Laws and Regulations

LEGISLATIVE COUNSEL'S DIGEST

SB 1299, Padilla. Workplace violence prevention plans: hospitals.
Existing law regulates the operation of health facilities, including hospitals.
The California Occupational Safety and Health Act of 1973 imposes safety responsibilities on employers and employees, including the requirement that an employer establish, implement, and maintain an effective injury prevention program, and makes specified violations of these provisions a crime.
This bill would require the Occupational Safety and Health Standards Board, no later than July 1, 2016, to adopt standards developed by the Division of Occupational Safety and Health that require specified types of hospitals, including a general acute care hospital or an acute psychiatric hospital, to adopt a workplace violence prevention plan as a part of the hospital’s injury and illness prevention plan to protect health care workers and other facility personnel from aggressive and violent behavior. The bill would require the standards to include prescribed requirements for a plan. The bill would require the division, by January 1, 2017, and annually thereafter, to post a report on its Internet Web site containing specified information regarding violent incidents at hospitals. The bill would exempt certain state-operated hospitals from these provisions.
Because this bill would expand the scope of a crime, the bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
DIGEST KEY
Vote: majority Appropriation: no Fiscal Committee: yes Local Program: yes
BILL TEXT
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1.
Section 6401.8 is added to the Labor Code, to read:

6401.8.
(a) The standards board, no later than July 1, 2016, shall adopt standards developed by the division that require a hospital licensed pursuant to subdivision (a), (b), or (f) of Section 1250 of the Health and Safety Code, except as exempted by subdivision (d), to adopt a workplace violence prevention plan as a part of its injury and illness prevention plan to protect health care workers and other facility personnel from aggressive and violent behavior.
(b) The standards adopted pursuant to subdivision (a) shall include all of the following:
(1) A requirement that the workplace violence prevention plan be in effect at all times in all patient care units, including inpatient and outpatient settings and clinics on the hospital’s license.
(2) A definition of workplace violence that includes, but is not limited to, both of the following:
(A) The use of physical force against a hospital employee by a patient or a person accompanying a patient that results in, or has a high likelihood of resulting in, injury, psychological trauma, or stress, regardless of whether the employee sustains an injury.
(B) An incident involving the use of a firearm or other dangerous weapon, regardless of whether the employee sustains an injury.
(3) A requirement that a workplace violence prevention plan include, but not be limited to, all of the following:
(A) Personnel education and training policies that require all health care workers who provide direct care to patients to, at least annually, receive education and training that is designed to provide an opportunity for interactive questions and answers with a person knowledgeable about the workplace violence prevention plan. The education and training shall cover topics that include, but are not limited to, the following topics:
(i) How to recognize potential for violence, and when and how to seek assistance to prevent or respond to violence.
(ii) How to report violent incidents to law enforcement.
(iii) Any resources available to employees for coping with incidents of violence, including, but not limited to, critical incident stress debriefing or employee assistance programs.
(B) A system for responding to, and investigating violent incidents and situations involving violence or the risk of violence.
(C) A system to, at least annually, assess and improve upon factors that may contribute to, or help prevent workplace violence, including, but not limited to, the following factors:
(i) Staffing, including staffing patterns and patient classification systems that contribute to, or are insufficient to address, the risk of violence.
(ii) Sufficiency of security systems, including alarms, emergency response, and security personnel availability.
(iii) Job design, equipment, and facilities.
(iv) Security risks associated with specific units, areas of the facility with uncontrolled access, late-night or early morning shifts, and employee security in areas surrounding the facility such as employee parking areas.
(4) A requirement that all workplace violence prevention plans be developed in conjunction with affected employees, including their recognized collective bargaining agents, if any.
(5) A requirement that all temporary personnel be oriented to the workplace violence prevention plan.
(6) Provisions prohibiting hospitals from disallowing an employee from, or taking punitive or retaliatory action against an employee for, seeking assistance and intervention from local emergency services or law enforcement when a violent incident occurs.
(7) A requirement that hospitals document, and retain for a period of five years, a written record of any violent incident against a hospital employee, regardless of whether the employee sustains an injury, and regardless of whether the report is made by the employee who is the subject of the violent incident or any other employee.
(8) A requirement that a hospital report violent incidents to the division. If the incident results in injury, involves the use of a firearm or other dangerous weapon, or presents an urgent or emergent threat to the welfare, health, or safety of hospital personnel, the hospital shall report the incident to the division within 24 hours. All other incidents of violence shall be reported to the division within 72 hours.
(c) By January 1, 2017, and annually thereafter, the division, in a manner that protects patient and employee confidentiality, shall post a report on its Internet Web site containing information regarding violent incidents at hospitals, that includes, but is not limited to, the total number of reports, and which specific hospitals filed reports, pursuant to paragraph (8) of subdivision (b), the outcome of any related inspection or investigation, the citations levied against a hospital based on a violent incident, and recommendations of the division on the prevention of violent incidents at hospitals.
(d) This section shall not apply to a hospital operated by the State Department of State Hospitals, the State Department of Developmental Services, or the Department of Corrections and Rehabilitation.
(e) This section does not limit the authority of the standards board to adopt standards to protect employees from workplace violence. Nothing in this section shall be interpreted to preclude the standards board from adopting standards that require other employers, including, but not limited to, employers exempted from this section by subdivision (d), to adopt plans to protect employees from workplace violence. Nothing in this section shall be interpreted to preclude the standards board from adopting standards that require an employer subject to this section, or any other employer, to adopt a workplace violence prevention plan that includes elements or requirements additional to, or broader in scope than, those described in this section.

SEC. 2.
No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

BILL NUMBER: AB 508 CHAPTERED 10/08/93
BILL TEXT

CHAPTER 936
FILED WITH SECRETARY OF STATE OCTOBER 8, 1993
APPROVED BY GOVERNOR OCTOBER 8, 1993
PASSED THE SENATE AUGUST 31, 1993
PASSED THE ASSEMBLY MAY 27, 1993
AMENDED IN ASSEMBLY APRIL 22, 1993
AMENDED IN ASSEMBLY APRIL 15, 1993

INTRODUCED BY Assembly Member Speier
(Principal Senate coauthor: Senator Killea)
(Coauthor: Senator Watson)

FEBRUARY 18, 1993

An act to add Sections 1257.7 and 1257.8 to the Health and
Safety Code, and to amend Section 14083 of the Welfare and
Institutions Code, relating to health facilities.

LEGISLATIVE COUNSEL'S DIGEST

AB 508, Speier. Hospital security.
Existing law prohibits operation of a health facility, as
defined, without a license. Existing law requires that
hospitals or other health facilities offering maternity services
establish written policies to promote the protection of babies,
and the reduction of baby thefts.
This bill would require all hospital employees regularly
assigned to the emergency department to receive training and
education relating to various security topics, including, but
not limited to, general safety measures, aggression and violence
predicting factors, and verbal and physical maneuvers to
diffuse or avoid violent behavior, by January 1, 1995, and on a
continuing basis thereafter as provided for in the security plan
of the hospital. The bill would require prescribed medical and
other staff to receive the same security training or training
determined sufficient pursuant to the security plan of the
hospital.
This bill would require by July 1, 1995, all general acute
care, acute psychiatric, and special hospitals to conduct a
security and safety assessment and to develop a security plan.
This bill would require reporting of any act of assault or
battery, as defined, against any on-duty hospital personnel to
the local enforcement agency within 72 hours, and would make any
individual knowingly interfering with or obstructing the
reporting process guilty of a misdemeanor, thereby imposing a
state-mandated local program. Since violation of health
facility licensing standards and willful violation of the
regulations adopted for these facilities is a misdemeanor, this
bill would impose a state-mandated local program by changing the
definition of a crime.
Existing law, the Medi-Cal Act, requires the California
Medical Assistance Commission to negotiate rates, terms, and
conditions for, or to call bids for, exclusive contracts with
hospitals for inpatient services to be rendered to medical
beneficiaries. Existing law specifies various factors to be
considered by the negotiator in negotiating these contracts,
including, but not limited to, beneficiary access, ability to
render services efficiently and economically, and protection
against fraud and abuse.
This bill would, in addition, require that the negotiator
consider the ability of the contracting hospital to provide a
secure environment for the provision of health care services, as
prescribed.
The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated
by the state. Statutory provisions establish procedures for
making that reimbursement.
This bill would provide that no reimbursement is required by
this act for a specified reason.

THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. The Legislature finds and declares all of the
following:
(a) Violence is an escalating problem in hospital emergency
departments throughout California and the nation.
(b) The emergency department is particularly vulnerable to
violence because of its accessibility to all members of the
public. The emergency department is open 24 hours a day, seven
days a week, to anyone desiring care.
(c) During the past few years in California, deaths to nurses
and other health care workers occurred in emergency rooms,
psychiatric hospitals, and community mental health clinics.
(d) Actual incidence of the problem in all types of health
care facilities is greater than documented because of failure to
report or failure to maintain records of incidents that are
reported.
(e) A 1991 national survey of emergency room nurses found
that two-thirds reported at least one assault during their
careers, and over a third had been assaulted at least once
during the previous year.
(f) A 1992 survey of California hospitals reported that
nearly 60 percent of hospitals in Fresno, Los Angeles,
Sacramento, San Diego, and San Francisco reported injuries to
staff, visitors, or patients. Over 40 percent of the incidents
involved the use of a gun.
(g) Patients and emergency personnel should be assured of
access to health care in a safe environment. Personnel training
and appropriate safety controls should be implemented to
minimize the risks and dangers affecting all people in emergency
room settings.
(h) Many hospitals have undertaken numerous efforts to assure
that patients and workers are safe from violence. These
efforts will be enhanced by the enactment of this act.
SEC. 2. Section 1257.7 is added to the Health and Safety Code,
to read:
1257.7. (a) By July 1, 1995, all hospitals licensed pursuant
to subdivisions (a), (b), and (f) of Section 1250 shall conduct
a security and safety assessment and, using the assessment,
develop a security plan with measures to protect personnel,
patients, and visitors from aggressive or violent behavior. The
security and safety assessment shall examine trends of
aggressive or violent behavior at the facility. These hospitals
shall track incidents of aggressive or violent behavior as part
of the quality assessment and improvement program and for the
purposes of developing a security plan to deter and manage
further aggressive or violent acts of a similar nature. The
plan may include, but shall not be limited to, security
considerations relating to all of the following:
(1) Physical layout.
(2) Staffing.
(3) Security personnel availability.
(4) Policy and training related to appropriate responses to
violent acts.
In developing this plan, the hospital shall consider any
guidelines or standards on violence in health care facilities
issued by the state department, the Division of Occupational
Safety and Health, and the federal Occupational Safety and
Health Administration. As part of the security plan, a hospital
shall adopt security policies including, but not limited to,
personnel training policies designed to protect personnel,
patients, and visitors from aggressive or violent behavior.
(b) The individual or members of a hospital committee
responsible for developing the security plan shall be familiar
with all of the following:
(1) The role of security in hospital operations.
(2) Hospital organization.
(3) Protective measures, including alarms and access control.

(4) The handling of disturbed patients, visitors, and
employees.
(5) Identification of aggressive and violent predicting
factors.
(6) Hospital safety and emergency preparedness.
(7) The rudiments of documenting and reporting crimes,
including, by way of example, not disturbing a crime scene.
(c) The hospital shall have sufficient personnel to provide
security pursuant to the security plan developed pursuant to
subdivision (a). Persons regularly assigned to provide security
in a hospital setting shall be trained regarding the role of
security in hospital operations, including the identification of
aggressive and violent predicting factors, and management of
violent disturbances.
(d) Any act of assault, as defined in Section 240 of the
Penal Code, or battery, as defined in Section 242 of the Penal
Code, against any on-duty hospital personnel shall be reported
to the local law enforcement agency within 72 hours of the
incident. Any individual knowingly interfering with or
obstructing the reporting process shall be guilty of a
misdemeanor.
SEC. 3. Section 1257.8 is added to the Health and Safety Code,
to read:
1257.8. (a) All hospital employees regularly assigned to the
emergency department shall receive, by July 1, 1995, and
thereafter, on a continuing basis as provided for in the
security plan developed pursuant to Section 1257.7, security
education and training relating to the following topics:
(1) General safety measures.
(2) Personal safety measures.
(3) The assault cycle.
(4) Aggression and violence predicting factors.
(5) Obtaining patient history from a patient with violent
behavior.
(6) Characteristics of aggressive and violent patients and
victims.
(7) Verbal and physical maneuvers to diffuse and avoid
violent behavior.
(8) Strategies to avoid physical harm.
(9) Restraining techniques.
(10) Appropriate use of medications as chemical restraints.
(11) Any resources available to employees for coping with
incidents of violence, including, by way of example, critical
incident stress debriefing or employee assistance programs.
(b) As provided in the security plan developed pursuant to
Section 1257.7, members of the medical staff of each hospital
and all other practitioners, including, but not limited to,
nurse practitioners, physician assistants, and other personnel,
who are regularly assigned to the emergency department or other
departments identified in the security plan shall receive the
same training as that provided to hospital employees or, at a
minimum, training determined to be sufficient pursuant to the
security plan.
(c) Temporary personnel shall be oriented as required
pursuant to the security plan. This section shall not be
construed to preempt state law or regulations generally
affecting temporary personnel in hospitals.
SEC. 4. Section 14083 of the Welfare and Institutions Code is
amended to read:
14083. The factors to be considered by the negotiator in
negotiating contracts under this article, or in drawing
specifications for competitive bidding, include, but are not
limited to, all of the following:
(a) Beneficiary access.
(b) Utilization controls.
(c) Ability to render quality services efficiently and
economically.
(d) Demonstrated ability to provide or arrange needed
specialized services.
(e) Protection against fraud and abuse.
(f) Any other factor which would reduce costs, promote
access, or enhance the quality of care.
(g) The capacity to provide a given tertiary service, such as
specialized children's services, on a regional basis.
(h) Recognition of the variations in severity of illness and
complexity of care.
(i) Existing labor-management collective bargaining
agreements.
(j) The situation of county hospitals and university medical
centers contracting with counties for provision of health care
to indigent persons entitled to care under Section 17000, which
are burdened to a greater extent than private hospitals with bad
debts, indirect costs, medical education programs, and capital
needs.
(k) The special circumstances of hospitals serving a
disproportionate number of Medi-Cal beneficiaries and patients
who are not covered by other third-party payers, including the
costs associated with assuring an adequate supply of registered
nurses.
(l) The costs of providing complex emergency services,
including the costs of meeting and maintaining state and local
requirements for trauma center designation.
(m) The hospital does any of the following:
(1) Provides additional obstetrical beds.
(2) Contracts with one or more comprehensive perinatal
providers.
(3) Permits certified nurse midwives, subject to hospital
rules, and consistent with existing laws and regulations, to
admit patients to the health facility.
(4) Expands overall obstetrical services in the hospital.
(n) The special circumstances of hospitals whose Medi-Cal
inpatient utilization rate exceeds the mean Medicaid inpatient
utilization rate by at least one-half of one standard deviation.

(o) The ability and capacity of the contracting hospital in a
closed health facility planning area to provide health care
services to beneficiaries who are in life threatening or
emergency situations, but have been sufficiently stabilized at
another noncontracting facility in order to facilitate
transportation to the contracting hospital.
(p) The ability of the contracting hospital to provide a
secure environment for the provision of health care services.
In this regard, the negotiator shall consider additional
security measures that the contracting hospital may have taken
to provide a secure environment, including, but not limited to,
the use of detection equipment or procedures to detect lethal
weapons, the appropriate use of surveillance cameras, limiting
access of unauthorized personnel to the emergency department,
installation of bullet proof glass as appropriate in designated
areas, the use of emergency "panic" buttons to alert local law
enforcement agencies, and assigning full-time security personnel
to the emergency department.
SEC. 5. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution
because the only costs which may be incurred by a local agency
or school district will be incurred because this act creates a
new crime or infraction, changes the definition of a crime or
infraction, changes the penalty for a crime or infraction, or
eliminates a crime or infraction. Notwithstanding Section 17580
of the Government Code, unless otherwise specified in this act,
the provisions of this act shall become operative on the same
date that the act takes effect pursuant to the California
Constitution.

OSHA ISSUES NEW GUIDELINES FOR PREVENTING WORKPLACE VIOLENCE FOR HEALTHCARE WORKERS

April 2015 Overview of the Guidelines Healthcare and social service workers face significant risks of job-related violence and it is OSHA’s mission to help employers address these serious hazards. The new publication updates OSHA’s 1996 and 2004 voluntary guidelines for preventing workplace violence for healthcare and social service workers.

OSHA’s violence prevention guidelines are based on industry best practices and feedback from stakeholders, and provide recommendations for developing policies and procedures to eliminate or reduce workplace violence in a range of healthcare and social service settings. These guidelines reflect the variations that exist in different settings and incorporate the latest and most effective ways to reduce the risk of violence in the workplace. Workplace setting determines not only the types of hazards that exist, but also the measures that will be available and appropriate to reduce or eliminate workplace violence hazards.

For the purpose of these guidelines, we have identified five different settings:
■ Hospital settings represent large institutional medical facilities;
■ Residential Treatment settings include institutional facilities such as nursing homes, and other long-term care facilities;
■ Non-residential Treatment/Service settings include small neighborhood clinics and mental health centers;
■ Community Care settings include community-based residential facilities and group homes; and
■ Field work settings include home healthcare workers or social workers who make home visits.

Development of an Effective Workplace Violence Prevention Program:

In the guidelines, OSHA recommends that healthcare providers develop a prevention program that would include the following five key program components:

1. Management commitment and employee participation;
2. Worksite analysis/Tracking and Trending;
3. Hazard prevention and control;
4. Safety and health training;
5. Recordkeeping and program evaluation.

The guidelines are intended to cover a broad spectrum of workers, including those in: psychiatric facilities, hospital emergency departments, community mental health clinics, drug abuse treatment centers, pharmacies, community-care centers, and long-term care facilities. Healthcare and social service workers covered by these guidelines include: registered nurses, nurses’ aides, therapists, technicians, home healthcare workers, social workers, emergency medical care personnel, physicians, pharmacists, physicians’ assistants, nurse practitioners, and other support staff who come in contact with clients with known histories of violence. Employers should use these guidelines to develop appropriate workplace violence prevention programs, engaging workers to ensure their perspective is recognized and their needs are incorporated into the program.

Legal Involuntary Hold Information

LPS The last name initials of the California legislators who wrote the California Mental Health Act of 1969 Lanterman-Petris-Short

WIC Welfare and Institutions Code

LPS Hold Also known as a mental health hold or psychiatric hold. Any holds defined in the Welfare and Institutions Code sections 5000 et. seq. (Listed below)

WIC 5150 Also known as 72 hour holds.
“Detention of Mentally Disordered Persons for Evaluation and Treatment” for a period of 72 hours for persons alleged to meet the legal criteria of being a danger to self or others or gravely disabled due to a mental disorder (See WIC 5150 for more detail).

WIC 5250 Also known as 14 day holds.
“Certification for Intensive Treatment” for a period of 14 days for persons alleged to meet the legal criteria of being a danger to self or others or gravely disabled due to a mental disorder (See WIC 5250 for more detail).

WIC 5260 Also known as additional 14-day hold.
“Additional Intensive Treatment of Suicidal Person” certification for an additional period of 14 days beyond WIC 5250 (the first 14 days) for persons who are allegedly suicidal due to a mental disorder (See WIC 5260 for more detail).

WIC 5270 Also known as 30 day holds.
“Additional Intensive Treatment” for an additional period of 30 days beyond WIC 5250 (the first 14 days) for persons who were gravely disabled on the first 14 day hold and allegedly remain gravely disabled due to a mental disorder (See WIC 5270 for more detail).

Certification Review Hearing WIC 5256
Also known as Probable Cause Hearings.
A facility-based hearing for persons on WIC 5250 and/or 5270 holds. The hearing is to determine if the psychiatric treatment facility has probable cause to detain the person for the remainder of the hold period. The facility is required to notify the court (Mental Health Counselor’s Office) when any person is placed on a 5250, 5260, or 5270 hold. The Certification review hearing is to be held within 4 days of the person being placed on the hold. A facility representative must present the probable cause information at the hearing. The representative of the facility must be a mental health professional designated by the director of the facility to present. The psychiatric treatment facility representative must show probable cause that the person is a danger to self or others or gravely disabled due to a mental disorder. The patient is usually represented by a Patient’s Rights Advocate from the Los Angeles County Department of Mental Health but may be represented by their own attorney. The hearing is based on the criteria of the current hold the person is on (See above for hold criteria).

Mental Health Hearing Referee WIC 5256.1
Also known as probable cause hearing officer or certification review hearing officer. Person designated by the Supervising Judge of the Mental Health Court to conduct Certification Review Hearings and file Judicial Reviews requested by persons on holds. If the Mental Health Hearing Referee is an attorney, they may also be authorized to conduct Medication Capacity Hearings (See Medication Capacity Hearings).

Judicial Review WIC 5275 et. seq.
Also known as Writ or Writ of Habeas Corpus.
“Judicial Review” A person may request one Judicial Review per hold. A person may choose to bypass the probable cause hearing for Judicial Review. A person may request Judicial Review if probable cause is found at their certification review hearing. The Writ must be filed with the court on the date taken and heard within two judicial days.

WIC 5300 Also known as 180-day post cert.
“Post certification Procedures for Imminently Dangerous Persons” for a period of 180 days beyond WIC 5250 the first 14 days hold for persons who allegedly have made a serious threat of substantial physical harm or attempted or inflicted physical harm on another due to a mental disorder (See WIC 5300 for more detail).

Application for Conservatorship WIC 5352
Also known as an LPS or Mental Health Conservatorship.
A mental health conservatorship begins with an application for conservatorship completed by a person designated to write LPS holds, filed with the Public Guardian’s Office. No applications for mental health conservatorship will be accepted from family or friends.

Medication Capacity Hearing WIC 5332
Also known as a Riese hearing or antipsychotic medication capacity hearing.
A facility bases hearing to determine if person’s on an LPS holds, other than a temporary conservatorship or conservatorship, has the capacity to refuse psychiatric medications. Hearings for persons on temporary conservatorship must be requested through Public Guardian/County Counsel. If the person is on conservatorship, the conservator should be notified and advised to request a hearing with the court. These hearings are held in Superior Court Department 95A. The initial hearing for LPS, holds must be held at the facility. The treating physician must file (FAX) a petition to the Mental Health Counselor’s office. The hearing must be scheduled within 72 hours. The decision of the Mental Health Hearing Referee may be appealed to the Court by either the patient or the treating physician. The current treating Physician must present the evidence at these hearings.

WIC 5350 Also, called conservatorship, LPS conservatorship, or mental health conservatorship.
These sections define the process of requesting conservatorship for a person who is alleged to be gravely disabled due to a mental disorder. Conservatorship lasts for a period of one year. The conservator may petition the court for reappointment each year. Failure to request reappointment as conservator before expiration of the current appointment, requires the court to end the conservatorship “By operation of law”

Temporary Letters of Conservatorship WIC 5352.1.
Also known as TCON.
The court may issue a temporary letter of conservatorship when a petition for conservatorship is filed by the Public Guardian’s Office. The temporary letter of conservatorship permits the Public Guardian to authorized continued involuntary treatment for a period of 30 days (NOTE may be extended up to 6 months).

Public Guardian Also known as PG.

WIC 5351 All applications for mental health conservatorships must be filed with the Public Guardian. The Public Guardian may serve as conservator if the court finds a person to be gravely disabled and there are no family or friends willing and able to be the conservator.

Deputy Public Guardian
Also known as DPG.
A deputy public guardian will conduct the investigation to determine if conservatorship should be established or may carry a caseload of persons on conservatorship under the Public Guardian.

Public Defender Also known as PD.
May represent the patient in any type of mental health case.

County Counsel Also known as CC.
Represents the Public Guardian on all conservatorship cases.

District Attorney Also known as DA.
Represents the State’s interest on most mental health cases.

LPS HOLDS CHART
View the LPS Holds Chart.

BEHAVIOR VARIABLES TO CONSIDER
The basis for holding a person in a Designated Psychiatric Treatment Facility is not a medical model. It is a legal model. The law and the courts have consistently held that personal freedom is the most important right we possess.
The Court is looking at behaviors that lead you to believe that a person due to a mental disorder is a Danger to Self, Danger to Others, and/or Gravely Disabled. Simply stating the diagnosis without behaviors does not meet the criteria. Simply believing the patient is very sick and anyone can see does not meet the criteria. The burden of proof showing the patient meets the legal criteria to be held against their will lies with the hospital. The following are variables with questions you must consider and be able to present on when you are holding a person on Danger to Self, Danger to Others, and/or Gravely Disabled due to a mental disorder.
Auditory Hallucinations
Is the patient telling you they are having auditory hallucinations or is it that, they appear to be responding to internal stimuli?
When asked if they are having auditory hallucinations does the patient answer?
If they answer:
Are the auditory hallucinations sounds or words?
If they are words is it someone they know?
Are the words saying good things or bad?
Are they commanding?
Are they telling them to hurt self or others?
Are they telling them to not eat?
Have they heard the voices in the past?
If they have heard them in the past, did they cause them to do anything?
If they do not answer can you describe any behaviors that seem to be the result of the patient responding to internal stimuli?
Do the auditory hallucinations help you establish that the patient meets the legal criteria of being a Danger To Self, Danger To Others, and/or Gravely Disabled? If so, how?
Delusions
What type of delusion is the person having?
How do you know it is a delusion?
Is the delusion such that it would lead the person to cause harm to self or others?
Have they had the delusion in the past and has it caused them to do anything?
Does it prevent them from providing for food, clothing and/or shelter? If so, how?
Seriousness Of Precipitating Events
How serious were the circumstances that brought the patient into the hospital?
Who is reporting this information to you?
Is it serious and the patient is down playing it as nothing?
Did something happen physically or was it just words?
Has the patient done this in the past?
How does the precipitating event lead you to believe that the patient continues to be a Danger to self and others and/or Gravely Disabled at this time?
Thought Disorders
What thoughts do you feel are disordered?
Have you looked at cultural differences?
Is the thought disorder global, does it affect every part of their thinking or just a selected area?
If it is a selected area how does it impact on danger to self and/or others, and/or Grave Disability?
Recent Discharge From Psychiatric Hospital
When was the person last in a psychiatric treatment facility?
What were the circumstances of their release?
Were they released by the Court?
Were they released against medical advice?
Did they AWOL from the facility?
Can it be shown that the patient has a pattern of not following through with treatment plans?
Support System In The Community
Do they have family?
Is the family involved?
Do they have a long-standing placement to which they can return?
Is there someone who will help them?
Do they live independent?
Are they current on mortgage/rent payments?
If they say they want to live on the streets, have they ever done that?
Are they homeless?
If they are homeless are they able to maintain on the streets?
Do they know how to get food?
Do they know about homeless shelters?
Motivation To Take Medications
Does this person take their prescribed medications?
Do they like to drink alcohol or take illegal drugs?
Is their living situation such that they can take medications and have their prescriptions refilled?
Have they taken medications in the hospital?
Have they taken medications in the past?
Do they have a problem with side effects?
Do they need any special ongoing test to be on the medication?
Are they taking more than prescribed on medications?
Are there any physical reasons that interfere with their taking psychiatric medications?
Do they understand the reasons for taking the medications?
If they recently stopped taking the medications, why?
Did someone take their medications away or tell them not to take them?
Do they feel medications have helped them in the past?
Do they see any reason for taking the medications?

Who Is At Risk – Patient’s Proximity To, And Contact With This Person
Has the hospital done a Tarosoff?
Is there a restraining order?
Is it an identified person?
Is it any person who fits a certain description?
Has someone called and given information about threatening behavior from the patient?
Has the patient called and made threats?
Have the threats ever been acted on?
Has there been previous circumstance where the threats were carried out?

OVERVIEW OF THE PROBABLE CAUSE HEARING PROCESS
When a patient is hospitalized in a psychiatric hospital against his or her will, he or she is placed on a 72-hour hold (WIC 5150). At the end of the 72 hours or any time during the 72 hours, the doctor may decide to discharge the patient, have the patient sign into the hospital as a voluntary patient, or place the patient on a 14-day hold (WIC 5250). The doctor may place the patient on a 14-day hold if he or she feels the patient is a danger to self, danger to others, or gravely disabled (unable to provide food, clothing or shelter) due to a mental disorder.
When the patient is placed on a 14-day hold, the hospital must notify the Superior Court, Mental Health Counselor’s Office immediately (323) 226-2911.
Within the first four days of the 14-day hold a Probable Cause Hearing is scheduled at the psychiatric facility. The Mental Health Hearing Coordinator will notify the hospital of the date and time of the hearing. The hospital will be notified the afternoon before the scheduled hearing.
There are over 55 designated psychiatric treatment facilities in Los Angeles County conducting over 1400 hearings per month. It is extremely important that you notify the court when a patient, who has not yet had a hearing, signs voluntary or is discharged.
Attempts are made to accommodate doctor’s hours. If a hearing is scheduled, a professional staff member must present for the hospital.
At the probable cause hearing there is a patient’s rights advocate who is there to help the patient, the patient, the doctor or a hospital staff person to present information for the doctor and/or hospital and the hearing referee. The Court when needed provides an interpreter for the patient.
Family members are discouraged from attending the hearings. If the patient wishes to have a family member present, the person may be admitted to the hearing as an observer. If the family member wished to present information supporting the hospitalization they are encouraged to give the information to the hospital presenter and let them provide the information at the hearing. This process helps alleviate any potential hostility or alienation which might develop because of the patient wishing to be released from hospitalization and the family member feeling they should remain in the hospital for further treatment. If the family member has information supporting the patient being released from the hospital, they should likewise give this information to the patients’ rights advocate who will present the information at the hearing.
The probable cause hearings are administrative hearings. This means that they are much less formal than judicial hearings and those legal rules, such as rules of evidence (i.e., hearsay information) do not apply. The purpose of the hearing is to gather as much information as possible so the hearing referee can decide probable cause.
It is the responsibility of the hospital presenter to explain to the hearing referee: (1) the events and patient’s behavior leading up to the patient’s hospitalization, (2) the patient’s behavior during his hospitalization which illustrates his or her mental disorder and his or her dangerousness or his or her grave disability, (3) previous psychiatric history, (4) living arrangements before hospitalization and plans after discharge, (5) patients’ diagnosis, (6) medications currently prescribed.
It is the responsibility of the patients’ rights advocate to present the patient’s point of view. It is the job of the advocate to attempt to gain the patient’s release from the hospital if that is what the patient desires, though the release may not be in the patient’s best interest. This is the advocate’s job no matter what they feel personally.
If the hearing referee determines that there is probable cause for the patient to remain in the hospital, he or she will inform the patient of his decision and the reasons for that decision. The referee will attempt to inform the patient in a way that the patient will understand. The referee will also indicate that the patient has other legal options open to him or her, which the advocate will explain. If the patient desires to file a Writ of Habeas Corpus, the hearing referee will file the papers for him with the court.
If the hearing referee determines that there is no probable cause, he or she will inform the patient and hospital representative of his or her decision and will explain the reason for his or her decision. If the hospital and the patient agree, the hospital may accept the patient as a voluntary patient then. If not, the patient must be discharged from the hospital.

PRESENTATION INFORMATION PROBABLE CAUSE HEARING
Download a form which can be used by the facility representative when presenting information at the probable cause hearing.

Medication Capacity

• 72 hour/14 day hold
• Additional 14 day hold
• Additional 30 day hold
• 180 day post certification
(NOTE: Medication Capacity hearings for persons on a temporary conservatorship are held in Department 95A)

THE CONDUCT OF RIESE HEARINGS INFORMATION BOOKLET FOR DOCTORS AND HOSPITALS
View “The Conduct of Riese Hearings Information Booklet for Doctors and Hospitals”.

MEDICATION CAPACITY PETITION
View the Petition and Declaration Regarding Capacity to Give Informed Consent to Medication (Riese Petition).

The Nevada law regarding release after a 72 hours psychiatric hold is below. It likewise requires a release after 72 hours, but only requires that a petition seeking involuntary admission be filed with the court before then to continue to hold the person against his or her will.

NRS 433A.150  Detention for evaluation, observation and treatment; limitation on time.
1.  Any person alleged to be a person with mental illness may, upon application pursuant to NRS 433A.160 and subject to the provisions of subsection 2, be detained in a public or private mental health facility or hospital under an emergency admission for evaluation, observation and treatment.
2.  Except as otherwise provided in subsection 3, a person detained pursuant to subsection 1 must be released within 72 hours, including weekends and holidays, after the certificate required pursuant to NRS 433A.170 and the examination required by paragraph (a) of subsection 1 of NRS 433A.165 have been completed, if such an examination is required, or within 72 hours, including weekends and holidays, after the person arrives at the mental health facility or hospital, if an examination is not required by paragraph (a) of subsection 1 of NRS 433A.165, unless, before the close of the business day on which the 72 hours expires, a written petition for an involuntary court-ordered admission to a mental health facility is filed with the clerk of the district court pursuant to NRS 433A.200, including, without limitation, the documents required pursuant to NRS 433A.210, or the status of the person is changed to a voluntary admission.
3.  If the period specified in subsection 2 expires on a day on which the office of the clerk of the district court is not open, the written petition must be filed on or before the close of the business day next following the expiration of that period.

There needs to be "a written petition for an involuntary court-ordered admission to a mental health facility is filed with the clerk of the district court pursuant to NRS 433A.200, including, without limitation, the documents required pursuant to NRS 433A.210

NRS 433A.200  Petition: Filing; certificate or statement of alleged mental illness; statement of parent consenting to treatment of minor.
1.  Except as otherwise provided in NRS 432B.6075, a proceeding for an involuntary court-ordered admission of any person in the State of Nevada may be commenced by the filing of a petition for the involuntary admission to a mental health facility or to a program of community-based or outpatient services with the clerk of the district court of the county where the person who is to be treated resides. The petition may be filed by the spouse, parent, adult children or legal guardian of the person to be treated or by any physician, psychologist, social worker or registered nurse, by an accredited agent of the Department or by any officer authorized to make arrests in the State of Nevada. The petition must be accompanied:
(a) By a certificate of a physician, psychiatrist or licensed psychologist stating that he or she has examined the person alleged to be a person with mental illness and has concluded that the person has a mental illness and, because of that illness, is likely to harm himself or herself or others if allowed his or her liberty or if not required to participate in a program of community-based or outpatient services; or
(b) By a sworn written statement by the petitioner that:
(1) The petitioner has, based upon the petitioner’s personal observation of the person alleged to be a person with mental illness, probable cause to believe that the person has a mental illness and, because of that illness, is likely to harm himself or herself or others if allowed his or her liberty or if not required to participate in a program of community-based or outpatient services; and
(2) The person alleged to be a person with mental illness has refused to submit to examination or treatment by a physician, psychiatrist or licensed psychologist.
2.  Except as otherwise provided in NRS 432B.6075, if the person to be treated is a minor and the petitioner is a person other than a parent or guardian of the minor, the petition must, in addition to the certificate or statement required by subsection 1, include a statement signed by a parent or guardian of the minor that the parent or guardian does not object to the filing of the petition.
(Added to NRS by 1975, 1604; A 1985, 54, 2270; 1989, 1551, 1760; 1995, 2413; 2001, 3044; 2005, 1322; 2013, 3489)

NRS 433A.210  Requirements of petition that is filed after emergency admission.  In addition to the requirements of NRS 433A.200, a petition filed pursuant to that section with the clerk of the district court to commence proceedings for involuntary court-ordered admission of a person pursuant to NRS 433A.145 or 433A.150 must include a certified copy of:
1.  The application for the emergency admission of the person made pursuant to NRS 433A.160; and
2.  A petition executed by a psychiatrist, licensed psychologist or physician, including, without limitation, a sworn statement that:
(a) He or she has examined the person alleged to be a person with mental illness;
(b) In his or her opinion, there is a reasonable degree of certainty that the person alleged to be a person with mental illness suffers from a mental illness;
(c) Based on his or her personal observation of the person alleged to be a person with mental illness and other facts set forth in the petition, the person poses a risk of imminent harm to himself or herself or others; and
(d) In his or her opinion, involuntary admission of the person alleged to be a person with mental illness to a mental health facility or hospital is medically necessary to prevent the person from harming himself or herself or others.
(Added to NRS by 1975, 1604; A 1985, 2270; 1989, 1551, 1760; 1995, 2414; 2001, 3044)

309-033-0200

Statement of Purpose and Statutory Authority

(1) Purpose. These rules prescribe general standards and procedures relating to the involuntary commitment of mentally ill persons.

(2) Statutory authority. These rules are authorized by ORS 426.005 through 426.395 and carry out the provisions of ORS 426.005 through 426.395. These rules replace OAR 309-033-0100 though 309-033-0170, which were in effect from September 2, 1992 through August 31, 1994.

Stat. Auth.: ORS 413.042, 426.005 - 426.395
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0000

309-033-0210

Definitions

(1) “Administrator” means the chief of psychiatric services in a community hospital or the person in charge of treatment and rehabilitation programs at nonhospital facilities. “Administrator” has the same meaning as “director of the facility” as that term is defined in ORS 426.005. Whenever “administrator” appears it means the administrator or designee.

(2) “Assignment” means the designation, pursuant to ORS 426.060, by the Division or its designee of the hospital, facility or CMHP where the committed person is to receive care, custody and treatment during the commitment period.

(3) “Assistant Administrator” means the Assistant Administrator of Addictions and Mental Health Division.

(4) “Caregiver” means the person who is appointed by the court under ORS 426.125 to be allowed to care for a mentally ill person on conditional release.

(5) “Clinical record” means the record required by OAR 309-014-0035, General Standards for Delivery of Community Mental Health Services Elements, documenting the mental health services delivered to clients by a CMHP or subcontractor.

(6) “CMHP” means the community mental health and developmental disabilities program which organizes all services for persons with mental or emotional disturbances, drug abuse problems, mental retardation or other developmental disabilities, and alcoholism and alcohol abuse problems, operated by or contractually affiliated with a local mental health authority operating in a specific geographic area of the state under an intergovernmental agreement or direct contract with the Division.

(7) “Community hospital” means any hospital that is not a state hospital.

(8) “County governing body” means the county court or the board of county commissioners of one or more counties who operate a CMHP, or in the case of a Native American Reservation, the Tribal Council, or if the county declines to operate or contract for all or part of a CMHP, the board of directors of a public or private corporation selected by the county.

(9) “County of residence” means the county where the person currently maintains a mailing address or, if the person has no current mailing address within the state, the county where the person was found or the county in which a committed person has been conditionally released as defined by ORS 426.241 to 426.255.

(10) “Court” means the circuit court acting pursuant to ORS Chapter 426.

(11) “Custody” means the prehearing physical retaining of a person taken into custody by:

(a) A peace officer pursuant to ORS 426.070, 426.228, 426.233;

(b) A peace officer at the direction of the director pursuant to ORS 426.233;

(c) A health care facility licensed under ORS Chapter 441 and approved by the Division, pursuant to ORS 426.231;

(d) A state hospital pursuant to ORS 426.180;

(e) A hospital pursuant to ORS 426.070 or 426.232; or

(f) A nonhospital facility pursuant to ORS 426.070 or 426.233.

(12) “Designee” means a QMHP designated by the director or a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody pursuant to ORS 426.233.

(13) “Director” means the community mental health and developmental disabilities program director who has been authorized by the local mental health authority to direct the CMHP. “Director” also means a person who has been authorized by the director to act in the director's capacity for the purpose of this rule. In the case of the director ordering a peace officer to take a person into custody pursuant to ORS 426.233, the designee shall be a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody.

(14) “Director of the county of commitment” means the director for the county where the person is committed.

(15) “Director of the county of placement” means the director for the county where the committed person is to be placed.

(16) “Director of the county of residence” means the director for the county of residence.

(17) “Diversion” means the 14 day period of intensive treatment when a director and a psychiatrist certify a person as a mentally ill person pursuant to the provision of ORS 426.237(1)(b).

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

(19) “Hospital hold” means the taking of a person into custody by order of a physician pursuant to ORS 426.232.

(20) “NMI” is the notification of mental illness required, pursuant to ORS 426.070, to be submitted by any two persons, a county health officer or a magistrate to the director and thereafter submitted by the director to the court or, pursuant to ORS 426.234, to be submitted by the physician or the director to the court. Pursuant to ORS 426.070 and 426.234, the court commences proceedings pursuant to ORS 426.070 to 426.130 upon receipt of the NMI.

(21) “Nonhospital hold” means the taking of a person into custody by order of a director pursuant to the provisions of ORS 426.233. A director's hold and a trial visit hold are variations of a nonhospital hold.

(22) “Peace officer” means a sheriff, constable, marshal, municipal policeman, member of the Oregon State Police or investigator of the Criminal Justice Division of the Department of Justice and such other persons as may be designated by law.

(23) “Placement of a committed person” means the physical act of removing a committed person from the courtroom to the place where the person has been assigned to receive care, custody and treatment, or the transfer of a committed person from one location where the person has been assigned to receive care, custody and treatment to another location for the same purpose.

(24) “Psychiatrist” means a physician licensed as provided pursuant to ORS 677.010 to 677.450 by the Board of Medical Examiners for the State of Oregon and who has completed an approved residency training program in psychiatry.

(25) “Psychologist” means a clinical psychologist licensed by the Oregon Board of Psychologist Examiners.

(26) “QMHP” means a qualified mental health professional that meets the following minimum qualifications:

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

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

(c) Graduate degree in psychology;

(d) Graduate degree in social work;

(e) Graduate degree in psychiatric nursing and licensed in the State of Oregon;

(f) Graduate degree in another mental health-related field; or

(g) Any other person whose education and experience meet, in the judgment of the Division, a level of competence consistent with the responsibilities required by the Division.

(27) “Recertification” means the certification of continued commitment provided for under ORS 426.301.

(28) “Secure transport provider” means a secure transport provider approved according to OAR 309-033-0432, Standards for the Approval of a Secure Transport Provider to Transport a Person in Custody or on Diversion to an Approved Holding or Nonhospital Facility.

(29) “State hospital” means Oregon State Hospital in Salem and Portland, and Eastern Oregon Psychiatric Center in Pendleton.

(30) “Superintendent” means the chief executive officer of a state hospital, or designee, or a person authorized by the superintendent to act in the superintendent's capacity for the purpose of this rule.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110(2), 426.232 & 426.236
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0010; MHD 2-2000(Temp), f. & cert. ef. 1-25-00 thru 7-22-00; MHD 9-2000, f. & cert. ef. 7-21-00

309-033-0220

General Standards

(1) Goals. The goals of the Division in implementing these civil commitment standards are:

(a) To promote the well-being of persons who are allegedly mentally ill and who are mentally ill during involuntary care, custody and treatment of mental illness pursuant to ORS Chapter 426;

(b) To promote the protection of the civil rights of each person who is allegedly mentally ill and who is mentally ill;

(c) To encourage consistent application of ORS Chapter 426 as it specifically pertains to each of the following groups:

(A) Persons who are alleged to be mentally ill; and

(B) Persons who are mentally ill.

(d) To encourage the provision of care, custody and treatment of persons in the least restrictive environment that currently is available within existing resources;

(e) To encourage voluntary enrollment of persons in available mental health service in lieu of pursuing involuntary treatment through civil commitment, whenever possible;

(f) To encourage that the director monitors the commitment process in their county, is knowledgeable of the statutes and administrative rules pertaining to civil commitment, provides leadership so that persons being held are afforded their civil rights and are treated with dignity in the implementation of ORS Chapter 426;

(g) To provide for the safety of the community when threatened by a person who is dangerous as a result of mental illness.

(2) State’s interest. The state’s interest is to establish sufficient facts for the court to make a decision that is consistent with the intent of ORS Chapter 426.

(3) Declaration for mental health treatment. The director shall establish procedure and policy which assures that every person who may become incapacitated by mental illness and unable to consent to treatment is educated about the Declaration for Mental Health Treatment at the time of admission or at the time of discharge from a hospital.

Stat. Auth.: ORS 413.042 & 426.060
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0030

309-033-0230

Custody of Persons Alleged to Be Mentally Ill Prior to Filing a Notification of Mental Illness

(1) Custody by a physician pursuant to ORS 426.231. A physician taking a person into custody pursuant to ORS 426.231 at a hospital approved under OAR 309-033-0550, Standards for the Approval of Hospitals Detaining Persons in Custody Pending Transport to an Approved Holding Hospital or Nonhospital Facility, shall detain the person for no more than 12 hours and during that time shall either:

(a) Authorize the person for transportation to an approved hospital and provide transportation according to the agreement required under OAR 309-033-0550; or

(b) Release the person, if the physician determines that the person no longer is dangerous to self or others.

(2) Custody by a peace officer or secure transport provider. A peace officer taking a person into custody shall remove the person to an approved hospital as directed by the director in the county where the person was taken into custody. The peace officer or approved secure transport provider shall only take a person into custody under the provisions of one of the following:

(a) Custody on peace officer’s own initiative. A peace officer may take a person into custody pursuant to the provisions of ORS 426.228 when the peace officer has probable cause to believe that the person is dangerous to self or others, and is in need of immediate care, custody or treatment for a mental illness;

(b) Custody on the director’s authority. The director may direct, pursuant to the provisions of ORS 426.233, a peace officer or an approved secure transport provider to take into custody a person who is dangerous to self or others and in need of immediate care, custody or treatment for mental illness;

(c) Custody of a committed person on the director’s authority. The director may direct a peace officer or an approved secure transport provider to take into custody, pursuant to the provisions of ORS 426.233, a committed person who is on trial visit, outpatient commitment or conditional release in the community, who is dangerous to self or others or who is unable to provide for basic personal needs, who is not receiving the care that is necessary for health and safety, and who is in need of immediate care, custody or treatment for mental illness.

(d) A peace officer may transfer a person in custody under this section to the custody of an approved secure transport provider. The peace officer may meet the approved Secure transport provider at any location that is in accordance with ORS 426.140 to effect the transfer. When transferring a person in custody to an authorized person, the peace officer shall deliver the report required under subsection (3) of this section to the authorized person.

(3) Peace officer’s written report. When taking a person into custody pursuant to ORS Chapter 426.228 by a peace officer’s own initiative, a peace officer shall prepare a written report which states:

(a) The reason for custody;

(b) The date, time and place the person was taken into custody; and

(c) The name of the director in the county where the person is taken into custody and a telephone number where the director may be reached at all times.

(4) Director’s written report. When a peace officer or approved secure transport provider takes a person into custody pursuant to ORS Chapter 426.228 at the direction of the director, a director shall prepare a written report which states:

(a) The reason for custody;

(b) The date, time and place the person was taken into custody; and

(c) The name of the director in the county where the person is taken into custody and a telephone number where the director may be reached at all times.

(5) Transportation to a hospital or nonhospital facility more than one hour away. If the peace officer determines that more than one hour is required to transport the person to a hospital or nonhospital facility approved by the Division, the peace officer or approved secure transport provider shall obtain a certificate, if possible, from a physician prior to transporting the person. A physician authorizing transport shall sign a certificate, on a form approved by the Division, only if the person’s condition, in the opinion of the physician, meets all of the following requirements:

(a) The travel will not be detrimental to the person’s physical health;

(b) The person is dangerous to self or others; and

(c) The person is in need of immediate care or treatment for mental illness.

(6) The director directs peace officers or approved secure transport providers to appropriate facility. The director shall adopt written procedures for directing peace officers or approved secure transport providers to transport persons taken into custody, pursuant to ORS 426.228, to an approved hospital or nonhospital facility:

(a) The written procedures shall include one of the following, whichever, in the opinion of the director, serves the best interests of persons with mental illness and the community:

(A) A list of approved hospitals or nonhospital facilities where peace officers or approved secure transport providers are to transport persons;

(B) A procedure for contacting the director 24 hours-a-day, seven days-a-week.

(b) The director shall distribute copies of the written procedures to the sheriff and the chief of police of each municipality in the county and approved secure transport providers. The procedures shall be distributed as often as the procedure is amended.

(c) The director may develop a written agreement with the law enforcement agencies in the county which designates a site or sites where the director can safely evaluate the person and determine which facility, in the director’s opinion, can best serve the person’s needs within the resources available. If such an agreement exists in a county, the director may direct a peace officer to transport a person in custody under ORS 426.228 to a site designated in the agreement. Once the director makes a determination, the peace officer shall transport and deliver the person to a hospital or nonhospital facility as directed by the director. The agreement shall:

(A) Designate the site or sites where the director can safely evaluate the person’s needs for treatment;

(B) Define the minimum response time for the director meeting the peace officer at the site; and

(C) Be signed by all parties to the agreement.

Stat. Auth.: ORS 413.042, 426.228, 426.231 & 426.236
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0040; MHD 2-2000(Temp), f. & cert. ef. 1-25-00 thru 7-22-00; MHD 9-2000, f. & cert. ef. 7-21-00

309-033-0240

Initiation of the Civil Commitment Process

(1) Initiation. The civil commitment process is initiated when an NMI is filed with the circuit court. The NMI shall be filed with the court as directed below:

(a) Public petition. When an NMI is given to the director of the county where the allegedly mentally ill person resides pursuant to ORS 426.070, the director shall immediately file the NMI with the court in the county where the allegedly mentally ill person resides. The following persons may give an NMI to the director:

(A) Any two persons;

(B) A county health officer; or

(C) Any magistrate.

(b) Hospital hold with no request from director. When a physician admits or retains a person in a hospital pursuant to ORS 426.232, Hospital Hold, and the director in the county where the person resides makes no request for the physician to file the NMI in the county where the person resides, the physician shall file the NMI with the court in the county where the person is hospitalized;

(c) Hospital hold with request from director. When a physician admits or retains a person in a hospital pursuant to ORS 426.232, and the director in the county where the person resides requests the physician to do so, the physician shall file the NMI with the court in the county where the person resides;

(d) Hospital hold subsequent to peace officer custody with no request from director. When a physician admits a person to a hospital pursuant to ORS 426.232, subsequent to the person being brought to the hospital by a peace officer or approved secure transport provider, and the director of the county where the hospital is located makes no request, pursuant to ORS 426.234, the physician shall file the NMI with the court in the county where the person initially was taken into custody by the peace officer;

(e) Hospital hold subsequent to peace officer custody with request from director. When a physician admits a person to a hospital pursuant to ORS 426.232, subsequent to the person being brought to the hospital by a peace officer or approved secure transport provider, and the director of the county where the hospital is located requests the physician to do so, the physician shall file the NMI with the court in the county where the person is hospitalized.

(f) Nonhospital hold with no request from director. When a director in the county where the director admits or retains a person in a nonhospital facility pursuant to ORS 426.233, and the director in the county where the person resides makes no request for the director to file the NMI be filed in the county where the person resides, the director shall file the NMI with the court in the county where the person initially was taken into custody; and

(g) Nonhospital hold with request from director. When a director admits or retains a person in a nonhospital facility pursuant to ORS 426.233, and the director in the county where the person resides requests the director to do so, the director shall file the NMI with the court in the county where the person resides.

(2) Initiation of commitment proceedings by two persons, a county health officer or magistrate. The NMI shall be given to the director in the county where the allegedly mentally ill person resides. If the person has no residence, then the NMI shall be given to the director in the county where the person currently is located. The director shall file the original NMI with the court on the day the NMI is received or, if the NMI is received outside the court’s routine business hours, the next day the court is open for business. The director shall retain a copy of the NMI in the clinical record as required by OAR 309-033-0930, Procedures for the Investigation.

(3) Initiation by hospital hold. The physician who takes a person into custody, pursuant to ORS 426.232, in a hospital approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities to Provide Services to Committed Persons and to Persons in Custody and on Diversion, shall:

(a) File an NMI with the appropriate court as described in OAR 309-033-0240, Initiation; and

(b) Immediately notify the director in the county in which the person was hospitalized, unless the person resides in a county other than the county where the person is hospitalized in which case the physician shall immediately notify the director in the county where the person resides.

(4) Initiation by nonhospital hold. The director, after authorizing the taking of a person into custody pursuant to the provisions of ORS 426.233 (the director’s hold and trial visit hold), shall file a NMI with the appropriate court as described in OAR 309-033-0240.

(5) How a director requests where the NMI is filed. A director may request that the physician, in the case of a hospital hold, or the director of the county where the person was taken into custody, in the case of a nonhospital hold, file the NMI according to the provisions of ORS 426.234 by either:

(a) On a case by case basis. Making the request immediately upon receipt of the notice required by ORS 426.234; or

(b) Upon general request. Sending a written general request to a hospital or a director.

Stat. Auth.: ORS 413.042, 426.228, 426.231 & 426.236
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0050; MHD 2-2000(Temp), f. & cert. ef. 1-25-00 thru 7-22-00; MHD 9-2000, f. & cert. ef. 7-21-00

309-033-0250

Standards for Custody, Hospital and Nonhospital Holds, Emergency Commitment and Emergency Hospitalization of Persons Under Warrant of Detention

(1) Criteria for placement into custody. Only persons who are a danger to self or others and who are in need of treatment for mental illness shall be placed in custody at a facility approved by the Division.

(2) Warrant of detention. Upon the receipt of a warrant of detention issued by the court pursuant to ORS 426.070, the director or the sheriff of the county shall take the person into custody and remove the person to a hospital approved by the Division. Whoever takes the person into custody shall inform the person of his/her rights with regard to representation by or appointment of counsel as described in ORS 426.100 and be given the warning described under ORS 426.123 and OAR 309-033-0540, Warning.

(3) Hospital hold. Only a physician with admitting privileges or on staff at a hospital approved by the Division and who has completed a face-to-face examination of the person may retain the person in custody in the hospital as provided by ORS 426.232. When implementing hospital holds, the hospital shall assure the following:

(a) The consulting physician is not required to have admitting privileges at the hospital;

(b) The hospital shall not require the consulting QMHP to be a member of the hospital’s allied staff. However, the hospital may extend allied staff privileges to the consulting QMHP;

(c) The admitting physician shall document the following information on the NMI, retaining a copy of the NMI in the clinical record:

(A) Examples of indicators that support the physician’s belief that the person has a mental illness;

(B) Examples of thoughts, plans, means, actions, history of dangerousness or other indicators that support the physician’s belief that the person is imminently dangerous.

(4) Peace officer custody requested by director. This section establishes standards and procedures for a director to direct a peace officer to take into custody a person who the director has probable cause to believe is dangerous to self or any other person and who the director has probable cause to believe is in need of immediate care, custody or treatment for mental illness:

(a) A county governing body may authorize the director, or a person named and recommended by the director, to direct a peace officer or approved secure transport provider to take allegedly mentally ill persons into custody. Such an authorization shall be made formally and in writing by the county governing body of the director. The director shall keep a copy of each authorization in each person’s personnel file:

(b) Prior to directing a peace officer or approved secure transport provider to take a person into custody, a director shall have face-to-face contact with the person and document on forms approved by the Division, the evidence for probable cause to believe that the person is:

(A) Dangerous to self or others; and

(B) In need of immediate care, custody or treatment for a mental illness.

(5) When a person in custody can be released. A person shall who is detained, in custody, or on a hold shall be released as described:

(a) Physician’s release of a person on peace officer custody. When a person is brought to a hospital by a peace officer or approved secure transport provider pursuant to ORS 426.228, Peace Officer Custody, the treating physician shall release the person if, upon initial examination prior to admission, the physician makes the determination that the person is not dangerous to self or others. It is not necessary to notify the court of the release;

(b) Physician’s release of a person on transport custody. At any time during the 12 hour detention period, the treating physician shall release a person detained pursuant to ORS 426.231, Transport Custody, whenever the physician makes the determination that the person is not dangerous to self or others. In no case shall a physician involuntarily detain a person at a hospital approved solely for Transport Custody under OAR 309-033-0550 longer than 12 hours. It is not necessary to notify the court of the release;

(c) Physician’s release of a person on a hospital hold. The treating physician shall release a person retained or admitted to a hospital pursuant to ORS 426.232, Hospital Hold, whenever the physician makes the determination that the person is not dangerous to self or others. The treating physician shall immediately notify the director and the circuit court where the NMI was filed. See OAR 309-033-0240; or

(d) Director’s release of a person on a nonhospital hold. The director shall release a person detained in a nonhospital facility, approved under OAR 309-033-0530, pursuant to ORS 426.233, Nonhospital Hold, whenever the director, in consultation with a physician, makes the determination that the person is not dangerous to self or others. The director shall immediately notify the circuit court.

(6) When a person in custody cannot be released. Once the person is admitted to a hospital or nonhospital facility, a person taken into custody pursuant to ORS 426.070 (warrant of detention), may only be released by the court. However, a person may be discharged from a hospital or nonhospital facility when the person is transferred to another approved facility.

Stat. Auth.: ORS 413.042, 426.070, 426.231, 426.232, 426.233 & 426.234
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0060; MHD 2-2000(Temp), f. & cert. ef. 1-25-00 thru 7-22-00; MHD 9-2000, f. & cert. ef. 7-21-00

309-033-0260

Diversion from Commitment Hearing

(1) Notice to court by director. The director and a psychiatrist may certify a person for diversion at any time up to three judicial days after the person has been taken into custody.

(2) Treatment plan. The director and the treating psychiatrist shall prepare a treatment plan that describes, in general terms, the types of treatment and medication to be provided during the diversion. The general treatment plan shall be descriptive of the range of services and medications to be provided, and shall include a description of:

(a) Any of the following classes of medication, if medication is to be administered:

(A) Antipsychotics;

(B) Antidepressants;

(C) Mood stabilizers;

(D) Anti-anxiety medications; or

(E) Anti-side effect medications.

(b) Mental health interventions, therapies or diagnostic procedures to be employed;

(c) The person’s preferences about medications and therapies and any limitations on the specific use of medications or therapies to which the director and the treating psychiatrist have agreed;

(d) Location where treatment is to be initiated and the type of hospital or nonhospital facilities where the person may be transferred during the diversion; or

(e) Other conditions or limitations agreed to by the person and the director concerning the care or treatment that is to be provided.

(3) Notice to person. At the initiation of the diversion period, the director and the psychiatrist shall inform the person verbally, and in writing, of the usual and typical restraints or seclusion which may be employed in an emergency to assure health or safety.

(4) Psychiatrist to provide information. The psychiatrist shall provide the information described in OAR 309-033-0620, Procedures for Obtaining Informed Consent and Information to be Given, when administering a specific medication.

(5) Consent for non-psychiatric care. A treating physician shall obtain the person’s consent for non-psychiatric medical care and treatments which may be prescribed during the diversion. The general treatment plan for psychiatric intervention shall not include plans for non-psychiatric medical care or treatment.

(6) Refusal of treatment/demand for discharge. The person on diversion may refuse psychiatric treatment described in the general treatment plan or demand discharge at any time during the diversion by signing the form described in this paragraph or, if the person refuses to sign the form, by verbally making his or her refusal of treatment or demand for discharge known to two staff of

the facility. In accepting the person’s refusal of treatment or demand for discharge the staff of the facility shall:

(a) Provide the person a warning, both verbally and in writing, at the person’s first indication that he/she wishes to refuse treatment or demand discharge, which states:

"If you refuse psychiatric treatment described in the general treatment plan or demand to be discharged you may be required to appear at an involuntary civil commitment hearing. It is your right to request an involuntary civil commitment hearing at this time. If a judge finds you to be a mentally ill person you may be committed for up to 180 days. However, if a judge finds you not to be a mentally ill person you may be released. The treatment in which you were to participate as a condition of avoiding a commitment hearing is described in your general treatment plan. You were given a copy of your general treatment plan when you agreed to diversion. You may see the copy of your general treatment plan on file with this facility at any time. You may talk with your attorney before you refuse this treatment, demand discharge or request a hearing."

(b) If the person refuses treatment, demands discharge or requests a hearing, offer the person the following form to sign:

“Warning

If you refuse psychiatric treatment described in your general treatment plan or demand discharge you may be required to appear at an involuntary civil commitment hearing. You have a right to request an involuntary civil commitment hearing at this time. If a judge finds you to be a mentally ill person you may be committed for up to 180 days. The psychiatric treatment in which you were to participate as a condition of avoiding a commitment hearing is described in your general treatment plan. You were given a copy of your general treatment plan when you agreed to diversion. You may see the copy of your general treatment plan on file with this facility at any time. You may talk with your attorney before you refuse this treatment, demand discharge or request a hearing.

I refuse the treatment described in my general treatment plan.

I request a hearing before the circuit court.

_____________________________

Signature of Certified Person.”

(c) If the person refuses to sign the form described in this section and verbally or nonverbally refuses treatment, the staff of the facility shall document the person’s refusal on the form and in the person’s clinical record;

(d) Immediately upon the person’s refusal of treatment, demand for discharge or request for a hearing, the treating physician shall treat the person as a person in custody, as provided under ORS 426.072, and shall immediately notify the director. The director shall immediately request a hearing.

(7) Director of the county of residence approval of payment for diversion. A person shall be on diversion only if payment for the care, custody and treatment is approved verbally by the director of the county of residence as provided under ORS 426.237. The director of the county of residence’s approval shall be documented by a written statement, signed by the director, and distributed by the end of the diversion period as follows:

(a) The original shall be filed in the clinical record at the CMHP; and

(b) A copy shall be delivered to each facility serving the person during the diversion.

Stat. Auth.: ORS 413.042, 426.236 & 426.237
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0070

309-033-0270

Provision of Care, Custody and Treatment of Persons Committed to the Division

(1) Provision of rights. In addition to the rights provided under ORS 426.385, committed persons also have the rights provided under ORS 430.205 through 430.210 and this rule, including:

(a) A Committed Person's Right to Fresh Air. For the purpose of this rule, these terms have the following meanings:

(A) “Fresh air” means the inflow of air from outside the facility where the committed person is receiving services. “Fresh air” may be accessed through an open window or similar method as well as through access to the outdoors.

(B) “Outdoors” means an area with fresh air that is not completely enclosed overhead. “Outdoors” may include a courtyard or similar area.

(b) If a committed person requests access to fresh air and the outdoors or the committed person's treating health care provider determines that fresh air or the outdoors would be beneficial to the committed person, the facility in which the committed person is receiving services shall provide daily access to fresh air and the outdoors unless this access would create a significant risk of harm to the committed person or others.

(c) The determination whether a significant risk of harm to the committed person or others exists shall be made by the committed person's treating health care provider. The treating health care provider may find that a significant risk of harm to the committed person or others exists if:

(A) The committed person's individual circumstances and condition indicate an unreasonable risk of harm to the committed person or others which cannot be reasonably accommodated within existing programming should the committed person be allowed access to fresh air and the outdoors; or

(B) The facility’s existing physical plant or existing staffing prevent the provision of access to fresh air and the outdoors in a manner than maintains the safety of the committed person or others.

(d) If a facility determines that its existing physical plant prevents the provision of access to fresh air and the outdoors in a safe manner, the facility shall make a good faith effort at the time of any significant renovation to the physical plant that involves renovation of the unit or relocation of where committed persons are treated to include changes to the physical plan or location that allow access to fresh air and the outdoors, so long as such changes do not add an unreasonable amount to the cost of the renovation.

(2) Provision of care at a state hospital. The superintendent of the state hospital serving the county of commitment shall be responsible for all admissions to the state hospital:

(a) The superintendent, in consultation with the director, shall determine whether the best interests of a committed person are served by an admission to the state hospital;

(b) The superintendent shall implement policies and procedures which afford a committed person placed in a state hospital the rights provided by ORS 426.385, 430.205 through 430.210 and this rule.

(3) Provision of care at a community hospital. The director shall assign and place a committed person only at a community hospital approved under OAR 309-033-0530:

(a) The admitting physician, in consultation with the director, shall determine whether the best interests of a committed person are served by an admission to a community hospital;

(b) The administrator shall implement policies and procedures which afford a committed person placed in a community hospital the rights provided by ORS 426.385, 430.205 through 430.210 and this rule.

(4) Provision of care at a nonhospital facility or an outpatient program. The director shall only assign and place a committed person in a nonhospital facility that is licensed or certified by the Division:

(a) The administrator, in consultation with the director, shall determine whether the best interests of a committed person are served by an admission to a nonhospital facility or an outpatient program;

(b) The administrator shall implement policies and procedures which afford a committed person placed in a nonhospital facility or an outpatient program the rights provided by ORS 426.385, 430.205 through 430.210 and this rule;

(c) The director shall place on a trial visit a committed person who is discharged from a state hospital or a community hospital when the director assigns and places the person in a nonhospital facility;

(d) The director shall place a committed person, who the court has ordered on outpatient commitment at the commitment hearing, on outpatient commitment when the director assigns and places the person in a nonhospital facility.

(5) Provision of medical services for a committed person. The superintendent of a state hospital, the treating physician at a community hospital or the director may transfer a committed person to a general hospital, or transfer a committed person from a psychiatric ward to a medical ward for medical care:

(a) The treating physician shall only provide medical care with the consent of the committed person in accordance with OAR 309-033-0600 through 309-033-0650;

(b) The superintendent or treating physician shall transfer a committed person to a general hospital for medical services on a pass or discharge the person from the state hospital when it is determined that the person will not return to the state hospital within a reasonable length of time, or that discharge is clinically appropriate and is required for the person to have access to third-party insurance benefits;

(c) The treating physician shall immediately notify the director that a person was transferred to another hospital for medical care under this subsection.

Stat. Auth.: ORS 413.042, 426.060, 426.385 & 430.205 - 430.210
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0080; MHS 5-2009, f. & cert. ef. 12-17-09

309-033-0280

Procedures for Committed Persons on Outpatient Commitment or Trial Visit

(1) Outpatient commitment. At the time of the commitment hearing the director may place a committed person on an outpatient commitment if adequate treatment services are available in the county. The director shall be responsible for:

(a) Enrolling the committed person in treatment services and assuring that the committed person has an opportunity to participate in the development of the treatment plan;

(b) Distributing the conditions of placement as pursuant to ORS 426.278 and OAR 309-033-0280, Distribution of the Conditions of Placement, below;

(c) Monitoring and documenting the provision and consumption of services which fulfill the conditions set for the outpatient commitment;

(d) Petitioning the court for a revocation hearing if the best interests of the committed person require a modification in the conditions of placement for a treatment option which is more restrictive;

(e) With the participation of the committed person, changing the conditions to less restrictive conditions, if appropriate; and

(f) Documenting in the clinical record any conditions of placement requiring modification by means of a report which:

(A) Documents the need for a change in the conditions of outpatient commitment;

(B) Sets new conditions of commitment;

(C) Describes the reasons for the new conditions;

(D) Is signed by the committed person and the mental health professional assigned to the case, or, if the committed person refuses to sign the new conditions of placement, such fact shall be documented in the report; and

(E) Documents that a copy of the changes and the reasons for the changes was distributed to appropriate persons described in OAR 309-033-0280, Distribution of the Conditions of Placement, below.

(2) Trial visit. The director may grant a trial visit to any committed person during a period of commitment, upon approval of the director of the county of placement. A director may grant a trial visit to any committed person during a period of community inpatient treatment. While it may be clinically advisable, the director is not required to obtain the consent or signature of the committed person:

(a) Trial visit of a committed person shall not exceed the time remaining in the period of commitment;

(b) Conditions for trial visit shall include designation of a facility, service or other provider to provide care or treatment;

(c) The director shall place the person on trial visit in accordance with OAR 309-033-0290, Assignment and Placement of Persons Committed to the Division;

(d) The director shall evaluate any complaints received from any person concerning the behavior or treatment of a committed person on trial visit. The director shall document the results of the evaluation in the clinical record;

(e) Modification of the conditions of trial visit. The director may modify the conditions of placement for trial visit:

(A) Any modification shall not include a treatment option which is more restrictive than the current conditions of placement;

(B) The director shall petition the court for a revocation hearing if the best interests of the committed person require a modification in the conditions of placement for a treatment option which is more restrictive;

(C) The director shall document in the clinical record any conditions of placement requiring modification by means of a report which:

(i) Documents the need for a change in the conditions of outpatient commitment;

(ii) Sets new conditions of commitment;

(iii) Describes the reasons for the new conditions;

(iv) Is signed by the committed person and the mental health professional assigned to the case, or, if the committed person refuses to sign the new conditions of placement, such fact shall be documented in the clinical record; and

(v) Documents that a copy of the changes and the reasons for the changes was distributed to appropriate persons provided under ORS 426.278 and OAR 309-033-0280, Distribution of the Conditions of Placement, below.

(f) Transfer of trial visit to another county. The director may transfer a person on trial visit to another county only if the director for the county where the person will reside agrees to accept the trial visit:

(A) The director of the county where the person currently resides shall provide the director of the county where the person will reside a copy of the current treatment plan for the person on trial visit;

(B) Immediately upon accepting the trial visit the director of the county where the person will reside shall enroll the person on trial visit in treatment services and shall make any modifications in the trial visit as necessary and distribute the modified conditions of placement as required under OAR 309-033-0280, Distribution of the Conditions of Placement, below.

(3) Distribution of the conditions of placement. When a committed person is placed on conditional release, outpatient commitment or trial visit, or when the conditions of placement are modified in any manner, the current conditions of placement shall be distributed by the director to the following persons, pursuant to ORS 426.278:

(a) The committed person;

(b) The director of the county in which the committed person is to receive hospital, nonhospital or outpatient treatment;

(c) The administrator of any facility, service or other provider designated to provide care or treatment;

(d) The court of current commitment; and

(e) The appropriate court of the county in which the committed person lives during the commitment period if the person is living in a different county than the county of the court that made the current commitment.

Stat. Auth.: ORS 413.042, 426.127, 426.273 & 426.278
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0090

309-033-0290

Assignment and Placement of Persons Committed to the Division

(1) Assignment authority. The Division, pursuant to ORS 426.060, delegates the responsibility for the assignment and placement of committed persons to the director of the county of commitment:

(a) The director may assign or transfer a committed person to any facility or program approved by the Division which, in the opinion of the director, will appropriately meet the mental health needs of the committed person;

(b) The director may discharge the committed person from commitment by notifying, in writing, the court having jurisdiction, if the director determines the person no longer is a mentally ill person as defined by ORS 426.005.

(2) Assignment outside the county of residence. The director of the county of commitment may assign the committed person to a facility in a county other than the county of residence only with the approval of the director of the county of residence and the director of the county of placement:

(a) When the director of the county of commitment assigns a committed person under this section, the director of the county of commitment shall transfer the responsibility for assignment and placement to the director of the county of placement;

(b) The Assistant Administrator shall assign a committed person under this section when the director of the county of commitment, the director of the county of residence and the director of the county of placement determine that they cannot agree on the assignment of the person and request the Division to make the assignment:

(A) The Assistant Administrator shall determine fiscal responsibility for the services to be delivered to the committed person and shall look to existing applicable laws, contracts and interagency agreements;

(B) The decision of the Assistant Administrator shall be final.

(c) When placement is determined, the director of the county of placement shall accept the responsibility for further assignment and placement;

(d) The director of the county of commitment shall petition the court in the county where the person was committed to transfer jurisdiction to the court in the county where the person is to reside, pursuant to ORS 426.275.

(3) Assignment to a state hospital. The director of the county of commitment shall only assign and place a committed person in a state hospital with the consent of the superintendent.

(4) Assignment procedure. The director of the county of commitment shall make the assignment in writing immediately upon commitment of a person by the court or at the time the placement of a committed person is changed during the commitment period. The director shall:

(a) Retain an original assignment order on file in safe keeping for seven years;

(b) Deliver a signed original copy of the assignment order to the person prior to placement;

(c) Enter into the Division’s current computer data system information about the committed person including:

(A) Name and any known aliases;

(B) Date of birth;

(C) Address of current residence;

(D) Address where assigned for treatment if different from residence;

(E) Name and telephone number of the administrator of the hospital, facility or program responsible for the person’s treatment; and

(F) Any other data as requested by the Division.

(d) Out of county assignments shall include a statement that assignment and placement responsibility is transferred to the director of the county of placement.

(5) Appeal of assignment procedure. At any time during the period of commitment, a committed person may appeal to the Assistant Administrator for Mental Health for a change in assignment made by a director.

(a) How to make an appeal. The committed person shall make the appeal in writing and shall include the following information in the appeal:

(A) A statement that the committed person appeals the current assignment;

(B) The reason(s) the committed person believes the current assignment is inappropriate; and

(C) The proposed alternate placement and the reasons the committed person is requesting the alternate placement.

(b) Appeal of an assignment to a community hospital or to the community. The Assistant Administrator shall make a determination of an appealed assignment for persons currently assigned to community hospitals or community placements. The Assistant Administrator shall determine the assignment for the committed person, and notify the committed person of the assignment, in writing or verbally, within five business days of the receipt of the written appeal. The Assistant Administrator’s determination shall be final:

(A) In making a determination of an appealed assignment the Assistant Administrator:

(i) Shall review the written appeal;

(ii) Shall contact the director making the assignment, and consider the director’s reason(s) for making the assignment;

(iii) Shall consider the opinion of the person’s treating physician if the person is placed at a community hospital;

(iv) May require the director to submit a written statement which gives the reason(s) for the assignment; and

(v) May consider the consultation or opinion of any person that the Assistant Administrator believes has knowledge relevant to the case.

(B) The Assistant Administrator shall use the following criteria when making a determination of an appealed assignment:

(i) The assignment shall be in the best interests of the committed person;

(ii) The assignment shall assure the safety of the person and the community; and

(iii) The assignment shall be in the least restrictive environment that the resources of the person or Division will allow.

(c) Appeal of an assignment to a state hospital. The Administrator shall make a determination of an appealed assignment for persons currently assigned to a state hospital or where the appeal requests assignment to a state hospital. The Administrator shall determine the assignment for the committed person, and notify the committed person of the assignment, in writing or verbally, within five business days of the receipt of the written appeal. The Administrator’s determination shall be final:

(A) In making a determination of an appealed assignment the Administrator shall consider the opinion of the superintendent, or designee, of the state hospital affected by the appeal, and the report of the Assistant Administrator. In making the report to the Administrator, the Assistant Administrator:

(i) Shall review the written appeal;

(ii) Shall contact the director making the assignment, and consider the director’s reason(s) for making the assignment;

(iii) Shall consider the opinion of the person’s treating physician if the person is placed at a community hospital;

(iv) May require the director to submit a written statement which gives the reason(s) for the assignment;

(v) May consider the consultation or opinion of any person that the Assistant Administrator believes has knowledge relevant to the case;

(vi) Shall make a recommendation about the proposed assignment; and

(vii) Shall submit the report within three business days after the Division receives the appeal.

(B) The Administrator shall use the following criteria when making a determination of an appealed assignment:

(i) The assignment shall be in the best interests of the committed person;

(ii) The assignment shall assure the safety of the person and the community; and

(iii) The assignment shall be in the least restrictive environment that the resources of the person or Division will allow.

Stat. Auth.: ORS 413.042, 426.060
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0100

309-033-0300

Transfers Between Classes of Facilities

(1) Transfers between classes of facilities. The director may transfer a committed person from one class of facility to another in the same class or in a less restrictive class as provided by ORS 426.060. However, the director shall transfer a committed person who has voluntarily agreed to placement at the facility only with the written consent of the person. The director shall transfer committed persons as provided by OAR 309-033-0400 through 309-033-0440, Standards for Transportation and Transfer of Persons in Custody or on Diversion, and OAR 309-033-0290, Assignment and Placement of Persons Committed to the Division. The director shall modify the conditions of trial visit to reflect the change of placement and shall notify the following persons of the transfer:

(a) The committed person;

(b) The court in the county where the person was committed;

(c) The court in the county where the person is to be placed;

(d) The director in the county where the person is to reside;

(e) The administrator of the facility designated to provide care or treatment; and

(f) Any other provider designated to provide care or treatment.

(2) Transfers restricted by rule. The director may transfer a committed person from a facility of one class to another facility of a same class or lower class by:

(a) Assigning the committed person to the new facility; and

(b) Modifying the person’s commitment status as follows:

(A) Persons transferred to a Class 2 or Class 3 facility. When the director transfers a committed person to a Class 2 or Class 3 facility, the director shall place the person on trial visit (see OAR 309-033-0290, Assignment and Placement of Persons Committed to the Division);

(B) Transfers between Class 1 hospitals or facilities. The director shall transfer a person between Class 1 hospitals or facilities without placing the committed person on trial visit; or

(C) Transfer to any facility and discharged from commitment. When the director determines a committed person is no longer a mentally ill person, the director shall discharge the person from commitment (see OAR 309-033-0330, Discharge of Committed Persons from Commitment Status) and enroll the person in services voluntarily at the receiving facility.

(3) Transfers from a facility of one class to a facility of a more restrictive class:

(a) Involuntary transfers of committed persons. The director shall transfer a committed person, who is on trial visit, to a facility of a more restrictive class only:

(A) By order of the court after a hearing, pursuant to ORS 426.275; or

(B) Initiate involuntary procedures as provided in this paragraph and as provided by ORS 426.233 (see subparagraph (c) of this paragraph).

(b) Voluntary transfers of committed persons. The director may transfer a committed person, who is on trial visit, to a facility of a more restrictive class with the committed person’s consent. However, if the committed person revokes his/her consent to the current more restrictive placement and requests to be placed at another facility of a less restrictive class, as soon as reasonably possible the director shall:

(A) Transfer the person to a facility where the person consents to receive services; or

(B) Initiate involuntary procedures as provided in this paragraph and by ORS 426.233.

(c) Emergency transfers of committed persons. As provided by ORS 426.233, the director may transfer a committed person, who is on trial visit, to a hospital or nonhospital facility approved by the Division when the director has probable cause to believe the person is dangerous to self or others or unable to provide for basic personal needs and is not receiving the care that is necessary for health and safety, and is in need of care, custody or treatment for mental illness. Upon the recommendation of the investigator, the director shall request the court to revoke the person’s trial visit or recertify the person for continued commitment at a more restrictive facility as provided by ORS 426.275.

(4) Authority to retake persons. A Class 1 or Class 2 facility shall immediately notify a peace officer and the Division of any person who has left the facility without lawful authority and shall immediately request the assistance of a peace officer(s) in retaking and returning the person to a Division-approved hospital or facility. The director shall show the peace officer a copy of the order of commitment.

Stat. Auth.: ORS 413.042, 426.060, 426.223, 426.233, 426.273, 426.275 & 426.278
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0110

309-033-0310

Recertification for Continued Commitment

(1) Recertification for continued commitment of persons placed in a state hospital:

(a) After consulting with the director of the person’s county of residence, the superintendent shall issue a recertification to:

(A) The person whose 180 day period of commitment is due to expire, if the person is still mentally ill and in need of further treatment; and

(B) The director.

(b) The superintendent shall notify the court concerning:

(A) The date the recertification was issued to the person; and

(B) Whether the person protests, within 14 days of the issuance of the recertification, to continued commitment.

(2) Recertification for continued commitment of persons placed in a community hospital or nonhospital facility:

(a) After consulting with the director of the person’s county of residence, the director shall issue a recertification to:

(A) The person whose 180 day period of commitment is due to expire, if the person is still mentally ill and in need of further treatment; and

(B) The director of the person’s county of residence.

(b) The director shall notify the court concerning:

(A) The date recertification was issued to the person; and

(B) Whether the person protests continued commitment, within 14 days of the issuance of the recertification.

(3) Documentation of recertification for continued commitment in the clinical record. The director or the superintendent making the recertification shall include in the clinical record:

(a) The date and time the director’s approval of continued commitment was obtained prior to the recertification being issued to the person;

(b) The date and time the recertification was issued to the persons;

(c) A copy of the recertification issued to the person;

(d) Concerning the notification to the court of the date the recertification was issued to the person:

(A) The date and time that the court was notified of the issuance of the recertification to the person; and

(B) A copy of the notification.

(e) Concerning the notification to the court of whether the person protests continued commitment, within 14 days of the issuance of the recertification:

(A) The date and time that the court was notified of whether the person protests; and

(B) A copy of the notification to the court whether the person protests.

(f) If an examination is requested by the person:

(A) The name of the psychiatrist or the certified mental health examiner ordered by the court to conduct the examination;

(B) The date that the examination was conducted; and

(C) A copy of the examination report sent to the court.

(g) If the court orders continued commitment, a copy of the order continuing the commitment; and

(h) If the court orders the release of the person:

(A) A copy of the order requiring release;

(B) If the person consents to services upon discharge, a copy of an aftercare plan signed by the person and the name of the case manager responsible for arranging outpatient services; or

(C) If the person refuses services upon discharge, a statement signed by the person indicating the person’s refusal of outpatient services; and

(D) The date and time the person was released from the facility.

Stat. Auth.: ORS 413.042, 426.301, 426.307 & 430.041
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0120

309-033-0320

Revocation of Conditional Release, Outpatient Commitment or Trial Visit

(1) Conditional release. A caregiver appointed by the court to care for a committed person on conditional release is responsible for reporting to the court any violation of the conditions of placement. If a person on conditional release, whose conditions of placement include any service agreed to be provided by a CMHP, violates the conditions of conditional release, the director shall include in the clinical record a revocation report which documents the following:

(a) The person’s noncompliance with those conditions of placement that include services provided by the CMHP;

(b) Efforts by the CMHP to inform the caregiver of the noncompliance and the caregiver’s response to these efforts;

(c) Requests by the caregiver for the CMHP to assist in obtaining compliance from the committed person, or in notifying the court of the person’s failure to comply with the conditions of placement, and the CMHP response to the requests for assistance;

(d) Documentation of the disposition made by the court, if the caregiver submits notification to the court; and

(e) The date the person was transported to an inpatient facility, and the name of the facility, if appropriate.

(2) Outpatient commitment and trial visit. The director is responsible for reporting to the court any violation of the conditions of placement for persons on outpatient commitment (including community inpatient or outpatient treatment) or trial visit. For persons on outpatient commitment or trial visit, the director shall include in the clinical record a revocation report which includes the following:

(a) Documentation of the person’s noncompliance with the conditions of placement;

(b) Documentation of efforts from all parties attempting to obtain compliance from the committed person and the response of the person to these efforts;

(c) A copy of the notification to the court of the person’s failure to comply with the conditions of placement;

(d) Documentation of the disposition made by the court;

(e) Documentation of the distribution of any modified conditions of placement or disposition placing the person in inpatient treatment to all parties originally receiving copies of the conditions of placement; and

(f) Date the person was transported to an inpatient facility, and the name of the facility, if appropriate.

Stat. Auth.: ORS 413.042 & 426.275
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0130

309-033-0330

Discharge of Committed Persons, Who Are Placed in the Community, from Commitment Status

(1) Only director of county of placement may discharge. Only the director of the county of placement may change the commitment status of a committed person placed in a community hospital or other community facility:

(a) The director shall discharge a person from commitment when:

(A) Release from treating facility. The director believes the committed person is no longer a mentally ill person as defined in ORS 426.005, and the person is to be released from the treating facility.

(B) Transfer to voluntary status. The director believes it is in the best interests of the person to transfer a committed person to voluntary status, but the person is to remain at the treating facility.

(b) The director shall discharge a person from commitment by notifying the last committing court and the court of residence, pursuant to the provisions of ORS 426.300.

(2) Discharge required unless new assignment and placement made. The director of the county of commitment shall discharge a person from commitment when a committed person is discharged from a hospital, nonhospital or residential facility, or an outpatient treatment program where the person has been assigned and placed unless the director of the county of commitment assigns and places the person with another provider of service as provided by OAR 309-033-0290, Assignment and Placement of Persons Committed to the Division.

(3) Persons required to notify director prior to discharge. The following persons shall notify the director of the county of commitment 48 hours before discharging a person from a hospital, nonhospital or residential facility, or outpatient treatment:

(a) If the committed person is in a state hospital, the superintendent or designee shall notify the director;

(b) If the committed person is in a hospital serving as a regional acute care hospital or a private hospital, the treating physician shall notify the director;

(c) If the committed person is in a nonhospital or residential facility, the administrator of the facility shall notify the director;

(d) If the person is on trial visit, outpatient commitment or conditional release receiving outpatient treatment, and is not living in a nonhospital or residential facility, the administrator of the program where the person is receiving outpatient treatment shall notify the director.

(4) Procedures for discharge. The director shall give written notice to the committed person within thirty days after the commitment was terminated. The notice shall state the date the commitment expired or was terminated. A copy of the notice shall be kept in the person’s clinical record.

Stat. Auth.: ORS 413.042 & 426.300
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0140

309-033-0340

Variances

(1) Criteria for a variance. Variances may be granted to a facility if there is a lack of resources to implement the standards required in this rule or if implementation of the proposed alternative services, methods, concepts or procedures would result in services or systems that meet or exceed the standards in these rules.

(2) Variance application. The facility requesting a variance shall submit, in writing, an application to the Division which contains the following:

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

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept or procedure proposed;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) Signed documentation from the council indicating its position on the proposed variance.

(3) Division review. The Assistant Administrator or designee of the Division shall approve or deny the request for a variance.

(4) Notification. The Division shall notify the facility of the decision. This notice shall be given to the facility, with a copy to the council, within 30 days of the receipt of the request by the Office.

(5) Appeal application. Appeal of the denial of a variance request shall be made in writing to the Administrator of the Division, whose decision shall be final.

(6) Written approval. The facility may implement a variance only after written approval from the Division. The Intergovern-mental Agreement shall be amended to the extent that the variance changes a term in that agreement.

(7) Duration of variance. A variance shall be reviewed by the Division at least every 2 years.

Stat. Auth.: ORS 413.042
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 6-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-200-0150
Standards for Transportation and Transfer of Persons in Custody or on Diversion

309-033-0400

Statement of Purpose and Statutory Authority

(1) Purpose. These rules prescribe standards and procedures relating to the involuntary commitment of mentally ill persons.

(2) Statutory authority. These rules are authorized by ORS 426.395.041, and 426.005 through 426.395 and carry out the provisions of ORS 426.005 through 426.395.

Stat. Auth.: ORS 413.042
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 7-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-205-0000

309-033-0410

Definitions

(1) “Administrator” means the chief of psychiatric services in a community hospital or the person in charge of treatment and rehabilitation programs at nonhospital facilities. “Administrator” has the same meaning as “director of the facility” as that term is defined in ORS 426.005. Whenever “administrator” appears it means the administrator or designee.

(2) “CMHP” means the community mental health and developmental disabilities program which organizes all services for persons with mental or emotional disturbances, drug abuse problems, mental retardation or other developmental disabilities, and alcoholism and alcohol abuse problems, operated by or contractually affiliated with a local mental health authority operating in a specific geographic area of the state under an intergovernmental agreement or direct contract with the Division.

(3) “Community hospital” means any hospital that is not a state hospital.

(4) “Court” means the circuit court acting pursuant to ORS Chapter 426.

(5) “Custody” means the prehearing physical retaining of a person taken into custody by:

(a) A peace officer or approved secure transport provider pursuant to ORS 426.070, 426.228, 426.233;

(b) A peace officer or approved secure transport provider at the direction of the director pursuant to ORS 426.233;

(c) A health care facility licensed under ORS Chapter 441 and approved by the Division, pursuant to ORS 426.231;

(d) A state hospital pursuant to ORS 426.180;

(e) A hospital pursuant to ORS 426.070 or 426.232; or

(f) A nonhospital facility pursuant to ORS 426.070 or 426.233.

(6) “Director” means the community mental health and developmental disabilities program director who has been authorized by the local mental health authority to direct the CMHP. “Director” also means a person who has been authorized by the director to act in the director’s capacity for the purpose of this rule. In the case of the director ordering a peace officer or approved secure transport provider to take a person into custody pursuant to ORS 426.233, the designee shall be a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody.

(7) “Director of the county of commitment” means the director for the county where the person is committed.

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

(9) “Mechanical Restraint” is any object or apparatus, device or contraption applied or affixed to the person to limit movement, and includes, but is not limited to handcuffs, leg irons, soft restraints or Posey Strait Jacket.

(10) “Secure transport provider” means any service which uses privately or publicly owned motor vehicles, other than city, county or state police, to transport Persons in Custody or on Diversion to an Approved Holding Hospital or NonHospital Facility.

(11) “State hospital” means Oregon State Hospital in Salem and Portland, and Eastern Oregon Psychiatric Center in Pendleton.

(12) “Superintendent” means the chief executive officer of a state hospital, or designee, or a person authorized by the superintendent to act in the superintendent’s capacity for the purpose of this rule.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110(2), 426.232 & 426.236
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 7-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-205-0010; MHD 3-2000(Temp), f. 1-25-00, cert. ef. 1-25-00 thru 7-22-00; MHD 10-2000, f. & cert. ef. 7-21-00

309-033-0420

Transportation and Transfer of Persons in Custody or On Diversion

(1) Notification of court. The director shall immediately inform the court of a transfer and the location of the person and of the time the person is admitted to a new hospital or nonhospital facility.

(2) Transfer of persons in custody or on diversion. The director may transfer a person who is in custody or on diversion only when:

(a) The director believes there is an approved facility available that can provide necessary care or treatment which is sufficient to meet the emergency psychiatric needs of the person;

(b) The facility is approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities to Provide Services to Committed Persons and to Persons in Custody and on Diversion, to provide care, custody and treatment of persons in custody or on diversion;

(c) The director has obtained the consent required by OAR 309-033-0420(3), Consent by Treating Physician and Receiving Physician or Director for Transfer Between Hospitals, through 309-033-0420(4), Consent by Treating Physician for Transfer from Nonhospital Facility to Hospital.

(3) Consent by treating physician and receiving physician or director for transfer between hospitals. If the transfer is from a hospital to another hospital or to a nonhospital facility, the director shall obtain the consent of the treating physician, and the receiving physician or the director of the nonhospital facility, prior to transferring the person:

(a) The treating physician shall give consent by writing in the person’s clinical record an order over the physician’s signature within 24 hours of giving verbal, telephonic or facsimile consent;

(b) The receiving physician at a hospital or the administrator of a nonhospital facility shall accept the transfer orally or telephonically, and shall document the acceptance in the clinical record of the person.

(4) Consent by treating physician for transfer from nonhospital facility to hospital. If the transfer is from a nonhospital facility to a hospital, the director shall obtain the consent of the receiving physician prior to transferring the person:

(a) The receiving physician shall give consent by writing in the person’s clinical record an order over the physician’s signature within 24 hours of giving verbal, telephonic or facsimile consent to admit the person to the hospital;

(b) The director shall provide the nonhospital facility written approval of the transfer within 24 hours of giving verbal, telephonic or facsimile approval of the transfer;

(c) The administrator of the nonhospital facility shall document the director’s verbal or telephonic approval and retain written approval of the transfer in the clinical record of the person.

(5) Consent by administrator for transfer between nonhospital facilities. If the transfer is from one nonhospital facility to another nonhospital facility, the director shall obtain the verbal, telephonic or facsimile consent of the administrator of the receiving nonhospital facility prior to transferring the person:

(a) The administrator of the receiving nonhospital facility shall consent to the transfer by documenting in the person’s clinical record the consent within 24 hours of giving verbal, telephonic or facsimile consent;

(b) The director shall provide the nonhospital facility written approval of the transfer within 24 hours of giving verbal, telephonic or facsimile approval of the transfer;

(c) The administrator of the sending nonhospital facility shall document the director’s verbal, telephonic or facsimile approval and retain written approval of the transfer in the clinical record of the person.

(6) Notice to person to be transferred. Except in cases of emergency, twenty-four hours before the transfer is to take place, the director shall provide a notice to the person to be transferred which includes:

(a) Transfer date and time;

(b) A statement that the person may use the grievance procedure; and a brief description of how to initiate a grievance; and

(c) Justification for the transfer.

Stat. Auth.: ORS 413.042, 426.060 & 426.235
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 7-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-205-0030

309-033-0430

Transportation of a Committed Person to a State Hospital, Community Hospital or Nonhospital Facility

(1) Transportation of a committed person to a state hospital, community hospital or nonhospital facility. The director of the county of commitment shall arrange for the transportation of committed persons to the hospital or nonhospital facility:

(a) Only committed persons who have received prior approval for admission by the superintendent may be transported to a state hospital;

(b) A guardian, friend or relative may transport the committed person to the designated facility if all the following are met:

(A) The guardian, friend, or relative requests to transport the person to the designated facility prior to or at the time of the commitment hearing;

(B) The committing judge at the commitment hearing determines that the means of transportation would not be detrimental to the welfare of the mentally ill person or to the public.

(2) Medically unstable committed persons. The costs of providing care, custody and treatment for a committed person who is unable to be transported or cannot be admitted to a state hospital because of medical necessity shall be paid by the county of residence from funds provided it by the Division for the provision of mental health services. The hospital or other facility shall charge to and collect from the county of residence only after the hospital or other facility has charged to and collected from the person, third party payers or agencies otherwise legally responsible for the costs of emergency care, custody and treatment, as it would for any other patient.

(3) Transfer of a committed person to another hospital. The administrator of a facility caring for a committed person may transfer the person only with the recommendation of the director of the county of residence and the approval of the administrator of the receiving facility.

(4) Transfer of a committed person to voluntary status or discharge for commitment. The superintendent of a state hospital, on his/her own initiative or on the request of the committed person, shall transfer the committed person to voluntary status if the superintendent believes with reasonable medical certainty that the person will pursue voluntary treatment. The superintendent of a state hospital may discharge the person from commitment when the person meets the criteria for discharge in OAR 309-031-0210, Criteria for Admission to and Discharge from State or Other Adult Inpatient Psychiatric Hospitals:

(a) The administrator of a community hospital or nonhospital facility, other than a state hospital, caring for the committed person, in consultation with the director, may transfer the person to voluntary status or discharge the person from commitment;

(b) When a person is transferred to voluntary status, the superintendent or administrator shall notify the director and the court of the county of current commitment of such action within 72 hours;

(c) Any committed person transferred to voluntary status shall be discharged from the treating facility, at the request of the person or his legal guardian, within 72 hours of the request unless the person meets the criteria for prehearing custody and is placed in custody, thus initiating the commitment process.

(5) Grievance of transfer. The director and the superintendent shall have written procedures for resolving grievances about the transfer of committed persons from one facility to another. The director or the superintendent shall suspend the transfer of the person, until the grievance procedure is completed, unless immediate transfer is necessary for health or safety, upon the written or verbal protest of one of the following persons:

(a) The person being transferred;

(b) The legal guardian of the person being transferred.

Stat. Auth.: ORS 413.042, 426.150
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 7-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-205-0040

309-033-0432

Standards for the Approval of a Secure Transport Provider to Transport a Person in Custody or On Diversion to an Approved Holding Hospital or Nonhospital Facility

(1) Approved Secure transport provider. A Secure transport provider must be approved by the Division under this rule in order to transport a person pursuant to the provisions of ORS 426.228, 426.231, and 426.233. A Secure transport provider approved under this rule may transport the person only to a hospital or nonhospital facility approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities to Provide Services to Committed Persons and to Persons in Custody and on Diversion.

(2) Application for approval. A Secure transport provider shall submit a letter of application to the Division. If approved, a certificate of approval will be issued to the Secure transport provider to provide such services. This approval shall be renewed every two years subject to the application of the Secure transport provider and review by the Division.

(3) Requirements for approval include all of the following:

(a) Secure transport providers must comply with the requirements OAR 309-033-0435, Client Rights with Regards to a Secure Transport Provider, and OAR 309-033-0437, Mechanical Restraint by a Secure Transport Provider.

(b) The governing body of the county in which the secure transport is to be used shall submit a letter formally authorizing the Secure transport provider to Transport Persons in Custody or on Diversion.

(c) The director in the county in which the secure transport is to be used shall submit a letter of recommendation for approval to the Division on behalf of the Secure transport provider.

(d) The vehicles of the Secure transport provider must:

(A) Have a secured rear seat in an area separated from the driver:

(B) Have a safety shield that prohibits physical contact with the driver;

(C) Have plexiglass or secured window guards covering any windows in the secured area;

(D) Be washable and nonbreakable in the secured area;

(E) Be absent of inside locks or door handles in the secured area;

(F) Have wrist and ankle restraints (preferably soft non-metal) for use when necessary to control violent or overt behavior;

(G) Be absent of any foreign item(s) or instrument(s) in the secured area that may be used by the client to inflict harm to self, attendant or person accompanying client;

(H) Have an operating cellular phone or other communication device for use in transit;

(I) Have adequate ventilation/heating appropriate to the secured seating.

Stat. Auth.: ORS 413.042, 430.041
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 3-2000(Temp), f. 1-25-00, cert. ef. 1-25-00 thru 7-22-00; MHD 10-2000, f. & cert. ef. 7-21-00

309-033-0435

Client Rights with Regards to a Secure Transport Provider

(1) A secure transport provider shall maintain written policies and procedures with regard to client rights. The policies and procedures must assure that a client has the right to be treated with consideration, respect, and full recognition of human dignity and individuality. These rights are in addition to any other rights provided for in law.

(2) The client care policies and procedures must include but are not limited to:

(a) Considerate and respectful care;

(b) Reasonable privacy concerning a client's transportation and care;

(c) Confidentiality of all communications and records relating to client transportation and care except to the extent otherwise required by law;

(d) An environment in the secure transport that is free from recognized hazards.

(3) A secure transport provider shall keep a record of any formal complaint or report of misconduct made against an employee. The record must contain a copy of the complaint or report or a detailed written summary of the allegation. A provider shall investigate the accuracy of the complaint, report, or allegation and shall include a summary of the investigation and resulting action taken, if any, in the record. These records must be included in the driver's file with a copy provided to the Division.

(4) A secure transport provider shall report any client abuse in accordance with OAR 407-045-0250 through 407-045-0370.

(5) A secure transport provider shall obtain criminal offender information on all employees who are Transporting a Person in Custody or on Diversion in accordance with OAR chapter 407, division 007.

Stat. Auth.: ORS 413.042

Stats. Implemented: ORS 426.005 - 426.395

Hist.: MHD 3-2000(Temp), f. 1-25-00, cert. ef. 1-25-00 thru 7-22-00; MHD 10-2000, f. & cert. ef. 7-21-00; MHS 5-2007, f. & cert. ef. 5-25-07]

309-033-0437

Mechanical Restraint by a Secure Transport Provider

(1) A mechanical restraint may be used by secure transport providers in emergency situations to prevent a person from inflicting immediate and serious harm to self or others, or property. A mechanical restraint shall only be used for health and safety reasons. Mechanical restraint that results in injury to the person requires immediate written notification to the Division.

(2) Checking a person in a mechanical restraint:

(a) The provider shall monitor the client’s need for adequate circulation.

(b) Staff shall document that the client was checked and appropriate attention paid to the person’s needs.

(3) A Secure transport provider shall have adequately trained employees who are transporting a person in custody or on diversion.

(a) The employee shall participate in four hours of training annually. The training curriculum shall include: the management of aggressive behavior, the proper application of mechanical restraint and standards for the proper use of mechanical restraint.

(b) The employee shall be certified in cardiopulmonary resuscitation.

Stat. Auth.: ORS 413.042
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 3-2000(Temp), f. 1-25-00, cert. ef. 1-25-00 thru 7-22-00; MHD 10-2000, f. & cert. ef. 7-21-00

309-033-0440

Variance

(1) Criteria for a variance. Variances may be granted to a facility if there is a lack of resources to implement the standards required in this rule or if implementation of the proposed alternative services, methods, concepts or procedures would result in services or systems that meet or exceed the standards in these rules.

(2) Variance application. The facility requesting a variance shall submit, in writing, an application to the Division which contains the following:

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

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept or procedure proposed;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) Signed documentation from the council indicating its position on the proposed variance.

(3) Division review. The Assistant Administrator or designee of the Division shall approve or deny the request for a variance.

(4) Notification. The Division shall notify the facility of the decision. This notice shall be given to the facility, with a copy to the council, within 30 days of the receipt of the request by the Division.

(5) Appeal application. Appeal of the denial of a variance request shall be made in writing to the Administrator of the Division, whose decision shall be final.

(6) Written approval. The facility may implement a variance only after written approval from the Division. The Intergovernmental Agreement shall be amended to the extent that the variance changes a term in that agreement.

(7) Duration of variance. A variance shall be reviewed by the Division at least every 2 years.

Stat. Auth.: ORS 413.042, 426.060 & 426.235
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 7-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-205-0050; MHD 3-2000(Temp), f. 1-25-00, cert. ef. 1-25-00 thru 7-22-00; Administrative correction 11-17-00
Standards for the Approval of Facilities that Provide Case, Custody and Treatment
to Committed Persons in Custody or On Diversion

309-033-0500

Statement of Purpose and Statutory Authority

(1) Purpose. These rules prescribe standards for the approval of facilities that provide involuntary care, custody and treatment to persons in protective custody, in custody and on diversion.

(2) Statutory authority. These rules are authorized by ORS 426.395, and 426.005 through 426.395 and carry out the provisions of ORS 426.005 through 426.395.

Stat. Auth.: ORS 413.042 & 426.060 - 426.500
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 8-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-210-0000

309-033-0510

Definitions

(1) “Administrator” means the chief of psychiatric services in a community hospital or the person in charge of treatment and rehabilitation programs at nonhospital facilities. “Administrator” has the same meaning as “director of the facility” as that term is defined in ORS 426.005. Whenever “administrator” appears it means the administrator or designee.

(2) “Assistant Administrator” means the Assistant Administrator of Addictions and Mental Health Division.

(3) “Clinical record” means the record required by OAR 309-014-0035, General Standards for Delivery of Community Mental Health Service Elements, documenting the mental health services delivered to clients by a CMHP or subcontractor.

(4) “CMHP” means the community mental health and developmental disabilities program which organizes all services for persons with mental or emotional disturbances, drug abuse problems, mental retardation or other developmental disabilities, and

alcoholism and alcohol abuse problems, operated by or contractually affiliated with a local mental health authority operating in a specific geographic area of the state under an intergovernmental agreement or direct contract with the Division.

(5) “Community hospital” means any hospital that is not a state hospital.

(6) “Court” means the circuit court acting pursuant to ORS Chapter 426.

(7) “Custody” means the prehearing physical retaining of a person taken into custody by:

(a) A peace officer pursuant to ORS 426.070, 426.228, 426.233;

(b) A peace officer at the direction of the director pursuant to ORS 426.233;

(c) A health care facility licensed under ORS Chapter 441 and approved by the Division, pursuant to ORS 426.231;

(d) A state hospital pursuant to ORS 426.180;

(e) A hospital pursuant to ORS 426.070 or 426.232; or

(f) A nonhospital facility pursuant to ORS 426.070 or 426.233.

(8) “Designee” means a QMHP designated by the director or a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody pursuant to ORS 426.233.

(9) “Director” means the community mental health and developmental disabilities program director who has been authorized by the local mental health authority to direct the CMHP. “Director” also means a person who has been authorized by the director to act in the director’s capacity for the purpose of this rule. In the case of the director ordering a peace officer to take a person into custody pursuant to ORS 426.233, the designee shall be a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody.

(10) “Diversion” means the 14 day period of intensive treatment when a director and a psychiatrist certify a person as a mentally ill person pursuant to the provision of ORS 426.237.

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

(12) “QMHP” means a qualified mental health professional that meets the following minimum qualifications:

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

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

(c) Graduate degree in psychology;

(d) Graduate degree in social work;

(e) Graduate degree in psychiatric nursing and licensed in the State of Oregon;

(f) Graduate degree in another mental health-related field; or

(g) Any other person whose education and experience meet, in the judgment of the Division, a level of competence consistent with the responsibilities required by the Division.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110(2), 426.232 & 426.236
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 8-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-210-0010

309-033-0520

Classes of Facility that Provide Care, Custody or Treatment to Committed Persons or to Persons In Custody or On Diversion

(1) Division to assign classification. The Division shall assign a classification to a facility approved to serve a person committed to the Division under ORS 426.130, or a person in custody pursuant to ORS 426.232, 426.233, or on diversion pursuant to 426.237.

(2) Class 1. A Class 1 facility is a facility that is approved under applicable administrative rules to be locked to prevent a person from leaving the facility, to use seclusion and restraint, and to involuntarily administer psychiatric medication. This class of facility includes:

(a) A state hospital;

(b) A hospital, regional acute psychiatric care facility or other nonhospital facility approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities to Provide Services to Committed Persons and to Persons in Custody and on Diversion;

(c) A facility which, in the opinion of the Division, restricts the liberty of a person to substantially the same degree as other facilities in this class.

(3) Class 2. A Class 2 facility is a facility that is approved under applicable administrative rules to be locked to prevent a person from leaving the facility. This class of facility includes:

(a) A secure residential facility that is approved under OAR 309-035-0100 through 309-035-0190, Residential Care Facilities for Mentally or Emotionally Disturbed Persons, and that is approved by the Division to be locked to prevent a person from leaving the facility;

(b) A facility which, in the opinion of the Division, restricts the liberty of a person to substantially the same degree as other facilities in this class.

(4) Class 3. A Class 3 facility is a residential facility that is approved under OAR 309-035-0100 through 0309-035-0190, Residential Care Facilities for Mentally or Emotionally Disturbed Persons. A Class 3 facility shall not lock its doors to prevent a person from leaving the facility.

Stat. Auth.: ORS 413.042 & 426.238
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 8-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-210-0030

309-033-0530

Approval of Hospitals and Nonhospital Facilities to Provide Services to Committed Persons and to Persons In Custody and On Diversion

This section establishes rules for approval of hospital and nonhospital facilities which provide service to a committed person or to a person in custody or on diversion.

(1) Approved hospitals and other facilities. Only hospitals and nonhospital facilities, approved by the Division under this rule, shall provide care and treatment services for committed persons or for persons in custody or on diversion.

(2) Application for approval. Approval of hospitals or nonhospital facilities shall be accomplished by submission of a letter of application. If approved, a Certificate of Approval will be issued to the hospital or nonhospital facility to provide such services. This approval shall be reviewed on a biennial basis subject to application of the hospital or other facility and/or review by the Division.

(3) Requirements for approval. In undertaking review of the hospital or nonhospital facility for approval, the Division shall be satisfied that the hospital or nonhospital facility meets one of the following requirements:

(a) Approval to provide seclusion and restraint considered approval to provide services to committed persons and to persons in custody and on diversion. The Division shall approve, without further requirement, hospitals and nonhospital facilities currently approved under OAR 309-033-0700 through 309-033-0740, Standards for the Approval of Community Hospitals and Nonhospital Facilities to Provide Seclusion and Restraint to Committed Persons and to Persons in Custody or on Diversion.

(b) Requirements for facilities not approved to provide seclusion and restraint. The Division shall approve a nonhospital facility to serve committed persons and persons in custody and on diversion if the nonhospital facility is certified as a secure residential facility under Division rules and the nonhospital facility has the following:

(A) Written policies and procedures in place which assure that:

(i) The facility shall not admit a person who may require seclusion or physical restraint.

(ii) A person who develops the need for seclusion and restraint is immediately removed to a hospital or nonhospital facility approved under OAR 309-033-0700 through 309-033-0740, Standards for the Approval of Community Hospitals and Nonhospital Facilities to Provide Seclusion and Restraint to Committed Persons and to Persons in Custody or on Diversion.

(iii) Each person admitted to the facility has a physician who is responsible for treating the person during the person’s stay at the facility and who examines the person within 24 hours of the person’s admission to the facility.

(iv) A staff person shall provide direct care for consumers only when that staff person is trained in the curriculum approved by the psychiatrist or psychiatric nurse practitioner. The staff shall receive the training within the last six months prior to providing direct consumer care.

(v) A staff person shall participate in the training approved by the psychiatrist or psychiatric nurse practitioner quarterly.

(B) A psychiatrist or a licensed psychiatric nurse practitioner, who is employed by the facility or has a contract with the facility, to provide medical oversight of admission policies and procedures, and staff training.

(C) A staff training curriculum which is approved by the psychiatrist or nurse practitioner and includes:

(i) Criteria for the admission of a person who can safely be served by the nonhospital facility;

(ii) Recognition of indicators of violence or assault and criteria for the transfer of person to a more secure facility;

(iii) Indicators of medical problems, identification of medication side effects, and indicators of medical problems and medical crisis; and

(iv) Management of aggressive behavior and de-escalation techniques.

(D) Two qualified mental health associates who are available on-site 24 hours-a-day, seven days-a-week.

(E) Alarmed doors and windows which have been approved by the Division.

(F) A written agreement with a law enforcement agency to respond to emergencies that provides:

(i) Emergency response time within 15 minutes of the nonhospital facility’s request.

(ii) Agreement by the law enforcement agency to retake a person who elopes and to return the person to the nonhospital facility or remove the person to a hospital or nonhospital facility approved under OAR 309-033-0700 through 309-033-0740, Standards for the Approval of Community Hospitals and Nonhospital Facilities to Provide Seclusion and Restraint to Committed Persons and to Persons in Custody or on Diversion, as directed by the administrator of the nonhospital facility.

(G) Documentation of fire marshal approval to operate as a secure facility.

Stat. Auth.: ORS 413.042, 426.228, 426.232, 426.233 & 426.236
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 8-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-210-0040

309-033-0540

Administrative Requirements for Hospitals and Nonhospital Facilities Approved to Provide Services to Persons In Custody

(1) Written policies. Each hospital or nonhospital facility shall have written policies concerning the care, custody, and treatment of persons in custody or on diversion. These policies shall be written to provide for the comfort and safety of the person being provided care and for the safety of the facility staff providing care to that person. These policies shall detail staff responsibilities, person’s rights, and emergency procedures. All staff involved in the care of these persons shall be fully familiar with these policies and procedures. These policies shall be reviewed as part of the Division’s approval process.

(2) Warning. Each hospital or nonhospital facility shall:

(a) Have a physician, nurse or QMHP give the person the following warning:

“You are being held in this hospital because someone is concerned that you may hurt yourself or other people. Anything the staff of this hospital observes you do or say while you are in custody here may be used as evidence in a court of law to determine whether you should be committed as a mentally ill person. You have a right to legal counsel. If you cannot afford an attorney one will be provided for you by the court.”

(b) Have the warning given at the time of admission and at times when it is determined that the person will reasonably understand the notice, and as often as it is determined necessary to assure that the person has been given an opportunity to be aware of the notice.

(c) Have the warning given to the person in writing, as required by ORS 426.123. An attempt shall be made to have the person sign the written warning. A copy of the signed written warning shall be given to the person and the original shall be kept in the clinical record. The person’s inability to sign the written warning or refusal to sign the written warning shall be documented on the written warning below the place where the person’s signature would be normally found, clearly stating the reasons the signature was not obtained. The written warning shall include a place where the person, by making a mark, may request legal counsel.

(3) Notification of next of kin. If the person consents, a physician, nurse or QMHP at a hospital shall make every effort to notify the person’s next of kin of the location and condition of the person as required under ORS 426.234.

(4) Notification of the court of hospital hold. The admitting physician, if the person is at a hospital, shall immediately notify the circuit court in writing. The admitting physician shall also immediately notify the director in the county where the hospital is located so that an investigation can be conducted.

(5) Notification of the court of nonhospital hold. The director, if the person is at a nonhospital facility, shall notify, in writing, the circuit court in the county where the person was taken into custody.

(6) Log. Each hospital or nonhospital facility shall maintain a log of persons in custody that includes: name, date of birth, date of admission, type of admission and a notation of the use of restraints.

(7) Posted warning and rights. Each hospital or nonhospital facility shall post a copy of the person’s rights in the holding room behind protective unbreakable plastic or in another location clearly visible from the holding room which, at a minimum, states:

(a) The warning described in OAR 309-033-0540;

(b) The person’s right to be free from electro-shock therapy or unduly hazardous procedures.

(8) Clinical records. Each hospital or nonhospital facility shall maintain a clinical record which accurately documents the care, custody and treatment of a person in custody. These records shall include:

(a) A copy of the hold form which documents the reasons for the hold, including specific behaviors which indicate the person:

(A) Is dangerous to self or another person; and

(B) Is in need of immediate care, custody or treatment for mental illness.

(b) Documentation that the warning described in OAR 309-033-0540 has been given to the person.

(c) Documentation of the potential effects and the observed effects of any medication administered which may substantially affect the person to prepare for or function effectively at the commitment hearing, signed by the treating physician.

(d) A report of physical examination and relevant laboratory tests.

(e) Daily medical progress notes.

(f) Twenty-four hour nursing notes.

(g) Documentation, signed by the treating physician, of each use of any mechanical restraints and the specific reasons which justify the use.

(h) Documentation of the psychiatric history which, whenever possible, shall include:

(A) History of present illness, including specific prodromal symptoms;

(B) Medical history;

(C) Family history;

(D) Past psychiatric history;

(E) Substance use and abuse history;

(F) History of legal difficulties; and

(G) Social history including current support system.

(i) A report of mental status.

(j) A diagnostic impression.

(k) A treatment plan.

(9) Access to clothing before release of persons in custody. Each hospital or nonhospital facility shall allow the person in custody to have access to his/her clothing before being released to attend the commitment hearing.

Stat. Auth.: ORS 413.042, 426.123, 426.232, 426.233, 426.234 & 426.236
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 8-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-210-0050

309-033-0550

Standards for the Approval of Hospitals Detaining Persons In Custody Pending Transport to an Approved Holding Hospital or Nonhospital Facility

(1) Approved hospitals. Only hospitals approved by the Division under this rule may detain a person pending transport pursuant to the provisions of ORS 426.231. A hospital approved under this rule may transport the person only to a hospital or nonhospital facility approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities to Provide Services to Committed Persons and to Persons in Custody and on Diversion. Hospitals approved under OAR 309-033-0530 are also approved under this rule to detain a person pending transport and may transport a person to another hospital or nonhospital facility approved under OAR 309-033-0530.

(2) Application for approval. Approval of hospitals shall be accomplished by submission of a letter of application in accordance with administrative rules on letters of approval. If approved, a certificate of approval will be issued to the hospital to provide such services. This approval shall be renewed on a biennial basis subject to the application of the hospital or review by the Division.

(3) Requirements for approval. The director in the county in which the hospital is located shall submit a letter of recommendation for approval on behalf of the hospital. The letter of recommendation shall clearly state that the director and the hospital have a written agreement which includes the following:

(a) The procedures to be followed when a person is detained or transported to another hospital or nonhospital facility, with the parties responsible for performing the procedures clearly identified. The procedures shall state whether or not the hospital is required to give notice to the director prior to the release of the person.

(b) The party or parties responsible for transporting the person to another hospital or nonhospital facility and the means by which such transportation is initiated and authorized.

(c) The services to be provided by the hospital when a person is detained and transported to another hospital or nonhospital, and the payment the hospital is to receive for these services.

(d) The hospital shall have a room which meets OAR 309-033-0720, Application and Requirements for Approval to Provide Seclusion and Restraint, or shall provide an attendant to provide continuous face-to-face monitoring of the person.

(4) Responsibilities of the physician. The physician shall complete a face-to-face examination of the person. Once the physician determines that the person is dangerous to self or any other person and in need of emergency care or treatment for mental illness, the physician shall:

(a) Assure the detention of the person in safe and humane quarters for no longer than 12 hours;

(b) Assure that the person is monitored face-to-face every 15 minutes;

(c) Consult with a physician who has admitting privileges at a receiving hospital or nonhospital facility approved by the Division to determine that the receiving physician:

(A) Agrees that the person appears to be dangerous to self or any other person; and

(B) Consents to receive the person for further evaluation for involuntary emergency care and treatment for mental illness.

(d) If the person is to be sent to the receiving hospital, complete a written statement that states:

(A) The physician has examined the person within the preceding 12 hours;

(B) The reasons the physician has found the person to be dangerous to self or any other person and is in need of emergency care or treatment for mental illness; and

(C) The name of the admitting physician at the receiving hospital who has agreed to transporting the person for further evaluation and possible admission.

(e) Retain a copy of the written statement in the person’s clinical record. The original written statement shall accompany the person to the receiving hospital and shall serve as authorization for transport.

(5) Release when person is no longer dangerous. If the physician at the hospital where the person is detained and is awaiting transport believes the person is no longer dangerous to self or any other person, then the physician shall release the person as soon as possible. If the physician cannot locate a receiving hospital where a physician agrees to receive the person for evaluation, then the person shall be released within twelve hours of the time the person was originally detained.

Stat. Auth.: ORS 413.042 & 426.231
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 8-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-210-0060

309-033-0560

Variances

(1) Criteria for a variance. Variances may be granted to a facility if there is a lack of resources to implement the standards required in this rule or if implementation of the proposed alternative services, methods, concepts or procedures would result in services or systems that meet or exceed the standards in these rules.

(2) Variance application. The facility requesting a variance shall submit, in writing, an application to the Division which contains the following:

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

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept or procedure proposed;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) Signed documentation from the council indicating its position on the proposed variance.

(3) Division review. The Assistant Administrator or designee of the Division shall approve or deny the request for a variance.

(4) Notification. The Division shall notify the facility of the decision. This notice shall be given to the facility, with a copy to the council, within 30 days of the receipt of the request by the Division.

(5) Appeal application. Appeal of the denial of a variance request shall be made in writing to the Administrator of the Division, whose decision shall be final.

(6) Written approval. The facility may implement a variance only after written approval from the Division. The Intergovernmental Agreement shall be amended to the extent that the variance changes a term in that agreement.

(7) Duration of variance. A variance shall be reviewed by the Division at least every 2 years.

Stat. Auth.: ORS 413.042
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 8-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-210-0070

Standards for Obtaining Informed Consent to Treatment from a Person and the Administration of Significant Procedures without the Informed Consent
of a Committed Person at Community Hospitals, Nonhospital Facilities, and Residential Facilities Approved by the Division

309-033-0600

Statement of Purpose and Statutory Authority

(1) Purpose. These rules prescribe standards and procedures for community hospitals, nonhospital facilities and residential facilities relating to obtaining informed consent to treatment from a committed person, and for the administration of significant procedures without obtaining the informed consent of a committed person.

(2) Statutory authority. These rules are authorized by ORS 426.385 and 430.041 and carry out the provisions of ORS 426.005 through 426.395.

Stat. Auth.: ORS 413.042 & 426.385
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 9-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-215-0000

309-033-0610

Definitions

(1) “Administrator” means the chief of psychiatric services in a community hospital or the person in charge of treatment and rehabilitation programs at nonhospital facilities. “Administrator” has the same meaning as “director of the facility” as that term is defined in ORS 426.005(1)(a). Whenever “administrator” appears it means the administrator or designee.

(2) “Assistant Administrator” means the Assistant Administrator of the Addictions and Mental Health Division.

(3) “Clinical record” means the record required by OAR 309-014-0035, General Standards for Delivery of Community Mental Health Services Elements, documenting the mental health services delivered to clients by a CMHP or subcontractor.

(4) “CMHP” means the community mental health and developmental disabilities program which organizes all services for persons with mental or emotional disturbances, drug abuse problems, mental retardation or other developmental disabilities, and alcoholism and alcohol abuse problems, operated by or contractually affiliated with a local mental health authority operating in a specific geographic area of the state under an intergovernmental agreement or direct contract with the Division.

(5) “Community hospital” means any hospital that is not a state hospital.

(6) “Court” means the circuit court acting pursuant to ORS Chapter 426.

(7) “Custody” means the prehearing physical retaining of a person taken into custody by:

(a) A peace officer pursuant to ORS 426.070, 426.228, 426.233;

(b) A peace officer at the direction of the director pursuant to ORS 426.233(1);

(c) A health care facility licensed under ORS Chapter 431 and approved by the Division, pursuant to ORS 426.231;

(d) A state hospital pursuant to ORS 426.180;

(e) A hospital pursuant to ORS 426.070 or 426.232; or

(f) A nonhospital facility pursuant to ORS 426.070 or 426.233.

(8) “Designee” means a QMHP designated by the director or a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody pursuant to ORS 426.233.

(9) “Director” means the community mental health and developmental disabilities program director who has been authorized by the local mental health authority to direct the CMHP. “Director” also means a person who has been authorized by the director to act in the director’s capacity for the purpose of this rule. In the case of the director ordering a peace officer to take a person into custody pursuant to ORS 426.233, the designee shall be a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody.

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

(11) “Legally incapacitated person” means a person who has been found by the court to be unable to give informed consent to medical treatment and the court has appointed a guardian to make such decisions on the person’s behalf pursuant to ORS 126.127.

(12) “Material risk” means the risk may have a substantial adverse effect on the patient’s psychological and/or physical health. Tardive dyskinesia is a material risk of neuroleptic medication.

(13) “Nurse” means a registered nurse or a psychiatric nurse practitioner licensed by the Oregon Board of Nursing, but does not include a licensed practical nurse or a certified nurse assistant.

(14) “Person” means a consumer of mental health services committed to the Division who is admitted to a community hospital, nonhospital facility or residential facility for care, custody or treatment of mental illness.

(15) “Psychiatrist” means a physician licensed as provided pursuant to ORS 677.010 to 677.450 by the Board of Medical Examiners for the State of Oregon and who has completed an approved residency training program in psychiatry.

(16) “Psychologist” means a clinical psychologist licensed by the Oregon Board of Psychologist Examiners.

(17) “QMHP” means a qualified mental health professional that meets the following minimum qualifications:

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

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

(c) Graduate degree in psychology;

(d) Graduate degree in social work;

(e) Graduate degree in psychiatric nursing and licensed in the State of Oregon;

(f) Graduate degree in another mental health-related field; or

(g) Any other person whose education and experience meet, in the judgment of the Division, a level of competence consistent with the responsibilities required by the Division.

(18) “Significant procedure” means a diagnostic or treatment modality which poses a material risk of substantial pain or harm to the patient or resident such as, but not limited to, psychotropic medication and electro-convulsive therapy.

(19) “Superintendent” means the chief executive officer of a state hospital, or designee, or a person authorized by the superintendent to act in the superintendent’s capacity for the purpose of this rule.

Stat. Auth.: ORS 413.042 & 426.385
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 9-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-215-0010

309-033-0620

Obtaining Informed Consent to Treatment From a Person and the Administration of Significant Procedures Without the Informed Consent of a Committed Person

(1) Basic rule for obtaining informed consent to treatment from a person. A person or a guardian, on behalf of a legally incapacitated committed person, may refuse any significant procedure and may withdraw at any time consent previously given to any significant procedure.

(2) Documentation of withdrawal of consent. Any refusal or withdrawal or withholding of consent shall be documented in the person’s record.

(3) Exceptions to obtaining informed consent from a person. Personnel of a facility shall not administer a significant procedure to a committed person unless informed consent is obtained from or on behalf of the person in the manner prescribed in OAR 309-033-0620, except as follows:

(a) Administration of significant procedures without informed consent in emergencies (OAR 309-033-0630); and

(b) Involuntary administration of significant procedures with good cause to persons committed to the Division (OAR 309-033-0640).

(4) Capacity of the committed person. Unless adjudicated legally incapacitated for all purposes or for the specific purpose of making treatment decisions, a person shall be presumed competent to consent to, or refuse, withhold, or withdraw consent to significant procedures.

(a) A physician shall deem a person unable to consent to or refuse, withhold, or withdraw consent to a significant procedure only if the person currently demonstrates an inability to compre-

hend and weigh the risks and benefits of the proposed procedure, alternative procedures, or no treatment at all or other information disclosed pursuant to OAR 309-032-0620. Such inability is to be documented in the person’s record and supported by documented statement or behavior of the person.

(b) A person committed to the Division shall not be deemed unable to consent to or refuse, withhold, or withdraw consent to a significant procedure merely by reason of one or more of the following facts:

(A) That the person has been involuntarily committed to the Division;

(B) That the person has been diagnosed as mentally ill;

(C) That the person has disagreed or now disagrees with the treating physician’s diagnosis; and

(D) That the person has disagreed or now disagrees with the treating physician’s recommendation regarding treatment.

(c) If a court has determined that a committed person is legally incapacitated with regard to medical treatment decisions, then consent shall be sought from the legal guardian.

(5) Procedures for obtaining informed consent and information to be given.

(a) The person from whom informed consent to a significant procedure is sought, as required by ORS 677.097, shall be given information regarding:

(A) The nature and seriousness of the committed person’s mental illness or condition;

(B) The purpose and method of the significant procedure, its intended outcome and the risks and benefits of the procedure and when neuroleptic medication is prescribed, that tardive dyskinesia is a risk;

(C) Any alternatives that are reasonably available and reasonably comparable in effectiveness; and

(D) Any additional information concerning the proposed significant procedure requested by the person.

(b) The physician intending to administer a significant procedure shall document in the person’s chart that the information required in OAR 309-033-0620 was explained and that the person or guardian of a legally incapacitated person or resident explicitly consented, refused, withheld or withdrew consent.

(6) Voluntary consent. Consent to a proposed significant procedure must be given voluntarily, free of any duress or coercion. Subject to the provisions of OAR 309-033-0640, Involuntary Administration of Significant Procedures to Committed Person with Good Cause, and 309-033-0260, Diversion from Commitment Hearing, the decision to refuse, withhold or withdraw consent previously given shall not result in the denial of any other benefit, privilege, or service solely on the basis of refusing withholding to or withdrawing consent. A voluntary person may be discharged from the facility if offered procedures are refused.

(7) Obtaining consent with respect to legally incapacitated persons. A facility may not administer a significant procedure to a legally incapacitated committed person without the consent of the guardian, except in the case of an emergency.

(8) Reports of progress. The person or the guardian of a legally incapacitated person shall, upon request, be informed of the progress of the person during administration of the significant procedure.

(9) Right to appeal. A person has the right to appeal the application of any provision of these rules as provided in the grievance policies and procedures of the facility. If the committed person is legally incapacitated, the guardian has the right to appeal the application of any provision of these rules by using the grievance procedures.

Stat. Auth.: ORS 413.042 & 426.385
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 9-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-215-0030

309-033-0625

Administration of Medication and Treatment without the Informed Consent of a Person in Custody

(1) Hospitals or Nonhospital Facilities Authorized. Only a physician at a hospital or nonhospital facility approved under OAR 309-033-0500 through 309-033-0560 may administer medication and treatment without the informed consent of a person in custody.

(2) What constitutes an emergency. The fact that a person is in custody under the provisions of ORS 426.232 or 426.233 shall not be the sole justification that an emergency exists. An emergency exists if in the opinion of the physician, and either a consulting physician or qualified mental health profession:

(a) Immediate action is required to preserve the life or physical health of the person and it is not practical to obtain informed consent as provided in OAR 309-033-0620; or

(b) Immediate action is required because the behavior of the person creates a substantial likelihood of immediate physical harm to the person, or others in the facility and it is not practical to obtain informed consent as provided in OAR 309-033-0620.

(3) Grounds for the administration of medication and treatment without informed consent. As provided by ORS 426.072(2)(c), a physician shall administer medication and treatment to a person in custody without obtaining prior informed consent, only in the following circumstances:

(a) If an emergency exists as described in OAR 309-033-0625, or

(b) If the physician, in consultation with another physician or qualified mental health profession, the person is unable to give informed consent as described in OAR 309-033-0620.

(4) Procedures and limitations for the administration of medication or treatment without consent. When administering medication or treatment without the informed consent of a person in custody, the physician shall:

(a) Administer medication and treatment in accordance with medical standards in the community;

(b) Not administer electro-shock therapy or unduly hazardous treatment as set forth in ORS 426.072;

(c) Document in the person’s record the specific nature of each emergency and the procedure that was used to deal with the emergency, or if the person is unable to give consent, document that fact in the person’s record;

(d) If the person is a minor or has a guardian, make a reasonable effort to contact the legal guardian prior to the administration of medication or treatment, but if efforts to contact the guardian are not successful, the physician may only administer medication or treatment in an emergency and shall notify the legal guardian as soon as possible, otherwise the physician shall not administer medication until consent is obtained from the guardian;

(e) Review the medication and treatment with the treatment team within a reasonable period of time after the medicine or treatment is administered without consent and, if applicable, administer medication or treatment designed to correct the behavior creating the emergency;

(f) Not continue to administer medication or treatment after the emergency has subsided or the person has regained the ability to consent to treatment, without obtaining the person’s informed consent; and

(g) Immediately proceed as provided in OAR 309-033-0600 through 309-033-0650 if the person who was in custody is committed and the physician believes the person remains unable to give consent and it is necessary to continue involuntary administration of medication or treatment; the physician may only continue the administration of medication or treatment under the provisions of 309-033-0625 for seven days pending a decision under 309-033-0640.

Stat. Auth.: ORS 413.042, 426.072, 426.231 & 426.236
Stats. Implemented: ORS 426.005 – 426.395
Hist.: MHS 5-2007, f. & cert. ef. 5-25-07

309-033-0630

Administration of Significant Procedures in Emergencies Without the Informed Consent of a Committed Person

(1) Hospitals or nonhospital facilities authorized. The following facilities that serve committed persons and which administer

significant procedures in emergencies, without obtaining informed consent, shall be subject to the provisions of 309-033-0630:

(a) A hospital or nonhospital facility approved under OAR 309-033-0700 through 309-033-0740, Approval of Hospitals and Nonhospital Facilities to Provide Seclusion and Restraint to Committed Persons and to Persons in Custody or on Diversion.

(b) A hospital or nonhospital facility approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities To Provide Services to Committed Persons and to Persons in Custody or on Diversion.

(c) Secure residential facilities licensed by the Division, or licensed by the Aging and People with Disabilities Division (APD).

(d) Intermediate care facilities or enhanced care facilities licensed by the SPD.

(2) What constitutes an emergency. An emergency exists if in the opinion of the responsible physician or nurse:

(a) Immediate action is required to preserve the life or physical health of the committed person and it is impracticable to obtain informed consent as provided in OAR 309-033-0620; or

(b) Immediate action is required because the behavior of the committed person creates a substantial likelihood of immediate physical harm to the committed person or others in the facility and it is impracticable to obtain informed consent as provided in OAR 309-033-0620, Procedures for Obtaining Informed Consent and Information to be Given.

(3) Administering a significant procedure. If an emergency exists, the responsible physician or nurse may administer a significant procedure to a committed person without obtaining prior informed consent in the manner otherwise required by these rules, provided:

(a) The physician or designee shall document in the person’s clinical record the specific nature of each emergency and the procedure which was used to deal with the emergency.

(b) If the person is legally incapacitated, the physician or designee shall make reasonable effort to contact the legal guardian prior to the administration of the significant procedure. If contact is not possible, the physician or designee shall notify the legal guardian as soon as possible.

(c) Within a reasonable period of time after an emergency procedure is administered, the treatment team shall review the treatment and, if practicable, implement treatment designed to correct the behavior creating the emergency.

(d) The responsible physician or nurse shall not administer a significant procedure after the emergency situation has subsided, without obtaining informed consent.

Stat. Auth.: ORS 413.042 & 426.236
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 9-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-215-0040

309-033-0640

Involuntary Administration of Significant Procedures to a Committed Person With Good Cause

(1) Hospitals or nonhospital facilities authorized. Only the following facilities that serve committed persons shall involuntarily administer significant procedures with good cause under the provisions of 309-033-0640:

(a) A hospital or nonhospital facility approved under OAR 309-033-0700 through 309-033-0740, Approval of Hospitals and Nonhospital Facilities To Provide Seclusion and Restraint to Committed Persons and to Persons in Custody or on Diversion.

(b) A hospital or nonhospital facility approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities To Provide Services to Committed Persons and to Persons in Custody or on Diversion.

(c) Secure residential facilities licensed by the Division or licensed by the APD.

(d) Intermediate care facilities or enhanced care facilities licensed by APD which have a variance from APD to provide involuntary medication.

(2) Good cause. Good cause exists to administer a significant procedure to a person committed to the Division without informed consent if, in the opinion of the treating physician, after consultation with the treatment team:

(a) The person is deemed unable pursuant to OAR 309-033-0620 to consent to, refuse, withhold or withdraw consent to the significant procedure.

(b) The proposed significant procedure will likely restore, or prevent deterioration of, the person’s mental or physical health, alleviate extreme suffering, or save or extend the person’s life.

(c) The proposed significant procedure is the most appropriate treatment for the person’s condition according to current clinical practice, and all other less intrusive procedures have been considered and all criteria and information set forth in OAR 309-033-0620, Procedures for Obtaining Informed Consent and Information to be Given, are considered.

(d) The treating physician has made a conscientious effort to obtain informed consent to the significant procedure from the person.

(3) Independent review. Prior to granting approval for the administration of a significant procedure for good cause to a person committed to the Division, the administrator shall obtain consultation and approval from an independent examining physician.

(a) The administrator shall maintain a list of independent examining physicians and shall seek consultation and approval from independent examining physicians selected on a rotating basis from the list. The independent examining physician shall:

(A) Be a psychiatrist;

(B) Not be in a position to provide primary or on-call care or treatment to the person who is subject of the independent review;

(C) Not be an employee of the facility;

(D) Have been subjected to review by medical staff executive committee as to qualifications to make such an examination; and

(E) Have read and received training from the medical staff regarding the meaning and the application of these rules.

(b) Prior to seeking consultation and approval of an examining physician, the administrator shall provide written notice to the committed person who is subject to the proposed significant procedure without the person’s consent.

(4) Independent physician activities. The physician selected to conduct the independent consultation shall:

(a) Review the person’s clinical record, including the records of efforts made to obtain the person’s informed consent;

(b) Personally examine the person;

(c) Interview the person to determine the extent of the need for the procedure and the nature of the person’s refusal, withholding, or withdrawal or inability to consent to the significant procedure;

(d) Consider additional information, if any, presented prior to or at the time of examination or interview as may be requested by the person; and

(e) Make a determination whether the factors required under these rules exist for the particular person or that one or more factors are not present. If the physician determines that the person does not have capacity to give consent to treatment, the physician shall review the proposed significant procedure. The physician shall make his/her determination of capacity, approval or disapproval of the proposed significant procedure to:

(A) The administrator; and

(B) The person to whom a significant procedure is proposed to be administered, with a copy being made part of the person’s record.

(5) Administrator determination. The administrator shall approve or disapprove of the administration of the significant procedure to a person committed to the Division based on good cause, provided:

(a) The administrator shall not approve the significant procedure and it shall not be performed when the independent examining physician found that one or more of the factors required by OAR 309-033-0640 were not present or otherwise disapproved of the procedure.

(b) Approval of the significant procedure shall terminate if there is a substantial increase in risk, as determined by a physician, of administering the significant procedure or at any time the person regains capacity to give informed consent/refusal. Approval of the significant procedure shall terminate at the end of the person’s commitment but in no case longer than 180 days. Disapproval shall be only so long as no substantial change occurs in the person’s condition.

(c) Written notice of the administrator’s determination shall be provided to the person and made part of the committed person’s clinical records.

(d) A copy of the independent examining physician’s report shall be made part of the committed person’s clinical record.

(6) Ninety-day right to review. The administrator shall adopt procedures which assure that the committed person may request independent review of the approval once every ninety days after the initial approval. Within 14 days of a verbal or written request from the committed person, the administrator shall initiate an independent review of the approval, as in OAR 309-033-0640.

(7) Transfer of approval. The administrator, or the superintendent of a State hospital, shall transfer the approval of the administration of a significant procedure when a committed person is transferred to another hospital or nonhospital facility described in OAR 309-033-0640.

(a) The administrator, or the superintendent, of the sending hospital or nonhospital facility shall transfer the approval by sending copies of all approval documents to the administrator of the receiving facility.

(b) The administrator, or the superintendent, of the receiving hospital or nonhospital facility shall assure that the treating physician at that facility reexamines the committed person and verifies that the need for the approval continues to exist as described in OAR 309-033-0620, Procedures for Obtaining Informed Consent and Information to be Given, and 309-033-0640, Good Cause. The receiving hospital or nonhospital facility may administer the significant procedure if the need for the procedure continues in accordance with OAR 309-033-0640, Involuntary Administration of Significant Procedures to a Committed Person with Good Cause.

(c) In no event shall the approval of a significant procedure continue beyond 180 days from the date of the original approval without reestablishing the need for the approval by following the procedures prescribed in OAR 309-033-0640, Involuntary Administration of Significant Procedures to Committed Persons with Good Cause.

(8) Administrative procedures.

(a) Utilization summary. Every four months the administrator shall make a summary of the use of OAR 309-033-0630 and 309-033-0640 that includes:

(A) Each type of proposed significant procedure for which consultation with an independent examining physician was sought;

(B) The number of times consultation was sought from a particular independent examining physician or disposition board for each type of proposed significant procedure;

(C) The number of times each independent examining physician approved and disapproved each type of proposed significant procedure; and

(D) The number of times the approved and disapproved each type of proposed significant procedure.

(b) Outside reviewer’s access to summaries. The administrator shall provide a copy of a utilization summary to the federally-mandated advocacy and protection agency for Oregon, which is appointed by the Governor and which currently is the Oregon Advocacy Center, and the Division. The Division may only distribute the report to any other person or organization authorized by the Division which in the opinion of the Assistant Administrator:

(A) Has substantial interest in the advocacy and protection of the rights of persons with mental illness; and

(B) Whose access to the summaries will provide a substantial and material benefit to the citizens of Oregon.

Stat. Auth.: ORS 413.042 & 426.385
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 9-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-215-0050

309-033-0650

Variances

(1) Criteria for a variance. Variances may be granted to a facility if there is a lack of resources to implement the standards required in this rule or if implementation of the proposed alternative services, methods, concepts or procedures would result in services or systems that meet or exceed the standards in these rules.

(2) Variance application. The facility requesting a variance shall submit, in writing, an application to the Division which contains the following:

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

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept or procedure proposed;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) Signed documentation from the council indicating its position on the proposed variance.

(3) Division review. The Assistant Administrator or designee of the Division shall approve or deny the request for a variance.

(4) Notification. The Division shall notify the facility of the decision. This notice shall be given to the facility, with a copy to the council, within 30 days of the receipt of the request by the Division.

(5) Appeal application. Appeal of the denial of a variance request shall be made in writing to the Administrator of the Division, whose decision shall be final.

(6) Written approval. The facility may implement a variance only after written approval from the Division. The Intergovernmental Agreement shall be amended to the extent that the variance changes a term in that agreement.

(7) Duration of variance. A variance shall be reviewed by the Division at least every 2 years.

Stat. Auth.: ORS 413.042 & 426.385
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 9-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-215-0060

Standards for the Approval of Community Hospitals and Nonhospital Facilities to Provide
Seclusion and Restraint toCommitted Persons and to Persons in Custody or on Diversion

309-033-0700

Purpose and Scope

(1) This section establishes rules pursuant to ORS 426.072, 426.236, 426.228, 426.232, 426.233 and 426.234, 426.385 for certification of hospitals and facilities which provide care, custody, and treatment to committed persons and to persons in custody or on diversion.

(2) Seclusion or restraint may be used only for the management of violent or self-destructive behavior that jeopardizes the immediate physical safety of the patient, a staff member, or other individuals.

Stat. Auth.: ORS 413.042, 426.236, 426.385 & 430.021
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 10-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-220-0000; MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0710

Definitions

(1) "Administrator" means the chief of psychiatric services in a community hospital or the person in charge of treatment and rehabilitation programs in a nonhospital facility. "Administrator" has the same meaning as "director of the facility" as that term is defined in ORS 426.005(1)(a). Whenever "administrator" appears it means the administrator or his or her designee.

(2) “Authority” means the Oregon Health Authority (OHA).

(3) "Clinical Record" means the record required by OAR 309-014-0035, General Standards for Delivery of Community Mental Health Service Elements, documenting the mental health services delivered to clients by a CMHP or subcontractor.

(4) "CMHP" means the community mental health program which organizes all services for persons with mental disorders or substance use disorders, operated by or contractually affiliated with a local mental health authority operating in a specific geographic area of the state under an intergovernmental agreement or direct contract with the Division.

(5) "Community Hospital" means any hospital that is not a state hospital.

(6) “Council” means a regional acute care psychiatric facility organization with a mission statement and bylaws, comprised of facility representatives, consumers and family members. The council is advisory to the facility.

(7) "Court" means the circuit court acting pursuant to ORS Chapter 426.

(8) "Custody" means the prehearing physical retaining of a person taken into custody by:

(a) A peace officer pursuant to ORS 426.070, 426.228, 426.233(1);

(b) A health care facility licensed under ORS Chapter 431 and certified by the Division, pursuant to 426.231;

(c) A state hospital pursuant to ORS 426.232;

(d) A community hospital pursuant to ORS 426.072 or 426.232; or

(e) A regional acute care psychiatric or non-hospital facility pursuant to ORS 426.072 or 426.233.

(9) "Director" means the community mental health program director who has been authorized by the local mental health authority to direct the CMHP.

(10) "Diversion" means the 14 day period of intensive treatment when a director and a psychiatrist certify a person as a mentally ill person pursuant to the provision of ORS 426.237(1)(b).

(11) "Division" means the Addictions and Mental Health (AMH) Division of the Oregon Health Authority (OHA).

(12) “Emergency” means, in the opinion of the treating physician, immediate action is required to preserve the life or physical health of a person, or because the behaviors of that person creates a substantial likelihood of immediate physical harm to self, or to others in the facility. The fact that a person is in custody under the provisions or ORS 426.072, 426.232 or 426.233 must not be the sole justification that an emergency exists.

(13) “Hospital or Facility” means the community hospital, regional acute care psychiatric facility, or non-hospital facility eligible for, or presently certified for, the use of seclusion or restraints to committed persons and persons in custody or on diversion.

(14) "NMI" means “Notice of Mental Illness” required, pursuant to ORS 426.070, to be submitted by any two persons, a county health officer or a magistrate to the director and thereafter submitted by the director to the court or, pursuant to 426.234, to be submitted by the physician or the director to the court. Pursuant to 426.070 and 426.234, the court commences proceedings pursuant to 426.070 to 426.130 upon receipt of the NMI.

(15) “Non-Hospital Facility” means any facility, other than a hospital, that is certified by the Authority to provide adequate security, psychiatric, nursing and other services to persons under ORS 426.232 or 426.233.

(16) "Nurse" means a registered nurse or a psychiatric nurse practitioner licensed by the Oregon Board of Nursing, but does not include a licensed practical nurse or a certified nurse assistant.

(17) “P.R.N.” (pro re nata) means that a medication or medical treatment has been ordered to be given as needed.

(18) “Patient Days” means the day of admission plus each additional day of stay, but not the day of discharge, unless it is also the day of admission.

(19) "Peace officer" means a sheriff, constable, marshal, municipal policeman, member of the Oregon State Police or investigator of the Criminal Justice Division of the Department of Justice and such other persons as may be designated by law.

(20) “Physician” means a person who holds a degree of Doctor of Medicine, Doctor of Osteopathy, or Doctor of Podiatric Medicine, if the context in which the term “physician” is used does not authorize or require the person to practice outside the scope of a license issued under ORS 677.805 through 677.840.

(21) “Physician Assistant” means a person who is licensed as such in accordance with ORS 677.265, 677.495, 677.505, 677.510, 677.515, 677.520, and 677.525.

(22) "Psychiatrist" means a physician licensed as provided pursuant to ORS 677.010 to 677.450 by the Board of Medical Examiners for the State of Oregon and who has completed an approved residency training program in psychiatry.

(23) “Regional Acute Care Psychiatric Facility” means a facility certified by the Division to provide services for adults as described in OAR 309-033-0850 through 309-033-0890, and is operated in cooperation with a regional or local council. A regional acute care psychiatric facility must include 24 hour per day psychiatric, multi-disciplinary, inpatient or residential stabilization, care and treatment, for adults aged 18 or older with severe psychiatric disabilities in a designated region of the state. For the purpose of these rules, a state hospital is not a regional acute care psychiatric service. The goal of a regional acute care service is the stabilization, control and/or amelioration of acute dysfunctional symptoms or behaviors that result in the earliest possible return of the person to a less restrictive environment.

(24) "Restraint" means any manual method, physical or mechanical device, material, or equipment that immobilizes or reduces the ability of a patient to move his or her arms, legs, body, or head freely. Restraint may be used only for the management of violent or self-destructive behavior that jeopardizes the immediate physical safety of the patient, a staff member, or others.

(25) “Seclusion” is the involuntary confinement of a patient alone in a room or area, from which the patient is physically prevented leaving. Seclusion may be used only for the management of violent or self-destructive behavior that jeopardizes the immediate physical safety of the patient, a staff member, or others.

(26) "State Hospital" means each campus of the Oregon State Hospital.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110, 426.232, 426.236 & 430.041
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 10-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-220-0010; MHS 5-2008, f. & cert. ef. 6-27-08; MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0720

Application, Training and Minimum Staffing Requirements

(1) Only the following facilities shall be certified to use seclusion or restraint:

(a) Community hospitals licensed by the Public Health Division;

(b) Regional acute care facilities for adults certified by the Division pursuant to OAR 309-032-0850 through 309-032-0890; and

(c) Non-hospital facilities certified by the Division pursuant to OAR 309-033-0500 through 309-033-0550.

(2) Applications. Certification for the use of seclusion and restraints must be accomplished by submission of an application, and by the application process described in OAR 309-016. Continued certification is subject to hospital or facility reviews at frequencies determined by the Division.

(3) Requirements for Certification. In order to be certified for the use of seclusion and restraint, the Division must be satisfied that the hospital or facility meets the following requirements:

(a) Medical staffing. An adequate number of nurses, direct care staff, physicians, nurse practitioners or physician assistants shall be available at the hospital or facility, to provide emergency medical services which may be required. For hospitals, a letter from the chief of the medical staff or medical director of the hospital or facility, ensuring such availability, shall constitute satisfaction of this requirement. For non-hospital facilities, a written agreement with a local hospital, to provide such medical services may fulfill this requirement. When such an agreement is not possible, a written agreement with a local physician to provide such medical services may fulfill this requirement.

(b) Direct Care Staff Training. A staff person must be trained and able to demonstrate competency in the application of restraints and implementation of seclusion during the following intervals:

(A) A new staff person must be trained within the six months prior to providing direct patient care or as part of orientation; and

(B) Subsequently on a periodic basis consistent with the hospital or facility policy.

(c) Documentation in the staff personnel records must indicate the training and demonstration of competency were successfully completed.

(d) Trainer Qualifications. Individuals providing staff training must be qualified as evidenced by education, training, and experience in techniques used to address a person’s behaviors.

(e) Training Curriculum. The training required for direct care staff must include:

(A) Standards for the proper use of seclusion and restraints as described in OAR 309-033-0730;

(B) Identification of medication side effects;

(C) Indicators of medical problems and medical crisis;

(D) Techniques to identify staff and patient behaviors, events, and environmental factors that may trigger circumstances that require the use of a restraint or seclusion;

(E) The use of non-physical intervention skills;

(F) Choosing the least restrictive intervention based on an individualized assessment of the person’s medical, or behavioral status or condition;

(G) The safe application and use of all types of restraint or seclusion used in the hospital or facility, including treaining in how to recognize and respond to sign of physical or psychological distress;

(H) Clinical identification of specific behavioral changes that indicate that restraint or seclusion is no longer necessary;

(I) Monitoring the physical and psychological well-being of the patient who is restrained or secluded, including but not limited to respiratory and circulatory status, skin integrity, vital signs, and any special requirements specified by the hospital or facility policies and procedures; and

(J) The use of first aid techniques and certification in the use of cardio-pulmonary resuscitation, including periodic recertification.

Stat. Auth.: ORS 426.005, 426.060, 426.110(2), 426.232, 426.236 & 430.041
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 10-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-220-0030; MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0725

Medical Services

(1) A physician must be available 24 hours per day, seven days per week to provide medical supervision of the services provided.

(a) In accordance with state law, those physicians authorized to order seclusion or restraint pursuant to the facility policy, must at minimum have a working knowledge of the hospital policy regarding the use of seclusion and restraint.

(b) A physician must examine a person admitted to the facility within 24 hours of the person’s admission.

(2) At least one registered nurse must be on duty at all times.

(3) The facility must maintain a personnel file for each patient care staff which includes a written job description; the minimum level of education or training required for the position; copies of applicable licenses, certifications, or degrees granted; annual performance appraisals; a biennial, individualized staff development plan signed by the staff; documentation of CPR training; documentation of annual training and certification in managing aggressive behavior, including seclusion and restraint; and other staff development and/or skill training received.

(4) Health Care Supervisor. The facility must appoint as Health Care Supervisor a physician, a psychiatric nurse practitioner, a master's level registered nurse or a registered nurse certified by the American Nursing Association. The health care supervisor shall review and approve policies and procedures relating to:

(a) The reporting of indicators of medical problems to a physician; and

(b) Curriculum for the staff training, as identified in these rules.

Stat. Auth.: ORS 426.005, 426.060, 426.110(2), 426.232, 426.236 & 430.041
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0727

Structural and Physical Requirements

(1) The hospital or other facility which provides care, custody and treatment for persons who are considered dangerous to themselves or others shall have available at least one room which meets the following requirements:

(a) The room must be of adequate size, not isolated from regular staff of the facility, and provided with an adequate locking device on all doors and windows.

(b) The door must open outward and contain a port of shatterproof glass or plastic through which the entire room may be viewed from outside and before entering.

(c) The room shall contain no protruding objects, such as doorknobs, towel or clothes bars, hooks, or racks. There shall be no exposed curtains, drapes, rods, or furniture, except a portable bed which can be removed, if necessary. In case of the removal of the bed frame, a fireproof mattress shall be placed on the floor. Beds which are securely fastened to the floor must have no protrusions such as bed posts or sharp corners.

(d) Any windows shall be made of unbreakable or shatterproof glass, or plastic. Non-shatterproof glass shall be protected by adequate detention type screening, such as Chamberlain Detention Screen.

(e) There shall be no exposed pipes or electrical wiring in the room. Electric outlets shall be permanently capped or covered with a metal shield which opens with a key. Ceiling and wall lights shall be recessed and covered with safety-type glass or unbreakable plastic. Any cover, cap or shield shall be secured by tamper-proof screws or other means approved by the Division.

(f) The room shall contain no combustible material, such as matches, lighters, cigarettes, etc. Smoking shall not be allowed in the room, except under direct supervision of staff.

(g) The room shall meet fire, safety, and health standards. If sprinklers are installed, they shall be recessed and covered with a fine mesh metal screening. If pop-down type, sprinklers must have breakaway strength of under 80 pounds. In lieu of sprinklers, a combined smoke and heat detector shall be used. Documentation of the breakaway strength of sprinklers must be on file at the facility.

(2) Bathroom requirements include:

(a) Adequate toilet and sanitary facilities shall be available.

(b) The bathroom shall contain no shower rods, shower curtains, window curtain rods, curtains, or towel rods, unless used only with direct staff supervision.

(c) The bathroom shall not lock from the inside and, if connected to the room, shall be locked when not in use.

(3) No sharp objects, such as razor blades, scissors, knives, nail files, etc., shall be available to the patient, except under direct staff supervision. No poisons or cleaning materials shall be kept in the room or in the bathroom available for the room.

Stat. Auth.: ORS 426.236, 426.385 & 430.041
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0730

Seclusion and Restraint Procedures

(1) Certified facilities shall not use seclusion and restraint except in an emergency and only then subject to the conditions and limitations of these rules.

(2) General procedures.

(a) Only a physician, nurse practitioner, physician assistant or nurse may initiate seclusion or restraint procedures.

(b) Each use of seclusion or restraint shall be monitored and supervised by a physician or a nurse.

(c) A physician responsible for the patient’s care must order the use of seclusion or restraint within one hour of the administration of the procedure. This approval must be documented in the person's medical record. The physician's order may occur by the following methods:

(A) Verbally, in person or via telephone;

(B) By Computerized Medical Record; or

(C) By a written order.

(d) Within one hour after the initiation of the seclusion or restraint intervention, the patient must be seen face-to-face by a physician, a registered nurse or physician assistant who has been trained in accordance with these rules.

(e) If the face-to-face evaluation is performed by a registered nurse or physician assistant, the evaluator must consult with the attending physician as soon as possible following the face-to-face evaluation.

(f) The face-to-face evaluation must include the following:

(A) An evaluation of the patient's immediate situation;

(B) The patient's reaction to the intervention;

(C) The patient's medical and behavioral condition; and

(D) The need to continue or terminate the restraint or seclusion

Stat. Auth.: ORS 426.005, 426.060, 426.110(2), 426.232, 426.236 & 430.041
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 10-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-220-0040; MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0732

Time Limits

(1) The maximum time limit for each restraint or seclusion order — before consideration of a renewal, and up to a maximum of 24 hours — is as follows:

(a) 4 hours for adults 18 years of age or older;

(b) 2 hours for children and adolescents 9 to 17 years of age; or

(c) 1 hour for children under 9 years of age.

(2) Orders may be renewed according to time limits for a maximum 24 hours verbally, by telephone, facsimile, or thru a computerized medical record. After each 24 hours of continuous restraint or seclusion, and prior to further extension of the restraint or seclusion, an examination and second opinion must occur by a second physician.

(3) The physician responsible for the care of the patient shall examine a person within 24 hours of the administration of seclusion or restraint and the person must be examined by a nurse every two hours until such time as the physician examines the person and either makes new orders for seclusion nor restraint or for releasing the patient from seclusion or restraint. The physician must document reasons for the use of the seclusion or restraint over the physician’s signature.

(4) A physician shall not order physical restraint on an as required basis, i.e. a physician shall not make "p.r.n." orders for physical restraint.

(5) No form of restraint shall be used as punishment, for the convenience of staff, or as a substitute for activities, treatment or training.

(6) Medication will not be used as a restraint, but will be prescribed and administered according to acceptable medical, nursing and pharmaceutical practices.

(7) Patients shall not be permitted to use restraint on other patients.

(8) Physical restraint must be used in accordance with sound medical practice to assure the least risk of physical injury and discomfort. Any patient placed in physical restraint shall be protected from self-injury and from injury by others.

(9) 15 Minute Checks:

(a) A patient in restraint or seclusion must be checked at least every 15 minutes.

(b) 15 minute checks include circulation checks, during waking hours adequate range of motion, and partial release of restraint to permit motion and exercise without endangering the patient or staff.

(c) Attention must be paid to the patient's basic personal needs (such as regular meals, personal hygiene and sleep) as well as the person's need for good body alignment and circulation.

(d) Staff must document that the patient was checked and appropriate attention paid to the person's needs.

(e) The patient must be released as soon as the patient is assessed by a nurse, physician, or nurse practitioner to not present imminent dangerousness to themselves or others.

Stat. Auth.: ORS 426.005, 426.060, 426.110(2), 426.232, 426.236 & 430.041
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0733

Documentation

(1) No later than the end of their work shifts, the persons who obtained authorization and carried out the use of restraint shall document in the person's chart including but not necessarily limited to the following:

(a) The specific behavior(s) which required the intervention of seclusion or restraint;

(b) Less restrictive alternatives used before deciding seclusion or restraint was necessary;

(c) The methods of intervention used and the patient's responses to the interventions; and

(d) Findings and recommendations from the face-to-face evaluation discussed in OAR 309-033-0730(d) through (f) above.

(2) Within 24 hours after the incident resulting in the use of restraint, the treating physician who ordered the intervention must review and sign the order.

(3) Each use of restraint must be reported daily to the health care supervisor.

(4) Any death that occurs while a patient is in seclusion or restraint must be reported to AMH within 24 hours of the death.

(5) Restraint/Seclusion Review Committee. Each facility must have a Restraint/Seclusion Review Committee. The committee may be one formed specifically for the purposes set forth in this rule, or the duties prescribed in this rule may be assigned to an existing committee. The purpose and duty of the Restraint/Seclusion Review Committee is to review and evaluate, at least quarterly, the appropriateness of all such interventions and report its findings to the health care supervisor.

Stat. Auth.: ORS 426.236, 426.385 & 430.021
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0735

Quarterly Reports

(1) Every facility certified under these rules must report to the Division and to the Council within 30 days of each quarter’s end, the following information:

(a) The number of seclusion and the number of restraint incidents; and

(b) The number of patient days in the quarter.

(2) The Division must compile the information from all facilities approved under this rule and make available to the public statewide aggregate data. The information may be divided according to facility types.

Stat. Auth.: ORS 426.236, 426.385 & 430.021
Stats. Implemented: ORS 426.005 - 426.309
Hist.: MHS 17-2007(Temp), f. 12-28-07, cert. ef. 1-1-08 thru 6-29-08; MHS 5-2008, f. & cert. ef. 6-27-08: MHS 13-2014, f. & cert. ef. 9-29-14

309-033-0740

Variances

(1) Variances may be granted to a facility if there is a lack of resources to implement the standards required in this rule or if implementation of the proposed alternative services, methods, concepts or procedures would result in services or systems that meet or exceed the standards in these rules.

(2) Variance application. The facility requesting a variance shall submit, in writing, an application to the Division which contains the following:

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

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept or procedure proposed;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) Signed documentation from the Council indicating its position on the proposed variance.

(3) The AMH Director, or his or her designee, will approve or deny the request for a variance.

(4) Appeal application. Appeal of the denial of a variance request shall be made in writing to the AMH Director, whose decision shall be final.

(5) Written approval. The facility may implement a variance only after written approval from the Division. The Intergovernmental Agreement shall be amended to the extent that the variance changes a term in that agreement.

(6) Duration of variance. A variance shall be reviewed by the Division at least every 2 years.

Stat. Auth.: ORS 426.236, 426.385 & 430.041
Stats. Implemented: ORS 426.005 - 426.395
Hist.: MHD 10-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-220-0050; MHS 13-2014, f. & cert. ef. 9-29-14
Standards for the Denial of Payment for Services to Persons in Custody or on Diversion

309-033-0800

Statement of Purpose and Statutory Authority

(1) Purpose. These rules prescribe standards and procedures for the denial of payment for persons in custody or on diversion.

(2) Statutory authority. These rules are authorized by ORS 426.241 and 413.042 and carry out the provisions of ORS 426.241.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110(2), 426.232, 426.236 & 430.041
Stats Implemented: ORS 426.241
Hist.: MHD 6-1994, f. & cert. ef. 8-24-94; MHD 11-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-225-0000

309-033-0810

Definitions

(1) “Administrator” means the chief of psychiatric services in a community hospital or the person in charge of treatment and rehabilitation programs at nonhospital facilities. “Administrator” has the same meaning as “director of the facility” as that term is defined in ORS 426.005. Whenever “administrator” appears it means the administrator or designee.

(2) “Assistant Administrator” means the Assistant Administrator of the Division.

(3) “Clinical record” means the record required by OAR 309-014-0035, General Standards for Delivery of Community Mental Health Services Elements, documenting the mental health services delivered to clients by a CMHP or subcontractor.

(4) “Community hospital” means any hospital that is not a state hospital.

(5) “Custody” means the prehearing physical retaining of a person taken into custody by:

(a) A peace officer pursuant to ORS 426.070, 426.228, 426.233;

(b) A peace officer at the direction of the director pursuant to ORS 426.233(1);

(c) A health care facility licensed under ORS Chapter 441 and approved by the Division, pursuant to ORS 426.231;

(d) A state hospital pursuant to ORS 426.180;

(e) A hospital pursuant to ORS 426.070 or 426.232; or

(f) A nonhospital facility pursuant to ORS 426.070 or 426.233.

(6) “Director” means the community mental health and developmental disabilities program director who has been authorized by the local mental health authority to direct the CMHP. “Director” also means a person who has been authorized by the director to act in the director’s capacity for the purpose of this rule. In the case of the director ordering a peace officer to take a person into custody pursuant to ORS 426.233, the designee shall be a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody.

(7) “Diversion” means the 14 day period of intensive treatment when a director and a psychiatrist certify a person as a mentally ill person pursuant to the provision of ORS 426.237.

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

(9) “Psychiatrist” means a physician licensed as provided pursuant to ORS 677.010 to 677.450 by the Board of Medical Examiners for the State of Oregon and who has completed an approved residency training program in psychiatry.

(10) “Psychologist” means a clinical psychologist licensed by the Oregon Board of Psychologist Examiners.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110(2), 426.232 & 426.236

Stats. Implemented: ORS 426.241

Hist.: MHD 6-1994, f. & cert. ef. 8-24-94; MHD 11-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-225-0010

309-033-0820

Denial of Payment for Services to Persons In Custody or On Diversion

(1) Assistant Administrator denial. The Assistant Administrator shall deny part or all payment for services for a person in custody or on a diversion only when the Assistant Administrator determines that evidence required by OAR 309-033-0820, Information Payer Must Submit, and the evidence required by OAR 309-033-0820, Clinical Records to be Submitted, does not reasonably support the belief that the person in custody demonstrated:

(a) Mental illness; and

(b) Dangerousness to self or others as evidenced by thoughts, plans, means, actions, history of dangerousness or other indicators of imminent dangerousness which Division believes are within accepted community standards of professional knowledge.

(2) Assistant Administrator consultation with psychiatrist or psychologist. When making a determination under this rule which is primarily based on accepted community standards of professional knowledge, the Assistant Administrator shall consult with a psychiatrist or a psychologist.

(3) Information payer must submit. When making a request for denial of payment the payer responsible for the services provided to the person in custody or on diversion under ORS 426.241 shall submit the following to the Assistant Administrator:

(a) A statement requesting the Division review the appropriateness of the hold or diversion for the purpose of approving denial of part or all payment for services rendered.

(b) An explanation of why the payer believes the services provided to the person in custody or on diversion do not meet criteria described in ORS 426.232, 426.233 or 426.237.

(c) Any documentation which supports the payer’s belief that the services provided to the person in custody or on diversion were inappropriate.

(4) Clinical records to be submitted. At the request of the Division, as provided by ORS 426.241(5)(b), the following shall submit clinical records and other documents requested relating to the services in question to the Division:

(a) A hospital or a nonhospital facility approved under OAR 309-033-0530, Approval of Hospitals and Nonhospital Facilities to Provide Services to Committed Persons and to Persons in Custody and on Diversion.

(b) A physician or person providing services to the person in custody or on diversion.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110(2), 426.232 & 426.236

Stats. Implemented: ORS 426.241

Hist.: MHD 6-1994, f. & cert. ef. 8-24-94; MHD 11-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-225-0030

309-033-0830

Variances

(1) Criteria for a variance. Variances may be granted to a facility if there is a lack of resources to implement the standards required in this rule or if implementation of the proposed alternative services, methods, concepts or procedures would result in services or systems that meet or exceed the standards in these rules.

(2) Variance application. The facility requesting a variance shall submit, in writing, an application to the Division which contains the following:

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

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept or procedure proposed;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) Signed documentation from the council indicating its position on the proposed variance.

(3) Division review. The Assistant Administrator or designee of the Division shall approve or deny the request for a variance.

(4) Notification. The Division shall notify the facility of the decision. This notice shall be given to the facility, with a copy to the council, within 30 days of the receipt of the request by the Division.

(5) Appeal application. Appeal of the denial of a variance request shall be made in writing to the Administrator of the Division, whose decision shall be final.

(6) Written approval. The facility may implement a variance only after written approval from the Division. The Intergovernmental Agreement shall be amended to the extent that the variance changes a term in that agreement.

(7) Duration of variance. A variance shall be reviewed by the Division at least every 2 years.

Stat. Auth.: ORS 413.042, 426.005, 426.060, 426.110(2), 426.232 & 426.236

Stats. Implemented: ORS 426.241

Hist.: MHD 6-1994, f. & cert. ef. 8-24-94; MHD 11-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-225-0040

Standards for the Investigation and Examination of a
Person Alleged to be a Mentally Ill Person

309-033-0900

Statement of Purpose and Statutory Authority

(1) Purpose. These rules prescribe standards and procedures relating to the investigation and examination of a person alleged to be a mentally ill person during the involuntary civil commitment process.

(2) Statutory authority. These rules are authorized by ORS 426.005 through 426.395 and carry out the provisions of ORS 426.005 through 426.395.

Stat. Auth.: ORS 413.042, 426.060 - 426.500

Stats. Implemented: ORS 426.005 - 426.395

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0000

309-033-0910

Definitions

(1) “Administrator” means the chief of psychiatric services in a community hospital or the person in charge of treatment and rehabilitation programs at nonhospital facilities. “Administrator” has the same meaning as “director of the facility” as that term is defined in ORS 426.005. Whenever “administrator” appears it means the administrator or designee.

(2) “Assistant Administrator” means the Assistant Administrator of Addictions and Mental Health Division.

(3) “Clinical record” means the record required by OAR 309-014-0035, General Standards for Delivery of Community Mental Health Services Elements, documenting the mental health services delivered to clients by a CMHP or subcontractor.

(4) “CMHP” means the community mental health and developmental disabilities program which organizes all services for persons with mental or emotional disturbances, drug abuse problems, mental retardation or other developmental disabilities, and alcoholism and alcohol abuse problems, operated by or contractually affiliated with a local mental health authority operating in a specific geographic area of the state under an intergovernmental agreement or direct contract with the Division.

(5) “Community hospital” means any hospital that is not a state hospital.

(6) “Court” means the circuit court acting pursuant to ORS Chapter 426.

(7) “Custody” means the prehearing physical retaining of a person taken into custody by:

(a) A peace officer pursuant to ORS 426.070, 426.228, 426.233;

(b) A peace officer at the direction of the director pursuant to ORS 426.233(1);

(c) A health care facility licensed under ORS Chapter 441 and approved by the Division, pursuant to ORS 426.231;

(d) A state hospital pursuant to ORS 426.180;

(e) A hospital pursuant to ORS 426.070 or 426.232; or

(f) A nonhospital facility pursuant to ORS 426.070 or 426.233.

(8) “Designee” means a QMHP designated by the director or a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody pursuant to ORS 426.233.

(9) “Director” means the community mental health and developmental disabilities program director who has been authorized by the local mental health authority to direct the CMHP. “Director” also means a person who has been authorized by the director to act in the director’s capacity for the purpose of this rule. In the case of the director ordering a peace officer to take a person into custody pursuant to ORS 426.233, the designee shall be a QMHP who is specifically authorized by the county governing body to order persons to be taken into custody.

(10) “Diversion” means the 14 day period of intensive treatment when a director and a psychiatrist certify a person as a mentally ill person pursuant to the provision of ORS 426.237(1)(b).

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

(12) “NMI” is the notification of mental illness required, pursuant to ORS 426.070, to be submitted by any two persons, a county health officer or a magistrate to the director and thereafter submitted by the director to the court or, pursuant to ORS 426.234, to be submitted by the physician or the director to the court. Pursuant to ORS 426.070 and 426.234, the court commences proceedings pursuant to ORS 426.070 to 426.130 upon receipt of the NMI.

(13) “Peace officer” means a sheriff, constable, marshal, municipal policeman, member of the Oregon State Police or investigator of the Criminal Justice Division of the Department of Justice and such other persons as may be designated by law.

(14) “Psychiatrist” means a physician licensed as provided pursuant to ORS 677.010 to 677.450 by the Board of Medical Examiners for the State of Oregon and who has completed an approved residency training program in psychiatry.

(15) “QMHP” means a qualified mental health professional that meets the following minimum qualifications:

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

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

(c) Graduate degree in psychology;

(d) Graduate degree in social work;

(e) Graduate degree in psychiatric nursing and licensed in the State of Oregon;

(f) Graduate degree in another mental health-related field; or

(g) Any other person whose education and experience meet, in the judgment of the Division, a level of competence consistent with the responsibilities required by the Division.

Stat. Auth.: ORS 413.042, 426.060 - 426.500

Stats. Implemented: ORS 426.005 - 426.395

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0010

309-033-0920

Certification of Mental Health Investigators

(1) Investigation only by a certified investigator. Only a person certified by the Division shall conduct an investigation of a person alleged to be a mentally ill person as required by ORS 426.070(3)(c) and 426.074.

(2) Certification of a mental health investigator. The Division shall certify as a qualified mental health investigator, for three years or until such time as the Division terminates the certificate, any person who meets the following:

(a) Is recommended by a director for certification as a mental health investigator; and

(b) Is a QMHP, or on January 1, 1988, has been employed by a CMHP as an investigator for a minimum of two years; and

(c) Has established individual competence through training provided by the Division and within 6 months of the training has passed an examination conducted by the Division in the following areas:

(A) The role and duties of an investigator and the process of investigation;

(B) Oregon statutes and administrative rules relating to the civil commitment of mentally ill persons;

(C) Establishing probable cause for mental disorder;

(D) The mental status examination; and

(E) The assessment of suicidality, assaultiveness, homocidality and inability to care for basic needs.

(3) Certification of a senior mental health investigator. The Division shall certify as a senior mental health investigator, for five years or until such time as the Division terminates the certificate, a person who meets the following:

(a) Is recommended by a director for certification as a senior mental health investigator;

(b) Is a QMHP;

(c) Has been certified as a mental health investigator for three years; and

(d) Has completed the training required under OAR 309-033-0920 during the six months prior to application for certification.

(4) Certification of a mental health investigator resident. The Division shall certify as a mental health investigator resident for a non-renewable period of six months, or until such time as the Division terminates the certificate, a person who meets the following:

(a) Is recommended by a director for certification as a mental health investigator;

(b) Is a QMHP;

(c) Has passed an examination conducted by the Division regarding Oregon statutes and administrative rules relating to the civil commitment of mentally ill persons; and

(d) Is supervised by a certified senior mental health investigator. The senior mental health investigator shall review each investigation conducted by the mental health investigator resident and co-sign each investigation report as evidence that the senior mental health investigator believes the report meets OAR 309-033-0940, The Investigation Report.

(5) Qualifications for recertification. The Division may recertify a mental health investigator or a senior mental health investigator who is currently employed by a CMHP, is recommended by the director for recertification and who, during the period of certification, has completed eight hours of training or education in the assessment of mental disorder or the assessment of dangerousness which is approved by the Division.

(6) Residents cannot be recertified. The Division shall not recertify a mental health investigator resident.

(7) Termination of certification. The Division may terminate the certification of a mental health investigator, senior mental health investigator, or a mental health investigator resident when, in the opinion of the assistant administrator:

(a) The person no longer can competently perform the duties required by this rule, or

(b) The person has exhibited a behavior or a pattern of behavior which violates the rights, afforded by statute, of persons being investigated.

Stat. Auth.: ORS 413.042, 426.060 - 426.500

Stats. Implemented: ORS 426.005 - 426.395

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0030

309-033-0930

Investigation of Person Alleged to Be a Mentally Ill Person

(1) Initiation and timelines for investigation. Upon receipt of an NMI the CMHP shall conduct an investigation of the person to determine probable cause for mental disorder. The person conducting the investigation shall not be the same as the person filing the NMI.

(a) Investigation of NMIs by two persons, a county health officer or a magistrate. At a minimum, if the person can be located, the investigator must contact the person by telephone within three judicial days of the receipt of the NMI by the director.

(A) The investigator shall complete an investigation and submit an investigation report to the circuit court within 15 days of the director’s receipt of the NMI.

(B) The investigator may request an extension from the court if a treatment option less-restrictive than involuntary inpatient commitment is actively being pursued or if the person cannot be located.

(b) Investigation of persons in custody. The investigator shall investigate persons in custody in an approved hospital under ORS 426.232 or 426.033 as soon as reasonably possible but no later than one judicial day after the initiation of the detention and 24-hours prior to the hearing. Whenever feasible, the investigator shall:

(A) Make face-to-face contact with the person within 24 hours of admission to a hospital or nonhospital facility, including weekends; and

(B) Meet with the person one additional time prior to making a recommendation for the court to hold a commitment hearing.

(2) Procedures for the investigation. Only certified mental health investigators, senior mental health investigators or mental health investigator residents shall conduct an investigation of a person.

(a) While conducting an investigation, the investigator shall:

(A) Present photo identification, authorized and provided by the county mental health authority, to the person; and

(B) Explain the reason for the investigation orally and, if doing so would not endanger the investigator, in writing.

(b) Information from relatives. The investigator shall solicit information about the person from person’s parents and relatives, whenever feasible.

(c) Disclosure of names. The investigator shall disclose the names of the persons filing the NMI to the allegedly mentally ill person except when, in the opinion of the investigator, disclosure will jeopardize the safety of the persons filing the NMI. The investigator may withhold any information that is used in the investigation report, only until the investigation report is delivered to the court and others as required under ORS 426.074. The investigator may withhold any information that is not included in the investigation report if the investigator determines that release of the information would constitute a clear and immediate danger to any person (see ORS 426.370).

(d) Encourage voluntary services. The director shall attempt, as appropriate, to voluntarily enroll in the least restrictive community mental health services a person for whom an NMI has been filed.

(e) Clinical record required. The director shall maintain a clinical record for every person investigated under this rule. The clinical record shall document to the extent possible the following:

(A) A brief summary of the events leading to the filing of an NMI, the circumstances and events surrounding the interview of the person and the investigator’s attempts to engage the person in voluntary mental health services;

(B) Identifying information about the person;

(C) A copy of the NMI;

(D) A copy of the investigation report submitted to the court;

(E) Names, addresses and telephone numbers of family, friends, relatives or other persons who the investigator interviewed for pertinent information. This list shall include the names of the persons filing the NMI with the director; and

(F) Summary of the disposition of the case.

(f) Coordination of services. In the event the person is released or agrees to voluntary treatment, the investigator shall coordinate with the CMHP for the purpose of referral and offering voluntary treatment services to the person as soon as reasonably possible.

(3) Access to clinical records. The investigator shall have access to clinical records of the person being investigated as follows:

(a) When the person is in custody. The investigator shall have access only to clinical records compiled during the hold period. Without valid consent, the investigator shall not have access to clinical records compiled as part of treatment that is provided to the person at any time outside the hold period except as provided by OAR 309-033-0930(3)(b).

(b) When the person investigated is eligible for commitment pursuant to ORS 426.074. The investigator shall have access to any clinical record necessary to verify the existence of the criteria which make the person eligible for commitment pursuant to ORS 426.074.

Stat. Auth.: ORS 413.042, 426.060 - 426.500

Stats. Implemented: ORS 426.005 - 426.395

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0040

309-033-0940

The Investigation Report

(1) Evidence required in report. The investigator shall include in a report to the court, if relevant or available, evidence and the source of that evidence in the following areas:

(a) Evidence which describes the present illness and the course of events which led to the filing of the NMI and which occurred during the investigation of the person.

(b) Evidence to support or contradict the allegation that the person has a mental disorder.

(c) Evidence to support or contradict the allegation that the person is a danger to self or others, or is unable to provide for basic personal needs and is not receiving such care as is necessary for health and safety.

(2) Documentation of manifestation of mental disorder. The evidence which describes the present illness shall include:

(a) The situation in which the person was found and the most recent behaviors displayed by the person which lead to and support the filing of an NMI;

(b) The sequence of events affecting the person during the investigation period including dates of admission, transfer or discharge from a hospital or nonhospital facility;

(c) Any change in the mental status of the person during the course of the investigation; and

(d) Attempts by the investigator to engage the person in voluntary treatment in lieu of civil commitment and their outcome.

(3) Documentation of mental disorder. Evidence to support or contradict the allegation that the person has a mental disorder shall include the results of a mental status examination and a psychosocial history.

(a) Mental status examination. A mental status examination shall review the presence of indicators of mental disorder in the following areas:

(A) Appearance. Features of the person’s dress, physical condition which may indicate the presence of a mental disorder.

(B) Behavior. Features of the person’s behavior, movement or rate of speech which may indicate the presence of mental disorder.

(C) Thought content. Features of the content of the person’s speech such as delusions and hallucinations which may indicate the presence of a mental disorder.

(D) Thought process. Features of the person’s expressed thoughts which may indicate that the person is unable to think in a clear logical fashion and which may indicate the presence of a mental disorder.

(E) Insight. Features of the person’s understanding of his/her current mental state which may indicate the presence of a mental disorder.

(F) Judgment. Features of the person’s judgment about social situations and dangerous situations which may indicate the presence of a mental disorder.

(G) Cognitive testing. Features of the person’s ability to concentrate, ability to remember recent and historical events, ability to use abstract thinking, and ability to use or remember generally known information which may indicate the presence of a mental disorder.

(H) Emotions. Features of the person’s emotions, such as being inappropriate to the situation, which may indicate the presence of a mental disorder.

(b) Psychosocial History. A psychosocial history shall discuss the presence of indicators of mental disorder in the following areas:

(A) Psychiatric history.

(i) History of psychiatric or mental health treatment;

(ii) History of commitments for mental disorder including verification from the Division if available; and

(iii) Current participation in mental health treatment.

(B) Family history.

(i) Members of the person’s family who have a history of psychiatric or mental health treatment;

(ii) Members of the person’s family who have a history of commitment for mental disorder; or

(iii) Reports of family members who appear to have had an untreated mental disorder.

(C) History of alcohol or drug abuse.

(i) History of abusing alcohol or drugs;

(ii) Behaviors which the person may have displayed during the course of the investigation, which are substantially similar to behaviors that indicate the presence of a mental disorder, that may be attributable to the use of alcohol or drugs; or

(iii) If the person appears to have a mental disorder, the effect of the person’s current use of alcohol or drugs on behaviors that may indicate the presence of a mental disorder.

(D) History of a loss of function.

(E) Social function.

(F) Personal finances.

(i) Availability of financial resources to provide for basic needs such as food and shelter;

(ii) Use of financial resources to meet needs for food and shelter; or

(iii) Other features of the manner in which the person uses money which would indicate the presence of a mental disorder.

(G) Medical issues.

(i) Medical conditions that may produce behaviors which are substantially similar to behaviors that indicate the presence of a mental disorder; or

(ii) Medical conditions which contribute to the seriousness of a mental disorder which appears to be present.

(4) Documentation of dangerousness and/or inability to provide for basic needs. Evidence to support or contradict the allegation that the person is a danger to self or others, or is unable to provide for basic personal needs and is not receiving such care as is necessary for health and safety shall include the results of an assessment of dangerousness.

(a) An assessment of dangerousness to self shall consider the following areas:

(A) History of thoughts, plans or attempts at suicide;

(B) Presence of thoughts, plans or attempts at suicide;

(C) Means and ability to carry out the plans for suicide;

(D) The potential lethality of the plan;

(E) The probable imminence of an attempt at suicide; and

(F) Available support systems which may prevent the person from acting on the plan.

(b) An assessment of dangerousness to others shall consider the following areas:

(A) History of thoughts, plans, attempts or acts of assaultiveness or violence;

(B) Presence of thoughts, plans, attempts or acts of assaultiveness or violence;

(C) Means and ability to carry out the plans for assaultiveness or violence;

(D) The potential lethality of the plan;

(E) The probable imminence of an attempt at assault or violence; and

(F) Available support systems which may prevent the person from attempting an assault or an act of violence.

(c) An assessment of the person’s ability to provide for basic personal needs shall consider the following areas:

(A) History of the person’s ability to provide for basic personal needs;

(B) The person’s current use of resources to obtain food, shelter, and health care necessary for health and safety;

(C) Behaviors which result in exposure to danger to self or others;

(D) Available support systems which may provide the person care necessary for health and safety; and

(E) If the person appears to lack capacity to care for self, the availability of a guardian who can assure the provision of such care.

(5) Additional report requirements. The investigation report shall also include the following:

(a) The person’s consent or objection to contact with specific third parties.

(b) If appropriate and if available from the Division, verification of the person’s eligibility for commitment under ORS 426.005(c).

(6) Report availability. The investigation report shall be made available to the facility with custody of the person if the person is committed.

(7) Investigator’s responsibilities to the circuit court. The investigator shall file the investigation report with the circuit court twenty-four hours before the hearing and shall appear at the civil commitment hearing.

Stat. Auth.: ORS 413.042, 426.060 - 426.500

Stats. Implemented: ORS 426.005 - 426.395

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0050

309-033-0950

Certification of Mental Health Examiners

(1) Psychiatrists exempt from certification. A psychiatrist may serve as an examiner as provided by ORS 426.110. Division certification is not necessary for psychiatrists serving as mental health examiners.

(2) Qualifications for certification of persons other than psychiatrists. The Division shall certify, as a qualified mental health examiner for three years or until such time as the Division terminates the certificate, a QMHP who meets all of the following:

(a) Has at least three years clinical experience in the diagnosis and treatment of severely mentally ill adults who suffer primarily from a psychotic disorder;

(b) Presents acceptable written references from two persons who have the above qualifications and can demonstrate direct knowledge of the person’s qualifications;

(c) Is recommended by the director to be an examiner in the county; and

(d) Has established individual competence through training provided by the Division in the following areas:

(A) The role and duties of an examiner and the process of examination;

(B) Oregon statutes and administrative rules relating to the civil commitment of mentally ill persons;

(C) Establishing clear and convincing evidence for mental disorder;

(D) The mental status examination; and

(E) The assessment of suicidality, assaultiveness, homocidality and inability to care for basic needs.

(3) Qualifications for recertification. The Division may recertify for three years, or until such time as the Division terminates the certificate of, any mental health examiner who meets the following:

(a) The examiner has been an examiner certified by the Division after July 1, 1988;

(b) The examiner has successfully completed eight hours of training provided by the Division relating to the assessment and diagnosis of mental disorder and, changes in statutes and administrative rules relating to civil commitment; and

(c) The director recommends the person to be an examiner in the county.

(4) Examination. The examiner shall conduct an examination in a manner that elicits the data necessary for establishing a diagnosis and a plan for treatment. Only certified examiners shall conduct an examination of an allegedly mentally ill person.

(5) Termination of certification. The Division may terminate the certification of any mental health examiner when, in the opinion of the assistant administrator:

(a) The person no longer can competently perform the duties required by this rule; or

(b) The person has exhibited a behavior or a pattern of behavior which violates the rights, afforded by statute, of persons being investigated.

Stat. Auth.: ORS 413.042, 426.060 - 426.500

Stats. Implemented: ORS 426.005 - 426.395

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0060

309-033-0960

Mental Health Examiner’s Report to the Court

(1) Examiner assessment of evidence. The examiner shall provide in a report to the court the examiner’s opinion whether the evidence supports or contradicts:

(a) The allegation that the person has a mental disorder;

(b) The allegation that the person is a danger to self or others, or is unable to provide for basic personal needs and is not receiving such care as is necessary for health and safety; and

(c) That the person would cooperate with and benefit from voluntary treatment.

(2) Mental status examination and psychosocial history. In addition to considering other evidence presented at the hearing, the examiner shall conduct a mental status examination and a psychosocial history to determine whether the person alleged to be mentally ill has a mental disorder.

(a) Mental status examination. A mental status examination shall include review of the presence of indicators of mental disorder in the following areas:

(A) Appearance. Features of the person’s dress, physical condition which may indicate the presence of a mental disorder.

(B) Behavior. Features of the person’s behavior, movement or rate of speech which may indicate the presence of mental disorder.

(C) Thought content. Features of the content of the person’s speech such as delusions and hallucinations which may indicate the presence of a mental disorder.

(D) Thought process. Features of the person’s expressed thoughts which may indicate that the person is unable to think in a clear logical fashion and which may indicate the presence of a mental disorder.

(E) Insight. Features of the person’s understanding of his/her current mental state which may indicate the presence of a mental disorder.

(F) Judgment. Features of the person’s judgment about social situations and dangerous situations which may indicate the presence of a mental disorder.

(G) Cognitive testing. Features of the person’s ability to concentrate, ability to remember recent and historical events, ability to use abstract thinking, and ability to use or remember generally known information which may indicate the presence of a mental disorder.

(H) Emotions. Features of the person’s emotions, such as being inappropriate to the situation, which may indicate the presence of a mental disorder.

(b) Psychosocial history. A psychosocial history shall consider the presence of indicators of mental disorder in the following areas:

(A) Psychiatric history.

(i) History of psychiatric or mental health treatment;

(ii) History of commitments for mental disorder including verification from the Division if available; and

(iii) Current participation in mental health treatment.

(B) Family history.

(i) Members of the person’s family who have a history of psychiatric or mental health treatment;

(ii) Members of the person’s family who have a history of commitment for mental disorder; or

(iii) Reports of family members who appear to have had an untreated mental disorder.

(C) History of alcohol or drug abuse.

(i) History of abusing alcohol or drugs;

(ii) Behaviors the person may have displayed during the course of the investigation which are substantially similar to behaviors that indicate the presence of a mental disorder that may be attributable to the use of alcohol or drugs; or

(iii) If the person appears to have a mental disorder, the effect of the person’s current use of alcohol or drugs on behaviors that may indicate the presence of a mental disorder.

(D) History of a loss of function.

(E) Social function.

(F) Personal finances.

(i) Availability of financial resources to provide for basic needs such as food and shelter;

(ii) Use of financial resources to meet needs for food and shelter; and

(iii) Other features of the manner in which the person uses money which would indicate the presence of a mental disorder.

(G) Medical issues.

(i) Medical conditions that may produce behaviors which are substantially similar to behaviors that indicate the presence of a mental disorder; or

(ii) Medical conditions which contribute to the seriousness of a mental disorder which appears to be present.

(3) Assessment of dangerousness and ability to provide basic needs. In addition to considering other evidence presented at the hearing, the examiner shall conduct an assessment of the danger the person represents to self or others and an assessment of the person’s ability to provide for basic personal needs.

(a) An assessment of dangerousness to self shall consider the following areas:

(A) History of thoughts, plans or attempts at suicide;

(B) Presence of thoughts, plans or attempts at suicide;

(C) Means and ability to carry out the plans for suicide;

(D) The potential lethality of the plan;

(E) The probable imminence of an attempt at suicide; and

(F) Available support systems which may prevent the person from acting on the plan.

(b) An assessment of dangerousness to others shall consider the following areas:

(A) History of thoughts, plans, attempts or acts of assaultiveness or violence;

(B) Presence of thoughts, plans, attempts or acts of assaultiveness or violence;

(C) Means and ability to carry out the plans for assaultiveness or violence;

(D) The potential lethality of the plan;

(E) The probable imminence of an attempt at assault or violence; and

(F) Available support systems which may prevent the person from attempting an assault or an act of violence.

(c) An assessment of the person’s ability to provide for basic personal needs shall consider the following areas:

(A) History of the person’s ability to provide for basic personal needs;

(B) The person’s current use of resources to obtain food, shelter, and health care necessary for health and safety;

(C) Behaviors which result in exposure to danger to self or other;

(D) Available support systems which may provide the person care necessary for health and safety; and

(E) If the person appears to lack capacity to care for self, the availability of a guardian who can assure the provision of such care.

Stat. Auth.: ORS 413.042, 426.060 - 426.500

Stats. Implemented: ORS 426.005 - 426.395

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0070

309-033-0970

Variances

(1) Criteria for a variance. Variances may be granted to a facility if there is a lack of resources to implement the standards required in this rule or if implementation of the proposed alternative services, methods, concepts or procedures would result in services or systems that meet or exceed the standards in these rules.

(2) Variance application. The facility requesting a variance shall submit, in writing, an application to the Division which contains the following:

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

(b) The reason for the proposed variance;

(c) The alternative practice, service, method, concept or procedure proposed;

(d) A plan and timetable for compliance with the section of the rule from which the variance is sought; and

(e) Signed documentation from the council indicating its position on the proposed variance.

(3) Division review. The Assistant Administrator or designee of the Division shall approve or deny the request for a variance.

(4) Notification. The Division shall notify the facility of the decision. This notice shall be given to the facility, with a copy to the council, within 30 days of the receipt of the request by the Division.

(5) Appeal application. Appeal of the denial of a variance request shall be made in writing to the Administrator of the Division, whose decision shall be final.

(6) Written approval. The facility may implement a variance only after written approval from the Division. The Intergovernmental Agreement shall be amended to the extent that the variance changes a term in that agreement.

(7) Duration of variance. A variance shall be reviewed by the Division at least every 2 years.

Stat. Auth.: ORS 426.060 - 426.500 & 430.041

Stats. Implemented: ORS 426.005 - 426.309

Hist.: MHD 12-1998, f. 6-26-98, cert. ef. 7-1-98, Renumbered from 309-230-0080

California Welfare and Institutions Code, sections 8100 – 8108

There are a number of circumstances under which mental health clients may lose their right to purchase and possess firearms. You should read this entire publication before deciding which, if any, of these circumstances apply to you.

Persons Receiving Voluntary Inpatient Mental Health Treatment Who Are a Danger to Self or Others

If you are receiving inpatient mental health treatment on a voluntary basis and your treating mental health professional determines that you are a danger to yourself or others, you may not possess, purchase, or attempt to purchase any firearms while you are in the facility or on a temporary pass or leave from the facility. Once you are discharged from the facility, this prohibition no longer applies.

Persons Receiving Involuntary Inpatient Mental Health Treatment on 72-Hour Holds as a Danger to Self or Others

If you are placed on a 72-hour hold (also known as a “5150”[1]) as a danger to self or others and admitted to a facility for treatment, you are prohibited from purchasing or possessing firearms while you are in the facility and for five years from the date of admission to the facility. When you are admitted to a facility as a danger to self/others, the facility is required to notify the state Department of Justice. The Department of Justice then adds your name to the state mental health firearms prohibition database.

Before discharging you, the facility staff must notify you that you cannot possess or purchase firearms for a period of five years. At the same time, the staff must advise you of your right to go to court and ask a judge to restore your right to possess and purchase firearms. If you request this hearing when you are being discharged from the facility, the staff should provide you with a hearing request form and forward the form to the court on your behalf. After you are discharged from the facility, you can request a hearing by calling the California Department of Justice at (916) 227-3664.

The hearing takes place in the superior court of the county in which you live.[2] Because a lot of personal information about you and your mental health treatment will likely be discussed at the hearing, you can ask the judge to close the court room so that the public cannot attend. At the hearing, the state has the burden of showing that you would notbe likely to use firearms in a safe and lawful manner. If the state does not meet this burden, the judge will issue an order finding that you are not subject to this five year prohibition and the state Department of Justice will remove your name from the state mental health prohibition firearms data base.

Persons Certified for Intensive Treatment On 14-Day Holds

If you have been placed on a 14-day hold (5250),[3] had a certification hearing (also known as a Gallinot hearing) and were held for additional treatment at the hearing, you are prohibited from purchasing or possessing firearms for five years under California law and for life under federal law.[4] When you are held or certified for additional treatment as a danger to self or others, or gravely disabled, the facility is required to notify the California Department of Justice. The Department of Justice then places your name on the state mental health firearms prohibition database.

You may ask the superior court in the county in which you live for a hearing to restore your right to possess firearms under California law. At this hearing, the burden will be on you to prove that you can safely possess firearms. However, even if you have your right to purchase and possess firearms restored under California law, you may still be subject to the federal life-time prohibition.

Persons on Conservatorship

If you are placed on a mental health or LPS conservatorship by the court, the judge will decide whether or not you should be allowed to purchase or possess firearms. If the judge finds that you cannot safely possess firearms, you are prohibited from possessing or purchasing firearms while you are on the conservatorship. At any time however, you can ask the court for a hearing to contest the denial of your right to possess firearms.[5]

Persons Making Threats of Physical Violence

If you communicate to a licensed psychotherapist a serious threat of physical violence against an identifiable victim, you cannot purchase or possess any firearms for a period of six months after the threat is reported to a local law enforcement agency. This prohibition does not apply unless your psychotherapist reports the threat to local law enforcement, which he/she may be compelled to do. If your psychotherapist does notify law enforcement, you will be notified by the California Department of Justice. The notice will tell you the dates between which you are prohibited from purchasing and possessing firearms and that you can petition the superior court in the county in which you live to restore your right to possess firearms. At this hearing, you will have the burden of proving that you can safely possess firearms.

Other Mental Health Firearms Prohibitions

People found by a court of any state to be a danger to others, people who are mentally disordered sex offenders, people found not guilty by reason of insanity of any crime, and people who are incompetent to stand trial are prohibited from purchasing or possessing firearms.

What Happens To the Information that is Reported to the California Department of Justice?

Information about you in the California Department of Justice’s mental health firearms prohibition database is confidential and can only be (1) used by the department to determine your eligibility to possess or purchase firearms and (2) provided to the court if you request a hearing to restore your right to possess and purchase firearms.

The California Department of Justice must delete any reference to your firearms prohibition from the state mental health firearms database when either (1) the court issues an order saying that you are not subject to the prohibition or (2) the prohibition period ends.[6] However, you should be aware that, if you were certified for intensive treatment[7] on a 14-day hold or 30 day hold, the California Department of Justice will retain your name in the mental health firearms prohibition database for life in order to enforce the federal life-time firearms prohibition.

I’m Not Sure If I am Prohibited from Owning a Firearm. How Can I Find Out?

When you are subject to a mental health firearms prohibition, it is a crime to possess, purchase or attempt to purchase a firearm. You can find out if you are subject to a firearms prohibition before trying to purchase a firearm by asking the California Department of Justice to conduct a Personal Firearms Eligibility Check (PFEC). You request a PFEC by submitting a PFEC application along with a copy of your California driver’s license or Identification Card, and a $20 fee. The application must be signed and notarized, and include an impression of your right thumb print. The Department will check all relevant state and federal databases to determine if you can lawfully purchase or possess firearms and will notify you of the results of the check.

PFEC applications are available online from the California Department of Justice Website:

http://caag.state.ca.us/firearms/forms/pdf/pfecapp.pdf

Protection & Advocacy, Inc

100 Howe Avenue, Suite 235N, Sacramento, CA 95825-8202

tel. 916/ 488-9950, fax 916/ 488-9960

tty 800/719-5798, toll free 800/776-5746

[1] This is a reference to section 5150 of California’s Welfare and Institutions Code.

[2] Upon motion of the District Attorney, or on its own motion, the court may transfer the hearing to the county in which the person resided at the time of his/her detention, the county in which the person was detained, or the county in which the person was evaluated and treated.

[3] Persons certified for intensive treatment under Welfare and Institutions Code, sections 5260 (2nd 14-day hold for suicidal persons) and 5270.15 (additional 30-day hold for persons who are gravely disabled).

[4] Code of Federal Regulations, tit 27 §§ 478.11 and 478.32

[5] Welfare and Institutions Code § 5358.3

[6] Deletion of your information from the state mental health firearms prohibition database does not necessarily mean that you are not prohibited from possessing and purchasing firearms. There are several categories of people who are prohibited from possessing and/or purchasing firearms, including people convicted of felonies and some misdemeanors, people subject to retraining orders, and people addicted to narcotics. Always review documents related to any criminal conviction because they may contain information about firearms restrictions.

[7] “Certified for intensive treatment” means that you were placed on a 14-day hold or a 30-day involuntary hold, had a certification hearing and were held for additional treatment at the hearing.

____________________________________________________________________________________

5150 Hold & Firearms Eligibility in California

Eligibility Prohibitions

As part of the firearms eligibility requirements and background check criteria in California, persons who have been detained and declared a danger to themselves or others pursuant to various Welfare and Institutions Code Sections (§§ 5150, 5151, 5152, 5250, 5260, 5270, 5270.15) are not eligible to have a firearms for specified periods of time, based on the severity of the threat posed by the person’s mental health condition.

The Welfare and Institutions Code Sections are based upon the immediacy of the threat to the patient and the threat to others posed by the patient. A detainment under a lesser section, such as 5150 would result in a five year prohibition. However a more severe detainment under 5250 of the federal statute would result in a lifetime prohibition from possessing firearms.

A prohibition restarts with every subsequent detainment; thus, a person who is in the fourth year of their five year prohibition who is detained again, and again found to be a danger, will have their five year prohibition restarted at the time of the second detainment.

Section 5150 is unique to California, providing a tougher standard than the federal statute and in other states, such as Virginia, home to the recent shooting on the campus of Virginia Tech, which does not have a 5150-esque statute and relies on the federal law.

Facility Procedure

Once a facility has determined a patient to be a danger pursuant to one of the Welfare and Institutions Code Sections listed above, the facility must immediately, prior to the patient’s discharge, submit a Mental Health Facilities Report of Firearms Prohibition form to the California Department of Justice.

The Department of Justice places the patient in its database, which is subsequently used for background checks, including those that are processed for firearms eligibility.

____________________________________________________________________________________

Notifying Patients of Firearms Prohibition

By Michael Bailey, M.D., Associate Medical Director

California statutes prevent firearm access by someone who is involuntarily admitted to a psychiatric facility. Welfare and Institutions Code (WIC) Section 8103(f)(2) requires a facility to report to the State of

California Department of Justice instances in which an individual has been admitted to the facility on an involuntary hold. Individuals identified by this type of report are prohibited from owning, possessing, receiving, controlling, or purchasing any firearm for a period of five years from the admission date to a facility. This law applies to all persons taken into custody as a danger to themselves or others under the provision of WIC Section 5150. In these cases, all firearms within the household must be removed or secured to prevent access. Firearms can be turned over to local law enforcement authorities if other arrangements to secure them cannot be made.

While facilities are required to notify the individual of the firearms prohibition, this notification is sometimes issued only in a written form given to the patient upon admission. In addition to this initial notification, it should be reviewed during the course of treatment and emphasized as part of the discharge planning process with the enrollee and his or her family as appropriate. The patient and family should be made aware that the patient cannot possess, control, receive, own or purchase a firearm. Since making a firearm available to an individual prohibited from having access is a felony, family members need to be educated about this legal requirement. California law (WIC Sections 8100-8108) also prevents firearm ownership or access for those individuals who:

Communicate a serious threat of physical violence against a reasonably identifiable victim or victims.
Have been adjudicated as not guilty by reason of insanity of a crime.
Have been adjudicated to be a mentally disordered sex offender.
Have been found mentally incompetent to stand trial.
Have been placed under a conservatorship by a court because of grave disability as a result of a mental disorder or impairment by chronic alcoholism.

Any person subject to these provisions may appeal such a prohibition by requesting a hearing by the Superior Court to provide relief from the firearms prohibition. A signed request may be made to the Superior Court during the five-year prohibition period. The form to request the hearing may be provided by the facility at discharge. Following discharge, a hearing may be requested by contacting the State of California Department of Justice at 916.227.3664. A form will be sent to the individual to complete and then mail to the State of California Superior Court in the county of residence. USBHPC encourages all facilities and clinicians to remain vigilant in educating and informing enrollees and their families about firearms regulations.

Issues Related to Possession of Firearms by Individuals with Mental Illness: An Overview Using California as an Example

JOSEPH R. SIMPSON, MD, PhD

Since 1968, federal law has prohibited individuals with a history of certain types of mental health adjudications from purchasing or possessing firearms.1 The implementation of a nationwide system of background checks in 1999, following the passage of the Brady Handgun Violence Prevention Act,2 has, at least to some degree, facilitated the identification of individuals who are federally banned from owning firearms. An increasing number of states also have their own laws in this area, making the issue relevant to more clinicians. In some states, including California, the criteria for being barred from possessing firearms are more stringent than those provided for by federal statute. This column uses California as an example to illustrate laws and practices relating to firearm possession by individuals with a history of psychiatric illness.

Federal laws and court decisions and the laws of other states have recently been reviewed elsewhere. Mental health professionals should be aware of the potential ramifications of firearm laws for their patients and be prepared to respond to requests to render an opinion regarding an individual’s suitability for restoration of the ability to possess firearms. This last issue, although little explored to date, has the potential to develop into a new area of expertise within forensic psychiatry. In some states, laws addressing firearms and mental illness distinguish between categories of weapons, for example handguns versus rifles and shotguns.5 In California, however, the statutes prohibiting firearm possession by individuals with a history of mental illness treatment are broader, banning possession of a broad category of implements, including all firearms (except antiques) and other so-called “deadly weapons.” The law specifies “any firearm whatsoever or any other deadly weapon.” These other deadly weapons are enumerated in California Penal Code section 12020 and include a variety of martial arts weapons such as nunchaku and throwing stars as well as other devices such as brass knuckles and blackjacks. Many of the other dangerous weapons are in fact illegal for anyone in the state to possess, with some exceptions. For simplicity, the text of this article will use the term firearm.

California Statutes

California codifies firearm laws relating to mental health treatment in the Welfare and Institutions Code, sections 8100-8108. Section 8100(b)(1) provides for a 6-month ban for outpatients who communicate a serious threat of physical violence against a reasonably identifiable victim to a licensed psychotherapist. The ban begins when the therapist makes a “Tarasoff” warning to a police department. The patient can petition for relief before the 6 months are over. Section 8103 enumerates the legal statuses that prohibit an individual from possessing firearms. These include being adjudicated a danger to others as a result of a mental disorder and being found incompetent to stand trial or not guilty by reason of insanity. In addition, when a patient is placed on a mental health conservatorship (1-year, renewable), the imposing court has the discretion to bar the person from possessing firearms if it finds that such possession would pose a danger to the safety of the person or others.

In all these situations, the prohibition ends when the person changes status (e.g., is restored to competency or sanity or the conservatorship is terminated), with the exception of individuals found not guilty by reason of insanity of certain serious violent felonies listed in the statute. For such individuals, the firearms ban is indefinite and does not end with a court finding of restoration to sanity. The subsection of the law with the broadest application is 8103(f)(1). Added to the law in 1990, this statute JOSEPH R. SIMPSON, MD, PhD, is Staff Psychiatrist, VA Long Beach Healthcare System and Clinical Assistant Professor, Department of Psychiatry, Keck School of Medicine, University of Southern California. He also maintains a private practice in forensic psychiatry.

Simpson 03-07.qxd 2/22/2007 2:06 PM Page 1 provides that, when an individual is placed on a 72- hour hold on grounds of danger to self or others (but not on grounds of grave disability) and admitted to a treatment facility, he or she is thereafter prohibited from purchasing or possessing firearms for a period of 5 years. As described in Welfare and Institutions Code section 5150 et seq, the process of involuntary inpatient psychiatric treatment in California begins with this 72-hour hold. The hold is initiated when, based on a face-to-face evaluation, an authorized evaluator (a psychiatrist, a social worker, or a peace officer) determines that there is probable cause to believe that, as a result of a mental disorder, the individual poses a danger to self or others or is gravely disabled. Once initiated, the 72-hour hold is not subject to any process of appeal or review, except when the hold has been placed “in the field” (e.g., by a peace officer). In the latter case, the receiving clinician at the treatment facility decides whether to continue the hold and admit the patient, or terminate the hold and release the patient (sections 5151 and 5152). California case law has established that the hold does not have meaning in terms of firearm possession unless the patient is admitted.

The restriction established by section 8103(f)(1) is stricter than that provided under federal law, which provides for a lifetime federal prohibition on firearms purchase or possession following “adjudication as a mental defective” or a “commitment to any mental institution.” As interpreted by the U.S. Bureau of Alcohol, Tobacco and Firearms, involuntary detention in a psychiatric facility “for observation” (as in California’s 72-hour hold) is specifically excluded. The California Department of Justice, which performs background checks on individuals attempting to purchase firearms in the state, implements the law in accordance with this principle. Thus, an individual who has been on a 72-hour hold is not federally barred from owning firearms and will pass a background check performed in California once the 5-year ban expires or is ended by court order. Section 8103(g) provides for a 5-year ban on firearms possession for patients certified for longer periods of involuntary treatment (14 or 30 days). In contrast to the 72-hour hold, being certified on grounds of grave disability also triggers a ban on firearms possession in 14- and 30-day commitments. Such commitments are also sufficient to trigger a federal ban on firearm possession, which is indefinite and thus supersedes the California law.

Consequently, an individual who has previously been placed on a 14-day or longer hold would still be unable to purchase or possess firearms legally even after 5 years. In other words, in the case of these longer commitments, the 5-year California ban provided by section 8103(g) is legally moot in the sense that it has no practical significance, since the individual is barred during the 5 years (both by federal and California law) and, when the California ban has expired after 5 years, he or she is still federally barred from possessing firearms. This may also be the case with mental health conservatorships, although I have not been able to locate any information specifically addressing this issue. Another question that has apparently not been litigated involves the status of a patient who is released from a 14- or 30-day hold at a probable cause hearing or in a writ of habeas corpus proceeding. Probable cause hearings are required for 14- and 30-day holds. Patients for whom probable cause is found can still challenge this finding before a judge by filing a writ of habeas corpus (Latin for “that you have the body”) hearing.

This is a legal procedure in which an individual being held involuntarily in a psychiatric hospital petitions a court to review the confinement. The court must then find by a preponderance of the evidence that the individual continues to meet the legal criteria for involuntary hospitalization. However, there is no mechanism in place to remove the firearm prohibition triggered by the initial certification if the patient is later released after either a probable cause or writ of habeas corpus hearing. Section 8103(f)(5) allows individuals prohibited from possessing firearms on the basis of a 72-hour hold because of danger to self or others to petition the court in their county of residence, once within the 5-year period, for early relief from the prohibition. There is no statutory requirement that the individual be evaluated by a mental health clinician, or any healthcare professional as part of the petition process. The respondent county attorney has the burden of showing by a preponderance of evidence that the petitioner is not likely to use firearms in a safe and lawful manner. Section 8102 provides for the confiscation of firearms found in the possession of an individual “detained or apprehended for examination of his or her mental condition” or who is a person described in sections 8100 or 8103. Firearms are automatically returned after 30 days unless the confiscating agency petitions to have them destroyed. The firearm owner can then request a hearing challenging the petition.

California Case Law

Two appeals court decisions have been published related to an individual committing suicide using a firearm purchased after the person had received involuntary inpatient psychiatric treatment. The first case, Katona v. County of Los Angeles, was decided in 1985, prior to the 1990 addition of the 5-year ban for persons placed on a 72-hour hold. At that time, there was no provision in California law to prohibit a person with a history of being involuntarily admitted for danger to self from later purchasing a firearm. Thus the court held that, since “decedent was not within one of the statutorily proscribed categories, the Department of Justice would not and was under no duty to notify [the firearm dealer] of any impediment to the delivery of the firearm, and [the firearm dealer] violated no statute when it delivered the gun to the decedent. It is clear that the thrust of the deadly weapon control scheme is to prevent harm to third persons and is not concerned with harm to the gun possessor himself.” The second case was decided after the 1990 amendment that specified that a 72-hour hold for danger to self or others was a trigger for firearms prohibition. In Braman v. California, the court ruled that a cause of action was stated by the family of a man who committed suicide with a handgun he legally purchased after having been involuntarily hospitalized on a 72-hour hold for danger to self.

The court observed that by “expanding the statutory categories to include a patient who is a danger to himself or herself, the Legislature has sought to prevent harm to those individuals from self-inflicted injury with a firearm.” The other published decisions in this area all relate to section 8102, the statute allowing the seizure of firearms from individuals detained for examination of their mental condition. The reasoning of the courts in these cases is informative with regard to potential future challenges to provisions of section 8103 and is also relevant for practicing clinicians who may be called to testify in firearms proceedings. In People v. One .22-Caliber Ruger Pistol,13 a hearing was held to determine whether Todd Veden’s confiscated firearms could be destroyed. The psychiatrist who treated him as an inpatient testified over Mr. Veden’s objection. The court ruled that the testimony of a psychiatrist at a section 8102 hearing does not violate psychotherapist-patient privilege. “Section 8102 protects firearm owners and the public from the consequences of firearm possession by people whose mental state endangers themselves or others. Information obtained on the question of endangerment during section 5150 treatment and evaluation is admissible because it is necessary to prevent the threatened danger. Doctor Humeid’s testimony constituted substantial evidence in support of the trial court’s decision. Doctor Humeid testified that he treated Veden during his confinement and that he believed Veden should be deprived of firearms ‘for his own safety and also for the safety of the public at large.’” In Rupf v. Yan,14 Alexander Yan raised several challenges to the proposed destruction of his confiscated firearms under the provisions of section 8102. He argued that:

1. the statute was unconstitutional as there was no relation between legislative intent and application, and it was vague and overbroad;

2. the right to bear a firearm is fundamental, so the law is subject to strict scrutiny;

3. the statute does not require a relationship between the weapons possessed and the incident precipitating the 72-hour hold;

4. the confiscated firearm should be returned when the patient is released;

5. a medical professional should make the assessment of dangerousness;

6. Sections 8100 & 8103 have more rigorous and precise standards.

The appellate court rejected all of these arguments, commenting that the “purpose of section 8102, like other statutes that limit the availability of handguns to persons with a history of mental disturbance, is to protect those persons or others in the event their judgment or mental balance remains or again becomes impaired.” They also pointed out that in a section 8102 hearing, the plaintiff has the opportunity to call medical experts if he or she desires. In City of San Diego v. Kevin B.,6 the city moved to destroy the confiscated firearms of an individual whom the police wished to place on a 72-hour hold but were unable to locate. The appellate court found in favor of the defendant, stating that section 8102 requires that the person receive a face-to-face evaluation. They reasoned that “on a practical level, unless the power to confiscate and forfeit weapons is closely tethered to the assessment and evaluation required by section 5151 and 5152, a risk arises that weapons will be taken from law-abiding citizens who in fact are not a danger to themselves or others.

Absent assessment and evaluation by trained mental health professionals, the seizure and loss of weapons would depend solely on the necessarily subjective conclusion of law enforcement officers who may or may not have the mental health training and experience otherwise available at a designated mental health facility within the meaning of section 5150.” These California appellate decisions are generally similar to decisions regarding the limits of the federal law in this area, which have been reviewed elsewhere. Taken together, the body of case law illustrates

the approach courts are likely to take when analyzing the pros and cons of firearm restrictions on individuals with a history of mental health problems. This approach could be briefly summarized as essentially supporting the premise that the government does not violate constitutional rights when it prevents individuals with a history of mental health problems from acquiring firearms, provided that there is sufficient evidence that the individual in question does in fact suffer from a mental disorder.

Implementation by the California Department of Justice

All hospitals that admit patients on 72-hour holds report each instance when an individual is placed on a hold for danger to self or others to the California Department of Justice (DOJ). Fourteen- and 30-day holds are also reported. The names of the reported individuals are maintained in a database that is used in the background check that occurs whenever an application is made to purchase a firearm. Section 8108 exempts facilities and providers from liability for making these reports: “Mental hospitals, health facilities, or other institutions, or treating health professionals or psychotherapists who provide reports subject to this chapter shall be civilly immune for making any report required or authorized by this chapter.” On average, over 11,000 such notifications are made each month (information provided to the author under the U.S. Freedom of Information Act by the California DOJ, Firearms Division). Although the Firearms Division does not keep separate statistics by type of hold, it is likely that the majority of reports are for 72-hour holds, since these are more common than longer periods of involuntary treatment. A much smaller number of individuals—approximately 20 per month statewide—are reported due to Tarasoff warnings. As noted above, section 8103(f)(5) gives individuals the opportunity to petition in the superior court of their county of residence for early relief from the firearms prohibition once during the 5-year period in which the prohibition is in effect. There is no statutory requirement that a mental health professional be involved in the hearing to determine whether the prohibition should be lifted.

The California DOJ, Firearms Division receives notification that relief has been granted for approximately 30–60 individuals statewide each month (information provided to the author by the California DOJ under the U.S. Freedom of Information Act). Statistics are not kept concerning the number of 8103(f)(5) petitions that are denied. However, other data suggest that most individuals with a history of involuntary mental health treatment in California do not attempt to purchase firearms. According to the California DOJ,15 3,096 applications for the purchase of firearms (approximately 1% of the total applications) were denied in 2004 for all causes, Of these, 382 (12%) were denied because of mental health prohibitions. This is a small number indeed when one considers that somewhere in excess of 100,000 people are added to the California DOJ’s database of banned individuals each year. In Los Angeles County, the county with the largest population in California, an average of 6 Section 8103(f)(5) petitions are filed each month.16 All hearings are conducted in Superior Court Department 95, the division that hears cases relating to mental health issues, including civil commitments and certain types of forensic cases. This court has made an informal decision to have every petitioner evaluated by a forensic psychiatrist. The evaluation consists of a review of records from the involuntary admission triggering the ban, a psychiatric interview with the petitioner, and, if deemed necessary, contact with collateral sources such as family members or current treatment providers. The assistant district attorney in the department may choose to oppose the petition and, in many cases, testimony is heard, often including that of the forensic psychiatrist. Roughly half of the petitions filed are heard, and a ruling made by the judge. Of these, about 80% are granted.

Implications for Mental Health Professionals

Ramifications of involuntary psychiatric treatment may extend beyond the treatment episode. One consequence, the loss of the right to purchase or possess firearms as a result of involuntary hospitalization, has received little attention in the psychiatric and legal literature until very recently.3,5,17 Under federal law, any individual who has been formally committed to a mental institution loses the ability to purchase or possess firearms. Some states, including California, also ban firearm possession by individuals who have been involuntarily hospitalized for brief periods, without administrative or judicial review, as is the case with California’s 72-hour hold. Clinicians who involuntarily hospitalize patients in jurisdictions with such provisions may wish to reflect on the actual need to use involuntary treatment in cases where inpatient care could be rendered on a voluntary basis. The impetus to consider the consequences to the patient of the loss of firearm rights may be particularly significant for individuals experiencing a temporary crisis who must possess firearms as a part of their employment. An actual case may serve to illustrate this point (some details have been changed).

Officer M was a career police officer with no previous psychiatric history who was in the process of reconciling with his estranged wife. When his wife expressed doubts about reuniting, he became dysphoric and drank alcohol to the point of intoxication. He called a friend and expressed feelings of hopelessness. The friend became concerned that Officer M might be suicidal and called the local police. The police took Officer M to a psychiatric hospital, where he was placed on a 72-hour hold for danger to self. He was released at the end of the hold, with no medications and no planned follow-up. The discharge diagnosis was adjustment disorder. As a result of the hold, he was placed on limited duty. He petitioned the court for relief from the 5-year ban. When evaluated by a forensic psychiatrist as part of the petition process, there was no evidence of mental illness or substance abuse. His petition was granted. Had this person been hospitalized voluntarily, a 5-year ban would not have been triggered.

As the number of states with laws of this type has increased, it becomes more likely that a treating clinician may be asked to give an opinion regarding restoration of firearm rights. As is the case with other assessments of future risk or dangerousness, reaching an opinion on this issue may be challenging, so that clinicians may wish to seek consultation or suggest that the requesting court obtain a forensic psychiatric evaluation. Because most states do not specify a procedure to be followed in determining whether to lift a firearm prohibition, judges are free to make decisions without obtaining input from a mental health professional. It would appear that this state of affairs increases the risk of errors being made, both when individuals, who are in fact at increased risk and should not be allowed to possessfirearms, have their rights restored, and when individuals who are at low risk are denied. Mental health professionals who practice forensically may wish to consider offering their services to judges or attorneys dealing with these cases to reduce the chance of these types of errors being made. To the author’s knowledge, there has been no formal outcome study of individuals after restoration of firearms rights in terms of suicide, homicide, arrest, or any other measure.

Conclusions

This column has focused on California’s statutory and case law concerning prohibition of firearms purchase and possession by individuals with a history of mental health adjudications and involuntary psychiatric treatment and discussed how these laws have been implemented. With the exception of individuals placed on a 72-hour hold for grave disability whose involuntary treatment is not extended, every patient who is admitted involuntarily in California is prohibited from possessing firearms for at least 5 years. Several other states also have firearm laws that apply to a broader population than that identified by the federal definition. Clinicians who practice in jurisdictions with such laws should familiarize themselves with the potential impact of these statutes on their patients and should be prepared to respond to requests for opinions on restoration. This area represents a potential new source of referrals for forensic practitioners as well as for epidemiological and clinical research. Future research directions could include studies of the impact of firearm laws on patients (including on their employment), rates of prohibition, rates of prohibition relief, and rates of suicide and violence. A discussion of the ethics, efficacy, and reasonableness of firearm prohibition laws is beyond the scope of this paper. Although the federal law is nearly four decades old, many state laws are of more recent origin.

Discussions of this trend and of the ethics and efficaciousness of firearms prohibitions for individuals with a history of psychiatric treatment have recently been published. Appelbaum commented that “given that only a tiny fraction of violence, including gun violence, is perpetrated by persons with mental disorders, efforts that center disproportionately on restricting their access reflect a deeply irrational public policy.” Concerns about confidentiality in the context of databases of individuals barred from purchasing firearms for mental health reasons have also been raised. No research has yet specifically examined the impact of firearm laws that affect individuals with histories of mental health problems in terms of important issues such as employment, health insurance, violence, or suicide. However, several studies have demonstrated an increased risk for death by suicide18–21 and homicide19,22 among firearm purchasers and owners. In one of these studies, a positive correlation between household handgun ownership and suicide rates could not be explained by differing rates of major depression, suicidal thoughts, or alcohol consumption.21 This finding suggests that individuals with psychiatric diagnoses may be at higher risk for suicide if there is a firearm in their household. Thus, there appears to be at least some evidence to suggest that limiting access to firearms on the basis of mental health issues may have the potential to reduce suicide rates. Clearly, much more research on this topic is needed. Mental health practitioners should be aware of any laws in their jurisdiction affecting access to firearms by individuals with a history of mental illness or treatment. Such laws can have a significant impact on patients and may also present difficult challenges for treatment providers asked to give opinions about restoration. Despite some persisting questions about their appropriateness and fundamental fairness, these types of laws are increasingly common and highly likely to remain on the books for the foreseeable future.

References

1. Edwards AE. Firearms and the mentally ill: A legislative overview and jurisprudential analysis. Beh Sci Law 1993;11:407–21.

2. Public Law 103-159, 1993.

3. Norris DM, Price M, Gutheil T, et al. Firearm laws, patients, and the roles of psychiatrists. Am J Psychiatry 2006;163:1392–6.

4. Bender E. Most states say mental illness reason to bar gun ownership. Psychiatric News 2006;41:6-36.

5. Simpson JR. Bad Risk? An overview of laws prohibiting possession of firearms by individuals with a history of mental illness treatment. J Am Acad Psychiatr Law, in press.

6. City of San Diego v. Kevin B., 118 Cal. App. 4th 933 (Cal. Ct. App. 2004).

7. 18 U.S.C. Section 922 et seq (1968).

8. 28 C.F.R. Section 25.2 (1998).

9. California Department of Justice, Firearms Division. Information Bulletin No. 99-09-FD, Dec. 22, 1999.

10. Garner BA, ed. Black’s law dictionary, 8th edition. St. Paul, MN:West Publishing; 2004:728.

11. Katona v. County of Los Angeles, 172 Cal. App. 3d 53 (Cal. Ct. App. 1985).

12. Braman v. State of California, 28 Cal App 4th 344 (Cal. Ct. App. 1991).

13. People v. One .22-Caliber Ruger Pistol, 84 Cal. App. 4th 310 (Cal. Ct. App. 2000).

14. Rupf v. Yan, 85 Cal. App. 4th 411 (Cal. Ct. App. 2000).

15. Firearm transaction denials. California Department of Justice Firearms Division Website. Available at www.ag.ca.gov/firearms/forms/pdf/denialschart2004.pdf, accessed April 21, 2006.

16. Simpson JR, Sharma KK. Firearms and the mentally ill: Demographics and psychiatric characteristics of individuals petitioning for early relief from firearms prohibition. Presented at the Annual Meeting of the American Academy of Forensic Sciences (AAFS), San Antonio, Texas, February 2007.

17. Appelbaum PS. Violence and mental disorders: Data and public policy. Am J Psychiatry 2006;163:1319–21.

18. Kellermann AL, Rivara FP, Somes G, et al. Suicide in the home in relation to gun ownership. N Engl J Med 1992;327:467–72.

19. Cummings P, Koepsell TD, Grossman DC, et al. The association between the purchase of a handgun and homicide or suicide. Am J Public Health 1997;87:974–8.

20. Wintemute GJ, Parham CA, Beaumont JJ, et al. Mortality among recent purchasers of handguns. N Engl J Med 1999; 341:1583–9.

Patients Rights Afforded to Persons Under LPS

Patients Rights Afforded to Persons Under LPS
Under the Lanterman-Petris-Short (LPS) Act, persons are statutorily entitled to individualized treatment that is least restrictive of their personal liberties. Welf. & Inst. Code § 5325.1. Mental health facilities must also comply with the patients’ rights provisions found in Welfare & Institutions Code Sections 5325 and following.

Welfare and Institutions Code Section 5325 ensures the protection of certain basic rights such as the right to wear one’s own clothing, to keep and use personal possessions, to have visitors of one’s own choice, as well as the right to specified procedures regulating the refusal of certain forms of treatment. These rights under Section 5325 ( with the exception of the right to refuse psychosurgery, ECT, and the right to see and receive the services of a patients’ rights advocate) may be denied, but only upon a properly documented showing of good cause. Welf. & Inst. Code § 5326. The rights specified in Section 5325 may not be waived by the person’s parent, guardian or conservator.

1. Denial for good cause

The facility may, for good cause, deny a person any of the rights specified under Section 5325 except those exempted as stated above.

Good cause for denial of rights exists when the facility has good reason to believe:

* (a) the exercise of the right would be injurious to the patient; OR
* (b) it would seriously infringe on the rights of others; OR
* (c) the facility would suffer serious damage if the right is not denied; AND
* (d) there is no less restrictive way of protecting these three interests. 2

Title 9, California Code of Regulations (C.C.R.) § 865.2(a).

2. Good cause narrowly defined

The reason to justify the denial must be related to the specific right denied. A right cannot be withheld or denied as a punitive measure nor be construed as a privilege to be earned. When a right is denied, staff must use the least restrictive means of managing the behavior that led to the denial. In addition, treatment modalities cannot include denial of any of the rights listed in Section 5325. Finally, a right cannot continue to be denied when the good cause for its denial no longer exists. Title 9 C.C.R. §§ 865.1; 865.5 (emphasis added)

3. Documentation

Each denial of a patient’s rights must be documented in the treatment record. Welf. & Inst. Code § 5326; Title 9 C.C.R. § 865.3. This documentation must take place immediately, and must be done regardless of the gravity or frequency of the denial. There are also specific guidelines for documenting any additional denials of rights while a patient is in seclusion and restraint. Title 9 C.C.R. § 865.4(c).

4. Same rights and responsibilities guaranteed others

Welfare and Institutions Code Section 5325.1 provides that: “Persons with mental illness have the same legal rights and responsibilities guaranteed all other persons by the Federal Constitution and laws and the Constitution and laws of the State of California unless specifically limited by federal or state law or regulations.” Section 5325.1 also provides, in part:

It is the intent of the legislature that persons with mental illness shall have rights including, but not limited to, the following:

* (a) A right to treatment services which . . . should be provided in ways that are least restrictive of the personal liberty of the individual.
* (b) A right to dignity, privacy, and humane care.
* (c) A right to be free from harm including unnecessary or excessive physical restraint, isolation, medication, abuse or neglect. Medication shall not be used as a punishment, for the convenience of staff, as a substitute for program, or in quantities that interfere with the treatment program.
* (d) A right to prompt medical care and treatment.

The above rights reside with the person, are not affected by conservatorship, and apply to both voluntary and involuntary patients. Welf. & Inst. Code §§ 5325, 5325.1.

As previously discussed, certain rights under Welfare and Institutions Code Section 5325 may be denied but only upon a properly documented showing of good cause. Welf. & Inst. Code § 5326. However, rights under Section 5325.1 may not be curtailed and the penalties for intentional violation include civil fines and license revocation, as well as individual actions against the facility for damages. Welf. & Inst. Code § 5326.9(d)-(e).