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Oregon Bulletin

February 1, 2011

 

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

Rule Caption: Handling of Patient Mail in State Institutions.

Adm. Order No.: MHS 1-2011(Temp)

Filed with Sec. of State: 1-6-2011

Certified to be Effective: 1-7-11 thru 6-1-11

Notice Publication Date:

Rules Adopted: 309-100-0100, 309-100-0110, 309-100-0120, 309-100-0130, 309-100-0140, 309-100-0150

Rules Suspended: 309-102-0000, 309-102-0005, 309-102-0010, 309-102-0015, 309-102-0020, 309-102-0025

Subject: These rules are a comprehensive revision of those being suspended, as there were many changes. These rules relate to mail being sent and received by patients residing in each Oregon State Hospital campus and the Blue Mountain Recovery Center. These rules accomplish the following:

      • Protect patient rights related to the posting and receipt of mail.

      • Specify the circumstances under which staff of those state institutions may confiscate a piece of mail arriving for, or being sent by a patient.

      • Specify the procedures to be used when a piece of mail is confiscated.

      • Protects the safety and security of those state institutions and all affiliated people.

Rules Coordinator: Richard Luthe—(503) 947-1186

309-100-0100

Purpose and Scope

(1) Purpose. These rules prescribe the standards for handling mail belonging to patients in state institutions, including mail arriving for patients and mail patients are sending from the state institution.

(2) Scope. These rules apply to all individuals residing in a state institution as defined in OAR 309-102-0005.

Stat. Auth.: ORS 179.040, 409.050 & 426.385

Statutes Implemented: ORS 179.360 & 426.385

Hist.: MHS 1-2011(Temp), f. 1-6-11, cert. ef. 1-7-11 thru 6-1-11

309-100-0110

Definitions

(1) “Contraband” means any controlled substance, drug paraphernalia, unauthorized currency or any other article which by statute, rule, order or the state institution’s policies, is prohibited from being in a patient’s possession, and the use of which could endanger the safety or security of the institution.

(2) “Controlled Substance” means a drug or it’s immediate precursor classified under the federal Controlled Substances Act and as modified under ORS 475.035.

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

(4) “Drug Paraphernalia” means all equipment, products and materials of any kind which are marketed for use or designed for use in planting, propagating, cultivating, growing, harvesting, manufacturing, compounding, converting, producing, processing, preparing, testing, analyzing,

packaging, storing, containing, concealing, injecting, ingesting, inhaling or otherwise introducing into the human body a controlled substance in violation of Oregon Revised Statute (ORS) 475.840 to 475.980 (ORS 475.525(2).

(5) “Electronic Mail” means digital messages transmitted electronically.

(6) “Journalist Mail” means letter mail sent to news media organizations such as but not limited to newspapers, magazines and television station news departments.

(7) “Legal Mail” means any mail received from or addressed to any attorney, court, tribal official, elected official, disability rights organization or advocacy group that is part of the system outlined in ORS 192.517.

(8) “Limited Item” means any food, non-prescribed medicine or other article which is allowed for patient use, but which must be held or kept in a specific area for reasons of maintaining public health standards to ensure proper dosage or to limit it’s ingestion, viewing or other use to the owner of the item.

(9) “Mail” means any letter, post card, periodical or any other type of envelope or package, except for legal mail and journalist mail.

(10) “Patient” means a person who is residing in a state institution.

(11) “Prohibited Item” means:

(a) Alcohol, controlled substances or drug paraphernalia;

(b) Any item that reasonably could be used as or turned into a weapon or instrument of escape;

(c) Any item the possession of which is considered detrimental to the treatment of a specific patient and which is recorded as prohibited with the rationale in the patient’s chart by the treating physician; or

(d) Any item the possession of which is disallowed to a clearly defined portion of the patient population or to the entire patient population pursuant to the institution’s policies or other formal

documents.

(12) “Reasonable Cause” means a person has knowledge or notice of facts or circumstances which would lead a person of ordinary care and prudence to have a strong suspicion.

(13) “Safety” means the institution and all patients and others persons within and around it are free from injury, threats, harassment or other dangers.

(14) “Security” means prevention of any patient’s potential escape from a state institution or the prevention of damage to institutional or personal property within the grounds of the state institution. 

(15) “State Institution” means all Oregon State Hospital campuses or the Blue Mountain Recovery Center.

(16) “Superintendent” means the executive head of any state institution or that person’s designee.

(17) “Treatment Care Plan” means an individualized and comprehensive written plan of therapeutic interventions designed, in collaboration between the patient and his or her treatment team, and designed to facilitate rehabilitation of psychiatric symptoms and eventual independence.

Stat. Auth.: ORS 179.040, 409.050 & 426.385

Statutes Implemented: ORS 179.360 & 426.385

Hist.: MHS 1-2011(Temp), f. 1-6-11, cert. ef. 1-7-11 thru 6-1-11

309-100-0120

Patient Rights Related to Mail

(1) Except as outlined in OAR 309-100-0930 through 309-100-0950, all patients in state institutions shall have the right to communicate freely in person by sending and receiving sealed mail.

(2) All journalist, legal or other mail may be sent or delivered by hand or via any parcel delivery service.

(3) Except as provided in ORS 309-100-0930 through 309-100-0950, no employee or any person acting through or on behalf of the Division shall:

(a) Open, read, censor, inspect or otherwise examine any patient’s incoming or outgoing mail without the expressed permission of the patient who is the sender or the receiver of the mail;

(b) Prevent, obstruct or delay any patient’s outgoing mail from being promptly mailed;

(c) Prevent, obstruct or delay any patient’s incoming mail from being promptly delivered or forwarded to the patient.

(4) A patient shall be promptly informed, verbally and in writing, of:

(a) Any limitation to the right to send or receive sealed mail;

(b) Any item having been opened by staff pursuant to OAR 309-100-0930 through 309-100-0940; and

(c) Any item being held pursuant to 309-100-0930 through 309-100-0940.

(5) At the request of a patient with a need, an employee may assist in reading or sending mail. Need for this assistance shall first be documented in the patient’s Treatment Care Plan by the physician.

(6) Patients shall be provided a reasonable amount of writing material by the state institution. Stamps shall be available for purchase by patients with funds. Patients without funds will be provided a reasonable number of stamps by the state institution.

(7) The exchange of electronic mail is an earned privilege only and is related to the patient’s recent behaviors, current level of care and other privileges.

(8) The application of these rules may be contested by way of the state institution’s grievance procedures.

Stat. Auth.: ORS 179.040, 409.050 & 426.385

Statutes Implemented: ORS 179.360 & 426.385

Hist.: MHS 1-2011(Temp), f. 1-6-11, cert. ef. 1-7-11 thru 6-1-11

309-100-0130

Mail Suspected To Contain Contraband, Limited Items or Evidence of a Crime

(1) The superintendent may designate certain areas of the state institutions as locked high security areas if the superintendent finds that these areas require additional precautions to protect the safety and security of the facility.

(2) In locked high security areas, employees of the state institutions may open all except legal mail in the presence of the patient as prescribed in this rule, even though there may not be reasonable cause to believe that a specific piece of mail contains a prohibited or limited item.

(3) In order to ensure the safety and security of the institution and all affiliated people, the superintendent may additionally order:

(a) Mail be scanned with non-invasive technology including but not limited to x-rays or metal detectors;

(b) Mailed electronic equipment or other items which may contain contraband within, be subject to additional scrutiny, such as but not limited to turning the item on to ensure it’s basic functionality.

(4) When there is reasonable cause to suspect mail contains a limited item the superintendent may order the item be opened by staff in the presence of the patient.

(a) If a limited item is found within the mail, it will be stored and made available to the patient pursuant to the state institution’s related policies and procedures.

(b) If there is no limited or prohibited item within, the patient may retain possession of the mail.

(5) When there is reasonable cause to suspect mail contains evidence of a real or potential crime, the following steps shall occur:

(a) If the real or potential crime may immediately threaten the security of the institution or the health or safety of any affiliated person, the superintendent may hold, open or otherwise inspect the mail.

(b) If the real or potential crime does not appear to immediately threaten the security of the institution or the health or safety of any affiliated person, the superintendent is authorized to:

(A) Contact a law enforcement agency and request a judicial warrant to open the mail and

(B) Hold the mail until either the judicial warrant is denied or the warrant is received and the item is confiscated by the law enforcement agency.

(c) If the judicial warrant is denied the item must promptly be returned to and opened in the presence of the patient. 

(d) If the item is confiscated, opened and examined and found to be permissible the item must promptly be returned to the patient.

(e) If the item is found to contain evidence of a real or potential crime, it will remain in possession of the law enforcement agency for further action.

(4) The intended recipient of any mail withheld pursuant to this rule will be promptly informed of the action unless there is reasonable cause to believe that doing so may:

(a) Increase the potential threat to the security of the institution or the health or safety of any affiliated person or

(b) Destroy or adversely alter the suspected evidence of a real or potential crime.

Stat. Auth.: ORS 179.040, 409.050 & 426.385

Statutes Implemented: ORS 179.360 & 426.385

Hist.: MHS 1-2011(Temp), f. 1-6-11, cert. ef. 1-7-11 thru 6-1-11

309-100-0140

Disposition of Mail Retained or Returned To Patient

(1) Once opened under staff supervision for inspection, permissible items shall not be read or otherwise further inspected and shall be delivered promptly to the patient.

(2) Any item retained from a patient’s mail shall be clearly marked to identify, at minimum the date of the inspection and hold, the patient’s name, the name and address of the sender, a description of the held items and both the printed name and the signature of the employee conducting the process. The item shall then be handled as provided in rules established by the Division for the handling of personal property of patients in state institutions.

(3) When any item is confiscated by a law enforcement agency, each part of the process shall be documented in the patient’s chart with at minimum the date of inspection and confiscation, the patient’s name, the name and address of the sender, a description of the confiscated item(s) and both the printed name and the signature of the employee who witnessed the law enforcement’s confiscation.

(4) All documentation related to any held item shall be in writing and kept in the patient’s chart. The patient shall receive a legible copy of each document.

Stat. Auth.: ORS 179.040, 409.050 & 426.385

Statutes Implemented: ORS 179.360 & 426.385

Hist.: MHS 1-2011(Temp), f. 1-6-11, cert. ef. 1-7-11 thru 6-1-11

309-100-0150

Notice to Patients and Employees

(1) Upon admission to the state institution, patients shall be informed of the institution’s policies and procedures which implement these rules, all their legal rights as detailed in ORS 426.385 and instructions on how to obtain a copy of these rules.

(2) The superintendent of the state institution shall ensure these rules and any related policies and procedures are thoroughly explained to each employee upon the commencement of their employment and to each current employee when deemed a needed subject of supervision or of on-going training.

(3) Violation of these rules and any related institutional policies or procedures by an employee of the Division shall constitute cause for disciplinary action.

Stat. Auth.: ORS 179.040, 409.050 & 426.385

Statutes Implemented: ORS 179.360 & 426.385

Hist.: MHS 1-2011(Temp), f. 1-6-11, cert. ef. 1-7-11 thru 6-1-11

309-102-0000

Purpose and Statutory Authority

(1) Purpose. These rules prescribe procedures for the handling of incoming and outgoing mail of patients and residents in state institutions.

(2) Statutory Authority. These rules are authorized by ORS 430.041 and 179.040 and carry out the provisions of 179.321, 426.385, 426.395, and 427.031.

Stat. Auth.: ORS 179, 426, 427 & 430

Stats. Implemented:

Hist.: MHD 17-1980(Temp), f. & ef. 6-30-80; MHD 19-1980, f. & ef. 12-10-80; MHD 27-1982, f. 12-28-82, ef. 1-28-83, Renumbered from 309-021-0030(1) and (2); Suspended by MHS 1-2011(Temp), f. 1-6-11, cert. ef. 1-7-11 thru 6-1-11

309-102-0005

Definitions

As used in these rules:

(1) “Administrator” means the Assistant Director, Human Resources, and Administrator for Mental Health.

(2) “Division” means the Mental Health and Developmental Disability Services Division of the Department of Human Services.

(3) “Legal Mail” means any mail from, or addressed to, any attorney, any court, and any legal aid bureau or service.

(4) “Mail” means sealed envelopes and parcels.

(5) “Patient” means a person who is receiving care and treatment in a state institution for the mentally ill.

(6) “Prohibited Item” means:

(a) Alcoholic beverages, controlled substances, and prescription and non-prescription drugs or medications;

(b) Any item that reasonably can be used as a weapon or instrument of escape;

(c) Any item the possession of which is detrimental to the treatment and training or health and safety of the patients or residents in a particular ward or cottage and which is prohibited in writing and posted on the affected ward or cottage; and

(d) Any item the possession of which is detrimental to the treatment and training of an individual patient or resident and which is recorded in the treatment and training orders section of the patient’s or resident’s chart by the treating physician or qualified mental retardation professional.

(7) “Qualified Mental Retardation Professional” means a person who meets the professional requirements prescribed by 42 CFR 442.401 or as amended.

(8) “Reasonable Cause” means that the person has knowledge or notice of facts and circumstances which would lead a person of ordinary care and prudence to have a strong suspicion.

(9) “Resident” means a person who is receiving care, treatment, and training in a state institution for the mentally retarded.

(10) “State Institution” means Dammasch State Hospital in Wilsonville, Oregon State Hospital in Salem, Fairview Training Center in Salem, and Eastern Oregon Hospital and Training Center in Pendleton.

(11) “Superintendent” means the executive head of the state institution as listed in section (10) of this rule.

Stat. Auth.: ORS 179, 426, 427 & 430

Stats. Implemented:

Hist.: MHD 17-1980(Temp), f. & ef. 6-30-80; MHD 19-1980, f. & ef. 12-10-80; MHD 27-1982, f. 12-28-82, ef. 1-28-83, Renumbered from 309-021-0030(3); Suspended by MHS 1-2011(Temp), f. 1-6-11, cert. ef. 1-7-11 thru 6-1-11

309-102-0010

Policy

(1) All patients and residents in state institutions shall have the right to communicate freely in person by sending and re­ceiving sealed mail.

(2) Except as provided in section (3) of this rule, no em­ployee or any person acting through, or on the behalf of, the Division shall:

(a) Open, read, censor, inspect, or otherwise examine any patient’s or resident’s incoming or outgoing mail without the expressed permission of the patient or resident who is the sender or the receiver of the mail. Patients and residents are responsible for any items received by them by mail, and should request staff to record any property received on the personal property record;

(b) Prevent, obstruct, or delay any patient’s or resident’s outgoing mail from being promptly mailed;

(c) Prevent, obstruct, or delay any patient’s or resident’s incoming mail from being delivered or forwarded promptly to the patient or resident.

(3)(a) Unless the patient or resident objects, an employee may provide assistance in reading or sending mail for those patients or residents who have physical or mental handicapping conditions which interfere with the ability to use the mail. Need for this assistance shall be documented in the patient’s or resident’s chart by the physician or qualified mental retardation pro­fessional;

(b) When there is reasonable cause to suspect that mail contains a prohibited item, the procedure described in OAR 309-102-0015 shall be followed;

(c) When there is reasonable cause to suspect that incoming or outgoing mail contains evidence of a crime or potential crime, the superintendent, or the superintendent’s designee, may hold mail for a reasonable period of time while a search warrant is being sought.

(4) Patients and residents shall be provided with a reasonable amount of writing material by the state institution. Stamps shall be available for purchase by the patient or resident at each state institution.

(5) The designation of an item as prohibited, the proposed disposition of the item, any interference with the delivery of incoming or outgoing mail, or any other application of these rules may be contested in accordance with OAR 309-118-0000 through 309-118-0050 (Grievance Procedures for Use in State Insti­tutions).

(6) Violation of the rights, policies, and procedures set forth in these rules by an employee of the Division shall constitute cause for disciplinary action.

Stat. Auth.: ORS 179, 426, 427 & 430

Stats. Implemented:

Hist.: MHD 17-1980(Temp), f. & ef. 6-30-80; MHD 19-1980, f. & ef. 12-10-80; MHD 27-1982, f. 12-28-82, ef. 1-28-83, Renumbered from 309-021-0030(4); Suspended by MHS 1-2011(Temp), f. 1-6-11, cert. ef. 1-7-11 thru 6-1-11

309-102-0015

Procedures

When there is reasonable cause to suspect that mail contains a prohibited item, the procedure for inspecting mail set forth below shall be followed:

(1) The superintendent of the state institution, or his designee, may require the patient or resident to open the mail in the presence of an employee of the state institution or require an employee to open the mail in the presence of the patient or resident.

(2) A prohibited item found in incoming mail shall be removed and placed in an envelope or other suitable container that shall be clearly marked to identify at least the following:

(a) The date of inspection and confiscation;

(b) The name of the patient or resident to whom the mail was addressed;

(c) The name and address of the sender;

(d) A list and description of the item(s) confiscated; and

(e) The signature of the employee conducting the inspection and authorizing the confiscation.

(3) Copies of the signed list shall serve as a receipt. One copy shall be placed in the patient’s or resident’s record, one copy shall remain with the item(s), and one copy shall be given to the patient or resident.

(4) The original envelope or other container of mail which has been inspected for prohibited items or from which a prohibited item has been removed shall be marked to correspond exactly with the identification required by section (2) of this rule.

(5) Nonprohibited items shall not be read or otherwise subjected to further inspection and shall be delivered immediately to the patient or resident.

(6) Items confiscated from incoming mail shall be handled as provided in rules established by the Division for the handling of personal property of patients and residents in state institutions.

(7) The manner of disposition of a prohibited item shall be in writing and kept as a record by the state institution.

Stat. Auth.: ORS 179, 426, 427 & 430

Stats. Implemented:

Hist.: MHD 17-1980(Temp), f. & ef. 6-30-80; MHD 19-1980, f. & ef. 12-10-80; MHD 27-1982, f. 12-28-82, ef. 1-28-83, Renumbered from 309-021-0030(4); Suspended by MHS 1-2011(Temp), f. 1-6-11, cert. ef. 1-7-11 thru 6-1-11

309-102-0020

Special Exception

From time to time, the Administrator may designate certain areas of the state institutions as locked high security areas. The superintendent of the state institutions shall request in writing such designation by ward or cottage. The Administrator shall approve or disapprove the designation within 30 days of the request. In such areas, employees of the state institutions are authorized to open all mail in the presence of the patient or resident except legal mail as prescribed in OAR 309-102-0015, even though there may not be reasonable cause to believe that a specific piece of mail contains a prohibited item.

Stat. Auth.: ORS 179, 426, 427 & 430

Stats. Implemented:

Hist.: MHD 17-1980(Temp), f. & ef. 6-30-80; MHD 19-1980, f. & ef. 12-10-80; MHD 27-1982, f. 12-28-82, ef. 1-28-83, Renumbered from 309-021-0030(5);; Suspended by MHS 1-2011(Temp), f. 1-6-11, cert. ef. 1-7-11 thru 6-1-11

309-102-0025

Notice to Patients, Residents, and Employees

(1) Upon admission, state institutions shall inform patients and residents, orally and in writing, of the rights, policies, and procedures set forth in these rules. In addition, a clear and simple statement of the title and number of these rules, their general purpose, and instructions on how to obtain a copy of the rules and how to seek advice about their content shall be prominently displayed in areas frequented by patients and residents in all state institutions.

(2) All employees of state institutions shall be notified in writing at the commencement of their employment, or, for present employees, within a reasonable time of the effective date of these rules, of the rights, policies, and procedures set forth in these rules.

Stat. Auth.: ORS 179, 426, 427 & 430

Stats. Implemented:

Hist.: MHD 17-1980(Temp), f. & ef. 6-30-80; MHD 19-1980, f. & ef. 12-10-80; MHD 27-1982, f. 12-28-82, ef. 1-28-83, Renumbered from 309-021-0030(4); Suspended by MHS 1-2011(Temp), f. 1-6-11, cert. ef. 1-7-11 thru 6-1-11

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2010.

2.) Copyright 2011 Oregon Secretary of State: Terms and Conditions of Use

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