Oregon State Archives

Oregon Bulletin

February 1, 2012

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

Rule Caption: Forensic Mental Health Evaluators and Evaluations.

Adm. Order No.: MHS 12-2011(Temp)

Filed with Sec. of State: 12-21-2011

Certified to be Effective: 1-1-12 thru 6-27-12

Notice Publication Date:

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

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

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

      Forensic evaluations meet consistent quality standards.

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

309-090-0000

Purpose and Scope

These rules establish minimum standards for the certification of psychiatrists and licensed psychologists related to performing forensic examinations and evaluations as described in Oregon Revised Statutes (ORS) 161.309, 161.365 and 419C.524. The rules are intended to ensure that forensic evaluations meet consistent quality standards and are conducted by qualified and trained evaluators. The Oregon Health Authority (OHA) shall provide training, certify qualified applicants and maintain a list of certified forensic evaluators for statewide use.

Stat. Auth.: ORS 413.042; OL 2011, HB 3100

Stats. Implemented: OL 2011, HB 3100

Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-090-0005

Definitions

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

(2) “Board” means the Oregon Board of Medical Examiners.

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

(4) “Conditional Certification” means a psychologist or psychiatrist is temporarily Court-designated as a certified evaluator as defined in OAR 309-090-0030(c).

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

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

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

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

(9) “Full Certification” means a psychiatrist or licensed psychologist in the state of Oregon satisfying the requirements of this chapter as defined in OAR 309-090-0030(a).

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

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

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

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

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

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

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

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

(16) “Temporary Certification” means a psychiatrist or licensed psychologist in the state of Oregon satisfying the requirements as defined in OAR 309-090-030 (b)

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

Stat. Auth.: ORS 413.042; OL 2011, HB 3100

Stats. Implemented: OL 2011, HB 3100

Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-090-0010

Forensic Certification Types and Requirements

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

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

(a) Full Certification:

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

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

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

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

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

(b) Temporary Certification

(A) Psychiatrists and licensed psychologists who submit an application for Forensic Evaluator Certification will be granted a Temporary Certification, valid January 1, 2012 through on June 30, 2012, for the purpose of allowing applicants to participate in and successfully complete the Oregon Forensic Evaluator Training Program. Applicants shall provide three redacted forensic evaluations, completed within the previous 24 months. If the applicant desires to perform criminal responsibility evaluations, at least one redacted sample shall be an evaluation of criminal responsibility, for the purposes of peer review prior to 6/1/2012. Applicants who successfully complete the training and provide the required documents will be granted a full certification based on the requirements above;

(B) Psychiatrists and licensed psychologists who submit application for Forensic Evaluator Certification on or after July 1, 2012 will be granted a Temporary Certification until participation in and successful completion of the Oregon Forensic Evaluator Training and submission of three redacted forensic evaluations. If the applicant desires to perform criminal responsibility evaluations, at least one redacted sample shall be an evaluation of criminal responsibility for peer review. Applicants must attend at the next regularly scheduled training date. Applicants who successfully complete the training will be granted a full certification based on the requirements above.

(C) Temporary certification has a maximum duration of 6 months. An extension of an additional 6 months may be granted by the Authority upon a showing of good cause.

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

Stat. Auth.: ORS 413.042; OL 2011, HB 3100

Stats. Implemented: OL 2011, HB 3100

Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-090-0015

Application Requirements and Process

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

(2) The application must be accompanied by:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) The evaluator receives a finding of confirmed client abuse or loses his or her professional license for any other reason;

(c) The Authority received two or more substantiated and serious written complaints regarding the quality of written reports; from the parties to the criminal proceedings or other certified evaluators during the prior two year period, regarding the evaluator’s reports or conduct;

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

(e) The Authority shall provide the applicant with written notice of the applicant’s right to appeal, pursuant to the provisions of ORS 183.

Stat. Auth.: ORS 413.042; OL 2011, HB 3100

Stats. Implemented: OL 2011, HB 3100

Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-090-0020

Recertification Requirements

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

(2) The minimum requirements for recertification are:

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

(b) Participation and successful completion every two years, of the Oregon Forensic Evaluator training program approved by the Authority,

(c) Proof of participation and successful completion of a minimum of 6 hours (CEU’s) continuing education in forensic related issues

(d) Review and approval by the Authority of a minimum 3 redacted forensic evaluations one of which shall be a criminal responsibly evaluation. If performing Juvenile evaluations one of these shall be a juvenile competency or criminal responsibility evaluation. These reports will be subject to peer review and must meet or exceed minimum quality standards identified by the Authority as listed in OAR 309-090-0060; and

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

(3) Failure to reapply shall constitute a forfeiture of certification which may be restored only upon written application accepted by the Authority.

Stat. Auth.: ORS 413.042; OL 2011, HB 3100

Stats. Implemented: OL 2011, HB 3100

Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-090-0025

Content of Written Evaluations Assessing Competency and Criminal Responsibility

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

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

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

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

(d) Summary of a mental status examination;

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

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

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

(2) In addition to 309-090-0060(1), when the defendant’s competency is in question, the evaluation shall also include, at a minimum, opinions and explanations related to the defendant’s:      

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

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

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

(d) Ability to make relevant decisions autonomously;

(e) If determined incapacitated:

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

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

(3) In addition to 309-090-0060(1), related to the question of criminal responsibility, the evaluation shall also include, at a minimum, opinions and explanations addressing:

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

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

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

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

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

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

Stat. Auth.: ORS 413.042; OL 2011, HB 3100

Stats. Implemented: OL 2011, HB 3100

Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-090-0030

Forensic Evaluation Peer Review Panel

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

(a) Two Psychiatrists eligible for full certification, nominated by the Oregon Psychiatric Association, and one of which must meet the following criteria:

(A) Be board eligible or certified by the American Board of Psychiatry and Neurology in the sub-specialty of Forensic Psychiatry or

(B) Has completed a fellowship in forensic psychiatry, accredited by the Accreditation Council for Graduate Medical Education (ACGME) and have experience in conducting competence to stand trail and criminal responsibility evaluations,

(b) Two Licensed Psychologists eligible for full certification, nominated by the Oregon Psychological Association, one of which must meet the following criteria;

(A) A diplomate in Forensic Psychology certified by the American Board of Professional Psychology, or

(B) Has 2000 documented supervised hours of pre or post-doctoral training in a forensic setting, which included the conduction of competence to stand trial and criminal responsibility evaluations,

(c) One defense attorney nominated by the Oregon Criminal Defense Association and

(d) One prosecuting attorney nominated by the Oregon District Attorney’s Association.

(2) These individuals shall be experienced in the criminal justice system and have familiarity with the issues of competency and criminal responsibility.

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

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

Stat. Auth.: ORS 413.042; OL 2011, HB 3100

Stats. Implemented: OL 2011, HB 3100

Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-090-0035

Peer Review Process

(1) Three members of the Peer Review Panel will meet at least monthly to review all submitted redacted forensic evaluations received in the prior 30 days, unless there are no evaluations to review.

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

(3) If agreement is not reached a third panel member will review to provide the deciding opinion.

(4) Deciding members will issue a report with feedback to the forensic evaluator.

Stat. Auth.: ORS 413.042; OL 2011, HB 3100

Stats. Implemented: OL 2011, HB 3100

Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-090-0040

Forensic Evaluator Training Program

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

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

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

(c) The required contents of a report;

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

(e) The elements of expert witness testimony;

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

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

Stat. Auth.: ORS 413.042; OL 2011, HB 3100

Stats. Implemented: OL 2011, HB 3100

Hist.: MHS 12-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

Rule Caption: Oregon State Hospital Review Panel.

Adm. Order No.: MHS 13-2011(Temp)

Filed with Sec. of State: 12-21-2011

Certified to be Effective: 1-1-12 thru 6-27-12

Notice Publication Date:

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

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

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

309-092-0000

Purpose and Scope

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

Stat. Auth.: ORS 413.042 & 161.341, SB 420.

Stats. Implemented: ORS 161.295 - 161.400, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0005

Definitions

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stat. Auth.: ORS 413.042 & 161.341, SB 420.

Stats. Implemented: ORS 161.295 - 161.400, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0010

Membership and Terms

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

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

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

(4) Review Panel Members are eligible for reappointment.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.

Stats. Implemented: ORS 161.295 - 161.400, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0015

Chair; Powers and Duties

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

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

(a) Presiding at hearings and meetings;

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

(c) Making rulings on procedural matters.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.

Stats. Implemented: ORS 161.295 - 161.400, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0020

Responsibilities, Function and Purpose of Review Panel

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

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

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

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

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

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

Stat. Auth.: ORS 413.042 & 161.341, SB 420.

Stats. Implemented: ORS 161.295 - 161.400, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0025

Jurisdiction of Individuals Under the Review Panel

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

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

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

(3) The Review Panel and the PSRB do not consider time spent on unauthorized leave from the custody of the OHA Addictions and Mental Health Division as part of the jurisdictional time.

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

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

(6) The JPSRB will have jurisdiction over juveniles found guilty except for insanity.

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

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

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

Stat. Auth.: ORS 413.042, 161.327, 161.332, 161.336, 161.346, 161.351, 161.385, SB 420.

Stats. Implemented: ORS 161.295 - 161.400, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0030

Scheduling Review Panel Hearings and Meetings

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

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

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

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

Stat. Auth.: ORS 413.042 & 161.341, SB 420.

Stats. Implemented: ORS 161.295 - 161.400, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0035

Quorum and Decisions

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

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

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

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

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

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

Stat. Auth.: ORS 413.042 & 161.341, SB 420.

Stats. Implemented: ORS 161.295 - 161.400, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0040

Public Meetings Law

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

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

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

Stat. Auth.: ORS 413.042 & 161.341, SB 420.

Stats. Implemented: ORS 161.295 - 161.400, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0045

Records

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

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

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

(b) The Review Panel hearings shall be transcribed from the recording for appeal purposes. Once transcribed, the transcript may be substituted for the original record.

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

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

Stat. Auth.: ORS 413.042 & 161.341, SB 420.

Stats. Implemented: ORS 161.295 - 161.400, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0050

Public Records Law; Confidentiality

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

Stat. Auth.: ORS 413.042, 161.385, 161.387, 192.450, 192.500, 192.525; & 192.690, SB 420.

Stats. Implemented: ORS 161.295 - 161.400, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0055

Hearing Notices

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

(1) The individual;

(2) The attorney representing the individual;

(3) The District Attorney;

(4) The community supervisor or case monitor;

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

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

(7) The victim, if the victim submits a written request to the Review Panel for notification.

(8) Any other interested person requesting notification;

(9) A state hospital unit in which the individual resides; and

(10) The PSRB in the case of conditional release hearings.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.

Stats. Implemented: ORS 161.295 - 161.400, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0060

Information Contained in Notice

Written notice shall contain the following:

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

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

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

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

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

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

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

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

Stat. Auth.: ORS 413.042 & 161.341, SB 420.

Stats. Implemented: ORS 161.295 - 161.400, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0065

Time Frame of Hearings

Hearings shall be held within the following time frames:

(1) The initial hearing under ORS 161.341(7)(a) shall occur within 90 days following the individual’s placement under the Review Panel’s jurisdiction and commitment to a state hospital.

(2) The revocation hearing under ORS 161.341(5) shall occur within 20 days following an Order of Revocation for violation of the conditional release.

(3) An individual’s request for conditional release or discharge under ORS 161.341(4)(5)(6) shall be heard within 60 days of receipt of the request.

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

(5) A request for conditional release by the state hospital, under ORS 161.341(2) may be made at any time and shall be heard within 60 days of receipt of the request.

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

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

(8) Five-year hearings under ORS 161.351(3) are mandatory for individuals who are under the jurisdiction of the Review Panel and who have spent five years on conditional release. Such individuals shall be brought before the Review Panel for a hearing within 30 days of the expiration of the five year period.

Stat. Auth.: ORS 413.042 & 161.341, SB 420.

Stats. Implemented: ORS 161.336, 161.341, 161.351, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0070

Chairperson Conducting Hearing

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

(1) Designate the order of presentation and questioning;

(2) Determine the scope of questioning; and

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

Stat. Auth.: ORS 413.042 & 161, SB 420

Stats. Implemented: ORS 161.385, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0075

Patient’s Right to Review Record; Exceptions

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

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

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

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

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

Stat. Auth.: ORS 413.042 & 161.327, SB 420

Stats. Implemented: ORS 161.346, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0080

Evidence Considered; Admissibility

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

(1) The record of trial;

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

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

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

(5) Psychiatric or psychological reports ordered by the Review Panel under ORS 161.346(2);

(6) Psychiatric and psychological reports under ORS 161.341(3) written by a person chosen by the state or the individual to examine the individual; and

(7) Testimony of witnesses.

Stat. Auth.: ORS 413.042 & 161, SB 420

Stats. Implemented: ORS 161.336, 161.341 & 161.346, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0085

Motion Practice

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

Stat. Auth.: ORS 413.042 & 161.327, SB 420

Stats. Implemented: ORS 161.346, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0090

Objections to Evidence

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

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

(a) The age and source of the documents;

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

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

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

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

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

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

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

Stat. Auth.: ORS 413.042 & 161.327, SB 420.

Stats. Implemented: ORS 161.346 & 161.385, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0095 

Witnesses and Documents; Subpoena

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

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

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

Stat. Auth.: ORS 413.042 & 161.387; SB 420

Stats. Implemented: ORS 161.346 & ORS 161.395; SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0100

Testimony Given on Oath

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

Stat. Auth.: ORS 413.042 & 161.327, SB 420.

Stats. Implemented: ORS 161.346 & 161.385, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0105

Standards and Burdens of Proof

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

(a) In an initial 90-day hearing under ORS 161.341(7)(a), the state has the burden to show the individual continues to be affected by a mental disease or defect and continues to be a substantial danger to others.

(b) In a revocation hearing under ORS 161.336(5), the state has the burden to show the individual’s unfitness for conditional release and that jurisdiction of the Review Panel should continue.

(c) In an individual’s request for conditional release or discharge under ORS 161.341(4), the individual has the burden of proving his or her fitness for conditional release or discharge, unless it has been more than two years since the State had the burden of proof. In that case, the burden is on the State.

(d) In a request for conditional release or discharge of the individual by the Authority under ORS 161.341(2) or by the outpatient supervisor under ORS 161.336(7) (b), the state must prove the individual is not appropriate for conditional release or discharge.

(e) In a status review hearing under ORS 161.336(2) the state has the burden of proving that the current conditional release, modification of conditional release, or a proposed plan is appropriate.

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

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.336, 161.341 & 161.346, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0110

Burden of Going Forward

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.346, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0115

Continuance of Hearing

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.346, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0120

Cancellation of Hearing

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.346, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0125

Use of Restraints

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

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.346, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0130

Decisions of the Review Panel

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

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

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

(4) The formal order of the Review Panel shall contain the findings of facts, conclusions of law, reasons for the decision and notice of the right to appeal under ORS 161.385(8).

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.346, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0135

Notification of Right to Appeal

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.346, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0140

Patient Appearing Pro Se

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.346, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0145

Issues Before the Review Panel

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.346, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0150

Primary Concern: Protection of Society

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.336, 161.341, 161.346, 161.351, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0155

Initial Hearing

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

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

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

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

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.336, ORS 161.341 & ORS 161.346; SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0160

Revocation Hearing

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

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

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

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

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

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

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

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

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.336, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0165

Patient Request for Conditional Release

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

Stat. Auth.: ORS 413.042 & 161.327, SB 420

Stats. Implemented: ORS 161.341, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0170

Patient Request for Discharge

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

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

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

Stat. Auth.: ORS 413.042 & 161.327, SB 420

Stats. Implemented: ORS 161.341, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0175

Hospital Request for Conditional Release

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

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.341, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0180

Hospital or Outpatient Supervisor Request for Discharge

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.341, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0185 

Mandatory Two-Year, Five-Year Hearings

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

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

(3) At mandatory two-year and five-year hearings, the Review Panel shall consider:

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

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

Stat. Auth.: ORS 413.042 & 161.387; SB 420

Stats. Implemented: ORS 161.341 & ORS 161.351; SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0190

Status Hearing

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

Stat. Auth.: ORS 413.042 & 161.327, SB 420

Stats. Implemented: ORS 161.336, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0195

Review Panel Order of Conditional Release

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

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

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

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

(b) If the PSRB submits a conditional release plan, the Review Panel shall adopt the PSRB’s plan as the conditional release plan approved by the Review Panel.

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.336, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0200

Elements of Conditional Release Order

(1) The Review Panel may consider any or all of the following elements of a conditional release plan and determine which are appropriate and necessary to insure the safety of the public. If the PSRB submits a conditional release plan, the Review Panel shall adopt that plan.

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

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

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

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

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

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

(3) Parole and probation supervision may be ordered.

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.336, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0205

The Authority’s Responsibility to Prepare Plan

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

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.336, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0210

Out-of-State Conditional Release Order

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

Stat. Auth.: ORS 413.042 & 161, SB 420 .

Stats. Implemented: ORS 161.336, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0215

Reconsideration

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

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

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

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

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

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

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

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

Stat. Auth.: ORS 413.042 & 161.327, SB 420

Stats. Implemented: ORS 161.346, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0220

Judicial Review

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

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.385, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0225

Enforcement of Review Panel Orders

The Review Panel may apply to the circuit court of the appropriate county for contempt proceedings under ORS 161.395(5) when its directive to an agency or person is not followed.

Stat. Auth.: ORS 413.042 & 161.327, SB 420

Stats. Implemented: ORS 161.395, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0230

Compliance

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

Stat. Auth.: ORS 413.042, 137.540, 161,327, 192.620, 430.630, SB 420

Stats. Implemented: ORS 161.336, 161.346, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0235

Custody of An Individual Who is a Substantial Danger to Others

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

Stat. Auth.: ORS 413.042 & 161.387, SB 420

Stats. Implemented: ORS 161.346, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

309-092-0240

Leaves and Passes

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

(2) If the hospital’s Risk Review Committee approves the request, the request and recommendation of the Risk Review Committee shall be presented to the Review Panel for final approval.

(3) Emergency pass requests may be made by telephone to the Risk Review Committee by the physician or social worker, and presented to the Legal Affairs Director if the Review Panel is unavailable.

Stat. Auth.: ORS 413.042, 137.540, 161.315, 161.327, 161.332, 161.341, 161.346, 161.351, 161.365, 161.370, 161.390, 161.400, 192.690, 428.210, SB 420

Stats. Implemented: ORS 161.400, SB 420

Hist.: MHS 13-2011(Temp), f. 12-21-11, cert. ef. 1-1-12 thru 6-27-12

Rule Caption: Medicaid Payment for Rehabilitative Mental Health Services.

Adm. Order No.: MHS 14-2011(Temp)

Filed with Sec. of State: 12-29-2011

Certified to be Effective: 1-1-12 thru 6-28-12

Notice Publication Date:

Rules Amended: 309-016-0600, 309-016-0605, 309-016-0610, 309-016-0630, 309-016-0675, 309-016-0685, 309-016-0745, 309-016-0750

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

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

309-016-0600

Scope

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

Stat. Auth.: ORS 413.042 & 430.640

Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715

Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12

309-016-0605

Definitions

(1) “Action” means:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(26) “Local Mental Health Authority” (LMHA) means one of the following entities:

(a) The board of county commissioners of one or more counties that establishes or operates a Community Mental Health Program (CMHP);

(b) The tribal council, in the case of a federally recognized tribe of Native Americans that elects to enter into an agreement to provide mental health services; or

(c) A regional local mental health authority comprised of two or more boards of county commissioners.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(c) Has the competencies necessary to:

(A) Communicate effectively;

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

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

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

(a) Graduate degree in psychology;

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

(c) Graduate degree in social work;

(d) Graduate degree in a behavioral science field;

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

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

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

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

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

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

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

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

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

Stat. Auth.: ORS 413.042 & 430.640

Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705, 430.715

Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12

309-016-0610

Clinical Documentation

Providers shall comply with clinical documentation as required in the Integrated Services and Supports Rule (OARs 309-032-1525(3) through 309-032-1535)

Stat. Auth.: ORS 409.010, 413.042, 430.640, 430.705 & 430.715

Stats. Implemented: ORS 414.025, 414.065 & 430.640

Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12

309-016-0630

Payment

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stat. Auth.: ORS 413.042 & 430.640

Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715

Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12

309-016-0675

Prior Authorization

Authorization of Payment.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(6) Retroactive Eligibility:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Stat. Auth.: ORS 413.042 & 430.640

Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715

Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12

309-016-0685

Variances

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

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

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

(b) The reason for the proposed variance;

(c) The alternative practice proposed; and

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

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

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

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

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

Stat. Auth.: ORS 413.042 & 430.640

Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715

Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12

309-016-0745

Service Criteria

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

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

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

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

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

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

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

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

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

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

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

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

Stat. Auth.: ORS 413.042 & 430.640

Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715

Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12

309-016-0750

Payments

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

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

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

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

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

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

(c) Documented in individual service notes; and

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

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

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

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

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

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

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

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

Stat. Auth.: ORS 413.042 & 430.640

Stats. Implemented: ORS 413.042, 414.025, 414.065, 430.640, 430.705 & 430.715

Hist.: MHS 8-2010(Temp), f. 6-15-10, cert. ef. 7-1-10 thru 8-28-10; MHS 11-2010, f. & cert. ef. 8-25-10; MHS 14-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-28-12

Rule Caption: Integrated Services and Supports.

Adm. Order No.: MHS 15-2011(Temp)

Filed with Sec. of State: 12-29-2011

Certified to be Effective: 1-1-12 thru 6-29-12

Notice Publication Date:

Rules Amended: 309-032-1500, 309-032-1505, 309-032-1510, 309-032-1515, 309-032-1520, 309-032-1525, 309-032-1530, 309-032-1535, 309-032-1540, 309-032-1545, 309-032-1550, 309-032-1555, 309-032-1560, 309-032-1565

Subject: These rules prescribe minimum standards for the services and supports provided by addiction and mental health providers approved by the Addictions and Mental Health Division. These amendments implement SB 238 as it relates integrated services and supports.

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

309-032-1500

Purpose and Scope

(1) Purpose: These rules prescribe minimum standards for the services and supports provided by addictions and mental health providers approved by the Addictions and Mental Health Division of the Oregon Health Authority. These rules:

(a) Promote recovery, resiliency, wellness, independence and safety for individuals receiving addictions and mental health services and supports;

(b) Specify standards for services and supports that are person-directed, youth guided, family-driven, culturally competent, trauma-informed and wellness-informed; and

(c) Promote functional and rehabilitative outcomes for individuals that are developmentally appropriate.

(2) Scope: In addition to applicable requirements in OAR 410-120-0000 through 410-120-1980 and 407-120-0000 through 407-120-0400, these rules specify standards for addictions and mental health services and supports provided in:

(a) Outpatient Community Mental Health Services and Supports for Children and Adults;

(b) Intensive Community-based Treatment and Support Services (ICTS) for Children;

(c) Intensive Treatment Services (ITS) for Children;

(d) Outpatient and Residential Alcohol and Other Drug Treatment Services; and

(e) Outpatient and Residential Problem Gambling Treatment Services.

Stat. Auth.: ORS 161.390, 413.042, 409.410, 409.420, 426.490 - 426.500, 428.205 - 428.270, 430.640 & 443.450

Stats. Implemented: ORS 109.675, 161.390 - 161.400, 179.505, 409.010, 409.430 - 409.435, 426.380 - 426.395, 426.490 - 426.500, 430.010, 430.205 - 430.210, 430.240 - 430.640, 430.850 - 430.955, 443.400 - 443.460, 443.991, 461.549, 743A.168, 813.010 - 813.052 & 813.200 - 813.270

Hist.: MHS 4-2010, f. & cert. ef. 3-4-10; MHS 15-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-29-12

309-032-1505

Definitions

(1) “Abuse of an adult” means the circumstances defined in OAR 407-045-0260 for abuse of an adult with mental illness.

(2) “Abuse of a child” means the circumstances defined in ORS 419B.005.

(3) “Addictions and Mental Health Services and Supports” means all services and supports that are regulated by this rule, including, but not limited to, Outpatient Community Mental Health Services and Supports for Children and Adults, ICTS for Children, ITS for Children, Outpatient and Residential Alcohol and Other Drug Treatment Services and Outpatient and Residential Problem Gambling Treatment Services.

(4) “Adolescent” means an individual from 12 through 17 years of age, or those individuals who are determined to be developmentally appropriate for youth services.

(5) “Adult” means a person 18 years of age or older, or an emancipated minor. An Individual with Medicaid eligibility, who is in need of services specific to children, adolescents, or young adults in transition, must be considered a child until age 21 for the purposes of these rules. Adults who are between the ages of 18 and 21, who are considered children for purposes of these rules, must have all rights afforded to adults as specified in these rules.

(6) “Alcohol and Other Drug Treatment and Recovery Services” means outpatient, intensive outpatient, and residential services and supports for individuals with substance use disorders.

(7) “Alcohol and Other Drug Treatment Staff” means a person certified or licensed by a health or allied provider agency to provide alcohol and other drug treatment services that include assessment, development of an Individual Service and Support Plan (ISSP), and individual, group and family counseling.

(a) For treatment staff holding certification in addiction counseling, qualifications for the certificate must have included at least:

(A) 750 hours of supervised experience in substance use counseling;

(B) 150 contact hours of education and training in substance use related subjects; and

(C) Successful completion of a written objective examination or portfolio review by the certifying body.

(b) For treatment staff holding a health or allied provider license, the license or registration must have been issued by one of the following state bodies and the person must possess documentation of at least 60 contact hours of academic or continuing professional education in alcohol and other drug treatment:

(A) Board of Medical Examiners;

(B) Board of Psychologist Examiners;

(C) Board of Licensed Social Workers;

(D) Board of Licensed Professional Counselors and Therapists; or

(E) Board of Nursing.

(8) “Assessment” means the process of obtaining all pertinent biopsychosocial information, as identified by the individual, family and collateral sources as relevant, to determine a diagnosis and to plan individualized services and supports.

(9) “ASAM PPC-2R” means the American Society of Addiction Medicine Patient Placement Criteria for the Treatment of Substance-related Disorders, Second Edition Revised, April 2001, which is a clinical guide used in matching individuals to appropriate levels of care, and incorporated by reference in these rules.

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

(11) “Behavior Support Plan” means the individualized proactive support strategies, consistent with OAR 309-032-1540(8), documented in the ISSP that are used by the provider and family when applicable, to support positive behavior.

(12) “Behavior Support Strategies” means proactive supports designed to replace challenging behavior with functional, positive behavior. The strategies address environmental, social, neurodevelopmental and physical factors that affect behavior.

(13) “Biopsychosocial Information” means the combination of physical, psychological, social, environmental and cultural factors that influence the individual’s development and functioning.

(14) “Care Coordination” means a process-oriented activity to facilitate ongoing communication and collaboration to meet multiple needs. Care coordination includes facilitating communication between the family, natural supports, community resources, and involved providers and agencies; organizing, facilitating and participating in team meetings; and providing for continuity of care by creating linkages to and managing transitions between levels of care and transitions for transition-age young adults to adult services.

(15) “Case Management” means the services provided to assist individuals, who reside in a community setting, or are transitioning to a community setting, in gaining access to needed medical, social, educational, entitlement and other applicable services.

(16) “Chemical Restraint” means the administration of medication for the acute management of potentially harmful behavior. Chemical restraint is prohibited in the services regulated by these rules.

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

(18) “Child and Family Team” means those persons who are responsible for creating, implementing, reviewing, and revising the service coordination section of the ISSP in ICTS programs. At a minimum, the team must be comprised of the family, care coordinator, and child when appropriate. The team should also include any involved child-serving providers and agencies and any other natural, formal, and informal supports as identified by the family.

(19) “Children’s Emergency Safety Intervention Specialist (CESIS)” means a Qualified Mental Health Professional (QMHP) who is licensed to order, monitor, and evaluate the use of seclusion and restraint in accredited and certified facilities providing intensive mental health treatment services to individuals under 21 years of age.

(20) “Clinical Supervision” means oversight by a qualified Clinical Supervisor of addictions and mental health services and supports provided according to this rule, including ongoing evaluation and improvement of the effectiveness of those services and supports.

(21) “Clinical Supervisor” means a person qualified to oversee and evaluate addictions or mental health services and supports.

(a) For supervisors in alcohol and other drug treatment programs, holding a certification or license in addiction counseling, qualifications for the certificate or license must have included at least:

(A) 4000 hours of supervised experience in substance use counseling;

(B) 300 contact hours of education and training in substance use related subjects; and

(C) Successful completion of a written objective examination or portfolio review by the certifying body.

(b) For supervisors, in alcohol and other drug treatment programs, holding a health or allied provider license, such license or registration must have been issued by one of the following state bodies and the supervisor must possess documentation of at least 120 contact hours of academic or continuing professional education in the treatment of alcohol and other drug-related disorders:

(A) Board of Medical Examiners;

(B) Board of Psychologist Examiners;

(C) Board of Licensed Social Workers;

(D) Board of Licensed Professional Counselors and Therapists; or

(E) Board of Nursing.

(22) “Co-occurring substance use and mental health disorders (COD)” means the existence of a diagnosis of both a substance use disorder and a mental health disorder.

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

(24) “Conditional Release” means placement by a court or the Psychiatric Security Review Board (PSRB), of a person who has been found eligible under ORS 161.327(2)(b) or 161.336, for supervision and treatment in a community setting.

(25) “Court” means the last convicting or ruling court unless specifically noted.

(26) “Criminal Records Check” means the Oregon Criminal Records Check and the processes and procedures required by OAR 407-007-0000 through 407-007-0370.

(27) “Crisis” means either an actual or perceived urgent or emergent situation that occurs when an individual’s stability or functioning is disrupted and there is an immediate need to resolve the situation to prevent a serious deterioration in the individual’s mental or physical health or to prevent referral to a significantly higher level of care.

(28) “Cultural Competence” means the process by which people and systems respond respectfully and effectively to people of all cultures, languages, classes, races, ethnic backgrounds, disabilities, religions, genders, sexual orientations and other diversity factors in a manner that recognizes, affirms, and values the worth of individuals, families and communities and protects and preserves the dignity of each.

(29) “Culturally Specific Program” means a program that is designed to meet the unique service needs of a specific culture and that provides services to a majority of individuals representing that culture.

(30) “Declaration for Mental Health Treatment” means a written statement of an individual’s preferences concerning his or her mental health treatment. The declaration is made when the individual is able to understand and legally make decisions related to such treatment. It is honored, as clinically appropriate, in the event the individual becomes unable to make such decisions.

(31) “Deputy Director” means the Deputy Director of the Addictions and Mental Health Division, or that person’s designee.

(32) “Developmentally Appropriate” means services and supports that match emotional, social and cognitive development rather than chronological age.

(33) “Diagnosis” means the principal mental health, substance use or problem gambling diagnosis listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM). The diagnosis is determined through the assessment and any examinations, tests or consultations suggested by the assessment, and is the medically appropriate reason for services.

(34) “Director” means the Director of the Addictions and Mental Health Division, or that person’s designee.

(35) “Division” means the Addictions and Mental Health Division.

(36) “DSM” means the Diagnostic and Statistical Manual of Mental Disorders-IV-R, published by the American Psychiatric Association.

(37) “DSM Five-axis Diagnosis” means the multi-axial diagnosis, consistent with the current version of the Diagnostic and Statistical Manual of Mental Disorders (DSM), resulting from the assessment.

(38) “Driving Under the Influence of Intoxicants (DUII) Alcohol and Other Drug Rehabilitation Program” means a program of treatment and therapeutically oriented education services for an individual who is either:

(a) A violator of ORS 813.010 Driving Under the Influence of Intoxicants; or

(b) A defendant who is participating in a diversion agreement under ORS 813.200.

(39) “Emergency Safety Intervention” means the use of seclusion or personal restraint under OAR 309-032-1540(9) of these rules, as an immediate response to an unanticipated threat of violence or injury to an individual, or others.

(40) “Emergent” means the onset of symptoms requiring attention within 24 hours to prevent serious deterioration in mental or physical health or threat to safety.

 (41) “Enhanced Care Services (ECS)” and “Enhanced Care Outreach Services (ECOS)” means mental health services and supports provided to individuals residing in licensed Seniors and People with Disabilities (SPD) facilities.

(42) “Entry” means the act or process of acceptance and enrollment into services regulated by this rule.

(43) “Evaluation Specialist” means a person who possesses valid certification issued by the Division to conduct DUII evaluations.

(44) “Family” means the biological or legal parents, siblings, other relatives, foster parents, legal guardians, spouse, domestic partner, caregivers and other primary relations to the individual whether by blood, adoption, legal or social relationships. Family also means any natural, formal or informal support persons identified as important by the individual.

(45) “Family Support” means the provision of supportive services to persons defined as family to the individual. It includes support to caregivers at community meetings, assistance to families in system navigation and managing multiple appointments, supportive home visits, peer support, parent mentoring and coaching, advocacy, and furthering efforts to develop natural and informal community supports.

(46) “Fully Capitated Health Plan (FCHP)” means a prepaid health plan under contract with the Division of Medical Assistance Programs to provide capitated physical or behavioral health services.

(47) “Gender Identity” means a person’s self-identification of gender, without regard to legal or biological identification, including, but not limited to persons identifying themselves as male, female, transgender and transsexual.

(48) “Gender Presentation” means the external characteristics and behaviors that are socially defined as either masculine or feminine, such as dress, mannerisms, speech patterns and social interactions.

(49) “Grievance” means a formal complaint submitted to a provider verbally, or in writing, by an individual, or the individual’s chosen representative, pertaining to the denial or delivery of services and supports.

(50) “Guardian” means a person appointed by a court of law to act as guardian of a minor or a legally incapacitated person.

(51) “HIPAA” means the federal Health Insurance Portability and Accountability Act of 1996 and the regulations published in Title 45, parts 160 and 164, of the Code of Federal Regulations (CFR).

(52) “Incident Report” means a written description of any incident involving an individual, occurring on the premises of a program, or involving program staff or an ISSP activity, including, but not limited to, injury, major illness, accident, act of physical aggression, medication error, suspected abuse or neglect, or any other unusual incident that presents a risk to health and safety.

(53) “Individual” means any person being considered for or receiving services and supports regulated by these rules.

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

(55) “Individual Service Note” means the written record of services and supports provided, including documentation of progress toward intended outcomes, consistent with the timelines stated in the ISSP.

(56) “Individual Service Record” means the documentation, written or electronic, regarding an individual and resulting from entry, assessment, orientation, service and support planning, services and supports provided, and transfer.

(57) “Informed Consent for Services” means that the service options, risks and benefits have been explained to the individual and guardian, if applicable, in a manner that they comprehend, and the individual and guardian, if applicable, have consented to the services on, or prior to, the first date of service.

(58) “Intensive Outpatient Alcohol and Other Drug Treatment Services” means structured nonresidential evaluation, treatment, and continued care services for individuals with substance use disorders who need a greater number of therapeutic contacts per week than are provided by traditional outpatient services. Intensive outpatient services may include, but are not limited to, day treatment, correctional day treatment, evening treatment, and partial hospitalization.

(59) “Intensive Community-based Treatment and Support Services (ICTS)” means a specialized set of comprehensive in-home and community-based supports and mental health treatment services, including care coordination as defined in these rules, for children that are developed by the child and family team and delivered in the most integrated setting in the community.

(60) “Intensive Treatment Services (ITS)” means the range of services in the system of care comprised of Psychiatric Residential Treatment Facilities (PRTF) and Psychiatric Day Treatment Services (PDTS), or other services as determined by the Division, that provide active psychiatric treatment for children with severe emotional disorders and their families.

(61) “Interim Referral and Information Services” means services provided by an alcohol and other drug treatment provider to individuals on a waiting list, and whose services are funded by the Substance Abuse Prevention and Treatment (SAPT) Block Grant, to reduce the adverse health effects of alcohol and other drug use, promote the health of the individual and reduce the risk of disease transmission.

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

(63) “Intern” or “Student” means a person who provides a paid or unpaid program service to complete a credentialed or accredited educational program recognized by the state of Oregon.

(64) “Juvenile Psychiatric Security Review Board (JPSRB)” means the entity described in ORS 161.385.

(65) “Level of Care” means the range of available services provided from the most integrated setting to the most restrictive and most intensive in an inpatient setting.

(66) “Level of Service Intensity Determination.” means the Division approved process by which children and young adults in transition are assessed for ITS and ICTS services.

(67) “Licensed Health Care Professional” means a practitioner of the healing arts, acting within the scope of his or her practice under State law, who is licensed by a recognized governing board in Oregon.

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

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

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

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

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

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

(69) “Local Mental Health Authority (LMHA)” means one of the following entities:

(a) The board of county commissioners of one or more counties that establishes or operates a CMHP;

(b) The tribal council, in the case of a federally recognized tribe of Native Americans that elects to enter into an agreement to provide mental health services; or

(c) A regional local mental health authority comprised of two or more boards of county commissioners.

(70) “Mandatory Reporter” means any public or private official, as defined in ORS 419B.005(3), who comes in contact with or has reasonable cause to believe that an individual has suffered abuse, or that any person with whom the official comes in contact with, has abused the individual. Pursuant to ORS 430.765(2) psychiatrists, psychologists, clergy and attorneys are not mandatory reporters with regard to information received through communications that are privileged under ORS 40.225 to ORS 40.295.

(71) “Mechanical Restraint” means the use of any physical device to involuntarily restrain the movement of all or a portion of an individual’s body as a means of controlling his or her physical activities in order to protect the individual or other persons from injury. Mechanical restraint is prohibited in the services regulated by these rules.

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

(73) “Medical Director” means a physician licensed to practice medicine in the State of Oregon and who is designated by an alcohol and other drug treatment program to be responsible for the program’s medical services, either as an employee or through a contract.

(74) “Medical Supervision” means an LMP’s review and approval, at least annually, of the assessment and the medical appropriateness of services and supports identified in the ISSP for each individual receiving mental health services for one or more continuous years.

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

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

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

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

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

(76) “Medication Administration Record” means the documentation of the administration of written or verbal orders for medication, laboratory and other medical procedures issued by a LMP employed by, or under contract with, the provider and acting within the scope of his or her license.

(77) “Mental Health Organization (MHO)” means an approved organization that manages most mental health services through a capitated payment mechanism under the Oregon Health Plan. MHOs can be fully capitated health plans, community mental health programs, private mental health organizations or combinations thereof.

(78) “Older Adult” means an individual who is 60 years of age or older.

(79) “Older Adult Services” means age-appropriate services designed for older adults and provided by professionals trained in geriatrics. The services are preventative and include primary prevention efforts including suicide prevention, early identification services, early intervention services and comprehensive local planning for older adult mental health services.

(80) “Oregon Health Authority” means the Oregon Health Authority of the State of Oregon.

(81) “Outpatient Alcohol and Other Drug Treatment Program” means a publicly or privately operated program that provides assessment, treatment, and rehabilitation on a regularly scheduled basis or in response to crisis for individuals with alcohol or other drug use disorders and their family members, or significant others, consistent with Level I or Level II of the ASAM PPC-2R.

(82) “Outpatient Community Mental Health Services and Supports” means all outpatient mental health services and supports provided to children, youth and adults.

(83) “Outpatient Problem Gambling Treatment Services” means all outpatient treatment services and supports provided to individuals with gambling related problems and their families.

(84) “Outreach” means the delivery of addictions, problem gambling or mental health services, referral services and case management services in non-traditional settings, such as, but not limited to, the individual’s residence, shelters, streets, jails, transitional housing sites, drop-in centers, single room occupancy hotels, child welfare settings, educational settings or medical settings. It also refers to attempts made to engage or re-engage an individual in services by such means as letters or telephone calls.

(85) “Peer” means any person supporting an individual, or a family member of an individual, who has similar life experience, either as a current or former recipient of addictions or mental health services, or as a family member of an individual who is a current or former recipient of addictions or mental health services.

(86) “Peer Delivered Services” means an array of agency or community-based services and supports provided by peers, and peer support specialists, to individuals or family members with similar lived experience, that are designed to support the needs of individuals and families as applicable.

(87) “Peer Support Specialist” means a person providing peer delivered services to an individual or family member with similar life experience, under the supervision of a qualified Clinical Supervisor. A Peer Support Specialist must complete a Division approved training program and be:

(a) A self-identified person currently or formerly receiving mental health services; or

(b) A self-identified person in recovery from a substance use disorder, who meets the abstinence requirements for recovering staff in alcohol and other drug treatment programs; or

(c) A family member of an individual who is a current or former recipient of addictions or mental health services.

(88) “Performance Improvement Plan” means a plan that describes the provider’s quality assessment and performance improvement strategies and measurements.

(89) “Person-directed” means the individual, and others involved in supporting the treatment and recovery of the individual, are actively involved in assessment, planning and revising services and supports and intended outcomes. Individuals are empowered through this process to regain their health, safety and independence to the greatest extent possible and in a manner that is holistic and specific to the individual, including culturally, developmentally, age and gender appropriate.

(90) “Personal Restraint” means the application of physical force without the use of any device, for the purpose of restraining the free movement of an individual’s body to protect the individual, or others, from immediate harm. Personal restraint does not include briefly holding without undue force an individual to calm or comfort him or her, or holding an individual’s hand to safely escort him or her from one area to another. Personal restraint can be used only in approved ITS programs as an emergency safety intervention under OAR 309-032-1540(9).

(91) “Problem Gambling Treatment Staff” means persons providing problem gambling treatment services on a quarter-time or greater basis who hold a certification in a mental health or addictions discipline and have completed, within the past two years, at least 30 hours of problem gambling specific education. Problem Gambling Treatment Staff providing services on a half time or greater basis must hold advanced certification in addictions or be a QMHP and be able to document a minimum of 1000 hours of problem gambling treatment experience and have completed 60 hours of problem gambling specific education.

(92) “Program” means a particular type or level of service that is organizationally distinct.

(93) “Program Administrator” or “Program Director” means a person with appropriate professional qualifications and experience, who is designated to manage the operation of a program.

(94) “Program Staff” means an employee or person who, by contract with the program, provides a service and who has the applicable competencies, qualifications or certification, required in this rule to provide the service.

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

(96) “Provisional Assessment” means an initial assessment that identifies a presenting problem, provisional diagnosis and sufficient information to support the provisional diagnosis.

(97) “Provisional ISSP” means an initial ISSP that includes short term objectives and medically appropriate services sufficient to address presenting issues as they relate to a provisional diagnosis, including any engagement strategies, crisis services and activities necessary to complete the assessment and the ISSP.

(98) “Psychiatric Day Treatment Services (PDTS)” means the comprehensive, interdisciplinary, non-residential, community-based program certified under this rule consisting of psychiatric treatment, family treatment and therapeutic activities integrated with an accredited education program.

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

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

(101) “Psychiatric Security Review Board (PSRB)” means the entity described in ORS 161.295 through 161.400.

(102) “Psychiatrist” means a physician licensed pursuant to ORS 677.010 to 677.228 and 677.410 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.

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

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

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

(b) A combination of at least three years relevant work, education, training or experience.

(105) “Qualified Mental Health Professional (QMHP)” means a LMP or any other person meeting one or more of the following minimum qualifications as authorized by the LMHA or designee:

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

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

(c) Graduate degree in psychology;

(d) Graduate degree in social work;

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

(f) Graduate degree in a behavioral science field.

(106) “Qualified Person” means a person who is a QMHP, or a QMHA, and is identified by the PSRB in its Conditional Release Order. This person is designated by the provider to deliver or arrange and monitor the provision of the reports and services required by the Conditional Release Order.

(107) “Quality Assessment and Performance Improvement” means the structured, internal monitoring and evaluation of services to improve processes, service delivery and service outcomes.

(108) “Recovery” means a process of healing and transformation for a person to achieve full human potential and personhood in leading a meaningful life in communities of his or her choice.

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

(110) “Reportable Incident” means a serious incident involving an individual in an ITS program that must be reported in writing to the Division within 24 hours of the incident, including, but not limited to, serious injury or illness, act of physical aggression that results in injury, suspected abuse or neglect, involvement of law enforcement or emergency services, or any other serious incident that presents a risk to health and safety.

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

(112) “Residential Problem Gambling Treatment Program” means a publicly or privately operated program that is licensed in accordance with OAR 309-032-1540(11), that provides assessment, treatment, rehabilitation, and twenty-four hour observation and monitoring for individuals with gambling related problems.

(113) “Residential Transition Program” means an Alcohol and Other Drug residential program that provides a drug-free supportive living environment and provides clinical services consistent with Level III of the ASAM PPC-2R.

(114) “Resilience” means the universal capacity that a person uses to prevent, minimize, or overcome the effects of adversity. Resilience reflects a person’s strengths as protective factors and assets for positive development.

(115) “Respite care” means planned and emergency supports designed to provide temporary relief from care giving to maintain a stable and safe living environment. Respite care can be provided in or out of the home. Respite care includes supervision and behavior support consistent with the strategies specified in the ISSP.

(116) “Screening” means the process to determine whether the individual needs further assessment to identify circumstances requiring referrals or additional services and supports.

(117) “Seclusion” means the involuntary confinement of an individual to an area or room from which the individual is physically prevented from leaving. Seclusion can be used only in approved ITS programs as an emergency safety intervention specified in OAR 309-032-1540(9).

(118) “Secure Children’s Inpatient Programs (SCIP) and Secure Adolescent Inpatient Programs (SAIP)” means ITS programs that are designed to provide inpatient psychiatric stabilization and treatment services to children up to age 14 for SCIP services and individuals under the age of 21 for SAIP services, who require a secure intensive treatment setting.

(119) “Services” means those activities and treatments described in the ISSP that are intended to assist the individual’s transition to recovery from a substance use disorder, problem gambling disorder or mental health condition, and to promote resiliency, and rehabilitative and functional individual and family outcomes.

(120) “Signature” means any written or electronic means of entering the name, date of authentication and credentials of the person providing a specific service or the person authorizing services and supports. Signature also means any written or electronic means of entering the name and date of authentication of the individual receiving services, the guardian of the individual receiving services, or any authorized representative of the individual receiving services.

(121) “Skills Training” means providing information and training to individuals and families designed to assist with the development of skills in areas including, but not limited to, anger management, stress reduction, conflict resolution, self-esteem, parent-child interactions, peer relations, drug and alcohol awareness, behavior support, symptom management, accessing community services and daily living.

(122) Sub-Acute Psychiatric Care” means services that are provided by nationally accredited providers to children who need 24-hour intensive mental health services and supports, provided in a secure setting to assess, evaluate, stabilize or resolve the symptoms of an acute episode that occurred as the result of a diagnosed mental health condition.

(123) “Substance Abuse Prevention and Treatment Block Grant” or “SAPT Block Grant” means the federal block grants for prevention and treatment of substance abuse under Public Law 102-321 (31 U.S.C. 7301-7305) and the regulations published in Title 45 Part 96 of the Code of Federal Regulations.

(124) “Substance Use Disorders” means disorders related to the taking of a drug of abuse including alcohol, to the side effects of a medication, and to a toxin exposure. The disorders include substance use disorders such as substance dependence and substance abuse, and substance-induced disorders, including substance intoxication, withdrawal, delirium, and dementia, as well as substance induced psychotic disorder, mood disorder, etc, as defined in DSM criteria.

(125) “Successful DUII Completion” means that the DUII program has documented in its records that for the period of service deemed necessary by the program, the individual has:

(a) Met the completion criteria approved by the Division; and

(b) Met the terms of the fee agreement between the provider and the individual.

(126) “Supports” means activities, referrals and supportive relationships designed to enhance the services delivered to individuals and families for the purpose of facilitating progress toward intended outcomes.

(127) “Systems Integration” means the efforts by providers to work collaboratively with other service systems including, but not limited to, schools, corrections, child welfare and physical health providers, in order to coordinate and enhance services and supports and reduce barriers to service delivery.

(128) “Time out” means the restriction of a child for a period of time to a designated area from which he or she is not physically prevented from leaving, for the purpose of providing him or her an opportunity to regain self-control. When time out is documented as a behavior support strategy in the ISSP, it must be tracked for effectiveness in increasing positive behavior.

(129) “Transfer” means the process of assisting an individual to transition from the current services to the next appropriate setting or level of care.

(130) “Trauma Informed Services” means services that are reflective of the consideration and evaluation of the role that trauma plays in the lives of people seeking mental health and addictions services, including recognition of the traumatic effect of misdiagnosis and coercive treatment. Services are responsive to the vulnerabilities of trauma survivors and are delivered in a way that avoids inadvertent re-traumatization and facilitates individual direction of services.

(131) “Treatment” means the planned, medically appropriate, individualized program of medical, psychological, and rehabilitative procedures, experiences and activities designed to remediate symptoms of a DSM diagnosis, that are included in the ISSP.

(132) “Urinalysis Test” means an initial test and, if positive, a confirmatory test:

(a) An initial test must include, at a minimum, a sensitive, rapid, and inexpensive immunoassay screen to eliminate “true negative” specimens from further consideration.

(b) A confirmatory test is a second analytical procedure used to identify the presence of a specific drug or metabolite in a urine specimen. The confirmatory test must be by a different analytical method from that of the initial test to ensure reliability and accuracy.

(c) All urinalysis tests must be performed by laboratories meeting the requirements of OAR 333-024-0305 to 333-024-0365.

(133) “Urgent” means the onset of symptoms requiring attention within 48 hours to prevent a serious deterioration in an individual’s mental or physical health or threat to safety.

(134) “Variance” means an exception from a provision of these rules, granted in writing by the Division, upon written application from the provider. Duration of a variance is determined on a case-by-case basis.

(135) “Volunteer” means an individual who provides a program service or who takes part in a program service and who is not an employee of the program and is not paid for services. The services must be non-clinical unless the individual has the required credentials to provide a clinical service.

(136) “Wellness” means an approach to healthcare that emphasizes good physical and mental health, preventing illness, and prolonging life.

(137) “Young Adult in Transition” means an individual who is developmentally transitioning into independence, sometime between the ages of 14 and 25.

Stat. Auth.: ORS 161.390, 413.042, 409.410, 409.420, 426.490 - 426.500, 428.205 - 428.270, 430.640 & 443.450

Stats. Implemented: ORS 109.675, 161.390 - 161.400, 179.505, 409.010, 409.430 - 409.435, 426.380 - 426.395, 426.490 - 426.500, 430.010, 430.205 - 430.210, 430.240 - 430.640, 430.850 - 430.955, 443.400 - 443.460, 443.991, 461.549, 743A.168, 813.010 - 813.052 & 813.200 - 813.270

Hist.: MHS 4-2010, f. & cert. ef. 3-4-10; MHS 15-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-29-12

309-032-1510

Provider Policies

(1) Personnel Policies: All providers must develop and implement written personnel policies and procedures, compliant with these rules, including:

(a) Personnel Qualifications and Credentialing,

(b) Mandatory abuse reporting, compliant with ORS 430.735-430.768 and 407-045-0250 through 407-045-0360;

(c) Criminal Records Checks, compliant with ORS 181.533 through 181.575 and 407-007-0000 through 407-007-0370; and

(d) Fraud, waste and abuse in Federal Medicaid and Medicare programs compliant with OAR 410-120-1380 and 410-120-1510;

(2) Service Delivery Policies: All providers must develop and implement written policies and procedures, consistent with these rules, describing the provider’s approach to services and supports and the procedures for the delivery of services and supports.

(a) Policies must be available to individuals and family members upon request; and

(b) Service delivery policies and procedures must include, at a minimum:

(A) Entry and orientation;

(B) Fee agreements;

(C) Assessment, service planning, coordination and documentation;

(D) Person-directed services, including:

(i) Cultural competency;

(ii) Developmentally appropriate and age-appropriate service planning and delivery; and

(iii) Family involvement.

(E) Transfer and Continuity of Care;

(F) Trauma-informed Services, as defined in these rules;

(G) Confidentiality and compliance with HIPAA, Federal Confidentiality Regulations (42 CFR, Part 2), and State confidentiality regulations as specified in ORS 179.505 and 192.518 through 192.530;

(H) Compliance with Title 2 of the Americans with Disabilities Act of 1990 (ADA);

(I) Grievances and Appeals;

(J) Individual Rights;

(K) Quality Assessment and Performance Improvement;

(L) Crisis Prevention and Response, and Incident Reporting;

(M) Services to Young Adults in Transition, when applicable; and

(N) Urinalysis testing to ensure validity of urine specimens collected by staff authorized to collect urine samples, when applicable.

(3) Residential Program Policies: In addition to the personnel and service delivery policies required of all providers, residential program providers must develop and implement written policies and procedures for the following:

(a) Medical Protocols and Medical Emergencies;

(b) Medication Administration, Storage and Disposal;

(c) Facility standards for Alcohol and Other Drug Residential Treatment Programs, including the standards under these rules;

(d) General Safety and Emergency Procedures; and

(e) Emergency Safety Interventions in ITS Programs.

(f) Alcohol and Other Drug Residential Treatment programs must establish written policies that prohibit:

(A) Physical or other forms of aversive action to discipline an individual;

(B) Seclusion, personal restraint, mechanical restraint and chemical restraint;

(C) Withholding shelter, regular meals, clothing or aids to physical functioning; and

(D) Discipline of one individual by another.

(4) Behavior Support Policies: Applicable providers, as specified below, must develop behavior support policies including:

(a) ITS and ICTS Services: policies consistent with 309-032-1540(8) of these rules.

(b) ECS Services: policies consistent with 309-032-1540(8) of these rules.

Stat. Auth.: ORS 161.390, 413.042, 409.410, 409.420, 426.490 - 426.500, 428.205 - 428.270, 430.640 & 443.450

Stats. Implemented: ORS 109.675, 161.390 - 161.400, 179.505, 409.010, 409.430 - 409.435, 426.380 - 426.395, 426.490 - 426.500, 430.010, 430.205 - 430.210, 430.240 - 430.640, 430.850 - 430.955, 443.400 - 443.460, 443.991, 461.549, 743A.168, 813.010 - 813.052 & 813.200 - 813.270

Hist.: MHS 4-2010, f. & cert. ef. 3-4-10; MHS 15-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-29-12

309-032-1515

Individual Rights

(1) In addition to all applicable statutory and constitutional rights, every individual receiving services has the right to:

(a) Choose from available services and supports, those that are consistent with the ISSP and provided in the most integrated setting in the community and under conditions that are least restrictive to the individual’s liberty, that are least intrusive to the individual and that provide for the greatest degree of independence;

(b) Be treated with dignity and respect;

(c) Participate in the development of a written ISSP, receive services consistent with that plan and participate in periodic review and reassessment of service and support needs, assist in the development of the plan, and to receive a copy of the written ISSP;

(d) Have all services explained, including expected outcomes and possible risks;

(e) Confidentiality, and the right to consent to disclosure in accordance with ORS 107.154, 179.505, 179.507, 192.515, 192.507, 42 CFR Part 2 and 45 CFR Part 205.50.

(f) Give informed consent in writing prior to the start of services, except in a medical emergency or as otherwise permitted by law. Minor children may give informed consent to services in the following circumstances:

(A) Under age 18 and lawfully married;

(B) Age 16 or older and legally emancipated by the court; or

(C) Age 14 or older for outpatient services only. For purposes of informed consent, outpatient service does not include service provided in residential programs or in day or partial hospitalization programs;

(g) Inspect their Individual Service Record in accordance with ORS 179.505;

(h) Not participate in experimentation;

(i) Receive medication specific to the individual’s diagnosed clinical needs;

(j) Receive prior notice of transfer, unless the circumstances necessitating transfer pose a threat to health and safety;

(k) Be free from abuse or neglect and to report any incident of abuse or neglect without being subject to retaliation;

(l) Have religious freedom;

(m) Be free from seclusion and restraint, except as regulated in OAR 309-032-1540(9).

(n) Be informed at the start of services, and periodically thereafter, of the rights guaranteed by this rule;

(o) Be informed of the policies and procedures, service agreements and fees applicable to the services provided, and to have a custodial parent, guardian, or representative, assist with understanding any information presented;

(p) Have family involvement in service planning and delivery;

(q) Make a declaration for mental health treatment, when legally an adult;

(r) File grievances, including appealing decisions resulting from the grievance;

(s) Exercise all rights set forth in ORS 109.610 through 109.697 if the individual is a child, as defined by these rules;

(t) Exercise all rights set forth in ORS 426.385 if the individual is committed to the Authority; and

(u) Exercise all rights described in this rule without any form of reprisal or punishment.

(2) In addition to the rights specified in (1) of this rule, every individual receiving residential services has the right to:

(a) A safe, secure and sanitary living environment;

(b) A humane service environment that affords reasonable protection from harm, reasonable privacy and daily access to fresh air and the outdoors;

(c) Keep and use personal clothing and belongings, and to have an adequate amount of private, secure storage space. Reasonable restriction of the time and place of use, of certain classes of property may be implemented if necessary to prevent the individual or others from harm, provided that notice of this restriction is given to individuals and their families, if applicable, upon entry to the program, documented, and reviewed periodically;

(d) Express sexual orientation, gender identity and gender presentation;

(e) Have access to and participate in social, religious and community activities;

(f) Private and uncensored communications by mail, telephone and visitation, subject to the following restrictions:

(A) This right may be restricted only if the provider documents in the individual’s record that there is a court order to the contrary, or that in the absence of this restriction, significant physical or clinical harm will result to the individual or others. The nature of the harm must be specified in reasonable detail, and any restriction of the right to communicate must be no broader than necessary to prevent this harm; and

(B) The individual and his or her guardian, if applicable, must be given specific written notice of each restriction of the individual’s right to private and uncensored communication. The provider must ensure that correspondence can be conveniently received and mailed, that telephones are reasonably accessible and allow for confidential communication, and that space is available for visits. Reasonable times for the use of telephones and visits may be established in writing by the provider;

(g) Communicate privately with public or private rights protection programs or rights advocates, clergy, and legal or medical professionals;

(h) Have access to and receive available and applicable educational services in the most integrated setting in the community;

(i) Participate regularly in indoor and outdoor recreation;

(j) Not be required to perform labor;

(k) Have access to adequate food and shelter; and

(l) A reasonable accommodation if, due to a disability, the housing and services are not sufficiently accessible.

(3) Notification of Rights: The provider must give to the individual and, if appropriate, the guardian, a document that describes the applicable individual’s rights as follows:

(a) Information given to the individual must be in written form or, upon request, in an alternative format or language appropriate to the individual’s need;

(b) The rights, and how to exercise them, must be explained to the individual, and if appropriate, to her or his guardian; and

(c) Individual rights must be posted in writing in a common area.

Stat. Auth.: ORS 161.390, 413.042, 409.410, 409.420, 426.490 - 426.500, 428.205 - 428.270, 430.640 & 443.450

Stats. Implemented: ORS 109.675, 161.390 - 161.400, 179.505, 409.010, 409.430 - 409.435, 426.380 - 426.395, 426.490 - 426.500, 430.010, 430.205 - 430.210, 430.240 - 430.640, 430.850 - 430.955, 443.400 - 443.460, 443.991, 461.549, 743A.168, 813.010 - 813.052 & 813.200 - 813.270

Hist.: MHS 4-2010, f. & cert. ef. 3-4-10; MHS 15-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-29-12

309-032-1520

Personnel

(1) Licensing and Credentialing: All program staff must meet applicable credentialing or licensing standards, including those outlined in these rules, for the following:

(a) Alcohol and Other Drug Treatment Staff;

(b) CESIS;

(c) Clinical Supervisor;

(d) LMP;

(e) Medical Director;

(f) Peer Support Specialist;

(g) Problem Gambling Treatment Staff;

(h) QMHA; and

(i) QMHP.

(2) Specific Program Staff Competencies: At minimum, competencies for the following specified program staff must include:

(a) Program Administrators or Program Directors must demonstrate competence in leadership, program planning and budgeting, fiscal management, supervision of program staff, personnel management, program staff performance assessment, data collection, reporting, program evaluation, quality assurance, and developing and coordinating community resources;

(b) Clinical Supervisors in addictions and mental health programs must demonstrate competence in leadership, wellness, oversight and evaluation of services, staff development, individual service and support planning, case management and coordination, utilization of community resources, group, family and individual therapy or counseling, documentation and rationale for services to promote intended outcomes and implementation of all provider policies. In addition:

(A) Clinical Supervisors in alcohol and other drug treatment programs must be certified or licensed by a health or allied provider agency, as defined in these rules, to provide addiction treatment, and have one of the following qualifications:

(i) Five years of paid full-time experience in the field of alcohol and other drug counseling; or

(ii) A Bachelor’s degree and four years of paid full-time experience in the social services field, with a minimum of two years of direct alcohol and other drug counseling experience; or

(iii) A Master’s degree and three years of paid full-time experience in the social services field with a minimum of two years of direct alcohol and other drug counseling experience;

(B) Clinical Supervisors in mental health programs must meet QMHP requirements and have completed two years of post-graduate clinical experience in a mental health treatment setting; and

(C) Clinical Supervisors in problem gambling treatment programs must meet the requirements for clinical supervisors in either mental health or alcohol and other drug treatment programs, and have completed 10 hours of gambling specific training within two years of designation as a problem gambling services supervisor.

(c) Alcohol and other drug treatment staff must:

(A) Be certified or licensed by a health or allied provider agency, as defined in these rules, to provide addiction treatment within two years of the first hire date and must make application for certification no later than six months following that date. The two years is not renewable if the person ends employment with a provider and becomes re-employed with another provider.

(B) Demonstrate competence in treatment of substance-use disorders including individual assessment and individual, group, family and other counseling techniques, program policies and procedures for service delivery and documentation, and identification, implementation and coordination of services identified to facilitate intended outcomes.

(d) Problem gambling treatment staff must demonstrate competence in treatment of problem gambling including individual assessment and individual, group, family and other counseling techniques, program policies and procedures for service delivery and documentation, and identification, implementation and coordination of services identified to facilitate intended outcomes.

(e) QMHAs must demonstrate the ability to communicate effectively, understand mental health assessment, treatment and service terminology and apply each of these concepts, implement skills development strategies, and identify, implement and coordinate the services and supports identified in an ISSP.

(f) QMHPs must demonstrate the ability to conduct an assessment, including identifying precipitating events, gathering histories of mental and physical health, alcohol and other drug use, past mental health services and criminal justice contacts, assessing family, cultural, social and work relationships, and conducting a mental status examination, complete a five-axis DSM diagnosis, write and supervise the implementation of a ISSP and provide individual, family or group therapy within the scope of their training.

(g) Peer support specialists must demonstrate knowledge of approaches to support others in recovery and resiliency, and demonstrate efforts at self-directed recovery.

(3) Recovering Staff: Program staff, contractors, volunteers and interns recovering from a substance-use disorder, providing treatment services or peer support services in alcohol and other drug treatment programs, must be able to document continuous abstinence under independent living conditions or recovery housing for the immediate past two years.

(4) Personnel Documentation: Providers must maintain personnel records for each program staff that contains all of the following documentation:

(a) An employment application;

(b) Where required, verification of a criminal records check consistent with OAR 407-007-0200 through 407-007-0370;

(c) A current job description that includes applicable competencies;

(d) Copies of relevant licensure or certification, diploma, or certified transcripts from an accredited college, indicating that the program staff meets applicable qualifications;

(e) Periodic performance appraisals;

(f) Staff orientation and development activities;

(g) Program staff incident reports;

(h) Disciplinary documentation;

(i) Reference checks;

(j) Emergency contact information; and

(k) Information from subsection (6) of this rule, if applicable.

(5) For providers utilizing contractors, interns or volunteers, providers must maintain the following documentation, as applicable:

(a) A contract, or written agreement, if applicable;

(b) A signed confidentiality agreement;

(c) Service-specific orientation documentation; and

(d) For subject individuals, verification of a criminal records check consistent with OAR 407-007-0200 through 407-007-0370.

(6) Program Specific Personnel Documentation: In addition to general program staff documentation requirements, providers must maintain additional documentation as applicable.

(a) For all program staff and volunteers providing residential services to children or adults:

(A) Results of a Tuberculosis screening as per OAR 333-071-0057.

(7) Training: Providers must ensure that program staff receives training applicable to the specific population for whom services are planned, delivered, or supervised as follows:

(a) Orientation training: The program must document appropriate orientation training for each program staff, or person providing services, within 30 days of the hire date. At minimum, orientation training for all program staff must include, but not be limited to,

(A) A review of individual crisis response procedures;

(B) A review of emergency procedures;

(C) A review of program policies and procedures;

(D) A review of rights for individuals receiving services and supports; and

(E) Mandatory abuse reporting procedures;

(F) For ICTS, ITS and Enhanced Care Services, positive behavior support training consistent with 309-032-1540(8).

(8) Supervision: Persons providing services to individuals in accordance with this rule must receive supervision by a qualified Clinical Supervisor, as defined in these rules, related to the development, implementation and outcome of services.

(a) Clinical supervision must be provided to assist program staff and volunteers to increase their skills, improve quality of services to individuals, and supervise program staff and volunteers’ compliance with program policies and procedures, including:

(A) Documentation of supervision for each person supervised, of no less than two hours per month. The two hours must include one hour of face-to-face contact for each person supervised, or a proportional level of supervision for part-time program staff.

(B) Documentation of quarterly supervision for program staff holding a health or allied provider license.

(b) Medical supervision must be secured, when required, through a current written agreement, job description, or similar type of binding arrangement between a LMP and the provider, which describes the LMP’s responsibility in reviewing and approving the assessment and services and supports identified in the ISSP for each individual receiving mental health services for one or more continuous years.

Stat. Auth.: ORS 161.390, 413.042, 409.410, 409.420, 426.490 - 426.500, 428.205 - 428.270, 430.640 & 443.450

Stats. Implemented: ORS 109.675, 161.390 - 161.400, 179.505, 409.010, 409.430 - 409.435, 426.380 - 426.395, 426.490 - 426.500, 430.010, 430.205 - 430.210, 430.240 - 430.640, 430.850 - 430.955, 443.400 - 443.460, 443.991, 461.549, 743A.168, 813.010 - 813.052 & 813.200 - 813.270

Hist.: MHS 4-2010, f. & cert. ef. 3-4-10; MHS 15-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-29-12

309-032-1525

Entry and Assessment

(1) Entry Process: The program must utilize a written entry procedure to ensure the following:

(a) Individuals must be considered for entry without regard to race, ethnicity, gender, gender identity, gender presentation, sexual orientation, religion, creed, national origin, age, except when program eligibility is restricted to children, adults or older adults, familial status, marital status, source of income, and disability.

(b) Individuals must receive services in the most timely manner feasible consistent with the presenting circumstances.

(c) For individuals receiving services funded by the SAPT Block Grant, entry of pregnant women to services must occur no later than 48 hours from the date of first contact, and no less than 14 days after the date of first contact for individuals using substances intravenously. If services are not available within the required timeframe, the provider must document the reason and provide interim referral and informational services as defined in these rules, within 48 hours.

(d) Written informed consent for services must be obtained from the individual or guardian, if applicable, prior to the start of services. If such consent is not obtained, the reason must be documented and further attempts to obtain informed consent must be made as appropriate.

(e) The provider must establish an Individual Service Record for each individual on the date of entry.

(f) The provider must report the entry of all individuals on the mandated state data system.

(g) In accordance with ORS 179.505 and HIPAA, an authorization for the release of information must be obtained for any confidential information concerning the individual being considered for, or receiving, services.

(h) Orientation: At the time of entry, the program must give to the individual and guardian if applicable, written program orientation information. The written information must be in the individual’s primary language and must include:

(A) The program’s philosophical approach to providing services and supports;

(B) A description of individual rights consistent with these rules;

(C) An overview of services available including any related fees when applicable; and

(D) Policies concerning grievances and confidentiality.

(2) Entry Priority:

(a) Entry of adults and older adults, in community-based mental health programs, whose services are not funded by Medicaid, must be prioritized in the following order:

(A) Individuals who, in accordance with the assessment of professionals in the field of mental health, are at immediate risk of hospitalization for the treatment of mental health conditions or are in need of continuing services to avoid hospitalization or pose a hazard to the health and safety of themselves, including the potential for suicide;

(B) Individuals who, because of the nature of their diagnosis, their geographic location or their family income, are least capable of obtaining assistance from the private sector; and

(C) Individuals who, in accordance with the assessment of professionals in the field of mental health, are experiencing mental health conditions but will not require hospitalization in the foreseeable future.

(b) Entry of children in community-based mental health services, whose services are not funded by Medicaid, must be prioritized in the following order:

(A) Children who are at immediate risk of psychiatric hospitalization or removal from home due to emotional and mental health conditions;

(B) Children who have severe mental health conditions;

(C) Children who exhibit behavior which indicates high risk of developing conditions of a severe or persistent nature; and

(D) Any other child who is experiencing mental health conditions which significantly affect the child’s ability to function in everyday life but not requiring hospitalization or removal from home in the near future.

(c) Entry of individuals whose services are funded by the SAPT Block Grant, must be prioritized in the following order:

(A) Women who are pregnant and using substances intravenously;

(B) Women who are pregnant;

(C) Individuals who are using substances intravenously; and

(D) Women with dependent children.

(3) Assessment:

(a) When an individual is admitted for services, an assessment must be completed prior to development of the ISSP, or provisional ISSP, if applicable.

(b) When an assessment cannot be completed at entry, a provisional assessment, as defined in these rules, must document the immediate medical appropriateness of services. If services are continued, an assessment must be completed within a timeframe that reflects the level and complexity of services and supports to be provided.

(c) The assessment must be completed by qualified program staff as follows:

(A) A QMHP in mental health programs. A QMHA may assist in the gathering and compiling of information to be included in the assessment.

(B) Supervisory or treatment staff in alcohol and other drug treatment programs, and

(C) Supervisory or treatment staff in problem gambling treatment programs.

(d) Each assessment must include:

(A) Sufficient biopsychosocial information and documentation to support the presence of a DSM diagnosis that is the medically appropriate reason for services.

(B) Screening for the presence of substance use, problem gambling, mental health conditions, and chronic medical conditions.

(C) Screening for the presence of symptoms related to psychological and physical trauma.

(D) Suicide potential must be assessed and individual service records must contain follow-up actions and referrals when an individual reports symptoms indicating risk of suicide.

(E) In addition, for children age zero to five, diagnosis must be informed by treatment guidelines included in the Health Services Commission prioritized list of paired conditions and treatments, and must include:

(i) Direct observation of child, parent, family and interaction;

(ii) Neurodevelopment considerations; and

(iii) Parental and family biopsychosocial functioning within the context of the home, community and culture.

(F) Subsections (3)(d)(A), (3)(d)(B), (3)(d)(C) and (3)(d)(D) of this rule, apply to alcohol and other drug assessments, which must be consistent with the dimensions described in the ASAM PPC-2R, and must document a diagnosis and level of care determination consistent with the DSM and ASAM PPC-2R.

(e) When the assessment process determines the presence of co-occurring substance use and mental health disorders, all providers must document referral for further assessment, planning and intervention from an appropriate professional, either with the same provider or with a collaborative community provider.

(f) Providers must document updates to the assessment consistent with the timelines specified in the ISSP, and when there are changes related to the biopsychosocial information in the assessment.

(g) In addition to periodic assessment updates, any individual continuing to receive mental health services for one or more continuous years, must receive an annual assessment by a QMHP, that has documented approval by an LMP.

(h) The requirements in OAR 309-032-1525(3)(d)(A) and 309-032-1525(3)(g) are minimum requirements to meet Medicaid auditing standards and may result in financial findings when not met. The requirements in OAR 309-032-1525(3)(d)(B) through 309-032-1525(3)(f) are quality standards and may result in limitations, or revocation of, certification when not met. Failure to maintain certification may result in exclusion or limited participation in the Medicaid program.

Stat. Auth.: ORS 161.390, 413.042, 409.410, 409.420, 426.490 - 426.500, 428.205 - 428.270, 430.640 & 443.450

Stats. Implemented: ORS 109.675, 161.390 - 161.400, 179.505, 409.010, 409.430 - 409.435, 426.380 - 426.395, 426.490 - 426.500, 430.010, 430.205 - 430.210, 430.240 - 430.640, 430.850 - 430.955, 443.400 - 443.460, 443.991, 461.549, 743A.168, 813.010 - 813.052 & 813.200 - 813.270

Hist.: MHS 4-2010, f. & cert. ef. 3-4-10; MHS 15-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-29-12

309-032-1530

Individual Service and Support Planning and Coordination

(1) Individual Services and Supports: The provider must deliver or coordinate, for each individual, appropriate services and supports to collaboratively facilitate intended service outcomes as identified by the individual, and family, when applicable.

(a) Qualified program staff must facilitate a planning process, resulting in an ISSP that reflects the assessment and the level of care to be provided.

(b) A provisional ISSP, including applicable crisis services, must be completed prior to the start of services. For mental health services, a QMHP, who is also a licensed health care professional, must recommend the services and supports by signing the provisional ISSP.

(c) If services are continued, an ISSP must be completed within a timeframe that reflects:

(A) The type and level of services and supports to be provided;

(B) A complete assessment; and

(C) Engagement and agreement of the individual, and family if applicable, in the development of the ISSP.

(d) Individuals, and family members, as applicable, must collaboratively participate in the development of the ISSP.

(e) Providers must fully inform the individual and guardian when applicable, of the proposed services and supports, in developmentally and culturally appropriate language, obtain informed consent for all proposed services, and give the individual and guardian when applicable, a written copy of the ISSP.

 (f) Providers must collaborate with community partners to coordinate or deliver services and supports identified in the ISSP.

(g) Providers must request authorization to exchange information with any applicable physical health care providers or Fully Capitated Health Plans, for the individual, to collaborate in promoting regular and adequate health care.

(h) When there are barriers to services due to culture, gender, language, illiteracy, or disability, the provider must take measures to address or overcome those barriers including:

 (A) Providing supports including, but not limited to, the provision of interpreters to provide translation services, at no additional cost to the individual.

(2) Individual Service and Support Plan (ISSP):

(a) The ISSP must document the specific services and supports to be provided, arranged or coordinated to assist the individual and his or her family, if applicable, to achieve intended outcomes.

(b) At minimum, each ISSP must include:

(A) Measurable or observable intended outcomes;

(B) Specific services and supports to be provided;

(C) Applicable service and support delivery details including frequency and duration of each service; and

 (D) Timelines for review of progress and ISSP updates must be consistent with the level of care provided and the needs of the individual. For ITS programs, the interdisciplinary team must conduct a review of progress and transfer criteria at least every 30 days from the date of entry and must document members present, progress and changes made. For Psychiatric Day Treatment Services, the review must be conducted every 30 days and the LMP must participate in the review at least every 90 days.

(c) For ICTS programs, the ISSP must include:

(A) Identification of strengths and needs;

(B) A service coordination section that summarizes service planning in all relevant life domains by the participating team members; and

(d) For ICTS and ITS programs, the ISSP must include:

(A) Proactive safety and crisis planning; and

(B) A behavior support plan, consistent with OAR 309-032-1540(8) of these rules.

(e) A QMHP, who is also a licensed health care professional, must recommend the services and supports by signing the ISSP for each individual receiving mental health services within five days of the development of the ISSP;

(f) A LMP must approve updates to the ISSP at least annually for each individual receiving mental health services for one or more continuous years.

(g) The requirements in OAR 309-032-1530(2)(a) through 309-032-1530(2)(e) are minimum requirements to meet both Medicaid auditing and quality standards and may result in financial findings or limitations or both, or revocation of certification when not met. Failure to maintain certification may result in exclusion or limited participation in the Medicaid program.

(3) Individual Service Notes:

(a) A written individual service note must be recorded each time a service is provided.

(b) Individual Service Notes must document the:

(A) Specific service provided;

(B) Duration of the service provided;

(C) Date on which the service was provided;

(D) Location of service; and

(E) Date of authentication and name, signature, and credentials, of the person who provided the service.

(c) Individual service notes must also include:

(A) Periodic reviews of progress toward intended outcomes, consistent with timelines documented in the ISSP;

(B) Any significant events or changes in the individual’s life circumstances, including mental status, treatment response and recovery status; and

(C) Any decisions to transfer an individual from service.

(d) The requirements in OAR 309-032-1530(3)(a) and 309-032-1530(3)(b)(A) through 309-032-1530(3)(b)(E) are minimum requirements to meet Medicaid auditing standards and may result in financial findings when not met. The requirements in 309-032-1530(3)(c)(A) through 309-032-1530(3)(c)(C) are quality standards and may result in limitations, or revocation of, certification when not met. Failure to maintain certification may result in exclusion or limited participation in the Medicaid program.

Stat. Auth.: ORS 161.390, 413.042, 409.410, 409.420, 426.490 - 426.500, 428.205 - 428.270, 430.640 & 443.450

Stats. Implemented: ORS 109.675, 161.390 - 161.400, 179.505, 409.010, 409.430 - 409.435, 426.380 - 426.395, 426.490 - 426.500, 430.010, 430.205 - 430.210, 430.240 - 430.640, 430.850 - 430.955, 443.400 - 443.460, 443.991, 461.549, 743A.168, 813.010 - 813.052 & 813.200 - 813.270

Hist.: MHS 4-2010, f. & cert. ef. 3-4-10; MHS 15-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-29-12

309-032-1535

Individual Service Record

(1) Documentation Standards: Documentation must be appropriate in quality and quantity to meet professional standards applicable to the provider and any additional standards for documentation in the provider’s policies and any pertinent contracts.

(2) General Requirements for Individual Service Record: All providers must develop and maintain an Individual Service Record for each individual upon entry. The record must, at a minimum, include:

 (a) Identifying information, or documentation of attempts to obtain the information, including:

(A) The individual’s name, address, telephone number, date of birth, gender, and for adults, marital status and military status;

(B) Name, address, and telephone number of the parent or legal guardian, primary care giver or emergency contact;

(C) Contact information for medical and dental providers;

(b) Informed Consent for Service, including medications, or documentation specifying why the provider could not obtain consent by the individual or guardian as applicable;

(c) Written refusal of any services and supports offered, including medications;

(d) A signed fee agreement, when applicable;

(e) Assessment or provisional assessment and updates to the assessment;

(f) An ISSP or provisional ISSP, including any applicable behavior support or crisis intervention planning;

(g) Individual service notes;

(h) A Transfer Summary, when required;

(i) Other plans as made available, such as, but not limited to recovery plans, wellness action plans, education plans, and advance directives for physical and mental health care; and

(j) Applicable signed consents for release of information.

(3) Medical Service Records: When medical services are provided, the following documents must be part of the Individual Service Record as applicable:

(a) Medication Administration Records as per these rules;

(b) Laboratory reports; and

(c) LMP orders for medication, protocols or procedures.

(4) Documentation in Residential Programs: In addition to the requirements for Individual Service Records in subsection 309-032-1535(2), PRTS and Alcohol and Other Drug Residential Treatment providers must include the following documentation in the Individual Service Record:

(a) A personal belongings inventory created upon entry and updated whenever an item of significant value is added or removed, or on the date of transfer;

(b) Documentation indicating that the individual and guardian, as applicable, were provided with the required orientation information upon entry;

(c) Background information including strengths and interests, all available previous mental health or substance use assessments, previous living arrangements, service history, behavior support considerations, education service plans if applicable, and family and other support resources;

(d) Medical information including a brief history of any health conditions, documentation from a LMP or other qualified health care professional of the individual’s current physical health, and a written record of any prescribed or recommended medications, services, dietary specifications, and aids to physical functioning;

(e) Copies of documents relating to guardianship or any other legal considerations, as applicable;

(f) A copy of the individual’s most recent ISSP, if applicable, or in the case of an emergency or crisis-respite entry, a summary of current addictions or mental health services and any applicable behavior support plans;

(g) Documentation of the individual’s ability to evacuate the home consistent with the program’s evacuation plan developed in accordance with the Oregon Structural Specialty Code and Oregon Fire Code;

(h) Documentation of any safety risks; and

(i) Incident reports, when required, including:

(A) The date of the incident, the persons involved, the details of the incident, and the quality and performance actions taken to initiate investigation of the incident and correct any identified deficiencies; and

(B) Any child abuse reports made by the provider to law enforcement or to the DHS Children, Adults and Families Division, documenting the date of the incident, the persons involved and, if known, the outcome of the reports.

(5) Additional documentation in ITS Programs: In addition to OAR 309-032-1535(2), 309-032-1535(3) and 309-032-1535(4), ITS providers must include the following documentation in the Individual Service Record:

(a) Level of Service Intensity Determination;

(b) Names and contact information of the members of the interdisciplinary team;

(c) Documentation by the interdisciplinary team that the child’s ISSP has been reviewed, the services provided are medically appropriate for the specific level of care, and changes in the plan recommended by the interdisciplinary team, as indicated by the child’s service and support needs, have been implemented;

(d) Emergency safety intervention records, in a separate section or in a separate format, documenting each incident of personal restraint or seclusion, signed and dated by the qualified program staff directing the intervention and, if required, by the psychiatrist or clinical supervisor authorizing the intervention; and

(e) A copy of the written transition instructions provided to the child and family on the date of transfer.

(6) Additional documentation in ICTS Programs: In addition to OAR 309-032-1535(2), ICTS providers must include the following documentation in the Individual Service Record:

(a) Level of Service Intensity Determination; and

(b) Names and contact information of the members of the child and family team.

(7) PSRB and JPSRB Documentation: When the individual is under the jurisdiction of the PSRB or JPSRB, providers must include the following additional documentation in the Individual Service Record:

(a) Monthly reports to the PSRB or JPSRB;

(b) Interim reports, as applicable;

(c) The PSRB Initial Evaluation; and

(d) For PSRB and JPSRB services, a copy of the Conditional Order of Release.

Stat. Auth.: ORS 161.390, 413.042, 409.410, 409.420, 426.490 - 426.500, 428.205 - 428.270, 430.640 & 443.450

Stats. Implemented: ORS 109.675, 161.390 - 161.400, 179.505, 409.010, 409.430 - 409.435, 426.380 - 426.395, 426.490 - 426.500, 430.010, 430.205 - 430.210, 430.240 - 430.640, 430.850 - 430.955, 443.400 - 443.460, 443.991, 461.549, 743A.168, 813.010 - 813.052 & 813.200 - 813.270

Hist.: MHS 4-2010, f. & cert. ef. 3-4-10; MHS 15-2011(Temp), f. 12-29-11, cert. ef. 1-1-12 thru 6-29-12

309-032-1540

Program Specific Service Standards

In addition to individualized service and support planning and coordination, providers of each of the following program-specific service areas must ensure the following requirements listed for that service are met.

(1) Co-Occurring Mental Health and Substance Use Disorders (COD):

(a) Providers approved and designated to provide services and supports for individuals diagnosed with COD must:

(A) Provide concurrent service and support planning and delivery for substance use and mental health diagnosis, including integrated assessment, ISSP and individual service record

(2) Outpatient Mental Health Services to Children, Adults and Older Adults:

(a) Crisis services must be provided directly or through linkage to a local crisis services provider and must include the following:

(A) 24 hours, seven days per week telephone or face-to-face screening to determine an individual’s need for immediate community mental health services; and

(B) 24 hour, seven days per week capability to conduct, by or under the supervision of a QMHP, a provisional assessment resulting in a provisional ISSP that includes the crisis services necessary to assist the individual and family to stabilize and transition to the appropriate level of care.

(b) Individual, family and group therapy provided by a QMHP;

(c) Psychiatric services including medication management as applicable, provided by a LMP who is either an employee of the provider or is a contracted provider; and

(d) Available case management services including the following:

(A) Assistance in applying for benefits to which the individual may be entitled. Program staff must assist individuals in gaining access to, and maintaining, resources such as Social Security benefits, general assistance, food stamps, vocational rehabilitation, and housing. When needed, program staff must arrange transportation or accompany individuals to help them apply for benefits;

(B) Assistance with completion of a declaration for mental health treatment with the individual’s participation and informed consent;

(C) Referral and coordination to help individuals gain access to services and supports identified in the ISSP;

(D) When an individual receives residential services, program staff must collaborate with the residential program and family to coordinate services;

(E) When an individual resides in an Adult Foster Home, program staff must assist in the development of a Personal Care Plan. Program staff must also evaluate the appropriateness of services in relation to the individual’s assessed need and review the Personal Care Plan every 180 days;

(F) When an individual is admitted to a hospital or non-hospital facility, program staff must make contact in person or by telephone with the individual within one working day of entry and P must be actively involved with transition planning from the hospital or non-hospital facility;

(G) If an individual is receiving treatment in a state funded long-term care psychiatric facility, program staff must, from the point of entry, be actively involved with transitioning the individual from long term care;

(H) When significant health and safety concerns are identified, program staff must assure that necessary services or actions occur to address the identified health and safety needs for the individual; and

(I) For children and youth, program staff must create linkages to and ongoing communication with other involved child-serving providers and agencies such as child welfare, education, primary care and juvenile justice, and make referrals for additional services and supports as indicated.

(e) Skills training as indicated;

(f) Peer delivered supports, as indicated; and

(g) Older adult services, including preventative mental health services, when applicable.

(3) Enhanced Care Services:

(a) Enhanced care services must be provided in DHS’ SPD licensed facilities that have a multipurpose room, an area providing an environment with low stimulation, an accessible outdoor space with a covered area, a refrigerator, a microwave conveniently located for program activities, space for interdisciplinary meetings, space for mental health treatment and space for storage of records. A minimum of one private room is required in facilities opened after January 1, 1994.

(b) Services must include:

(A) 12 hours per week of mental health services available during evening and weekend shifts provided or arranged for by the contracted mental health provider;

(B) Weekly interdisciplinary team meetings to develop the ISSP, review the behavior support plan and to coordinate care planning with the SPD licensed provider staff and related professionals, including a QMHP, prescriber, SPD direct care staff, SPD case manager, SPD facility RN and SPD facility administrator; and

(C) A crisis service staffed by a QMHP or the local CMHP available to the provider and facility direct care staff 24-hours per day.

(c) ECOS services must be delivered according to the individual’s needs and do not require the services listed under OAR 309-032-1540(3)(b)(A) and 309-032-1540(3)(b)(B) of this rule.

(d) Behavior support services must be consistent with OAR 309-032-1540(8) of these rules.

(4) Psychiatric Security Review Board and Juvenile Psychiatric Security Review Board: Services and supports must include all appropriate services determined necessary to assist the individual in maintaining community placement and which are consistent with Conditional Release Orders and the Agreement to Conditional Release.

(a) Providers of PSRB and JPSRB services acting through the designated Qualified Person, must submit reports to the PSRB or JPSRB as follows:

(A) Orders for Evaluation: For individuals under the jurisdiction of the PSRB or the JPSRB, providers must take the following action upon receipt of an Order for Evaluation:

(i) Within 15 days of receipt of the Order, schedule an interview with the individual for the purpose of initiating or conducting the evaluation;

(ii) Appoint a QMHP to conduct the evaluation and to provide an evaluation report to the PSRB or JPSRB;

(iii) Within 30 days of the evaluation interview, submit the evaluation report to the PSRB or JPSRB responding to the questions asked in the Order for Evaluation; and

(iv) If supervision by the provider is recommended, notify the PSRB or JPSRB of the name of the person designated to serve as the individual’s Qualified Person, who must be primarily responsible for delivering or arranging for the delivery of services and the submission of reports under these rules.

(B) Monthly reports consistent with PSRB or JPSRB reporting requirements as specified in the Conditional Release Order that summarize the individual’s adherence to Conditional Release requirements and general progress; and

(C) Interim reports, including immediate reports by phone, if necessary, to ensure the public or individual’s safety including:

(i) At the time of any significant change in the individual’s health, legal, employment or other status which may affect compliance with Conditional Release orders;

(ii) Upon noting major symptoms requiring psychiatric stabilization or hospitalization;

(iii) Upon noting any other major change in the individual’s ISSP;

(iv) Upon learning of any violations of the Conditional Release Order; and

(v) At any other time when, in the opinion of the Qualified Person, such an interim report is needed to assist the individual.

(b) JPSRB providers must submit copies of all monthly reports and interim reports to both the JPSRB and the Division.

(5) Intensive Community-Based Treatment and Support Services (ICTS) for Children: ICTS services may be delivered at a clinic, facility, home, school, other provider or allied agency location or other setting as identified by the child and family team. In addition to services specified by the ISSP and the standards for outpatient mental health services, ICTS services must include:

(a) Care coordination provided by a QMHP or a QMHA supervised by a QMHP;

(b) A child and family team, as defined in these rules;

(c) Service coordination as specified in the ISSP, to be developed by the child and family team;

(d) Review of progress at child and family team meetings to occur at a frequency documented in the ISSP;

(e) Family support and respite care, as indicated;

(f) Proactive safety and crisis planning that utilizes professional and natural supports to provide 24 hours, seven days per week flexible response and is reflective of strategies to avert potential crisis without placement disruptions; and

(g) Behavior support planning, consistent with OAR 309-032-1540(8) of these rules.

(6) Intensive Treatment Services (ITS) for Children:

(a) ITS Providers must meet the following general requirements:

(A) Maintain the organizational capacity and interdisciplinary treatment capability to deliver clinically and developmentally appropriate services in the medically appropriate amount, intensity and duration for each child specific to the child’s diagnosis, level of functioning and the acuity and severity of the child’s psychiatric symptoms;

(B) Maintain 24 hour, seven days per week treatment responsibility for children in the program;

(C) Non-residential programs must maintain on-call capability at all times to respond directly or by referral to the treatment needs of children, including crises, 24 hours per day and seven days per week;

(D) Inform the Division and the legal guardian within twenty-four hours of reportable incidents;

(E) Maintain linkages with primary care physicians, CMHPs and MHOs and the child’s parent or guardian to coordinate necessary continuing care resources for the child; and

(F) Maintain linkages with the applicable education service district or school district to coordinate and provide the necessary educational services for the children and integrate education services in all phases of assessment, service and support planning, active treatment and transition planning.

(b) General staffing requirements: ITS providers must have the clinical leadership and sufficient QMHP, QMHA and other program staff to meet the 24-hour, seven days per week treatment needs of children and must establish policies, procedures and contracts to assure:

(A) Availability of psychiatric services to meet the following requirements;

(i) Provide medical oversight of the clinical aspects of care in nationally accredited sub-acute and psychiatric residential treatment facilities and provide 24-hour, seven days per week psychiatric on-call coverage; or consult on clinical care and treatment in psychiatric day treatment; and

(ii) Assess each child’s medication and treatment needs, prescribe medicine or otherwise assure that case management and consultation services are provided to obtain prescriptions, and prescribe therapeutic modalities to achieve the child’s individual service and support plan goals.

(B) There must be at least one program staff who has completed First Aid and CPR training on duty at all times.

(c) ITS providers must ensure that the following services and supports are available and accessible through direct service, contract or by referral:

(A) Active psychiatric treatment and education services must be functionally integrated in a therapeutic environment designed of reflect and promote achievement of the intended outcomes of each child’s ISSP;

(B) When treatment services interrupt the child’s day to day educational environment, the program must provide or make arrangements for the continuity of the child’s education;

(C) Family therapy must be provided by a QMHP. The family therapist to child ratio must be at least one family therapist for each 12 children;

(D) Psychiatric services;

(E) Individual, group and family therapies provided by a QMHP. There must be no less than one family therapist available for each 12 children;

(F) Medication evaluation, management and monitoring;

(G) Pre-vocational or vocational rehabilitation;

(H) Therapies supporting speech, language and hearing rehabilitation;

(I) Individual and group psychosocial skills development;

(J) Activity and recreational therapies;

(K) Nutrition;

(L) Physical health care services or coordination;

(M) Recreational and social activities consistent with individual strengths and interests;

(N) Educational services coordination and advocacy; and

(O) Behavior support services, consistent with OAR 309-032-1540(8) of these rules.

(7) Program Specific Requirements for ITS Providers: In addition to the general requirements for all ITS providers listed in OAR 309-032-1540(6), the following program-specific requirements must be met:

(a) Psychiatric Residential Treatment Facilities (PRTF):

(A) Children must either have or be screened for an Individual Education Plan, Personal Education Plan, or an Individual Family Service Plan;

(B) Psychiatric Residential Treatment Facilities must maintain one or more linkages with acute care hospitals or MHOs to coordinate necessary inpatient care;

(C) Psychiatric residential clinical care and treatment must be under the direction of a psychiatrist and delivered by an interdisciplinary team of board-certified or board-eligible child and adolescent psychiatrists, registered nurses, psychologists, other qualified mental health professionals, and other relevant program staff. A psychiatrist must be available to the unit 24-hours per day, seven days per week; and

(D) Psychiatric Residential Treatment Facilities must be staffed at a clinical staffing ratio of not less than one program staff for three children during the day and evening shifts. At least one program staff for every three program staff members during the day and evening shifts must be a QMHP or QMHA. For overnight program staff there must be a staffing ratio of at least one program staff for six children; at least one of the overnight program staff must be a QMHA. For units that by this ratio have only one overnight program staff, there must be additional program staff immediately available within the facility or on the premises. At least one QMHP must be on site or on call at all times. At least one program staff with designated clinical leadership responsibilities must be on site at all times.

(b) SCIP and SAIP: Programs providing SCIP and SAIP Services must meet the requirements for PRTFs listed in 7(a) of this subsection. They must also establish policies and practices to meet the following:

(A) The staffing model must allow for the child’s frequent contact with the child psychiatrist a minimum of one hour per week;

(B) Psychiatric nursing staff must be provided in the program 24 hours per day;

(C) A psychologist, psychiatric social worker, rehabilitation therapist and psychologist with documented training in forensic evaluations must be available 24 hours per day as appropriate; and

(D)Program staff with specialized training in SCIP or SAIP must be available 24 hours per day;

(E) The program must provide all medically appropriate psychiatric services necessary to meet the child’s psychiatric care needs;

(F) The program must provide secure psychiatric treatment services in a manner that ensures public safety to youth who are under the care and custody of the Oregon Youth Authority, court ordered for the purpose of psychiatric evaluation, or admitted by the authority of the JPSRB; and

(G) The program must not rely on external entities such as law enforcement or acute hospital care to assist in the management of the SCIP or SAIP setting.

(c) Sub-Acute Psychiatric Care: In addition to the services provided as indicated by the assessment and specified in the ISSP, Sub-Acute Psychiatric Care providers must:

(A) Provide psychiatric nursing staffing at least 16 hours per day;

(B) Provide nursing supervision and monitoring and psychiatric supervision at least one to three times per week; and

(C) Work actively with the child and family team and multi-disciplinary community partners, to plan for the long-term emotional, behavioral, physical and social needs of the child to be met in the most integrated setting in the community.

(d) Psychiatric Day Treatment Services (PDTS):

(A) PDTS must be provided to children who remain at home with a parent, guardian or foster parent by qualified mental health professionals and qualified mental health associates in consultation with a psychiatrist;

(B) An education program must be provided and children must either have or be screened for an Individual Education Plan, Personal Education Plan or Individual Family Service Plan; and

(C) Psychiatric Day Treatment programs must be staffed at a clinical staffing ratio of at least one QMHP or QMHA for three children.

(8) Behavior Support Services: Behavior support services must be proactive, recovery-oriented, individualized, and designed to facilitate positive alternatives to challenging behavior, as well as to assist the individual in developing adaptive and functional living skills. Behavior support services are required in ITS, ICTS and ECS Services. Providers of these services must:

(a) Develop and implement individual behavior support strategies, based on a functional or other clinically appropriate assessment of challenging behavior;

(b) Document the behavior support strategies and measures for tracking progress as a behavior support plan in the ISSP;

(c) Establish a framework which assures individualized positive behavior support practices throughout the program and articulates a rationale consistent with the philosophies supported by the Division, including the Division’s Trauma-informed Services Policy;

(d) Obtain informed consent from the parent or guardian, when applicable, in the use of behavior support strategies and communicate both verbally and in writing the information to the individual and guardian in the individual’s primary language and in a developmentally appropriate manner;

(e) Establish outcome-based tracking methods to measure the effectiveness of behavior support strategies in:

(A) Reducing or eliminating the use of emergency safety interventions ; and

(B) Increasing positive behavior.

(f) Require all program staff to receive annual training in Collaborative Problem Solving, Positive Behavior Support or other Evidence-based Practice to promote positive behavior support; and

(g) Review and update behavior support policies, procedures, and practices annually.

(9) Emergency Safety Interventions in ITS Programs: Providers of ITS services must:

(a) Adopt policies and procedures for Emergency safety interventions as part of a Crisis Prevention and Intervention Policy. The policy must be consistent with the provider’s trauma-informed services policies and procedures.

(b) Inform the individual and his or her parent or guardian of the provider’s policy regarding the use of personal restraint and seclusion during an emergency safety situation by both furnishing a written copy of the policy and providing an explanation in the individual’s primary language that is developmentally appropriate.

(c) Obtain a written acknowledgment from the parent or guardian that he or she has been informed of the provider’s policies and procedures regarding the use of personal restraint and seclusion.

(d) Prohibit the use of mechanical restraint and chemical restraint as defined in these rules.

(e) Establish an Emergency Safety Interventions Committee or designate this function to an already established Quality Assessment and Performance Improvement Committee. Committee membership must minimally include a program staff with designated clinical leadership responsibilities, the person responsible for staff training in crisis intervention procedures and other clinical personnel not directly responsible for authorizing the use of emergency safety interventions. The committee must:

(A) Monitor the use of emergency safety interventions to assure that individuals are safeguarded and their rights are always protected;

(B) Meet at least monthly and must report in writing to the provider’s Quality Assessment and Performance Improvement Committee at least quarterly regarding the committee’s activities, findings and recommendations;

(C) Analyze emergency safety interventions to determine opportunities to prevent their use, increase the use of alternatives, improve the quality of care and safety of individuals receiving services and recommend whether follow up action is needed;

(D) Review and update emergency safety interventions policies and procedures annually;

(E) Conduct individual and aggregate review of all incidents of personal restraint and seclusion; and

(F) Report the aggregate number of personal restraints and incidents of seclusion to the Division within 30 days of the end of each calendar quarter.

(f) Providers must meet the following general conditions of personal restraint and seclusion:

(A) Personal restraint and seclusion must only be used in an emergency safety situation to prevent immediate injury to an individual who is in danger of physically harming him or herself or others in situations such as the occurrence of, or serious threat of violence, personal injury or attempted suicide;

(B) Any use of personal restraint or seclusion must respect the dignity and civil rights of the individual;

(C) The use of personal restraint or seclusion must be directly related to the immediate risk related to the behavior of the individual and must not be used as punishment, discipline, or for the convenience of staff;

(D) Personal restraint or seclusion must only be used for the length of time necessary for the individual to resume self-control and prevent harm to the individual or others, even if the order for seclusion or personal restraint has not expired, and must under no circumstances, exceed 4 hours for individuals ages 18 to 21, 2 hours for individuals ages 9 to 17, or 1 hour for individuals under age 9;

(E) An order for personal restraint or seclusion must not be written as a standing order or on an as needed basis;

(F) Personal restraint and seclusion must not be used simultaneously;

(G) Providers must notify the individual’s parent or guardian of any incident of seclusion or personal restraint as soon as possible;

(H) If incidents of personal restraint or seclusion used with an individual cumulatively exceed five interventions over a period of five days, or a single episode of one hour within 24 hours, the psychiatrist, or designee, must convene, by phone or in person, program staff with designated clinical leadership responsibilities to:

(i) Discuss the emergency safety situation that required the intervention, including the precipitating factors that led up to the intervention and any alternative strategies that might have prevented the use of the personal restraint or seclusion;

(ii) Discuss the procedures, if any, to be implemented to prevent any recurrence of the use of personal restraint or seclusion;

(iii) Discuss the outcome of the intervention including any injuries that may have resulted; and

(iv) Review the individual’s ISSP, making the necessary revisions, and document the discussion and any resulting changes to the individual’s ISSP in the Individual Service Record.

(g) Personal Restraint:

(A) Each personal restraint must require an immediate documented order by a physician, licensed practitioner, or, in accordance with OAR 309-034-0400 through 309-034-0490, a licensed CESIS;

(B) The order must include:

(i) Name of the person authorized to order the personal restraint;

(ii) Date and time the order was obtained; and

(iii) Length of time for which the intervention was authorized.

(C) Each personal restraint must be conducted by program staff that have completed and use a Division-approved crisis intervention training. If in the event of an emergency a non Division-approved crisis intervention technique is used, the provider’s on-call administrator must immediately review the intervention and document the review in an incident report to be provided to the Division within 24 hours;

(D) At least one program staff trained in the use of emergency safety interventions must be physically present, continually assessing and monitoring the physical and psychological well-being of the individual and the safe use of the personal restraint throughout the duration of the personal restraint;

(E) Within one hour of the initiation of a personal restraint, a psychiatrist, licensed practitioner, or CESIS must conduct a face-to-face assessment of the physical and psychological well being of the individual;

(F) A designated program staff with clinical leadership responsibilities must review all personal restraint documentation prior to the end of the shift in which the intervention occurred; and

(G) Each incident of personal restraint must be documented in the individual service record. The documentation must specify:

(i) Behavior support strategies and less restrictive interventions attempted prior to the personal restraint;

(ii) Required authorization;

(iii) Events precipitating the personal restraint;

(iv) Length of time the personal restraint was used;

(v) Assessment of appropriateness of the personal restraint based on threat of harm to self or others;

(vi) Assessment of physical injury; and

(vii) Individuals response to the emergency safety intervention.

(h) Seclusion: Providers must be approved by the Division for the use of seclusion.

(A) Authorization for seclusion must be obtained by a psychiatrist, licensed practitioner or CESIS prior to, or immediately after the initiation of seclusion. Written orders for seclusion must be completed for each instance of seclusion and must include:

(i) Name of the person authorized to order seclusion;

(ii) Date and time the order was obtained; and

(iii) Length of time for which the intervention was authorized.

(B) Program staff trained in the use of emergency safety interventions must be physically present continually assessing and monitoring the physical and psychological well-being of the individual throughout the duration of the seclusion;

(C) Visual monitoring of the individual in seclusion must occur continuously and be documented at least every fifteen minutes or more often as clinically indicated;

(D) Within one hour of the initiation of seclusion a psychiatrist or CESIS must conduct a face-to-face assessment of the physical and psychological well being of the individual;

(E) The individual must have regular meals, bathing, and use of the bathroom during seclusion and the provision of these must be documented in the individual service record; and

(F) Each incident of seclusion must be documented in the individual service record. The documentation must specify:

(i) The behavior support strategies and less restrictive interventions attempted prior to the use of seclusion;

(ii) The required authorization for the use of seclusion;

(iii) The events precipitating the use of seclusion;

(iv) The length of time seclusion was used;

(v) An assessment of the appropriateness of seclusion based on threat of harm to self or others;

(vi) An assessment of physical injury to the individual, if any; and

(vii) The individual’s response to the emergency safety intervention.

(i) Any room specifically designated for the use of seclusion or time out must be approved by the Division.

(j) If the use of seclusion occurs in a room with a locking door, the program must be authorized by the Division for this purpose and must meet the following requirements:

(A) A facility or program seeking authorization for the use of seclusion must submit a written application to the Division;

(B) Application must include a comprehensive plan for the need for and use of seclusion of children in the program and copies of the facility’s policies and procedures for the utilization and monitoring of seclusion including a statistical analysis of the facility’s actual use of seclusion, physical space, staff training, staff authorization, record keeping and quality assessment practices;

(C) The Division must review the application and, after a determination that the written application is complete and satisfies all applicable requirements, must provide for a review of the facility by authorized Division staff;

(D) The Division must have access to all records including individual service records, the physical plant of the facility, the employees of the facility, the professional credentials and training records for all program staff, and must have the opportunity to fully observe the treatment and seclusion practices employed by the facility;

(E) After the review, the Deputy Director of the Division or their designee must approve or disapprove the facility’s application and upon approval must certify the facility based on the determination of the facility’s compliance with all applicable requirements for the seclusion of children;

(F) If disapproved, the facility must be provided with specific recommendations and have the right of appeal to the Division; and

(G) Certification of a facility must be effective for a maximum of three years and may be renewed thereafter upon approval of a renewal application.

(k) Structural and physical requirements for seclusion: An ITS provider seeking this certification under these rules must have available at least one room that meets