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The Oregon Administrative Rules contain OARs filed through October 15, 2014
 
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OREGON HEALTH AUTHORITY,
ADDICTIONS AND MENTAL HEALTH DIVISION: MENTAL HEALTH SERVICES

 

DIVISION 90

FORENSIC MENTAL HEALTH EVALUATORS AND EVALUATIONS

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

(10) “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.

(11) “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.

(12) “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.

(13) “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.

(14) “Substantial Danger to Self or to Others” means the person requires a hospital level of care due to 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; MHS 16-2012, f. & cert. ef. 12-26-12

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; and

(e) If determined incapacitated:

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

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; MHS 16-2012, f. & cert. ef. 12-26-12

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

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