section shall reduce any recovery that may be made under ORS 30.297.

[(7)] (8) For the purposes of this section:

(a) "Division" means the Mental Health and Developmental Disability Services Division.

[(a)] (b) "Economic damages" and "noneconomic damages" have those meanings given in ORS 18.560.

[(b)] (c) "Foster child" has that meaning given in ORS 30.297.

[(c)] (d) "Office" means the State Office for Services to Children and Families.

SECTION 12. Prior to July 1, 2000, the Mental Health and Developmental Disability Services Division shall report to the appropriate interim legislative committees on the progress toward implementation of this 1999 Act.

SECTION 13. This 1999 Act being necessary for the immediate preservation of the public peace, health and safety, an emergency is declared to exist, and this 1999 Act takes effect July 1, 1999.

Approved by the Governor June 23, 1999

Filed in the office of Secretary of State June 24, 1999

Effective date July 1, 1999

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