Loading
 

 

Oregon Bulletin

August 1, 2012

Oregon Health Authority, Addictions and Mental Health Division: Mental Health Services, Chapter 309

Rule Caption: Oregon State Hospital Review Panel.

Adm. Order No.: MHS 9-2012

Filed with Sec. of State: 6-19-2012

Certified to be Effective: 6-19-12

Notice Publication Date: 5-1-2012

Rules Adopted: 309-092-0000, 309-092-0005, 309-092-0010, 309-092-0015, 309-092-0020, 309-092-0025, 309-092-0030, 309-092-0035, 309-092-0040, 309-092-0045, 309-092-0050, 309-092-0055, 309-092-0060, 309-092-0065, 309-092-0070, 309-092-0075, 309-092-0080, 309-092-0085, 309-092-0090, 309-092-0095, 309-092-0100, 309-092-0105, 309-092-0110, 309-092-0115, 309-092-0120, 309-092-0125, 309-092-0130, 309-092-0135, 309-092-0140, 309-092-0145, 309-092-0150, 309-092-0155, 309-092-0160, 309-092-0165, 309-092-0170, 309-092-0175, 309-092-0178, 309-092-0180, 309-092-0185, 309-092-0190, 309-092-0195, 309-092-0200, 309-092-0205, 309-092-0210, 309-092-0215, 309-092-0220, 309-092-0225, 309-092-0230, 309-092-0235, 309-092-0240

Rules Repealed: 309-092-0000(T), 309-092-0005(T), 309-092-0010(T), 309-092-0015(T), 309-092-0020(T), 309-092-0025(T), 309-092-0030(T), 309-092-0035(T), 309-092-0040(T), 309-092-0045(T), 309-092-0050(T), 309-092-0055(T), 309-092-0060(T), 309-092-0065(T), 309-092-0070(T), 309-092-0075(T), 309-092-0080(T), 309-092-0085(T), 309-092-0090(T), 309-092-0095(T), 309-092-0100(T), 309-092-0105(T), 309-092-0110(T), 309-092-0115(T), 309-092-0120(T), 309-092-0125(T), 309-092-0130(T), 309-092-0135(T), 309-092-0140(T), 309-092-0145(T), 309-092-0150(T), 309-092-0155(T), 309-092-0160(T), 309-092-0165(T), 309-092-0170(T), 309-092-0175(T), 309-092-0180(T), 309-092-0185(T), 309-092-0190(T), 309-092-0195(T), 309-092-0200(T), 309-092-0205(T), 309-092-0210(T), 309-092-0215(T), 309-092-0220(T), 309-092-0225(T), 309-092-0230(T), 309-092-0235(T), 309-092-0240(T)

Subject: These rules implement Oregon Laws 2011, chapter 708, Senate Bill 420 (SB 420). The rules create two tiers of offenders who are found guilty except for insanity. Under SB 420, tier one offenders (i.e., Measure 11 offenders) remain exclusively under the jurisdiction of the Psychiatric Security Review Board (PSRB), but the Oregon Health Authority (OHA) acquires jurisdiction over tier two offenders (i.e., non-Measure 11 offenders). Via these rules OHA establishes the Oregon Health Authority Review Panel and the processes applicable to the Review Panel.

Rules Coordinator: Nola Russell—(503) 945-7652

309-092-0000

Purpose and Scope

Oregon Laws 2011, chapter 708, Senate Bill 420 (SB 420) went into effect on January 1, 2012. The law created two tiers of offenders who are found guilty except for insanity and are affected by a mental disease or defect presenting a substantial danger to others. Under SB 420, tier one offenders (i.e., Measure 11 offenders) remain exclusively under the jurisdiction of the Psychiatric Security Review Board (PSRB), but the Oregon Health Authority (OHA) acquires jurisdiction over tier two offenders (i.e., non-Measure 11 offenders) while they are in the Oregon State Hospital. OHA is responsible for determining when tier two offenders may be conditionally released or discharged into the community. As with the PSRB, OHA must have as its primary concern the protection of society. In order to implement SB 420, via these rules OHA establishes the Oregon State Hospital Review Panel (SHRP) and the processes applicable to the SHRP.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.
Stats. Implemented: ORS 161.295 - 161.400, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0005

Definitions

(1) “Administrative Hearing” means a meeting of the SHRP where a quorum is present and a conditional release plan is reviewed or reviewed and modified.

(2) “Administrative Meeting” means any meeting of the SHRP where a quorum is present for the purpose of considering matters relating to SHRP policy and administration.

(3) “Authority” means the Oregon Health Authority.

(4) “Conditional Release” means a grant by the court, PSRB or SHRP for an individual to reside outside a state hospital in the community under conditions for monitoring and treatment of mental and physical health.

(5) “Director” means the Director of the Authority.

(6) “Division” means the Addictions and Mental Health (AMH) Division of the Authority.

(7) “Hospital Pass” means any time an individual will be off hospital grounds for any length of time not accompanied by hospital staff.

(8) “Individual” means any person under the jurisdiction of the SHRP.

(9) “Insanity Defense” means the following: For offenses committed on or after January 1, 1984, an individual is guilty except for insanity if, as a result of a mental disease or defect at the time of engaging in criminal conduct, the individual lacked substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law. The name of the insanity defense from January 1, 1978, through December 31, 1983, was “not responsible due to mental disease or defect.” From January 1, 1971, through December 31, 1977, the insanity defense was known as “not guilty by reason of mental disease or defect.” The name of the insanity defense prior to 1971 was “not guilty by reason of insanity.”

(10) “Mental Disease” means any diagnosis of mental disorder which is a significant behavioral or psychological syndrome or pattern that is associated with distress or disability causing symptoms or impairment in at least one important area of an individual’s functioning, as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association.

(11) “Mental Defect” is defined as mental retardation, brain damage or other biological dysfunction that is associated with distress or disability causing symptoms or impairment in at least one important area of an individual’s functioning, as defined in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM) of the American Psychiatric Association. “Mental disease or defect” does not include an abnormality manifested solely by repeated or criminal or otherwise antisocial conduct. For offenses committed on or after January 1, 1984, the term “mental disease or defect” does not include any abnormality constituting solely a personality disorder.

(12) “Proof of Dangerousness” means any evidence regarding whether the individual’s mental disease or defect may, with reasonable medical probability, occasionally become active, and when active, render the individual a substantial danger to others.

(13) “PSRB” refers to the Psychiatric Security Review Board.

(14) “Quorum” is the presence of at least three members of the SHRP.

(15) “Review Panel” or “SHRP” refers to the Oregon State Hospital Review Panel established by the Authority.

(16) “Review Panel’s Office” and “Review Panel Staff” means the office and staff of the Legal Affairs office at a state hospital.

(17) “SB 420” means OR Laws 2011, chapter 708, Senate Bill 420 that takes effect on January 1, 2012.

(18) “State Hospital” means a state institution as defined in ORS 179.010 and operated by the Authority.

(19) “Statutory Hearing” is a meeting of the SHRP where a quorum is present and an application is made for discharge, conditional release, commitment or modification filed pursuant to ORS 161.336, 161.341 or 161.351 or as otherwise required by ORS 161.337 to 161.351.

(20) “Substantial Danger to Others” means an individual is a substantial danger to others if the individual is demonstrating or previously has demonstrated intentional, knowing, reckless or criminally negligent behavior which places others at risk of physical injury.

(21) “Superintendent” means the superintendent of a state hospital.

(22) “Tier One Offender” means an individual who has been found guilty except for insanity of a tier one offense as defined in ORS 161.332 as amended by SB 420.

(23) “Tier Two Offender” means an individual who has been found guilty except or insanity only of offenses that are not tier one offenses.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.
Stats. Implemented: ORS 161.295 - 161.400, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0010

Membership and Terms

(1) The SHRP shall consist of five members appointed by the Director of the Authority. The SHRP shall be composed of a psychiatrist, a psychologist, a member with substantial experience in probation and parole, a member of the general public and a lawyer. If the Director of the Authority determines that it is necessary, the psychiatrist position of the SHRP may be filled by a psychologist.

(2) Members shall initially serve one year terms, but after January 2013 they shall serve overlapping four-year terms commencing on the date of their appointment. Vacancies occurring during a member’s term shall be filled immediately by appointment of the Director.

(3) Review Panel Members serve at the discretion of the Director.

(4) Review Panel Members are eligible for reappointment.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.
Stats. Implemented: ORS 161.295 - 161.400, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0015

Chair; Powers and Duties

(1) In January of each year, the SHRP shall elect — by a majority of Review Panel Members votes — one of its members as chairperson to serve for a one-year term with the possibility of reelection.

(2) The chairperson shall have the powers and duties necessary for the performance of the office. These shall include, but not be limited to:

(a) Presiding at hearings and meetings;

(b) Assigning members to panels and designating an acting chairperson when appropriate; and

(c) Making rulings on procedural matters.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.
Stats. Implemented: ORS 161.295 - 161.400, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0020

Responsibilities, Function and Purpose of Review Panel

(1) The SHRP shall monitor the mental and physical health and treatment of any individual placed under its jurisdiction as a result of a finding by a court of guilty except for insanity. The SHRP shall have as its primary concern the protection of society. In addition, the SHRP’s responsibilities shall include, but not be limited to:

(a) Holding hearings as required by law to determine the appropriate status of individuals under its jurisdiction;

(b) Modifying or terminating conditional release plans while individuals under its jurisdiction are in the hospital;

(c) Maintaining and keeping current medical, social and criminal histories of all individuals under the SHRP’s jurisdiction; and

(d) Observing the confidentiality of records as required by law.

(2) The SHRP shall be supported by and the SHRP process and procedures shall be administered by the Legal Affairs Director and Legal Affairs Staff at the state hospital.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.
Stats. Implemented: ORS 161.295 - 161.400, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0025

Jurisdiction of Individuals Under The SHRP

The SHRP shall have jurisdiction as set forth in ORS Chapter 161 over tier two offenders — while they are in the state hospital — who are adjudged by a court to be guilty except for insanity and presenting a substantial danger to others:

(1) The court must find that the individual would have been guilty of a tier two offense during a criminal episode in the course of which the individual caused physical injury or risk of physical injury to another.

(2) The period of jurisdiction of the SHRP, in addition to time spent under jurisdiction of the PRSB while on conditional release, shall be equal to the maximum sentence the court finds the individual could have received had the person been found guilty.

(3) The SHRP and the PSRB do not consider time spent on unauthorized leave from the custody of the Authority as part of the jurisdictional time.

(4) The SHRP has jurisdiction over all tier two individuals who used the insanity defense successfully and were placed on conditional release or committed to a state mental hospital by the court prior to January 1, 1978. The period of jurisdiction in these cases shall be equal to the maximum sentence the person could have received if found guilty and shall be measured from the date of judgment.

(5) The SHRP shall maintain jurisdiction over individuals who are legally placed under its jurisdiction by any court of the State of Oregon and who are housed in a state hospital.

(6) The Juvenile Psychiatric Security Review Board will have jurisdiction over juveniles found guilty except for insanity.

(7) Upon receipt of verified information of time spent in custody, individuals placed under the SHRP’s jurisdiction shall receive credit for:

(a) Time spent in any correctional facility for the offense for which the individual was placed under the SHRP’s jurisdiction; and

(b) Time spent in custody of the Authority at a state hospital for determination of the defendant’s fitness to proceed or under a detainer for the criminal charges for which the individual ultimately was placed under the SHRP’s jurisdiction.

Stat. Auth.: ORS 413.042, 161.327, 161.332, 161.336, 161.346, 161.351, 161.385, SB 420.
Stats. Implemented: ORS 161.295 - 161.400, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0030

Scheduling Review Panel Hearings and Meetings

(1) The SHRP shall meet at least twice every two months unless the chairperson determines that there is not sufficient business before the SHRP to warrant a meeting at the scheduled time.

(2) The SHRP shall hold administrative meetings as necessary to consider matters relating to SHRP policy and administration.

(3) Public notice shall be given in accordance with the Public Meetings Law.

(4) The SHRP may hold administrative hearings to expedite such matters as approving modifications of conditional release orders, reviewing plans for conditional release and approving or disapproving them.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.
Stats. Implemented: ORS 161.295 - 161.400, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0035

Quorum and Decisions

(1) The presence of at least three members of the SHRP constitutes a quorum.

(2) Three concurring votes (affirmative or negative) are required to make a SHRP decision.

(3) When three members cannot agree on a decision, the hearing may be continued, for no longer than 60 days. The tape of the hearing and the exhibits shall be reviewed by the remaining member(s) and a decision by the majority of the members shall be the finding and order of the SHRP.

(4) If the attorney for an individual or a pro se individual objects to the remaining member’s or members’ review as set forth in section (2) of this rule, the SHRP may reschedule the matter for a hearing before the entire SHRP.

(5) If an objection for good cause is made to a specific member of the SHRP sitting on the panel considering a specific case, that member shall withdraw and, if necessary, the hearing shall be postponed and rescheduled.

(6) If an objection for good cause is made to a specific staff member of the SHRP being present during the panel’s deliberations in a specific case, and if the SHRP determines that good cause exists, that staff member shall not be present during deliberations in that case.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.
Stats. Implemented: ORS 161.295 - 161.400, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0040

Public Meetings Law

(1) All meetings of the SHRP are open to the public in accordance with the Public Meetings Law.

(2) Deliberations of the SHRP are not open to the public.

(3) For the purposes of this rule, the term “public” does not include staff of the SHRP.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.
Stats. Implemented: ORS 161.295 - 161.400, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0045

Records

(1) A record shall be kept of SHRP action taken at an administrative meeting and any decision made at an administrative hearing of the SHRP.

(2) All SHRP hearings, except SHRP deliberations, shall be recorded by manual or electronic means which can be transcribed. No other record of SHRP hearings shall be made. All documents considered at hearings shall be included as exhibits and kept as part of the record.

(a) Audio recordings capable of being transcribed shall be kept by the SHRP for a minimum period of two years from the hearing date.

(b) SHRP hearings may be transcribed from the recording for appeal purposes. If transcribed, the transcript may be substituted for the original record. ORS 161.348(2) authorizes the SHRP to submit to the appellate 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.

(c) Any material to which an objection is sustained shall be removed from the record; the objection and ruling of the SHRP shall be noted on the record.

(d) The audio tape or transcript of the proceedings shall be made available at cost to a party to the proceedings upon request.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.
Stats. Implemented: ORS 161.295 - 161.400, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0050

Public Records Law; Confidentiality

The attorneys for an individual or a pro se individual shall have the right to review any records to be considered at the hearing. Applicable federal and state confidentiality laws, such as the Health Insurance Portability and Accountability Act (HIPAA) and ORS 179.505 shall be observed with respect to other requests to inspect an individual’s records.

Stat. Auth.: ORS 413.042, 161.385, 161.387, 192.450, 192.500, 192.525; & 192.690, SB 420.
Stats. Implemented: ORS 161.295 - 161.400, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0055

Hearing Notices

The SHRP shall provide written notice of SHRP hearings to the following persons or agencies within a reasonable time:

(1) The individual;

(2) The attorney representing the individual;

(3) The District Attorney;

(4) The community supervisor or case monitor;

(5) The Court or department of the county from which the individual was committed;

(6) The victim, if the court finds that the victim requests notification;

(7) The victim, if subsequent to the disposition of the criminal case, the victim asks either the PSRB or SHRP for notification.

(8) Any other interested person requesting notification ;

(9) A state hospital unit in which the individual resides; and (10) The PSRB in the case of conditional release hearings.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.
Stats. Implemented: ORS 161.295 - 161.400, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0060

Information Contained in Notice

Written notice shall contain the following:

(1) Time, place and location of the hearing;

(2) The issues to be considered, reference to statutes and rules involved, authority and jurisdiction;

(3) A statement of individual’s rights, including the following:

(4) The right to appear at all proceedings, except SHRP deliberations;

(5) The right to cross-examine all witnesses appearing to testify at the hearing;

(6) The right to subpoena witness and documents as provided in ORS 161.395;

(7) The right to legal counsel and, if indigent as defined by the indigency standard set forth by the State Court Administrator’s office, to have counsel provided without cost; and

(8) The Right to examine all information, documents and reports under consideration.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.
Stats. Implemented: ORS 161.295 - 161.400, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0065

Time Frame of Hearings

Hearings shall be held within the following time frames:

(1) The initial hearing under ORS 161.341(6)(a) shall occur within 90 days following the individual’s placement under the SHRP’s jurisdiction and commitment to a state hospital.

(2) The revocation hearing under ORS 161.336(4)(c) shall occur within 20 days following the individual’s return to OSH for violation of the individual’s conditional release requirements.

(3) An individual’s request for conditional release or discharge under ORS 161.341(3) shall be heard within 60 days of receipt of the request, except for initial requests for conditional release under ORS 161.341(5).

(4) An individual is eligible to request a hearing six months after last hearing, and the hearing must be held within 60 days after filing the request pursuant to ORS 161.341(4).

(5) A request for conditional release by the state hospital, under ORS 161.341(1) may be made at any time and shall be heard within 60 days of receipt of the request.

(6) A request by the outpatient supervisor under ORS 161.336(7)(b) for conditional release, modification of conditional release or discharge may be made at any time and shall be heard within 60 days of receipt of request.

(7) Two-year hearings under ORS 161.341(6)(b) are mandatory for individuals committed to a state hospital when no other hearing has been held within two years.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.
Stats. Implemented: ORS 161.336, 161.341, 161.351, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0070

Chairperson Conducting Hearing

The chairperson or acting chairperson shall preside over hearings and shall have the authority to:

(1) Designate the order of presentation and questioning;

(2) Determine the scope of questioning; and

(3) Set time limits and cut off irrelevant questions and irrelevant or unresponsive answers.

Stat. Auth.: ORS 413.042 & 161, SB 420 .
Stats. Implemented: ORS 161.385, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0075

Patient’s Right to Review Record; Exceptions

(1) Individuals shall receive directly, or through their attorney, written notice of the hearing and a statement of their rights in accordance with ORS 161.346.

(2) All exhibits to be considered by the SHRP shall be disclosed to the individual’s attorney or the individual if proceeding pro se, as soon as they are available.

(3) Exhibits not available prior to the hearing shall be made available to the individual’s attorney or the patient, if not represented, at the hearing.

(4) All material relevant and pertinent to the individual and issues before the SHRP shall be made a part of the record.

(5) Any material not made part of the record shall be separated and a statement to that effect shall be placed in the record.

Stat. Auth.: ORS 413.042 & 161.327, SB 420
Stats. Implemented: ORS 161.346, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0080

Evidence Considered; Admissibility

The SHRP shall consider all evidence available to it which is material, relevant and reliable. All evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs shall be admissible, including but not limited to the following:

(1) The record of trial;

(2) Information supplied by the state’s attorney or any interested party including the individual;

(3) Information concerning the individual’s mental condition;

(4) The entire psychiatric and criminal history of the individual including motor vehicle records;

(5) Psychiatric or psychological reports ordered by the SHRP under ORS 161.346(3);

(6) Psychiatric and psychological reports under ORS 161.341(2) written by a person chosen by the state or the individual to examine the individual; and

(7) Testimony of witnesses.

Stat. Auth.: ORS 413.042 & 161, SB 420
Stats. Implemented: ORS 161.336, 161.341 & 161.346, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0085

Motion Practice

Any party bringing a motion before the SHRP shall submit the motion and memorandum of law to the SHRP and the opposing party one week prior to the hearing date in which the motion will be heard.

Stat. Auth.: ORS 413.042 & 161.327, SB 420
Stats. Implemented: ORS 161.346, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0090

Objections to Evidence

The chairperson or acting chairperson shall rule on questions of evidence. Hearsay evidence shall not be excluded unless the chairperson or acting chairperson determines the evidence is not material, relevant or reliable.

(1) In determining whether the evidence is material, relevant or reliable, the SHRP shall consider the following:

(a) The age and source of the documents;

(b) The ability of the witness to have observed and had personal knowledge of the incidents; and

(c) The credibility of the witness and whether the witness has bias or interest in the matter.

(2) The individual, the individual’s attorney or attorney representing the state may object to any evidence. The SHRP may decide the following:

(a) To sustain the objection and deny the admission and consideration of the evidence on the grounds that it is not material, relevant or reliable;

(b) To overrule the objection and admit the evidence;

(c) In considering the weight given to that evidence, consider the reason for the objection; or

(d) To grant a continuance for a period of time, not to exceed 60 days, to allow a witness to appear or be subpoenaed to testify about the evidence under consideration.

Stat. Auth.: ORS 413.042 & 161.327, SB 420.
Stats. Implemented: ORS 161.346 & 161.385, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0095

Witnesses and Documents; Subpoena

(1) Witnesses or documents may be subpoenaed as provided in ORS 161.395 upon request of any party to the hearing or on the Review Panel’s own motion, upon a proper showing of the general relevance and reasonable scope of the documentary of physical evidence sought.

(2) Witnesses with a subpoena other than parties or state officers or employees shall receive fees and mileage as prescribed by law.

(3) A judge of the Circuit Court of the county in which the hearing is held may compel obedience by proceeding for contempt for failure of any person to comply with the subpoena issued.

Stat. Auth.: ORS 413.042 & 161.387; SB 420
Stats. Implemented: ORS 161.346 & ORS 161.395; SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0100

Testimony Given on Oath

The SHRP shall take testimony of a witness upon oath or affirmation of the witness administered by the chairperson or acting chairperson at the hearing.

Stat. Auth.: ORS 413.042 & 161.327, SB 420.
Stats. Implemented: ORS 161.346 & 161.385, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0105

Standards and Burdens of Proof

(1) The standard of proof on all issues at hearings of the SHRP shall be the preponderance of the evidence. The burden of proof shall depend on the type of hearing:

(a) In an initial 90-day hearing under ORS 161.341(6)(a), the state has the burden to show the individual continues to be affected by a mental disease or defect and continues to be a substantial danger to others.

(b) In a revocation hearing under ORS 161.336(4)(c), the state has the burden to show the individual’s unfitness for conditional release and that jurisdiction of the SHRP should continue.

(c) In an individual’s request for conditional release or discharge under ORS 161.341(3), the individual has the burden of proving his or her fitness for conditional release or discharge, unless it has been more than two years since the State had the burden of proof. In that case, the burden is on the State.

(d) In a request for conditional release or discharge of the individual by the Authority under ORS 161.341(1), the state must prove the individual is not appropriate for conditional release or discharge.

(e) In a status review hearing under ORS 161.346, the state has the burden of proving that the commitment, proposed conditional release plan or other current status of the patient is appropriate.

(f) In all other cases (such as two, five, and ten-year hearings), the state bears the burden of proof.

(2) If at any hearing state hospital staff agrees with the individual on the issue of mental disease or defect, dangerousness or fitness for conditional release, but no advance notice is given to the SHRP that the hospital requests discharge or conditional release, the burden of proof remains with the individual. The testimony of state hospital staff will be considered as evidence to assist the SHRP in deciding whether the individual has met his/her burden.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.336, 161.341 & 161.346, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0110

Burden of Going Forward

The party that has the burden of proof shall also have the burden of going forward with the evidence (calling and examining witnesses, proposing conditions of release, etc.).

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.346, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0115

Continuance of Hearing

Upon the request of any party or on its own motion, the SHRP may for good cause continue a hearing for a reasonable period of time not to exceed 60 days to obtain additional information or testimony.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.346, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0120

Cancellation of Hearing

Unless an individual asks for cancellation of a hearing for good cause, in writing, and with four weeks’ advance notice, the individual shall not be eligible to request a hearing for six months from the date of the scheduled hearing.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.346, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0125

Use of Restraints

(1) The SHRP prefers to have individuals appear at hearings without physical restraints. If, in the judgment of the individual’s physician, the individual might need restraining, the SHRP prefers to have staff attending the hearing with the individual rather than use of physical restraints. However, the final decision on use of restraints lies with the physician.

(2) Any attorney objecting to the individual appearing with restraints at the hearing may raise the issue and ask for testimony from the physician.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.346, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0130

Decisions of The SHRP

(1) Within 15 days following the conclusion of a hearing, the SHRP shall provide the individual, the attorney representing the individual, the district attorney representing the state, the committing court and, where applicable, the Authority and local mental health agency or supervisor written notice of the SHRP’s decision.

(2) The order of the SHRP shall be signed by a member present at the hearing.

(3) The SHRP may issue its decision orally on the record at the hearing.

(4) The formal order of the SHRP shall contain the findings of facts, conclusions of law, reasons for the decision and notice of the right to appeal under ORS 161.348.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.346, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0135

Notification of Right to Appeal

At the conclusion of a Review Panel hearing, the chair or acting chair shall provide the individual and attorney with written notification advising of the right to appeal on an adverse decision. Within 60 days from the date an order is signed and the right to an attorney if indigent.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.346, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0140

Patient Appearing Pro Se

When an individual waives the right to be represented by an attorney, the SHRP shall take written or oral testimony and decide whether the individual is capable of understanding the proceedings.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.346, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0145

Issues Before The SHRP

At any hearing before the SHRP, issues considered shall be limited to those relevant to the purposes of the hearing. Notice of intent to raise new issues shall be given to the SHRP in writing prior to the hearing. If new issues are raised, the SHRP may continue the hearing to consider the issues and give the parties an opportunity to submit additional evidence.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.346, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0150

Primary Concern: Protection of Society

In determining whether an individual should be conditionally released or discharged, the SHRP shall have as its primary concern the protection of society. The SHRP shall not discharge an individual whose mental disease or defect may, with reasonable medical probability occasionally become active, and when active, render the individual a danger to others.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.336, 161.341, 161.346, 161.351, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0155

Initial Hearing

After being placed under the jurisdiction of the SHRP and committed to a state hospital, the individual shall have an initial hearing before the SHRP to determine whether the individual should be committed, conditionally released or discharged:

(1) At an initial hearing, the SHRP shall make a finding on the issue of presence of mental disease or defect and dangerousness and may base it on the court’s findings and any additional information received.

(2) If the SHRP finds at its initial hearing that the individual is affected by a mental disease or defect, presents a substantial danger to others and is not a proper subject for conditional release, the SHRP shall order the individual committed to a state hospital designated by the Authority.

(3) If the SHRP finds the individual is still affected by a mental disease or defect and is a substantial danger to others but can be adequately controlled with treatment and supervision if conditionally released, the SHRP shall find the individual appropriate for conditional release and shall follow procedures set forth in 309-092-0190.

(4) If the SHRP makes a finding the individual is no longer affected by a mental disease or defect or is no longer a substantial danger to others, the SHRP shall order the discharge of the individual from jurisdiction.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.336, ORS 161.341 & ORS 161.346; SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0160

Revocation Hearing

(1) Within 20 days following the return of a tier two individual to a state hospital the SHRP shall hold a hearing and consider whether the revocation was appropriate and whether the individual can be continued on conditional release or should be committed to a state hospital.

(2) The SHRP may consider a request for discharge at a revocation hearing or make that finding after considering the evidence before the SHRP.

(3) If the SHRP finds the individual is affected by a mental disease or defect and presents a substantial danger to others and cannot be safely controlled in the community while on conditional release, the individual shall be committed to a state hospital.

(4) If the SHRP finds the individual could be controlled in the community but no conditional release plan has been approved by the SHRP, the SHRP shall order the individual committed to a state hospital but find the individual appropriate for conditional release, and shall order a conditional release plan be created.

(a) The SHRP shall specify what conditions the plan should include.

(b) The SHRP may approve the conditional release plan submitted by the staff of the hospital, by the individual or someone on the individual’s behalf, at an administrative hearing.

(c) If the PSRB submits conditions of release, the SHRP must order that those conditions be followed.

(5) If the SHRP finds the individual can be controlled in the community and a verified conditional release plan is approved by the SHRP, the SHRP shall order the individual placed on conditional release.

(6) If the individual has been charged with a new crime or is serving time in the corrections system, the SHRP shall not hold a revocation hearing until such time as jurisdiction of the individual is returned to the Authority or upon an appropriate request to hold a hearing.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.336, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0165

Patient Request for Conditional Release

In a hearing before the SHRP on an individual request for conditional release, the SHRP shall consider whether, although still affected by mental disease or defect, the individual can be adequately controlled in the community with treatment and supervision, and shall determine whether the individual is a proper subject for conditional release in accordance with procedures set forth in Division 070.

Stat. Auth.: ORS 413.042 & 161.327, SB 420
Stats. Implemented: ORS 161.341, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0170

Patient Request for Discharge

In a hearing before the SHRP on an individual’s request for discharge, the SHRP shall determine whether the individual continues to be affected by a mental disease or defect and is a substantial danger to others:

(1) If the SHRP finds the individual is no longer affected by mental disease or defect or if so affected, no longer presents a substantial danger to others, the individual shall be discharged.

(2) If the SHRP finds the individual is not appropriate for discharge, the SHRP may consider whether the individual is appropriate for conditional release even if not requested previously by the individual.

Stat. Auth.: ORS 413.042 & 161.327, SB 420
Stats. Implemented: ORS 161.341, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0175

Hospital Request for Conditional Release

(1) At any time while an individual is committed to a state hospital the superintendent of the state hospital shall apply to the SHRP for conditional release if it is the opinion of the treating physician that the individual continues to be affected by mental disease or defect and continues to be a danger to others but can be controlled in the community with proper care, medication, supervision and treatment.

(2) The application shall be accompanied by an updated report setting forth facts supporting the state hospital staff’s opinion and a plan for treatment and supervision in the community which includes observations and facts which support staff recommendations.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.341, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0178

SHRP’s Procedure for Conditional Release of Tier Two Offenders

The SHRP has jurisdiction of Tier Two offenders while the individuals are in the Oregon State Hospital. The PSRB has jurisdiction of and supervision over Tier Two offenders conditionally released from the State Hospital. The SHRP is responsible for conducting the hearings for the Authority. To efficiently facilitate the issuance of conditional release orders with conditions provided by the PSRB, the following process will be utilized:

(1) When a Tier Two Offender (“the individual”) is committed to the jurisdiction of SHRP, SHRP will send a copy of the commitment order to the PSRB upon receipt.

(2) Throughout the course of the conditional release planning process for Tier Two offenders in the State Hospital, SHRP shall continue to conduct the statutorily required hearings for the individual.

(3) Upon receipt of all of the following documents, SHRP shall forward all of the documents to the PSRB with notice that SHRP intends to conduct a conditional release hearing in order to allow the PSRB to conduct an administrative review as provided in OAR 859-070-0040:

(a) SHRP’s order for evaluation of possible conditional release of a Tier Two offender;

(b) The Tier Two offender’s current updated SHRP exhibit file;

(c) The evaluation by the proposed community provider;

(d) A summary of conditional release plan form which outlines the proposed conditions; and

(e) A Progress Note Update authored by the treating psychiatrist dated within 30 days of the signed summary of the conditional release plan form.

(4) The SHRP shall set the matter for either a full or administrative hearing for consideration of conditional release no sooner than 30 days after the PSRB has been provided the required documents. This will allow the time necessary for the SHRP to provide the statutorily-required notice to the victims and other interested parties as well as for the PSRB to conduct its review of the proposed conditions of release.

(5) No less than 7 days prior to that hearing date, the SHRP shall provide a copy of the proposed conditions of release to the individual’s attorney and the State’s attorney at the Department of Justice for review and opportunity to request a full hearing regarding the proposed conditions before issuance of a final order by the SHRP.

(6) If either attorney submits a written request by fax or email for a full hearing, it must be received no less than 48 hours prior to the scheduled hearing date. If no request is received, the SHRP may proceed with an administrative hearing if it chooses.

(7) The SHRP must review the PSRB’s report and recommended conditions of release. The SHRP may order the conditional release of the individual, including any applicable conditions, and the transfer of jurisdiction to the PSRB. The SHRP shall issue a final order within 15 days of its hearing.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.341, SB 420
Hist.: MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0180

Hospital or Outpatient Supervisor Request for Discharge

At any time while an individual is committed to a state hospital the superintendent of the state hospital or designee shall apply to the SHRP for discharge if, in the opinion of the hospital physician or outpatient supervisor, the individual is no longer affected by mental disease or defect or, if so affected, the person no longer presents a substantial danger to others. The application shall be accompanied by a report setting forth the facts supporting the opinion.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.341, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0185

Mandatory Two-Year, Five-Year Hearings

(1) The SHRP shall have periodic mandatory hearings for all individuals.

(2) In no case shall an individual be committed and held in a state hospital under the SHRP's jurisdiction for a period of time exceeding two years without a hearing before the SHRP to determine whether the individual should be conditionally released or discharged.

(3) At mandatory two-year hearings, the SHRP shall consider:

(a) Whether the individual continues to be affected by mental disease or defect and whether the individual presents a substantial danger to others; and

(b) If the individual is affected by mental disease or defect and is a substantial danger to others, whether the individual could be adequately controlled if conditionally released.

Stat. Auth.: ORS 413.042 & 161.387; SB 420
Stats. Implemented: ORS 161.341 & ORS 161.351; SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0190

Status Hearing

The SHRP may hold a hearing at any time to review the status of the individual to determine whether a conditional release or discharge order is appropriate.

Stat. Auth.: ORS 413.042 & 161.327, SB 420
Stats. Implemented: ORS 161.336, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0195

Review Panel Order of Conditional Release

(1) In determining whether an order of conditional release is appropriate, the SHRP shall have as its goals the protection of the public, the best interests of justice and the welfare of the individual. The SHRP may consider the testimony and exhibits at the hearing regarding the individual’s behavior in the hospital including the individual’s progress, insight and responsibility taken for his or her own behavior.

(2) If the SHRP finds the individual may be controlled in the community and a verified conditional release plan is approved by the SHRP, the SHRP may order the individual placed on conditional release.

(3) If the SHRP finds the individual could be controlled in the community but no conditional release plan has been approved by the SHRP, the SHRP may order the individual to remain in a state hospital but find the individual appropriate for conditional release pending submission of a conditional release plan approved by the SHRP.

(a) The SHRP shall specify what conditions the plan should include and may approve the conditional release plan submitted by the staff of the state hospital, by the individual or someone on the individual’s behalf at an administrative hearing.

(b) Following the procedures set forth in OAR 309-092-0178, the PSRB may provide the SHRP with conditions of release that the PSRB determines are advisable. If the SHRP orders the individual conditionally released, the SHRP shall include the conditions of release in the order.

(4) If a verified conditional release plan has not been approved and the conditions need further examination and approval by the SHRP, the SHRP may commit the individual, find the individual appropriate for conditional release or continue the hearing.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.336, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0200

Elements of Conditional Release Order

(1) The SHRP may consider any or all of the following elements of a conditional release plan and determine which are appropriate and necessary to insure the safety of the public. Following the procedures set forth in OAR 309-092-0178, the PSRB may provide the SHRP with conditions of release that the PSRB determines are advisable. If the SHRP orders the individual conditionally released, the SHRP shall include the conditions of release in the order

(a) Housing must be available for the individual. The SHRP may require 24-hour supervised housing, a supervised group home, foster care, housing with relatives or independent housing.

(b) Mental health treatment must be available in the community. The SHRP-approved provider of the treatment must have had an opportunity to evaluate the patient and the proposed conditional release plan and to be heard before the SHRP.

(A) The provider must have agreed to provide the necessary mental health treatment to the individual.

(B) The treatment may include individual counseling, group counseling, home visits, prescription of medication or any other treatment recommended by the provider(s) and approved by the SHRP.

(C) Reporting responsibility: An individual must be available to be designated by the PSRB as having primary reporting responsibility.

(2) Special conditions may be imposed, including but not limited to, the following: no consumption of alcohol, taking of antabuse, observation by designated individual of each ingestion of medication; submitting to drug screen tests; no driving; vocational activities; day treatment; attending school; working; or sex offender assessment and treatment.

(3) Parole and probation supervision may be ordered.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.336, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0205

The Authority’s Responsibility to Prepare Plan

(1) When a state hospital determines an individual may be ready for conditional release, the state hospital staff may request that the SHRP order an evaluation for community placement.

(2) The Division is responsible for and shall prepare the conditional release plan. In order to carry out the conditional release plan, the Division may contract with a community mental health program, other public agency, or Private Corporation or an individual to provide evaluations for community placement, supervision and treatment.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.336, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0210

Out-of-State Conditional Release Order

The SHRP may consider and approve a conditional release plan to have the individual reside out of state.

Stat. Auth.: ORS 413.042 & 161, SB 420 .
Stats. Implemented: ORS 161.336, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0215

Reconsideration

(1) A party to the hearing may request reconsideration of a Review Panel finding in writing. Also, on its own motion, the SHRP may reconsider the finding.

(2) If an issue is appropriately raised, the matter shall be remanded to the SHRP for hearing on that issue. Reconsideration may be upheld if:

(a) The written findings are found to be inaccurate or do not support the action taken by the SHRP;

(b) Substantial information material to the issues which was not known or which could not have been known at the time of the hearing is received;

(c) A material misrepresentation of facts or concealment of facts occurred; or

(d) The SHRP decision is contrary to the rules or statutes governing the SHRP.

(3) If the issues are not appropriately raised, the individual shall receive written notification of the reasons for denial of reconsideration.

(4) If good cause exists, a party to the hearing may request reconsideration by the Director. Subject to the Director’s discretion and determination of good cause, the Director may reconsider the SHRP’s findings by listening to the audio of the hearing and reviewing the exhibits from the hearing. The Director may overrule or sustain the SHRP’s findings. The Director may also remand the matter to the SHRP for further consideration.

Stat. Auth.: ORS 413.042 & 161.327, SB 420
Stats. Implemented: ORS 161.346, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0220

Judicial Review

(1) The Legislature has provided that a final Review Panel order shall be subject to review by the Court of Appeals upon petition to the court within 60 days of the issuance of the order in accordance with ORS 161.385(8).

(2) The SHRP shall provide the attorney for the individual and the court with the record of proceedings.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.385, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0225

Enforcement of Review Panel Orders

The SHRP may apply to the circuit court of the appropriate county for contempt proceedings under ORS 161.395 when its directive to an agency or person is not followed.

Stat. Auth.: ORS 413.042 & 161.327, SB 420
Stats. Implemented: ORS 161.395, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0230

Compliance

State or local community mental health programs shall comply with any order of the SHRP.

Stat. Auth.: ORS 413.042, 137.540, 161,327, 192.620, 430.630, SB 420
Stats. Implemented: ORS 161.336, 161.346, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0235

Custody of An Individual Who is a Substantial Danger to Others

The Legislature has provided that the community mental health program director, the director of the facility providing treatment to an individual on conditional release, any peace officer or any individual responsible for the supervision of the individual on conditional release may take or request that an individual on conditional release be taken into custody if there is reasonable cause to believe the individual is a substantial danger to others because of mental disease or defect and the person is in need of immediate care, custody or treatment. The individual shall be transferred to a state hospital designated by the Authority.

Stat. Auth.: ORS 413.042 & 161.387, SB 420
Stats. Implemented: ORS 161.346, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12

309-092-0240

Leaves and Passes

(1) Any overnight or out-of-town leave of absence or pass request for SHRP individuals in a state hospital shall be signed by a physician and submitted to the hospital Risk Review Committee for initial consideration. A leave of absence or pass may be requested when the physician is of the opinion that a leave of absence or pass from the hospital would pose no substantial danger to others and would be therapeutic for the individual.

(2) If the hospital’s Risk Review Committee approves the request, the request and recommendation of the Risk Review Committee shall be presented to the SHRP forthe purposes of ORS 161.326 (Notice to victim).

Stat. Auth.: ORS 413.042, 137.540, 161.315, 161.327, 161.332, 161.341, 161.346, 161.351, 161.365, 161.370, 161.390, 161.400, 192.690, 428.210, SB 420
Stats. Implemented: ORS 161.400, SB 420
Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 9-2012, f. & cert. ef. 6-19-12


 

Rule Caption: Medicaid Payment for Rehabilitative Mental Health Services.

Adm. Order No.: MHS 10-2012

Filed with Sec. of State: 6-19-2012

Certified to be Effective: 6-19-12

Notice Publication Date: 5-1-2012

Rules Amended: 309-016-0600, 309-016-0605, 309-016-0630, 309-016-0675, 309-016-0685, 309-016-0745, 309-016-0750

Rules Repealed: 309-016-0600(T), 309-016-0605(T), 309-016-0610(T), 309-016-0630(T), 309-016-0675(T), 309-016-0685(T), 309-016-0745(T), 309-016-0750(T)

Subject: These rules specify standards for authorized appropriate reimbursement of Medicaid or State Children’s Health Plan funded addictions and mental health services and supports. These amendments implement Oregon Laws 2011, Senate Bill 238.

Rules Coordinator: Nola Russell—(503) 945-7652

309-016-0600

Scope

These rules specify standards for authorized appropriate reimbursement of Medicaid or State Children’s Health Plan funded addictions and mental health services and supports. This includes payments for community-based as well as those payments made for acute inpatient services in a general medical setting or a freestanding facility meeting the federal definition as an institute for mental disease reimbursed as a result of a request for payment. The requirements set forth here in OAR 309-016-0600 through 309-016-0755 and referenced rules must be met in order for Medicaid payment to have been made appropriately.

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715
Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12; MHS 10-2012, f. & cert. ef. 6-19-12

309-016-0605

Definitions

(1) “Action” means:

(a) The denial, limitation or restriction of a requested covered services including the type or level of service;

(b) The reduction, suspension or termination of a previously authorized service; or

(c) The failure to provide services in a timely manner, as defined by the Addictions and Mental Health Division of the Oregon Health Authority.

(2) “Active Treatment” means a service provided as prescribed in a professionally developed and supervised Individual Services and Supports Plan to address or improve a condition.

(3) “Addictions and Mental Health Division” means the Division of the Oregon Health Authority responsible for the administration of addictions and mental health services provided in Oregon or to it’s residents.

(4) “Allowable Cost” means the cost of treatment services based on cost finding principles found in the appropriate OMB Circular such as “Cost Principles for Non-Profit Organization” (OMB Circular A-122) or “Cost Principles for State, Local, and Indian Tribal Governments” (OMB Circular A-87) and including allowable costs incurred for interest on the acquisition of buildings and improvements thereon.

(5) “Appeal” means a request by an Individual or their representative to review an Action as defined in this rule.

(6) “Certificate of Approval” means the document awarded by the Division signifying that a specific, named organization is judged by the Division to operate in compliance with applicable rules. A “Certificate of Approval” for mental health services is valid only when signed by the Division’s Director and, in the case of a subcontract provider of a CMHP, the CMHP director.

(7) “Certification of Need” means the procedures established by the Division to certify in writing a child’s need for psychiatric residential treatment services.

(8) “Child” or “Children” means a person under the age of 18. An individual with Medicaid eligibility, who is in need of services specific to children, adolescents, or young adults in transition, will be considered a child until age 21 for purposes of these rules.

(9) “Children, Adults and Families” (CAF) means the Division serving as Oregon’s child welfare agency.

(10) “Clean Claim(s)” means a claim that can be processed without obtaining additional information from the provider of the service or from a third party. It includes a claim with errors originating in the State’s claims system. It does not include a claim from a provider who is under investigation for fraud or abuse, or a claim under review for medical necessity.

(11) “Commission on Accreditation of Rehabilitation” (CARF) means an organization that accredits behavioral health care and community providers based on the current edition of the “CARF Behavioral Health” standards manual.

(12) “Community Mental Health Program” (CMHP) means an entity that is responsible for planning and delivery of services for persons with substance use disorders, mental health diagnosis, or developmental disabilities, operated in a specific geographic area of the state under an intergovernmental agreement or direct contract with the Division.

(13) “Complaint” means an expression of dissatisfaction from an Individual or their representative to a Practitioner or Provider about any matter other than an Action.

(14) “Council on Accreditation of Services for Families and Children Facilities” (COA) means an organization that accredits behavioral health care and social service programs based on the current edition of the COA “Standards for Behavioral Health Care Services and Community Support and Education Services Manual.”

(15) “Division” means the Addictions and Mental Health Division Of the Oregon Health Authority.

(16) “Director” means the Director of the Division or his or her designee.

(16) “Division of Medical Assistance Programs” (DMAP) means the Division of the Oregon Health Authority responsible for coordinating the medical assistance programs within the State of Oregon including the Oregon Health Plan (OHP) Medicaid demonstration, the State Children’s Health Insurance Program (SCHIP -Title XXI), and several other programs.

(17) “DMAP/AMH” means the Division of Medical Assistance or Addictions and Mental Health Division. Both DMAP and AMH have delegated responsibilities for the administration of Medicaid funded addictions and mental health services and supports. A lead agency will be identified to each entity involved in any process when the delegation of such is necessary.

(18) “Diagnostic and Statistical Manual” (DSM) means the current edition of the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association.

(19) “Grievance System” means the overall system in which an Individual can express dissatisfaction and that expression acted on if necessary. The Grievance System includes a Complaint process, and Appeals process and access to the Division of Medical Assistance Programs Administrative Hearing process.

(20) “Individual” means any person being considered for or receiving services and supports.

(21) “Individual Service and Support Plan” (ISSP) means a comprehensive plan for services and supports provided to or coordinated for an individual and his or her family, as applicable, that is reflective of the assessment and the desired outcomes of service.

(22) “Interdisciplinary Team” means the group of people designated to advise in the planning and provision of services and supports to individuals receiving Intensive Treatment Services (ITS) and Enhanced Care Services (ECS) and may include multiple disciplines or agencies. For ITS programs, the composition of the interdisciplinary team must be consistent with the requirements of 42 CFR Part 441.156.

(23) “Joint Commission on Accreditation of Healthcare Organizations” (JCAHO) means the Joint Commission on Accreditation of Healthcare Organizations. The Joint Commission accredits psychiatric residential treatment facilities according to its current edition of the “Comprehensive Accreditation Manual for Behavioral Health Care.”

(24) “Letter of Approval” means the document awarded to service providers under OAR 309-012-0010 which states that the provider is in compliance with applicable administrative rules of the Division. Letters of Approval issued for mental health services are obsolete upon their expiration date, or upon the effective date of 309-012-0140, whichever is later.

(25) “Licensed Medical Practitioner” (LMP) means a person who meets the following minimum qualifications as documented by the LMHA or designee:

(a) Physician licensed to practice in the State of Oregon; or

(b) Nurse practitioner licensed to practice in the State of Oregon; or

(c) Physician’s Assistant licensed to practice in the State of Oregon.

(d) In addition, whose training, experience and competence demonstrate the ability to conduct a mental health assessment and provide medication management.

(e) For ICTS and ITS providers, a “Licensed Medical Practitioner” or “LMP” means a board-certified or board-eligible child and adolescent psychiatrist licensed to practice in the State of Oregon.

(26) “Local Mental Health Authority” (LMHA) 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 Program (CMHP);

(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.

(27) “Medicaid” means the federal grant-in-aid program to state governments to provide medical assistance to eligible persons, under Title XIX of the Social Security Act.

(28) “Medicaid Management Information System” The mechanized claims processing and information retrieval system that all states are required to have according to section 1903(a)(3) of the Social Security Act and defined in regulation at 42 CFR 433.111. All states operate an MMIS to support Medicaid business functions and maintain information in such areas as provider enrollment; client eligibility, including third party liability; benefit package maintenance; managed care enrollment; claims processing; and prior authorization.

(29) “Medically Appropriate” means services and medical supplies required for prevention, diagnosis or treatment of a physical or mental health condition, or injuries, and which are:

(a) Consistent with the symptoms of a health condition or treatment of a health condition;

(b) Appropriate with regard to standards of good health practice and generally recognized by the relevant scientific community and professional standards of care as effective;

(c) Not solely for the convenience of an individual or a provider of the service or medical supplies; and

(d) The most cost effective of the alternative levels of medical services or medical supplies that can be safely provided to an individual.

(30) “National Provider Identifier” (NPI) means a unique 10-digit identifier mandated by the Administrative Simplification provisions of the federal Health Insurance Portability and Accountability Act (HIPAA) for all healthcare providers that is good for the life of the provider.

(31) “Non-Contiguous Area Provider” means a provider located more than 75 miles from Oregon and enrolled with the Division.

(32) “Plan of Care” (POC) means a tool within the Medicaid Management Information System used to authorize certain Medicaid funded services for Individuals.

(33) “Provider” means an organizational entity, or qualified person, that is operated by or contractually affiliated with, a community mental health program, or contracted directly with the Division, for the direct delivery of addictions, problem gambling or mental health services and supports.

(34) “Psychiatric Residential Treatment Facility” means facilities that are structured residential treatment environments with daily 24-hour supervision and active psychiatric treatment, Psychiatric Residential Treatment Services (PRTS), Secure Children’s Inpatient Treatment Programs (SCIP), Secure Adolescent Inpatient Treatment Programs (SAIP), and Sub-acute psychiatric treatment for children who require active treatment for a diagnosed mental health condition in a 24-hour residential setting.

(35) “Psychiatric Residential Treatment Services” means services delivered in a PRTF that include 24-hour supervision for children who have serious psychiatric, emotional or acute mental health conditions that require intensive therapeutic counseling and activity and intensive staff supervision, support and assistance.

(36) “Qualified Mental Health Associate” (QMHA) means a person delivering services under the direct supervision of a Qualified Mental Health Professional (QMHP) and meeting the following minimum qualifications as documented by the LMHA or designee:

(a) A bachelor’s degree in a behavioral sciences field; or

(b) A combination of at least three year’s relevant work, education, training or experience; and

(c) Has the competencies necessary to:

(A) Communicate effectively;

(B) Understand mental health assessment, treatment and service terminology and to apply the concepts; and

(C) Provide psychosocial skills development and to implement interventions prescribed on a Treatment Plan within the scope of his or her practice.

(37) “Qualified Mental Health Professional” (QMHP) means a Licensed Medical Practitioner (LMP) or any other person meeting the following minimum qualifications as documented by the LMHA or designee:

(a) Graduate degree in psychology;

(b) Bachelor’s degree in nursing and licensed by the State of Oregon;

(c) Graduate degree in social work;

(d) Graduate degree in a behavioral science field;

(e) Graduate degree in recreational, art, or music therapy; or

(f) Bachelor’s degree in occupational therapy and licensed by the State of Oregon; and

(g) Whose education and experience demonstrates the competencies to identify precipitating events; gather histories of mental and physical disabilities, alcohol and drug use, past mental health services and criminal justice contacts; assess family, social and work relationships; conduct a mental status examination; document a multiaxial DSM diagnosis; write and supervise a Treatment Plan; conduct a Comprehensive Mental Health Assessment; and provide individual, family, and/or group therapy within the scope of his or her practice.

(38) “Representative” means a person who acts on behalf of an individual at the individual’s request with respect to a grievance, including, but not limited to a relative, friend, employee of the Division, attorney or legal guardian.

(39) “System Of Care” means the comprehensive array of mental health and other necessary services which are organized to meet the multiple and changing needs of children with severe emotional disorders and their families.

(40) “Usual and Customary Charge” means the lesser of the following unless prohibited from billing by federal statute or regulation:

(a) The Provider’s charge per unit of service for the majority of non-medical assistance users of the same service based on the preceding month’s charges;

(b) The Provider’s lowest charge per unit of service on the same date that is advertised, quoted or posted. The lesser of these applies regardless of the payment source or means of payment;

(c) Where the Provider has established a written sliding fee scale based upon income for individuals and families with income equal to or less than 200% of the federal poverty level, the fees paid by these individuals and families are not considered in determining the usual charge. Any amounts charged to Third Party Resources (TPR) are to be considered.

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705, 430.715
Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12; MHS 7-2012(Temp), f. & cert. ef. 5-17-12 thru 11-11-12; MHS 10-2012, f. & cert. ef. 6-19-12

309-016-0630

Payment

(1) The Division of Medical Assistance Programs or the Addictions and Mental Health Division (DMAP) will make payment in compliance with 42CFR 447.10. Any contracted Billing Agent or Billing Service submitting claims on behalf of a Provider but not receiving payment in the name of or on behalf of the Provider does not meet the requirements for Billing Provider enrollment. If electronic transactions will be submitted, Billing Agents and Billing Services must register and comply with Oregon Health Authority Electronic Data Interchange (EDI) rules, OAR 407-120-0100 through 407-120-0200. DMAP may require that payment for services be made only after review by DMAP.

(2) The Division sets Fee-for-Service (FFS) payment rates.

(3) All FFS payment rates are the rates in effect on the date of service that are the lesser of the amount billed, the AMH maximum allowable amount or the reimbursement specified in the individual program Provider rules:

(a) The Division’s maximum allowable rate setting process uses a methodology that is based on the existing Medicaid fee schedule with adjustments for legislative changes and payment levels. The rates are updated periodically and posted on the Division’s web site at http://egov.oregon.gov/oha/mentalhealth/tools-providers.shtml

(b) Provider rules may specify reimbursement rates for particular services or items. Provider specific rates are determined based on the Provider’s allowable costs of providing the service.

(4) The Authority sets payment rates for out-of-state institutions and similar facilities, such as psychiatric and rehabilitative care facilities at a rate that is:

(a) Consistent with similar services provided in the State of Oregon; and

(b) The lesser of the rate paid to the most similar facility licensed in the State of Oregon or the rate paid by the Medical Assistance Programs in that state for that service.

(5) DMAP will not make payment on claims that have been assigned, sold, or otherwise transferred or when the Billing Provider, Billing Agent or Billing Service receives a percentage of the amount billed or collected or payment authorized. This includes, but is not limited to, transfer to a collection agency or individual who advances money to a Provider for accounts receivable.

(6) Payment for DMAP Clients with Medicare and Medicaid, excluding qualified Medicare beneficiary programs:

(a) DMAP limits payment to the Medicaid allowed amount less the Medicare payment up to the Medicare co-insurance and deductible, whichever is less. DMAP payment cannot exceed the co-insurance and deductible amounts due;

(b) DMAP pays the DMAP allowable rate for DMAP covered services that are documented to be not covered by Medicare.

(7) For Clients with Third-Party Resources (TPR), DMAP pays the DMAP allowed rate less the TPR payment but not to exceed the billed amount.

(8) DMAP payments, including contracted Prepaid Health Plan (PHP) payments, unless in error, constitute payment in full, except in limited instances involving allowable spend-down or copayments. For DMAP such payment in full includes:

(a) Zero payments for claims where a third party or other resource has paid an amount equivalent to or exceeding the DMAP allowable payment; and

(b) Denials of payment for failure to submit a claim in a timely manner, failure to obtain Payment Authorization in a timely and appropriate manner, or failure to follow other required procedures identified in the individual Provider rules.

(9) The Division will reimburse providers consistent with all requirements in 42CFR447.45 Timely Claims Payment including but not limited to:

(a) The Division must pay 90 percent of all clean claims from Providers within 30 days of the date of receipt.

(b) The Division must pay 99 percent of all clean claims from Providers within 90 days of the date of receipt.

(c) The Division must pay all other claims within 12 months of the date of receipt except in various circumstances listed in 42CFR447.45(4).

(10) Payment by DMAP does not limit the Authority or any state or federal oversight entity from reviewing or auditing a claim before or after the payment. Payment may be denied or subject to recovery if medical review, audit or other post-payment review determines the service was not provided in accordance with applicable rules or does not meet the criteria for quality of care, or medical appropriateness of the care or payment.

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715
Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12; MHS 7-2012(Temp), f. & cert. ef. 5-17-12 thru 11-11-12; MHS 10-2012, f. & cert. ef. 6-19-12

309-016-0675

Prior Authorization

Authorization of Payment.

(1) Some of the services or items covered by the Division require authorization before payment will be made. Some services require authorization before the service can be provided. Services requiring prior authorization can be found on the Mental Health Procedure Codes and Reimbursement Rates Table located at http://egov.oregon.gov/oha/mentalhealth/tools-providers.shtml. The procedure for receiving authorization is detailed in the Provider Manual found on the same website.

(2) Documentation submitted when requesting authorization must support the medical justification for the service. A complete request is one that contains all necessary documentation and meets any other requirements as described in the appropriate Provider rules.

(3) The Division will authorize for the level of care or type of service that meets the Individual’s medical need. Only services which are Medically Appropriate and for which the required documentation has been supplied may be authorized. The authorizing agency may request additional information from the Provider to determine medical appropriateness or appropriateness of the service.

(4) The Division and its authorizing agencies are not required to authorize services or to make payment for authorized services under the following circumstances:

(a) The individual was not eligible for Medicaid at the time services were provided. The provider is responsible for checking the individual’s eligibility each time services are provided;

(b) The Provider does not hold a valid Certificate of Approval from the Division for the service;

(c) The Provider cannot produce appropriate documentation to support medical appropriateness, or the appropriate documentation was not submitted to the Division;

(d) The service has not been adequately documented (see 309-016-0610,); that is, the documentation in the Provider’s files is not adequate to determine the type, medical appropriateness, or frequency and duration of services provided and required documentation is not in the Provider’s files;

(e) The services billed or provided are not consistent with the information submitted when authorization was requested or the services provided are determined retrospectively not to be medically appropriate;

(f) The services billed are not consistent with those provided;

(g) The services were not provided within the timeframe specified on the authorization of payment document;

(h) The services were not authorized or provided in compliance with these rules, the General Rules and in the appropriate Provider rules.

(i) The provider was not eligible to receive reimbursement from Medicaid at the time the service was rendered.

(5) Payment made for services described in subsections (a)-(h) of this rule will be recovered (see also Basis for Mandatory Sanctions and Basis for Discretionary Sanctions).

(6) Retroactive Eligibility:

(a) In those instances when Individuals are made retroactively eligible, authorization for payment may be given if:

(A) The Individual was eligible on the date of service;

(B) The services provided meet all other criteria and Oregon Administrative Rules, and;

(C) The request for authorization is received by the Division within 90 days of the date of service;

(b) Services provided when a Medicaid-eligible Individual is retroactively disenrolled from a Prepaid Health Plan (PHP) or services provided after the Individual was disenrolled from a PHP may be authorized if:

(A) The Individual was eligible on the date of service;

(B) The services provided meet all other criteria and Oregon Administrative Rules; and

(C) The request for authorization is received by the Division within 90 days of the date of service;

(c) Any requests for authorization after 90 days from date of service require documentation from the Provider that authorization could not have been obtained within 90 days of the date of service.

(7) The Division will process requests for prior authorization that do not require additional information from the provider or third party consistent with timeliness of payments for clean claims described in 42CFR447.45 and included in 309-016-0630(9).

(8) Prior Authorization is valid for the time period specified on the authorization notice, but not to exceed 12 months, unless the Individual’s benefit package no longer covers the service, in which case the authorization will terminate on the date coverage ends.

(9) Prior Authorization for Individuals with other insurance or for Medicare beneficiaries:

(a) When Medicare is the primary payer for a service, no Prior Authorization from the Division is required, unless specified in the appropriate program Provider rules;

(b) For Individuals who have private insurance or other Third Party Resources (TPRs), such as Blue Cross, Tri-Care, etc., the Division requires Prior Authorization as specified above and in the appropriate Provider rules when the other insurer or resource does not cover the service or when the other insurer reimburses less than the Division rate;

(c) For Individuals in a Medicare’s Social Health Maintenance Organization (SHMO), the SHMO requires Payment Authorization for some services. The Division requires Prior Authorization for services which are covered by the Division but which are not covered under the SHMO as specified above and in the appropriate Provider rules.

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715
Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12; MHS 7-2012(Temp), f. & cert. ef. 5-17-12 thru 11-11-12; MHS 10-2012, f. & cert. ef. 6-19-12

309-016-0685

Variances

A variance from those portions of these rules that are not derived from federal regulations, Oregon’s Medicaid State Plan or the General Rules for Oregon Medical Assistance Programs may be granted to an applicant for a period of up to one year in the following manner:

(1) The applicant shall submit to the Division’s Medicaid Policy Unit a written request which includes:

(a) The section(s) of the rule from which the variance is sought;

(b) The reason for the proposed variance;

(c) The alternative practice proposed; and

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought unless under the discretion of the Division the practice detailed in the variance will be ongoing to be renewed annually.

(2) The Division’s Director shall approve or deny the request for variance in writing.

(3) The Division’s Medicaid Policy Unit shall notify the Provider of the decision in writing within 30 days of receipt of the request.

(4) Appeal of the denial of a variance request shall be to the Director, whose decision shall be final.

(5) Variances may only be granted for up to one year. A Provider requesting a Variance to be continued beyond one year must re-apply.

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715
Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12; MHS 10-2012, f. & cert. ef. 6-19-12

309-016-0745

Service Criteria

Children shall be served in the least restrictive, least intensive setting based on their treatment history, degree of impairment, current symptoms and the extent of family and other supports. The provider must recommend the appropriate level of care to the child and parent or guardian when a more restrictive or less restrictive level of care is determined to be medically necessary.

(1) The following criteria are used to determine the appropriateness of continued stay:

(a) The child is making observed progress toward identified treatment goals as documented in the individual plan of care, but the measurable treatment objectives necessary to reach the goals have not been completed;

(b) The child made no documented progress toward treatment goals, but the individual plan of care and measurable objectives necessary to reach the goals have been reviewed by the LMP and modified in order to reevaluate the child’s treatment needs, clarify the nature of the identified problems, and/or initiate new therapeutic interventions; or

(c) The child exhibits new symptoms or maladaptive behaviors that justify continuation and can be safely and effectively treated at a community-based residential level of care. The individual service and support plan has been revised accordingly.

(2) A planned transfer will occur when the following criteria are met:

(a) The child’s targeted symptoms and maladaptive behaviors have abated to an established baseline level as documented by the attainment of specific goals and measureable objectives in the individual plan of care; or

(b) The child exhibits new symptoms and maladaptive behaviors which may not be safely or effectively treated at this level of care; or

(c) The child is not benefiting from treatment and made no progress toward specific treatment goals or measurable objectives even though appropriate individual service and support plan reviews and revisions were conducted.

(3) Planned transfer will be consistent with the transfer criteria established by the interdisciplinary team and documented in the ISSP. In addition:

(a) Providers will not transfer an individual unless the interdisciplinary team, in consultation with the child’s parent or guardian and the next provider, agree that the child requires a more or less restrictive level of care; and

(b) If the determination is made to admit the child to acute care, the provider will not conclude services during the acute care stay unless the interdisciplinary team, in consultation with the child’s parent or guardian and the next provider, agree that the child requires a more or less restrictive level of care following the acute care stay.

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715
Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12; MHS 10-2012, f. & cert. ef. 6-19-12

309-016-0750

Payments

(1) Payments will be made for the provision of active psychiatric residential treatment services, including approved leave for children eligible for such services under Medicaid. If active treatment is not documented during any period in which Division payments are made on behalf of a child, the Division may recoup such payments.

(2) The Division will pay for the day of admission but not for the day of transfer or discharge.

(3) Medicaid eligible children receiving psychiatric residential treatment services will be subject to periodic review by an interdisciplinary team to determine medical appropriateness and quality of services. If a review reveals that a child received an inappropriate level of care, i.e., less than active treatment, payment will not be allowed under these rules.

(4) Payment for planned absences from the program such as home care visits, and transitions shall be allowed if the absences are:

(a) Based on the individual clinical needs of the child; and

(b) Specified in the child’s Individual Service and Support Plan’s measurable objectives and/or transfer plan; and

(c) Documented in individual service notes; and

(d) The duration of any single planned absence is no more than three consecutive days, unless a longer duration is authorized in writing by the Division.

(5) Payment for unplanned absences from the program such as runaway, hospitalization, and detention (check on eligibility) shall be allowed if;

(a) The provider clearly documents in the child’s individual service record regular and ongoing service coordination efforts undertaken by the program during the unplanned absence; and

(b) The provider clearly documents in the child’s individual service record that the child will be returned to the program when the unplanned absence is resolved; and

(c) The duration of any single unplanned absence is no more than seven consecutive days, unless longer duration is authorized in writing by the Division.

(6) Payment for unplanned absences from the program shall be disallowed if the child is not returned to the program, unless the interdisciplinary team, in consultation with the child’s parent(s) or guardian or provider of the next level of care determines that the child requires a more or less restrictive level of care.

(7) Planned absences from the program which are not indicated in the child’s Individual Services and Supports Plan and/or transfer plan shall be considered unplanned absences and payment will be disallowed.

(8) Payments for planned absences must be made consistent with 42CFR447.40.

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715
Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12; MHS 10-2012, f. & cert. ef. 6-19-12


 

Rule Caption: Admission and Discharge of Mentally Ill Persons.

Adm. Order No.: MHS 11-2012

Filed with Sec. of State: 6-25-2012

Certified to be Effective: 6-25-12

Notice Publication Date: 4-1-2012

Rules Repealed: 309-031-0200, 309-031-0205, 309-031-0210, 309-031-0215, 309-031-0220, 309-031-0250, 309-031-0255

Subject: These rules prescribe criteria and procedures for admission and discharge of mentally ill persons at state hospital settings.

 These rules have been replaced by permanent rules 309-091-0000 through 309-091-0050.

Rules Coordinator: Nola Russell—(503) 945-7652


 

Rule Caption: Medicaid Payment for Addictions and Mental Health Services.

Adm. Order No.: MHS 12-2012(Temp)

Filed with Sec. of State: 6-27-2012

Certified to be Effective: 7-1-12 thru 12-27-12

Notice Publication Date:

Rules Adopted: 309-016-0760, 309-016-0765, 309-016-0770, 309-016-0775, 309-016-0780, 309-016-0800, 309-016-0805, 309-016-0810, 309-016-0815, 309-016-0820

Rules Amended: 309-016-0600, 309-016-0605

Subject: These rules specify standards for authorized appropriate reimbursement of Medicaid or State Children’s Health Plan funded addictions and mental health services and supports.

 The current rulemaking activity adds temporary new rules about provider enrollment, service eligibility and payment information related to alcohol and drug residential treatment services programs and substance use disorder detoxification treatment centers.

Rules Coordinator: Nola Russell—(503) 945-7652

309-016-0600

Scope

These rules specify standards for authorized appropriate reimbursement of Medicaid or State Children’s Health Plan funded addictions and mental health services and supports. This includes payments for community-based services as well as those payments made for acute inpatient services in a general medical setting or a freestanding facility meeting the federal definition as an institute for mental disease reimbursed as a result of a request for payment. The requirements set forth here in OAR 309-016-0600 through 309-016-0820 and referenced rules must be met in order for Medicaid payment to have been made appropriately.

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715
Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12; MHS 10-2012, f. & cert. ef. 6-19-12; MHS 12-2012(Temp), f. 6-27-12, cert. ef. 7-1-12 thru 12-27-12

309-016-0605

Definitions

(1) “Action” means:

(a) The denial, limitation or restriction of a requested covered services including the type or level of service;

(b) The reduction, suspension or termination of a previously authorized service; or

(c) The failure to provide services in a timely manner, as defined by the Addictions and Mental Health Division of the Oregon Health Authority.

(2) “Active Treatment” means a service provided as prescribed in a professionally developed and supervised Individual Services and Supports Plan to address or improve a condition.

(3) “Addictions and Mental Health Division” means the Division of the Oregon Health Authority responsible for the administration of addictions and mental health services provided in Oregon or to its residents.

(4) “Allowable Cost” means the cost of treatment services based on cost finding principles found in the appropriate OMB Circular such as “Cost Principles for Non-Profit Organization” (OMB Circular A-122) or “Cost Principles for State, Local, and Indian Tribal Governments” (OMB Circular A-87) and including allowable costs incurred for interest on the acquisition of buildings and improvements thereon.

(5) “Appeal” means a request by an Individual or their representative to review an Action as defined in this rule.

(6) “Certificate of Approval” means the document awarded by the Division signifying that a specific, named organization is judged by the Division to operate in compliance with applicable rules. A “Certificate of Approval” for mental health services is valid only when signed by the Deputy Director of the Division of Mental Health Services and, in the case of a subcontract provider of a CMHP, the CMHP director.

(7) “Certification of Need” means the procedures established by the Division to certify in writing a child’s need for psychiatric residential treatment services.

(8) “Child” or “Children” means a person under the age of 18. An individual with Medicaid eligibility, who is in need of services specific to children, adolescents, or young adults in transition, will be considered a child until age 21 for purposes of these rules.

(9) “Children, Adults and Families” (CAF) means the Division serving as Oregon’s child welfare agency.

(10) “Clean Claim(s)” means a claim that can be processed without obtaining additional information from the provider of the service or from a third party. It includes a claim with errors originating in the State’s claims system. It does not include a claim from a provider who is under investigation for fraud or abuse, or a claim under review for medical necessity.

(11) “Commission on Accreditation of Rehabilitation” (CARF) means an organization that accredits behavioral health care and community providers based on the current edition of the “CARF Behavioral Health” standards manual.

(12) “Community Mental Health Program” (CMHP) means an entity that is responsible for planning and delivery of services for persons with substance use disorders, mental health diagnosis, or developmental disabilities, operated in a specific geographic area of the state under an intergovernmental agreement or direct contract with the Division.

(13) “Complaint” means an expression of dissatisfaction from an Individual or their representative to a Practitioner or Provider about any matter other than an Action.

(14) “Council on Accreditation of Services for Families and Children Facilities” (COA) means an organization that accredits behavioral health care and social service programs based on the current edition of the COA “Standards for Behavioral Health Care Services and Community Support and Education Services Manual.”

(15) “Disabling Mental Illness” means a mental illness that substantially limits functioning in one or more major life activity.

(16) “Division” means the Addictions and Mental Health Division of the Oregon Health Authority.

(17) “Division of Medical Assistance Programs” (DMAP) means the Division of the Oregon Health Authority responsible for coordinating the medical assistance programs within the State of Oregon including the Oregon Health Plan (OHP) Medicaid demonstration, the State Children’s Health Insurance Program (SCHIP -Title XXI), and several other programs.

(18) “DMAP/AMH” means the Division of Medical Assistance or Addictions and Mental Health Division. Both DMAP and AMH have delegated responsibilities for the administration of Medicaid funded addictions and mental health services and supports. A lead agency will be identified to each entity involved in any process when the delegation of such is necessary.

(19) “Diagnostic and Statistical Manual” (DSM) means the current edition of the Diagnostic and Statistical Manual of Mental Disorders, published by the American Psychiatric Association.

(20) “Grievance System” means the overall system in which an Individual can express dissatisfaction and that expression acted on if necessary. The Grievance System includes a Complaint process, and Appeals process and access to the Division of Medical Assistance Programs Administrative Hearing process.

(21) “Habilitation Services” means services designed to help an individual attain or maintain their maximal level of independence, including the individual’s acceptance of a current residence and the prevention of unnecessary changes in residence. Services are provided in order to assist an individual to acquire, retain or improve skills in the one or more of the following areas: assistance with activities of daily living, cooking, home maintenance, recreation, community inclusion and mobility, money management, shopping, community survival skills, communication, self-help, socialization, and adaptive skills necessary to reside successfully in home and community-based settings.

(22) “Individual” means any person being considered for or receiving services and supports.

(23) “Individual Service and Support Plan” (ISSP) means a comprehensive plan for services and supports provided to or coordinated for an individual and his or her family, as applicable, that is reflective of the assessment and the desired outcomes of service.

(24) “Interdisciplinary Team” means the group of people designated to advise in the planning and provision of services and supports to individuals receiving Intensive Treatment Services (ITS) and Enhanced Care Services (ECS) and may include multiple disciplines or agencies. For ITS programs, the composition of the interdisciplinary team must be consistent with the requirements of 42 CFR Part 441.156.

(25) “Joint Commission on Accreditation of Healthcare Organizations” (JCAHO) means the Joint Commission on Accreditation of Healthcare Organizations. The Joint Commission accredits psychiatric residential treatment facilities according to its current edition of the “Comprehensive Accreditation Manual for Behavioral Health Care.”

(26) “Letter of Approval” means the document awarded to service providers under OAR 309-012-0010 which states that the provider is in compliance with applicable administrative rules of the Division. Letters of Approval issued for mental health services are obsolete upon their expiration date, or upon the effective date of 309-012-0140, whichever is later.

(27) “Licensed Medical Practitioner” (LMP) means a person who meets the following minimum qualifications as documented by the LMHA or designee:

(a) Physician licensed to practice in the State of Oregon; or

(b) Nurse practitioner licensed to practice in the State of Oregon; or

(c) Physician’s Assistant licensed to practice in the State of Oregon.

(d) In addition, whose training, experience and competence demonstrate the ability to conduct a mental health assessment and provide medication management.

(e) For ICTS and ITS providers, a “Licensed Medical Practitioner” or “LMP” means a board-certified or board-eligible child and adolescent psychiatrist licensed to practice in the State of Oregon.

(28) “Local Mental Health Authority” (LMHA) 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 Program (CMHP);

(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.

(29) “Medicaid” means the federal grant-in-aid program to state governments to provide medical assistance to eligible persons, under Title XIX of the Social Security Act.

(30) “Medicaid Management Information System” The mechanized claims processing and information retrieval system that all states are required to have according to section 1903(a)(3) of the Social Security Act and defined in regulation at 42 CFR 433.111. All states operate an MMIS to support Medicaid business functions and maintain information in such areas as provider enrollment; client eligibility, including third party liability; benefit package maintenance; managed care enrollment; claims processing; and prior authorization.

(31) “Medically Appropriate” means services and medical supplies required for prevention, diagnosis or treatment of a physical or mental health condition, or injuries, and which are:

(a) Consistent with the symptoms of a health condition or treatment of a health condition;

(b) Appropriate with regard to standards of good health practice and generally recognized by the relevant scientific community and professional standards of care as effective;

(c) Not solely for the convenience of an individual or a provider of the service or medical supplies; and

(d) The most cost effective of the alternative levels of medical services or medical supplies that can be safely provided to an individual.

(32) “National Provider Identifier” (NPI) means a unique 10-digit identifier mandated by the Administrative Simplification provisions of the federal Health Insurance Portability and Accountability Act (HIPAA) for all healthcare providers that is good for the life of the provider.

(33) “Non-Contiguous Area Provider” means a provider located more than 75 miles from Oregon and enrolled with the Division.

(34) “Plan of Care” (POC) means a tool within the Medicaid Management Information System used to authorize certain Medicaid funded services for Individuals.

(35) “Provider” means an organizational entity, or qualified person, that is operated by or contractually affiliated with, a community mental health program, or contracted directly with the Division, for the direct delivery of addictions, problem gambling or mental health services and supports.

(36) “Psychiatric Residential Treatment Facility” means facilities that are structured residential treatment environments with daily 24-hour supervision and active psychiatric treatment, Psychiatric Residential Treatment Services (PRTS), Secure Children’s Inpatient Treatment Programs (SCIP), Secure Adolescent Inpatient Treatment Programs (SAIP), and Sub-acute psychiatric treatment for children who require active treatment for a diagnosed mental health condition in a 24-hour residential setting.

(37) “Psychiatric Residential Treatment Services” means services delivered in a PRTF that include 24-hour supervision for children who have serious psychiatric, emotional or acute mental health conditions that require intensive therapeutic counseling and activity and intensive staff supervision, support and assistance.

(38) “Qualified Mental Health Associate” (QMHA) means a person delivering services under the direct supervision of a Qualified Mental Health Professional (QMHP) and meeting the following minimum qualifications as documented by the LMHA or designee:

(a) A bachelor’s degree in a behavioral sciences field; or

(b) A combination of at least three year’s relevant work, education, training or experience; and

(c) Has the competencies necessary to:

(A) Communicate effectively;

(B) Understand mental health assessment, treatment and service terminology and to apply the concepts; and

(C) Provide psychosocial skills development and to implement interventions prescribed on a Treatment Plan within the scope of his or her practice.

(39) “Qualified Mental Health Professional” (QMHP) means a Licensed Medical Practitioner (LMP) or any other person meeting the following minimum qualifications as documented by the LMHA or designee:

(a) Graduate degree in psychology;

(b) Bachelor’s degree in nursing and licensed by the State of Oregon;

(c) Graduate degree in social work;

(d) Graduate degree in a behavioral science field;

(e) Graduate degree in recreational, art, or music therapy; or

(f) Bachelor’s degree in occupational therapy and licensed by the State of Oregon; and

(g) Whose education and experience demonstrates the competencies to identify precipitating events; gather histories of mental and physical disabilities, alcohol and drug use, past mental health services and criminal justice contacts; assess family, social and work relationships; conduct a mental status examination; document a multiaxial DSM diagnosis; write and supervise a Treatment Plan; conduct a Comprehensive Mental Health Assessment; and provide individual, family, and/or group therapy within the scope of his or her practice.

(40) “Representative” means a person who acts on behalf of an individual at the individual’s request with respect to a grievance, including, but not limited to a relative, friend, employee of the Division, attorney or legal guardian.

(41) “Residential Alcohol and Other Drug Treatment Program” means a publicly or privately operated Program as defined in ORS 430.010 that provides assessment, treatment, rehabilitation and twenty four hour observation and monitoring for individuals with alcohol and other drug dependence, consistent with Level III of American Society of Addiction Medicine (ASAM) PCCC-2R.

(42) “Substance Use Disorder Detoxification Treatment Center or “Center” means a publicly or privately operated facility approved by the Division, that provides 24-hour a day non-hospital emergency care and treatment services for persons who are suffering from substance intoxication or its withdrawal symptoms. A center is not intended to serve as a secure holding facility for the detention of any individual.

(43) “System Of Care” means the comprehensive array of mental health and other necessary services which are organized to meet the multiple and changing needs of children with severe emotional disorders and their families.

(44) “Usual and Customary Charge” means the lesser of the following unless prohibited from billing by federal statute or regulation:

(a) The Provider’s charge per unit of service for the majority of non-medical assistance users of the same service based on the preceding month’s charges;

(b) The Provider’s lowest charge per unit of service on the same date that is advertised, quoted or posted. The lesser of these applies regardless of the payment source or means of payment;

(c) Where the Provider has established a written sliding fee scale based upon income for individuals and families with income equal to or less than 200% of the federal poverty level, the fees paid by these individuals and families are not considered in determining the usual charge. Any amounts charged to Third Party Resources (TPR) are to be considered.

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705, 430.715
Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12; MHS 7-2012(Temp), f. & cert. ef. 5-17-12 thru 11-11-12; MHS 10-2012, f. & cert. ef. 6-19-12; MHS 12-2012(Temp), f. 6-27-12, cert. ef. 7-1-12 thru 12-27-12

309-016-0760

Conditions of Service Provider Participation

The provider shall meet the following requirements:

(1) Possess the appropriate current and valid License, Letter of Approval and/or Certificate of Approval issued by the Division provided as outlined in OAR 415-012-0020;

(2) Develop a Cost Allocation Plan to support the Provider’s Usual and Customary Charge. Usual and customary charge is defined in OAR 410-120-0000;

(3) Provide services in accordance with the Civil Rights Act of 1964, the Americans with Disabilities Act and any other state and federal laws and regulations listed in the contract with the Division;

(4) Participate in the claim review process outlined in OAR 410-120-1397; and

(5) Possess a contract with the Division to provide Alcohol and Drug Residential Treatment to Medicaid eligible individuals or be a subcontractor of an AMH Alcohol and Drug Residential treatment contractor.

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715
Hist.: MHS 12-2012(Temp), f. 6-27-12, cert. ef. 7-1-12 thru 12-27-12

309-016-0765

Individual Provider Enrollment

Providers shall meet all requirements in OAR410-120-1260, Medical Assistance Programs Provider Enrollment, OAR 407-120-0310 Provider Requirements and 407-120-0320, Provider Enrollment.

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715
Hist.: MHS 12-2012(Temp), f. 6-27-12, cert. ef. 7-1-12 thru 12-27-12

309-016-0770

Payment

(1) Payments will be made for the provision of active A&D residential treatment services, including approved leave for individuals for such services under Medicaid. If active treatment is not documented during any period in which Division payments are made on behalf of the individual, the Division may recoup such payments.

(2) Payment for planned absences from the program such as hospitalizations, home visits, and transitions shall be allowed if the absences are:

(a) Based on the individual clinical needs; and

(b) Specified in the Individual Service and Support Plan’s measurable objectives and/or transfer plan; and;

(c) The provider clearly documents in the individual service record ongoing daily treatment service provided by the program during the absence; and

(d) The bed is not filled by any other individual during the absence; and

(e) The duration of any single planned absence is no more than seven consecutive days, unless a longer duration is authorized in writing by the Division

(3) Payment for unplanned absences from the program such as hospitalizations and incarceration (check Medicaid eligibility) shall be allowed if;

(a) The provider clearly documents in the individual service record ongoing daily treatment service provided by the program during the unplanned absence; and

(b) The provider clearly documents in the individual service record that the individual will be returned to the program when the unplanned absence is resolved and the bed is not filled by any other individual during the absence; and

(c) The duration of any single unplanned absence is no more than three consecutive days, unless longer duration is authorized in writing by the Division.

(4) Payment for a reserved bed is not covered under Medicaid consistent with 42 CFR 447.40

(5) Room and Board is not covered under Medicaid

(6) Payment will be made for each daily unit of service billed, reimbursed at the contracted per diem rate. A daily unit of service is defined in OAR 309-016-0630

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715
Hist.: MHS 12-2012(Temp), f. 6-27-12, cert. ef. 7-1-12 thru 12-27-12

309-016-0775

Sanctions

Sanctions will be imposed on Providers when necessary in accordance with OAR 410-120-1400 through 410-120-1460 Medical Assistance Programs Provider Sanctions and Types and Conditions of Sanction.

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715
Hist.: MHS 12-2012(Temp), f. 6-27-12, cert. ef. 7-1-12 thru 12-27-12

309-016-0780

Individual Eligibility

(1) To be eligible for Alcohol and Drug Residential Treatment service under these rules the individual must be a current Medicaid recipient of at least one of the following programs defined in OAR 461-101-0010:

(a) Extended Medical (EXT);

(b) Medical Assistance Assumed (MAA);

(c) Medical Assistance to Families (MAF);

(d) Oregon Health Plan (OHP), OHP means OHP-CHP, OHP-OPC, OHP-OPP, OHP-OPU and OHP-OP6;

(e) General Assistance Medical (GAM);

(f) Oregon Supplemental Income Program Medical (OSIPM);

(g) Medical Coverage for Children in Substitute or Adoptive Care (SAC);

(h) Healthy Kids Connect (HKC) or;

(i) Continuous Eligibility (CEC)

Stat. Auth.: ORS 411.060, 411.404, 411.706, 411.816, 412.014, 412.049, 414.025, 414.231
Stats. Implemented: ORS 411.060, 411.404, 411.704, 411.706, 411.816, 412.014, 412.049, 414.025, 414.231, 414.826, 414.831, 414.839
Hist.: MHS 12-2012(Temp), f. 6-27-12, cert. ef. 7-1-12 thru 12-27-12

309-016-0800

Conditions of Service Provider Participation

Provider shall meet the following requirements:

(1) Possess the appropriate current and valid License, Letter of Approval and/or Certificate of Approval issued by the Division provided as outlined in OAR 415-012-0000 to 415-012-0090;

(2) Develop a Cost Allocation Plan to support the Provider’s Usual and Customary Charge. Usual and customary charge is defined in OAR 410-120-0000;

(3) Provide services in accordance with the Civil Rights Act of 1964, the Americans with Disabilities Act and any other state and federal laws and regulations listed in the contract with the Division;

(4) Participate in the claim review process outlined in OAR 410-120-1397; and

(5) Center to be in compliance with 415-050-0000 to 415-050-0095.

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715
Hist.: MHS 12-2012(Temp), f. 6-27-12, cert. ef. 7-1-12 thru 12-27-12

309-016-0805

Provider Enrollment

Providers shall meet all requirements in OAR 410-120-1260, Medical Assistance Programs Provider Enrollment, OAR 407-120-0310 Provider Requirements, and 407-120-0320 Provider Enrollment.

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715
Hist.: MHS 12-2012(Temp), f. 6-27-12, cert. ef. 7-1-12 thru 12-27-12

309-016-0810

Payment

(1) DMAP or the Division will make payment in compliance with 42 CFR 447.10. Any contracted Billing Agent or Billing Service submitting claims on behalf of a Provider but not receiving payment in the name of or on behalf of the Provider does not meet the requirements for Billing Provider enrollment. If electronic transactions will be submitted, Billing Agents and Billing Services must register and comply with Oregon Health Authority Electronic Data Interchange (EDI) rules, OAR 407-120-0100 through 407-120-0200. DMAP may require that payment for services be made only after review by DMAP.

(2) The Division sets Fee-for-Service (FFS) payment rates.

(3) All FFS payment rates are the rates in effect on the date of service that are the lesser of the amount billed, the AMH maximum allowable amount or the reimbursement specified in the individual program Provider rules:

(a) The Division’s maximum allowable rate setting process uses a methodology that is based on the existing Medicaid fee schedule with adjustments for legislative changes and payment levels. The rates are updated periodically and posted on the Division’s web site

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 414.725 & 414.737, 430.640, 430.705 & 430.715
Hist.: MHS 12-2012(Temp), f. 6-27-12, cert. ef. 7-1-12 thru 12-27-12

309-016-0815

Sanctions

Sanctions will be imposed on Providers when necessary in accordance with OAR 410-120-1400 through 410-120-1460 Medical Assistance Programs Provider Sanctions and Types and Conditions of Sanction

Stat. Auth.: ORS 413.042 & 430.640
Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715
Hist.: MHS 12-2012(Temp), f. 6-27-12, cert. ef. 7-1-12 thru 12-27-12

309-016-0820

Individual Eligibility

(1) To be eligible for Detoxification Treatment services under these rules the individual must be a current Medicaid recipient.

(2) Providers are responsible to verify an individual is a Medicaid recipient as outlined in OAR 410-120-1140

Stat. Auth.: ORS 413.042
Stats. Implemented: ORS 414.065, 414.025 & 414.047
Hist.: MHS 12-2012(Temp), f. 6-27-12, cert. ef. 7-1-12 thru 12-27-12


 

Rule Caption: Forensic Mental Health Evaluators and Evaluations.

Adm. Order No.: MHS 13-2012

Filed with Sec. of State: 6-25-2012

Certified to be Effective: 6-25-12

Notice Publication Date: 5-1-2012

Rules Adopted: 309-090-0000, 309-090-0005, 309-090-0010, 309-090-0015, 309-090-0020, 309-090-0025, 309-090-0030, 309-090-0035, 309-090-0040, 309-090-0050

Rules Repealed: 309-090-0000(T), 309-090-0005(T), 309-090-0010(T), 309-090-0015(T), 309-090-0020(T), 309-090-0025(T), 309-090-0030(T), 309-090-0035(T), 309-090-0040(T)

Subject: These rules implement HB 3100 of the 2011 Oregon Laws, which relate to court-ordered evaluations of individuals whose competency to aid in their defense or their capacity to be criminally responsible – as defined in statutes, is in question.

 These rules establish minimum standards for the certification of evaluators and will ensure

 forensic evaluations meet consistent quality standards.

Rules Coordinator: Nola Russell—(503) 945-7652

309-090-0000

Purpose and Scope

These rules establish minimum standards for the certification of psychiatrists and licensed psychologists related to performing forensic examinations and evaluations as described in ORS 161.309–161.370 and 419C.524. The rules are intended to ensure that forensic evaluations meet consistent quality standards and are conducted by qualified and trained evaluators. The Oregon Health Authority (OHA) shall provide training, certify qualified applicants and maintain a list of certified forensic evaluators for statewide use.

Stat. Auth.: ORS 413.042; OL 2011, HB 3100
Stats. Implemented: OL 2011, HB 3100
Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 13-2012, f. & cert. ef. 6-25-12

309-090-0005

Definitions

(1) “Authority” means the Oregon Health Authority.

(2) “Competence” is defined according to ORS 161.360

(3) “Conditional Certification” means a psychologist or psychiatrist is temporarily Court-designated as a certified evaluator as defined in OAR 309-090-0010(c).

(4) “Criminal Responsibility” is defined according to ORS 161.295

(5) “Division” means the Addictions and Mental Health (AMH) Division of the Authority.

(6) “Evaluator” means a psychiatrist or psychologist certified by the Authority to perform forensic evaluations.

(7) “Forensic Psychiatric or Psychological Evaluation” means the assessment of a defendant in which the certified forensic evaluator opines on a specific psycho-legal referral question related to ORS 161.360 or 161.295, and is ordered by the Court or requested by associated attorneys.

(8) “Full Certification” means a psychiatrist or licensed psychologist in the state of Oregon satisfying the requirements of this chapter as defined in OAR 309-090-0010(a).

(9) “Psychiatrist” means a psychiatrist licensed by the Board pursuant to ORS 677.010 through 677.450 and who has completed an approved residence training program in psychiatry.

(10) “Licensed Psychologist” means a psychologist licensed pursuant to ORS 675.110 through 675.065 by the Board of Psychologist Examiners.

(11) “Mental Defect” means mental retardation, brain damage or other biological dysfunction that is associated with distress or disability causing symptoms or impairment in at lease one important area of an individuals functioning, as defined in the current Diagnostic and Statistical Manual of Mental Disorders Fourth Edition; Text Revised (DSM-IV-TR) or hereto forward editions of the DSM of the American Psychiatric Association.

(12) “Mental Disease” means any diagnosis of mental disorder which is a significant behavioral or psychological syndrome or pattern that is associated with distress or disability causing symptoms or impairment in at lease one important area of an individual’s functioning, as defined in the current Diagnostic and Statistical Manual of Mental Disorders Fourth Edition; Text Revised (DSM-IV-TR) or hereto forward editions of the DSM of the American Psychiatric Association.

(a) The term “mental disease or defect” does not include an abnormality manifested solely by repeated or criminal or otherwise antisocial conduct;

(b) For offenses committed on or after January 1, 1984, the term “mental disease or defect” does not include any abnormality constituting solely a personality disorder.

(13) “Oregon Forensic Evaluator Training Program” means a training program approved by the Authority to teach psychiatrists and psychologists the knowledge and skills required to perform forensic evaluations and testimony for the state courts.

(14) “Substantial Danger to Others” means if in the community an individual is a substantial danger of posing a significant risk of harming others in the near future as a result of a mental disease or defect.

(15) “Successful completion of training” shall mean attendance at the entire training and passing the exam given at the conclusion of the training.

(16) “Temporary Certification” means a psychiatrist or licensed psychologist in the state of Oregon satisfying the requirements as defined in OAR 309-090-0010(b)

(17) “Testimony” means a declaration, usually made orally by a witness under oath in response to interrogation by a lawyer or authorized public official.

Stat. Auth.: ORS 161.309-161.370, 419C.524; OL 2011, HB 3100
Stats. Implemented: OL 2011, HB 3100
Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 13-2012, f. & cert. ef. 6-25-12

309-090-0010

Forensic Certification Types and Requirements

(1) Psychiatrists and psychologists must be certified by the Authority to submit evaluations and provide testimony to the court for the purpose of criminal responsibility or competency when ordered by the court as required in ORS 161.309, 161.365 and 419C.524.

(2) There are three types of certifications, as follows:

(a) Full Certification:

(A) A psychiatrist must have a current license to practice in Oregon, participate in and successfully complete the Oregon Forensic Evaluator Training and submit for review three redacted forensic evaluations completed within the previous 24 months. If the applicant desires to perform criminal responsibility evaluations, at least one redacted sample shall be an evaluation of criminal responsibility.

(B) A licensed psychologist must have a current Oregon license to practice, participate in and successfully complete the Oregon Forensic Evaluator Training, and submit for review three redacted forensic evaluations completed within the previous 24 months. If the applicant desires to perform criminal responsibility evaluations, at least one redacted sample shall be an evaluation of criminal responsibility, or

(1) If no redacted forensic evaluations are available an applicant may perform evaluations of those charged with crimes other than aggravated murder, murder or ballot measure 11 offenses for the purpose of generating reports to the Authority for review. The applicant must notify the Authority at the time of application that they will be doing evaluations for this purpose and a Temporary Certification will be issued.

(C) Psychiatrists and Licensed Psychologists meeting the above criteria for full certification who desire to perform competency and criminal responsibility evaluations for juveniles shall participate in the specialized segment of the Oregon Forensic Evaluator Training and at least one of the three required redacted forensic evaluations shall be for juvenile competency or criminal responsibility.

(D) Full Certification has a maximum duration of 24 months from certification date.

(b) Temporary Certification

(A) Psychiatrists and licensed psychologists who submit an application for Forensic Evaluator Certification will be granted a Temporary Certification, valid January 1, 2012 through August 31, 2012 for the purpose of allowing applicants to participate in and successfully complete the Oregon Forensic Evaluator Training Program. Applicants shall provide three redacted forensic evaluations, completed within the previous five years. If the applicant desires to perform criminal responsibility evaluations, at least one redacted sample shall be an evaluation of criminal responsibility. Applicants who successfully complete the training and provide the required documents will be granted a full certification based on the requirements above;

(B) Psychiatrists and licensed psychologists who submit application for Forensic Evaluator Certification on or after September 1, 2012 will be granted a Temporary Certification until participation in and successful completion of the Oregon Forensic Evaluator Training and submission of three redacted forensic evaluations. If the applicant desires to perform criminal responsibility evaluations, at least one redacted sample shall be an evaluation of criminal responsibility. Applicants must attend the next regularly scheduled training date or request an extension which may be granted by the Authority.

(C) For Certification purposes, psychiatrists enrolled in an ACGME-Accredited residency training program may participate in evaluations where certification is required under Oregon Revised Statutes (ORS) 161.309, 161.365 and 419C.524 only under the direct supervision and review of a psychiatrist or psychologist that has been granted full certification under the provisions of OAR 309-090-0010.

(D) Temporary certification has a maximum duration of 6 months. An extension of an additional 6 months may be granted by the Authority.

(c) Conditional Certification

(A) A psychiatrist or licensed psychologist, who has not been certified by OHA, may be granted conditional certification by the court, if exigent circumstances exist such as an out of state expert evaluation being sought, or an unusual expertise is required. The court will notify the Authority of the granting of a conditional certification. Conditional Certification ends at the disposition of the particular case for which the conditional certification was granted.

Stat. Auth.: ORS 161.309-161.370, 419C.524; OL 2011, HB 3100
Stats. Implemented: OL 2011, HB 3100
Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 13-2012, f. & cert. ef. 6-25-12

309-090-0015

Application Requirements and Process

(1) Applications must be submitted to the Authority using a form and in a manner prescribed by the Authority.

(2) The application must be accompanied by:

(a) Proof of Licensure by the State of Oregon, as a Psychiatrist or Psychologist.

(b) A copy of a current resume or curriculum vitae providing documentation of forensic training and experience.

(c) Required redacted forensic evaluations of competency or criminal responsibility; and

(d) A non-refundable application fee of $250.00.

(3) After a complete application packet is received the Authority will:

(a) Evaluate the materials to determine whether the psychiatrist or psychologist is qualified for Full or Temporary Certification;

(b) Grant, deny or place conditions on a certification and

(c) Issue a written statement to the applicant of its determination.

(4) An application may be denied for any of the following reasons:

(a) The applicant attempted to procure a certification through fraud, misrepresentation or deceit;

(b) The applicant submitted to the Authority any notice, statement or other document required for certification which is false or untrue, or contains any material misstatement or omission of fact;

(c) The applicant has been convicted of a felony or

(d) The applicant fails to meet the requirements for receiving certification.

(5) Certification may be revoked for any of the following reasons:

(a) The evaluator fails to meet any of the applicable requirements of these rules;

(b) The evaluator loses his or her professional license for any reason;

(c) The Authority receives two or more written complaints regarding the content of written reports during one certification timeframe; the forensic evaluation review panel reviews the complaints and determines that the deficiencies in the reports represent a substantial departure from the standards of practice established by these rules.

(6) If the division determines denial or revocation may be warranted, the division, in consultation with the forensic evaluation review panel shall provide written notice, which may include recommended remediation steps provided by the review panel, of its intent and the applicant shall have 30 days from the date of notice to respond with a written plan for remediation. If this plan is approved by the division, the evaluator will maintain temporary certification status for up to six months at which time the division will determine whether the issues raised have been adequately addressed. If the issues have been adequately addressed, the division shall withdraw its notice and restore full certification. If the issues have not been adequately addressed, the division may proceed with denial or revocation of certification and shall provide notice of the applicant’s right to appeal, pursuant to the provisions of ORS Chapter 183.

(7) If certification is denied or revoked the applicant may request reconsideration by the Director of the Authority.

Stat. Auth.: ORS 161.309-161.370, 419C.524; OL 2011, HB 3100
Stats. Implemented: OL 2011, HB 3100
Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 13-2012, f. & cert. ef. 6-25-12

309-090-0020

Recertification Requirements

(1) An evaluator must request recertification using a form, and in a manner prescribed by the Authority.

(2) The minimum requirements for recertification are:

(a) Proof of Licensure by the State of Oregon, as a Psychiatrist or Psychologist;

(b) Participation and successful completion of updates to the Oregon Forensic Evaluator Training Program approved by the Authority;

(c) Review and approval by the division of a minimum 3 redacted forensic evaluations completed during the 24 months following participation in the training program. If the applicant desires to perform criminal responsibility evaluations, at least one redacted sample shall be an evaluation of criminal responsibility. If performing Juvenile evaluations one of these shall be a juvenile competency or criminal responsibility evaluation. These reports will be subject to review and must meet or exceed standards identified by the Authority as listed in OAR 309-090-0025; and

(d) A non-refundable application fee of $250.00.

(3) Failure to satisfy the factors listed in (2) above shall result in a non-recertification order from the Authority.

(4) Failure to reapply shall constitute a forfeiture of full certification which may be restored only upon written application accepted by the Authority. Individuals who fail to reapply may receive a temporary certification for up to six months.

(5) Individuals who receive non-recertification orders may reapply for certification and will be certified after they meet all of the requirements for certification.

Stat. Auth.: ORS 161.309-161.370, 419C.524; OL 2011, HB 3100
Stats. Implemented: OL 2011, HB 3100
Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 13-2012, f. & cert. ef. 6-25-12

309-090-0025

Content of Written Evaluations Assessing Competency and Criminal Responsibility

(1) At minimum each forensic evaluation shall include the following:

(a) Identifying information of the defendant, a description of the forensic examination, criminal charges, the referral source and the referral question;

(b) The evaluative procedure, techniques and tests used in the examination and the purpose for each, informed consent and limits of confidentiality;

(c) Background information, relevant history of mental and physical illnesses, substance use and treatment histories, medications, hospital or jail course, and current setting.

(d) Summary of a mental status examination;

(e) A substantiated multi-axial diagnosis in the terminology of the American Psychiatric Association’s current edition of the Diagnostic and Statistical Manual;

(f) A consideration of malingering must be present in every evaluation; and

(g) A summary of relevant records reviewed for the evaluation.

(2) In addition to 309-090-0025(1), when the defendant’s competency is in question, the evaluation shall also include, at a minimum, opinions and explanations related to the defendant’s: 

(a) Understanding of his or her charges, the possible verdicts and the possible penalties;

(b) Understanding of the trial participants and the trial process;

(c) Ability to assist counsel in preparing and implementing a defense;

(d) Ability to make relevant decisions autonomously;

(e) If determined incapacitated:

(i) An opinion and explanation as to whether or not the individual is a substantial danger to others as defined in these rules; and

(ii) A recommendation of treatment and other services necessary for the defendant to gain or restore capacity.

(3) In addition to 309-090-0025(1), related to the question of criminal responsibility, the evaluation shall also include, at a minimum, opinions and explanations addressing:

(a) The defendant’s account of the alleged offense(s) including thoughts, feelings and behavior;

(b) Summary of relevant records; including police reports,

(c) An expert opinion regarding the role of substance use in the alleged offense;

(d) The defendant’s mental state at the time of the alleged offense(s) and

(e) An expert opinion regarding whether the defendant, as a result of mental disease or defect at the time of engaging in the alleged criminal conduct, lacked substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.

(f) An expert opinion regarding; if the individual is determined guilty except for insanity of a misdemeanor is the individual a substantial danger to others.

Stat. Auth.: ORS 161.309-161.370, 419C.524; OL 2011, HB 3100
Stats. Implemented: OL 2011, HB 3100
Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 13-2012, f. & cert. ef. 6-25-12

309-090-0030

Forensic Evaluation Review Panel

(1) The Forensic Evaluation Review Panel shall be appointed by and serve at the discretion of the Director of Addictions and Mental Health and will consist of, at a minimum;

(a) Two Psychiatrists eligible for full certification;

(b) Two Licensed Psychologists eligible for full certification;

(c) One defense attorney and

(d) One prosecuting attorney.

(2) Individuals interested in participating in the Forensic Evaluation Review Panel shall submit a letter of interest along with a resume.

(3) Members shall be experienced in the criminal justice system and have familiarity with the issues of competency and criminal responsibility.

(4) Members shall serve a one year term and are eligible for reappointment for one additional term. Vacancies occurring during a member’s term shall be filled immediately for the remainder of the unexpired term.

(5) Members shall be reimbursed on a per diem basis for each day during which the member is engaged in the performance of official duties.

Stat. Auth.: ORS 161.309-161.370, 419C.524; OL 2011, HB 3100
Stats. Implemented: OL 2011, HB 3100
Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 13-2012, f. & cert. ef. 6-25-12

309-090-0035

Forensic Evaluation Review Panel Process

(1) Three members of the Forensic Evaluation Review Panel will meet at the discretion of the authority to review all submitted redacted forensic evaluations as the need arises.

(2) Redacted forensic evaluations will be reviewed by three panel members with different professional backgrounds to determine whether the evaluations have met the requirements of form and content.

(3) Deciding members will issue a report to the division with feedback for the certified forensic evaluator.

Stat. Auth.: ORS 161.309-161.370, 419C.524; OL 2011, HB 3100
Stats. Implemented: OL 2011, HB 3100
Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 13-2012, f. & cert. ef. 6-25-12

309-090-0040

Forensic Evaluator Training Program

(1) The Authority will establish a course of training for persons desiring the issuance of a certificate. At a minimum the training will include instruction on:

(a) The Oregon statutes and case law applicable to the issues of competency and criminal responsibility;

(b) Clinical testing related to assessing competency and criminal responsilbity

(c) The required contents of a report;

(d) The ethical standards and considerations relevant to an evaluation of competency and criminal responsilbity

(e) The elements of expert witness testimony;

(f) Assessment of risk to others and recommendations for treatment and services

(2) Additional specialized training shall be required for evaluators desiring to perform evaluations on children younger than age 15 and other specialized populations.

(3) A test will be administered at the completion of this training.

(4) Updates to this training shall be provided every two years and consist of information regarding relevant changes to the law, rules, and process for Forensic Evaluator Certification.

Stat. Auth.: ORS 161.309-161.370, 419C.524; OL 2011, HB 3100
Stats. Implemented: OL 2011, HB 3100
Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12; MHS 13-2012, f. & cert. ef. 6-25-12

309-090-0050

Confidentiality

(1) Except for the names of certified evaluators, all records provided to the authority or the division under these rules are confidential and privileged and may not be released or utilized for any purpose outside these rules. Any practitioner who in good faith complies with these rules, including providing sample evaluations for review in order to maintain certification, is not responsible for any failure by another person or agency to maintain confidentiality, in regard to these rules.

Statutory Authority: ORS 161.309-161.370, 419C.524; OL 2011, HB 3100
Stats. Implemented: OL 2011, HB 3100
Hist.: MHS 13-2012, f. & cert. ef. 6-25-12

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

Oregon Secretary of State • 136 State Capitol • Salem, OR 97310-0722
Phone: (503) 986-1523 • Fax: (503) 986-1616 • oregon.sos@state.or.us

© 2013 State of Oregon All Rights Reserved​