ORS Chapter 427 - Oregon Statutes

Chapter 427 — PersonsWith Mental Retardation; Persons With Developmental Disabilities

 

2009 EDITION

 

 

MENTALRETARDATION; DEVELOPMENTAL DISABILITIES

 

MENTALHEALTH; ALCOHOL AND DRUG ABUSE

 

GENERALPROVISIONS

 

427.005     Definitions

 

427.007     Policy;Department of Human Services to plan and facilitate community services

 

EASTERNOREGON TRAINING CENTER

 

427.010     EasternOregon Training Center; care provided; fees; superintendent; chief medicalofficer

 

427.020     Reviewof plan of care for residents; certification for continued care and training;notice to resident

 

427.031     Rightsof residents

 

427.041     Leaveof absence for resident

 

427.051     Effectof admission to training center on competency

 

427.061     Paymentfor care and treatment in state training center

 

DIAGNOSTICEVALUATIONS

 

427.104     DevelopmentalDisability Diagnosis and Evaluation Service; duties and powers

 

427.105     Diagnosticevaluations; contents; purpose; rules

 

427.108     Feeschedules for diagnosis and evaluation services

 

427.112     Certainfacilities to charge for performing diagnostic evaluations

 

ADMISSIONTO STATE TRAINING CENTER

 

427.175     Admissionto training center; rules

 

427.180     Requirementsfor admission

 

427.185     Applicationfor admission; diagnostic evaluation; costs of transportation and maintenance duringevaluation

 

427.190     Determinationof eligibility and priority for admission; notice of admission; appeal

 

427.195     Scheduleof admissions; priority admissions; costs of transportation and maintenance

 

427.205     StateTraining Center Review Board; appointment; terms; compensation and expenses;duties

 

INVOLUNTARYCOMMITMENTS OF PERSONS WITH MENTAL RETARDATION

 

427.215     Definitionsfor ORS 427.061 and 427.235 to 427.290

 

427.235     Noticeto court of need for commitment; investigation; report and recommendation

 

427.245     Hearingto determine mental retardation; citation to appear; notice; right to legalcounsel

 

427.255     Detentionprior to investigation or hearing; care and maintenance while under custody

 

427.265     Courtto advise person of nature of proceeding and rights; appointment of legalcounsel

 

427.270     Reportof diagnostic evaluation; recommendations of examining facility; appointment ofpersons to conduct additional examination

 

427.275     Feesof persons appointed by court to perform diagnostic evaluations; payment bycounties; witnesses; fees; costs

 

427.280     Treatmentgiven after citation issued; notice to court

 

427.285     Witnessesrequired at hearing; cross-examination

 

427.290     Determinationby court of mental retardation; discharge; conditional release; commitment;appointment of guardian or conservator

 

427.293     Recordof proceedings; sealed records; disclosure; information transmitted to statepolice

 

427.295     Appealof determination; appointment of legal counsel; costs

 

427.300     Assignmentto appropriate facility; notice of transfer or discharge; appeal; hearing

 

427.306     Confinementof persons with mental retardation; attendants; least restrictive setting

 

COMMUNITYHOUSING

 

427.330     Definitionsfor ORS 427.330 to 427.345

 

427.335     Authorityof department to develop community housing; sale of community housing;conditions; financial assistance to providers

 

427.340     DevelopmentalDisabilities Community Housing Fund; Community Housing Trust Account; reports

 

427.345     Saleof state training center; fair market value; use of proceeds

 

GENERALPROVISIONS

 

      427.005Definitions.As used in this chapter:

      (1)“Adaptive behavior” means the effectiveness or degree with which an individualmeets the standards of personal independence and social responsibility expectedfor age and cultural group.

      (2)“Care” means:

      (a)Supportive services, including, but not limited to, provision of room andboard;

      (b)Supervision;

      (c)Protection; and

      (d)Assistance in bathing, dressing, grooming, eating, management of money,transportation or recreation.

      (3)“Community developmental disabilities program director” means the director ofan entity that provides services described in ORS 430.630 to persons withmental retardation or other developmental disabilities.

      (4)“Developmental period” means the period of time between birth and the 18thbirthday.

      (5)“Director of the facility” means the superintendent of a state training center,or the person in charge of care, treatment and training programs at otherfacilities.

      (6)“Facility” means a state training center, community hospital, group home,activity center, intermediate care facility, community mental health clinic, orsuch other facility or program as the Department of Human Services approves toprovide necessary services to persons with mental retardation.

      (7)“Incapacitated” means a person is unable, without assistance, to properlymanage or take care of personal affairs or is incapable, without assistance, ofself-care.

      (8)“Independence” means the extent to which persons with mental retardation ordevelopmental disabilities exert control and choice over their own lives.

      (9)“Integration” means:

      (a)Use by persons with mental retardation or developmental disabilities of thesame community resources that are used by and available to other persons;

      (b)Participation by persons with mental retardation or developmental disabilitiesin the same community activities in which persons without disabilitiesparticipate, together with regular contact with persons without disabilities;and

      (c)Residence by persons with developmental disabilities in homes or in home-likesettings that are in proximity to community resources, together with regularcontact with persons without disabilities in their community.

      (10)“Intellectual functioning” means functioning as assessed by one or more of theindividually administered general intelligence tests developed for the purpose.

      (11)“Mental retardation” means significantly subaverage general intellectualfunctioning existing concurrently with deficits in adaptive behavior andmanifested during the developmental period. Persons of borderline intelligencemay be considered to have mental retardation if there is also seriousimpairment of adaptive behavior. Definitions and classifications shall be consistentwith the “Manual on Terminology and Classification in Mental Retardation” ofthe American Association on Mental Deficiency. Mental retardation is synonymouswith mental deficiency.

      (12)“Minor” means an unmarried person under 18 years of age.

      (13)“Physician” means a person licensed by the Oregon Medical Board to practicemedicine and surgery.

      (14)“Productivity” means engagement in income-producing work by a person withmental retardation or a developmental disability which is measured throughimprovements in income level, employment status or job advancement orengagement by a person with mental retardation or a developmental disability inwork contributing to a household or community.

      (15)“Resident” means a person admitted to a state training center eithervoluntarily or after commitment to the department.

      (16)“Significantly subaverage” means a score on a test of intellectual functioningthat is two or more standard deviations below the mean for the test.

      (17)“State training center” means Eastern Oregon Training Center and any otherfacility operated by the department for the care, treatment and training ofpersons with mental retardation.

      (18)“Training” means:

      (a)The systematic, planned maintenance, development or enhancement of self-care,social or independent living skills; or

      (b)The planned sequence of systematic interactions, activities, structuredlearning situations or education designed to meet each resident’s specifiedneeds in the areas of physical, emotional, intellectual and social growth.

      (19)“Treatment” means the provision of specific physical, mental, socialinterventions and therapies which halt, control or reverse processes thatcause, aggravate or complicate malfunctions or dysfunctions. [1959 c.331 §10;1961 c.706 §27; 1965 c.339 §1; subsection (2) enacted as 1965 c.595 §5; 1967c.299 §1; 1979 c.683 §2; 1985 c.463 §1; 1985 c.565 §69; 1991 c.67 §111; 2001c.900 §126; 2007 c.70 §215; 2009 c.828 §24]

 

      427.007Policy; Department of Human Services to plan and facilitate community services. (1) TheLegislative Assembly finds and declares that a significant number of personswith mental retardation or other developmental disabilities currently reside instate-operated hospitals and training centers or lack needed services simplybecause appropriate community-based services, including residential facilities,day programs, home care and other support, care and training programs, do notexist. The Legislative Assembly further finds that families are the majorproviders of support, care, training and other services to their members withmental retardation or other developmental disabilities who live at home, andmany of these families experience exceptionally high financial outlays andextraordinary physical and emotional challenges due to the unavailability ofappropriate family support services. Such services pertain to the needs of theperson with a disability, the needs of other family members related to theircare-giving and nurturing capacity, and specialized needs for environmentalaccommodation to reduce dependency of the family member with mental retardationor another developmental disability. Therefore, the Department of HumanServices is directed to facilitate the development of appropriatecommunity-based services, including family support, residential facilities, dayprograms, home care and other necessary support, care and training programs, inan orderly and systematic manner. The role of state-operated hospitals andtraining centers in Oregon shall be as specialized back-up facilities to aprimary system of community-based services for persons with mental retardationor other developmental disabilities.

      (2)In carrying out the directive in subsection (1) of this section, the departmentshall develop a biennial plan in conjunction with the budgeting process forreview by each Legislative Assembly. In developing this plan, the departmentshall meet with and consider the input of representatives from the followingconstituencies: Consumer organizations, parent-family organizations, advocacyorganizations, unions representing workers in state-operated hospitals andtraining centers, community provider organizations, state and local educationofficials and community mental health departments or programs. Such plans shallinclude, where appropriate:

      (a)Proposals for the decrease in the number of persons with mental retardation orother developmental disabilities to be served in state-operated hospitals andtraining centers at a steady and planned rate until such time that the LegislativeAssembly shall determine that each person served in programs or facilitiesoperated or supported by the department is being served according to the bestcontemporary professional practices in the least restrictive environment, withpreference given to the community-based setting over the institutional.However, no person shall be moved from any facility until a comprehensiveassessment of the person’s medical, treatment, training and support serviceneeds has been completed, the move determined to be in the person’s bestinterest and appropriate service alternatives procured.

      (b)Proposals for the orderly development of community-based services, includingfamily support, residential facilities, day programs, home care and othernecessary support, care and training programs, to accommodate persons comingout of state-operated hospitals and training centers and to serve personsalready in the community waiting for services. The proposals shall includeservices developed for persons in the community waiting for services that areat least equal in number to those services developed for those coming out ofstate-operated hospitals and training centers, and shall include services forall persons who are leaving the public education system, in order to furtherprevent unnecessary institutionalization of persons with mental retardation orother developmental disabilities. Funding for these services shall becommensurate with individual need. These proposals may include provisions foran array of both publicly and privately operated services and shall includespecific implementation plans requiring that new services developed aredesigned to significantly increase the independence, productivity andintegration into the community of persons with mental retardation ordevelopmental disabilities.

      (c)Proposals for the location of community-based services for persons with mentalretardation or other developmental disabilities in proximity to family,friends, supportive services and home communities whenever possible.

      (3)In further carrying out the directive in subsection (1) of this section, thedepartment shall develop monitoring and evaluation systems which ensurecompetent management, program quality and cost-effectiveness of community-basedservices. Such systems shall include, where appropriate:

      (a)A comprehensive system of case management which assures an orderly movement ofpersons with mental retardation or other developmental disabilities fromstate-operated hospitals and training centers to community-based services, andbetween community-based service alternatives, and assures an effective systemof service delivery to persons with mental retardation or other developmentaldisabilities living in the community, based on individualized planning and closecooperation with consumers, families and guardians.

      (b)An annual progress assessment of every person with mental retardation oranother developmental disability served in programs or facilities operated orsupported by the department. This assessment shall measure the degree to whicha family with a member with mental retardation or another developmentaldisability demonstrates enhanced care-giving and nurturing capacities, and thedegree to which the independence, productivity and integration into the communityof each person with mental retardation or another developmental disability hasbeen increased as a result of receiving such services. The overall results ofthese assessments shall annually be aggregated and analyzed for each program orfacility operated or supported by the department, and shall be made availablefor public inspection and review by the Legislative Assembly.

      (c)The development of specific standards for each component within the array ofservices, for persons with mental retardation or other developmentaldisabilities, either operated or supported by the department and assure thecompetent management, program quality and cost-effectiveness of such services.

      (4)Subject to available funds, the department shall ensure that each family with amember with mental retardation or another developmental disability has accessto family support services, and that each person with mental retardation or adevelopmental disability living in the community, including those leaving thepublic education system, has access to community-based services necessary toenable the person to strive to achieve independence, productivity andintegration. Specific services proposed for the person shall be identified inan individual habilitation plan or in a family support service plan.

      (5)Subject to available funds, the department shall determine the content ofindividual habilitation plans and family support service plans, and the processwhereby such plans are developed and updated.

      (6)The department shall establish grievance procedures for mediation of disputesconcerning eligibility for or appropriateness of services in individual cases. [1981c.287 §1; 1985 c.463 §2; 1987 c.353 §1; 1987 c.609 §1; 1989 c.505 §1; 2001c.900 §127; 2007 c.70 §216]

 

      Note: 427.007 wasenacted into law by the Legislative Assembly but was not added to or made apart of ORS chapter 427 or any series therein by legislative action. SeePreface to Oregon Revised Statutes for further explanation.

 

      427.009 [1987 c.870 §1;repealed by 2001 c.900 §261]

 

EASTERNOREGON TRAINING CENTER

 

      427.010Eastern Oregon Training Center; care provided; fees; superintendent; chiefmedical officer.(1) Except as otherwise ordered by the Department of Human Services pursuant toORS 179.325, the Eastern Oregon Training Center in Pendleton, Umatilla County,shall be used for the care, treatment and training of persons with mentalretardation who are assigned to the care of the institution by the departmentaccording to procedures defined in ORS 427.185 or who were residents on October3, 1979.

      (2)Upon receipt of an application approved by the department or its designee,pursuant to its rules, a person with mental retardation may be entitled toadmission to the state training center for emergency, respite or part-timecare. Part-time care means presence of the person at the facility less than 24hours per day and may include day or night care. Admission for emergency careor respite care may not exceed 90 days. Admission for part-time care may exceed90 days. The fee schedule for such care, training and treatment in the trainingcenter shall be established by the department in the same manner as for otherresidents. The fees shall be charged and collected by the department in thesame manner as charges are collected under ORS 179.610 to 179.770.

      (3)The superintendent of the training center named in subsection (1) of thissection shall be a person the department considers qualified to administer thetraining center. If the superintendent of the training center is a physicianlicensed by the Oregon Medical Board, the superintendent shall serve as chiefmedical officer. If not a physician, the superintendent shall designate aphysician to serve as chief medical officer. The designated chief medicalofficer may be an appointed state employee in the unclassified service, aself-employed contractor or an employee of a public or private entity thatcontracts with the department to provide chief medical officer services. Unlessthe designated chief medical officer is specifically appointed as a stateemployee in the unclassified service, the designated chief medical officershall not be deemed a state employee for purposes of any state statute, rule orpolicy.

      (4)(a)Notwithstanding any other provision of law, the designated chief medicalofficer may supervise physicians who are employed by the training center or whoprovide services at the training center pursuant to a contract.

      (b)The designated chief medical officer may delegate all or part of the authorityto supervise other physicians at the training center to a physician who isemployed by the state, a self-employed contractor or an employee of a public orprivate entity that contracts with the department to provide physicianservices. [Amended by 1953 c.155 §7; 1965 c.339 §2; 1965 c.595 §3; 1969 c.391 §9;1971 c.75 §1; 1973 c.262 §1; 1973 c.807 §3; 1979 c.683 §6; 1983 c.505 §2; 1983c.740 §150; 2001 c.900 §128; 2007 c.70 §217; 2009 c.59 §2]

 

      427.012 [Formerly428.548; repealed by 1979 c.683 §37]

 

      427.015 [1961 c.661 §2;1967 c.534 §21; repealed by 1979 c.683 §37]

 

      427.020Review of plan of care for residents; certification for continued care and training;notice to resident.(1) State training centers shall annually review the plan of care for eachresident and certify the resident’s eligibility and need for continuedresidential care and training and shall present each certification with clearand convincing justification for continued residential care and training to theState Training Center Review Board for review and action pursuant to thissection. If the board does not approve of the certification or, if the residentobjects to continued residential care and training, the resident shall bereleased pursuant to ORS 427.300 or, if the Department of Human Servicesconsiders release not to be in the best interest of the resident, thesuperintendent of the state training center where the person is a residentshall initiate commitment proceedings pursuant to ORS 427.235 to 427.270,427.280 and 427.285. The board may require the physical presence of anyresident during the review. However, the board shall require the physicalpresence of each resident at least once every three years of residence in astate training center.

      (2)The plan of care for each resident shall include, but not be limited to, thefollowing:

      (a)Current diagnosis;

      (b)Level of functioning;

      (c)Current habilitation and health programs in which the resident isparticipating;

      (d)Statement as to continued eligibility and continued need for residential care;

      (e)Statement of long-term and short-term goals for the resident; and

      (f)Verification that the person has been advised of the facility’s statement ofrights and the policies governing the immediate living area of the person.

      (3)The state training center shall notify the resident orally. In addition, theresident, the resident’s parent, guardian or person entitled to custody shallbe notified by certified mail of the intent to certify the need for theresident’s continued commitment. The notification shall include the following:

      (a)Time, place and location of the hearing of the State Training Center ReviewBoard;

      (b)Explanation of the possible consequences of the proceedings; and

      (c)Explanation of the resident’s right to appear before the board on the resident’sown behalf or to be represented at the proceeding by the resident