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The Oregon Administrative Rules contain OARs filed through March 15, 2014
 
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DEPARTMENT OF HUMAN SERVICES, CHILD WELFARE PROGRAMS

 

DIVISION 20

CASE MANAGEMENT

Voluntary Custody Agreement

413-020-0000

Purpose

These rules, OAR 413-020-0000 to 413-020-0050, describe:

(1) The circumstances in which parents or legal guardians and the Department may enter into a Voluntary Custody Agreement concerning a child who is in a parent's or legal guardian's legal custody; and

(2) The responsibilities of the parents or legal guardians and the Department in connection with these agreements.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.056, 418.015, 418.270, 418.275, 418.280, 418.285
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 3-2002, f. 3-28-02, cert. ef. 4-1-02; CWP 2-2003, f. & cert. ef. 1-7-03; CWP 4-2007, f. & cert. ef. 3-20-07

413-020-0005

Definitions

The following definitions apply to OAR 413-020-0000 to 413-020-0050:

(1) "Child" means a person under 18 years of age.

(2) "Department" means the Department of Human Services, Child Welfare.

(3) "Legal custodian" means a person, agency, or institution with legal custody of a child and the following duties and authority:

(a) To have physical custody and control of a child;

(b) To supply the child with food, clothing, shelter, and incidental necessities;

(c) To provide the child with care, education, and discipline;

(d) To authorize ordinary medical, dental, psychiatric, psychological, and other remedial care or treatment for the child, and in an emergency where the child's safety appears urgently to require it, to authorize surgery or other extraordinary care;

(e) To make such reports and to supply such information as the court may require; and

(f) To apply for any benefits to which the child is entitled and to use them to pay for the child's care.

(4) "Legal custody" means a legal relationship between a person, agency, or institution and a child that imposes on the person, agency, or institution the duties and authority of the child's legal custodian.

(5) "Legal guardian" means a person or agency that has the duties and authority of a parent with legal custody to make decisions concerning a child, including but not limited to the following:

(a) Authorize surgery and other extraordinary treatment for the child;

(b) Authorize the child to enlist in the armed forces of the United States;

(c) Consent to child's adoption; and

(d) Make other decisions of substantial legal significance concerning the child, (but a guardian is not a conservator of the child's property or estate).

(6) "Substitute care" means the out-of-home placement of a child or young adult who is in the legal or physical custody and care of the Department.

(7) "Voluntary Custody Agreement" means a written agreement between the Department and the parent or legal guardian of a child, which transfers legal custody of the child to the Department; the Department assumes all parental authority and responsibilities that the agreement does not specifically reserve to the parents or legal guardians, as permitted by state law; and the Department provides the child substitute care or treatment, or both, if the family falls within a circumstance described in OAR 413-020-0010(2)(a)-(c).

(8) "Young adult" means a person aged 18 through 20 years who remains in the care and custody of the Department, and lives in substitute care or lives independently through the Department's Independent Living Subsidy Program.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.056, 418.015, 418.270, 418.275, 418.280, 418.285
Hist.: SOSCF 3-2002, f. 3-28-02, cert. ef. 4-1-02; CWP 2-2003, f. & cert. ef. 1-7-03; CWP 4-2007, f. & cert. ef. 3-20-07

413-020-0010

Voluntary Custody Agreement

(1) Under a "Voluntary Custody Agreement", the parent or legal guardian gives the Department the legal custody of the child. The Department assumes all parental and legal responsibilities that the agreement does not specifically reserve to the parents or legal guardians as permitted under ORS 418.015 and becomes the child's legal custodian.

(2) It is appropriate for the Department to place a child in substitute care and provide services if all of the following subsections apply:

(a) The parent or legal guardian requests the Department take custody of the child.

(b) The parent or legal guardian is immediately and temporarily unable to fulfill his or her parental responsibilities.

(c) This inability will be alleviated with short-term placement when one of the following conditions exists:

(A) The child cannot remain at home due to a temporary crisis in the family, and cannot safely stay with a member of the extended family or another responsible adult who is well known to the child.

(B) The parent or legal guardian is temporarily or will be temporarily unable to fulfill parental responsibilities due to a diagnosed medical or mental health condition.

(C) The child needs to be placed outside the home due to problems in the family that could compromise the safety of a family member, and a placement of limited duration in conjunction with intensive services is likely to reunite the family and reduce safety concerns.

(3) A Voluntary Custody Agreement is not appropriate when the Department's Child Protective Services has determined, within the past 12 months, that the parent or legal guardian was the perpetrator of a founded disposition of child abuse or neglect or when the parent or legal guardian is unwilling to be a permanent resource for the child.

(4) A Child Welfare Program Manager must approve entering into a Voluntary Custody Agreement.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.056, 418.015, 418.270, 418.275, 418.280, 418.285
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 3-2002, f. 3-28-02, cert. ef. 4-1-02; CWP 2-2003, f. & cert. ef. 1-7-03; CWP 4-2007, f. & cert. ef. 3-20-07

413-020-0020

Legal Consent

(1) Only a parent or legal guardian who has legal custody of the child may enter into a Voluntary Custody Agreement (CF 1005).

(2) All persons who have legal custody of the child must sign the agreement unless one person with legal custody of the child is missing.

(3) If one person with legal custody of the child is missing, all other persons with legal custody of the child must sign the agreement and must provide the Department the persons and places likely to have knowledge of the missing person's whereabouts. The Department must immediately begin a reasonably diligent search to find the other person with legal custody of the child to provide him or her notice of the agreement.

(4) The parent or legal guardian must provide information to the Department about insurance and other financial resources to meet the medical, dental, and mental health needs of the child by completing a Medical Resource Report Form (DHS 415H).

(5) If the child is an Indian child, who is an enrolled member of or may be eligible for membership in an Indian tribe, each parent or Indian custodian who has legal custody must sign the Voluntary Custody Agreement in a hearing before a judge of a court with appropriate jurisdiction. The child must be more than 10 days old. Refer to Child Welfare Policy I-E.2.1, "Placement of Indian Children", OAR 413-070-0240 for detailed requirements.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.015
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 3-2002, f. 3-28-02, cert. ef. 4-1-02; CWP 2-2003, f. & cert. ef. 1-7-03; CWP 4-2007, f. & cert. ef. 3-20-07

413-020-0025

Developing the Family Support Services Case Plan when a Parent or Legal Guardian Enters into a Voluntary Custody Agreement with Child Welfare

(1) The caseworker must develop a family support services case plan as described in OAR 413-030-0016 with the parent or legal guardian who signs a Voluntary Custody Agreement.

(2) The caseworker must develop a visit and contact plan as described in OAR 413-070-0800 to 413-070-0880.

(3) The parent or legal guardian must agree to:

(a) Full and ongoing cooperation in developing the family support services case plan as described in OAR 413-030-0006(2)(a)-(c) and making decisions for the child based on the child's identified needs;

(b) Visit and financially support the child to the fullest extent possible; and

(c) Work cooperatively with the Department.

Stat. Auth.: ORS 418.005 \
Stats. Implemented: ORS 418.005
Hist.: CWP 4-2007, f. & cert. ef. 3-20-07

413-020-0040

Required Reviews

Federal and state law, including the Adoptions and Safe Families Act (Pub. L. 105-89), require review of the cases of all children placed in substitute care. The child placed by the Department with a Voluntary Custody Agreement will be scheduled for Citizen Review Board and court reviews pursuant to OAR 413-040-0100 to 413-040-0170.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.015
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 3-2002, f. 3-28-02, cert. ef. 4-1-02; CWP 2-2003, f. & cert. ef. 1-7-03; CWP 4-2007, f. & cert. ef. 3-20-07

413-020-0045

Criteria for Continuing a Voluntary Custody Agreement After a Child Reaches 18 Years of Age

(1) The Department determines that the child will need placement services after reaching 18 years of age and continues a Voluntary Custody Agreement after the child reaches 18 years per ORS 418.027(5) if:

(a) One of the conditions in OAR 413-020-0010(2)(a)-(c), which led the Department to assume voluntary custody of the child, continues at the time of the child's 18th birthday;

(b) The young adult agrees to the Department's continued assumption of all parental and legal responsibilities that the Voluntary Custody Agreement does not specifically reserve to the parents or legal guardians; and

(c) The District Manager approves the continuation of the Voluntary Custody Agreement.

(2) The court must determine continued custody is in the best interests of the young adult and approve the continuation of the Voluntary Custody Agreement every 180 days.

Stat. Auth.: ORS 418.005, 418.027
Stats. Implemented: ORS 418.015, 418.027
Hist.: CWP 4-2007, f. & cert. ef. 3-20-07

413-020-0050

Termination of Voluntary Agreement

(1) Either the Department or a parent or legal guardian who signed the agreement may terminate the agreement by providing 48 hours written notice. If an agreement continues after the child reaches 18 years of age, a young adult may terminate the agreement by providing 48 hours written notice.

(2) If a parent or legal guardian requests the termination of the voluntary agreement and there is reason to believe the child will be unsafe if returned to the home of the parent or legal guardian, the caseworker must report the information to a CPS screener.

(3) OAR 413-070-0240(5) governs the withdrawal by a parent or Indian custodian of consent concerning an Indian child, within the meaning of the Indian Child Welfare Act, who is in substitute care and the subject of a "Voluntary Custody Agreement" with the Department. OAR 413-070-0240(5) prescribes:

(a) That the parent or Indian custodian may withdraw consent orally or in writing at any time;

(b) That an Indian child shall immediately be released to the parent or Indian custodian upon withdrawal of a voluntary consent; and

(c) Notification to the court, and other actions are required when return of an Indian child to the parent or Indian custodian would place the child in imminent danger or harm.

Stat. Auth.: ORS 418.005, 418.027
Stats. Implemented: ORS 418.015, 418.027
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SOSCF 3-2002, f. 3-28-02, cert. ef. 4-1-02; CWP 2-2003, f. & cert. ef. 1-7-03; CWP 4-2007, f. & cert. ef. 3-20-07

Voluntary Placement Agreement

413-020-0060

Purpose

These rules, OAR 413-020-0060 to 413-020-0090, describe:

(1) The circumstances in which parents or legal guardians and the Department may enter into a Voluntary Placement Agreement to place a child, who is in the legal custody of the parents or legal guardians, for care or services from the Department; and

(2) The responsibilities of the parents or legal guardians and the Department in connection with these agreements.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.015, 418.312
Hist.: CWP 4-2007, f. & cert. ef. 3-20-07

413-020-0065

Definitions

The following definitions apply to OAR 413-020-0060 to 413-020-0090:

(1) "Child" means a person under 18 years of age.

(2) "Department" means the Department of Human Services, Child Welfare.

(3) "Legal custodian" means a person, agency, or institution with legal custody of a child and the following duties and authority:

(a) To have physical custody and control of a child;

(b) To supply the child with food, clothing, shelter, and incidental necessities;

(c) To provide the child with care, education, and discipline;

(d) To authorize ordinary medical, dental, psychiatric, psychological, and other remedial care or treatment for the child, and in an emergency where the child's safety appears urgently to require it, to authorize surgery or other extraordinary care;

(e) To make such reports and to supply such information as the court may require; and

(f) To apply for any benefits to which the child is entitled and to use them to pay for the child's care.

(4) "Legal custody" means a legal relationship between a person, agency, or institution and a child that imposes on the person, agency, or institution the duties and authority of the child's legal custodian.

(5) "Legal guardian" means a person or agency that has the duties and authority of a parent with legal custody of a child to make decisions concerning a child, including but not limited to the following:

(a) Authorize surgery and other extraordinary treatment for the child;

(b) Authorize the child to enlist in the armed forces of the United States;

(c) Consent to child's adoption; and

(d) Make other decisions of substantial legal significance concerning the child (but a guardian is not a conservator of the child's property or estate).

(6) "Substitute care" means the out-of-home placement of a child or young adult who is in the legal or physical custody and care of the Department.

(7) "Voluntary Placement Agreement" means a binding, written agreement between the Department and the parent or legal guardian of a child that does not transfer legal custody to the Department but that specifies, at a minimum, the legal status of the child and the rights and obligations of the parent or legal guardian, the child, and the Department while the child is in placement.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.015, 418.312
Hist.: CWP 4-2007, f. & cert. ef. 3-20-07

413-020-0070

Voluntary Placement Agreement Limitations

(1) Under a Voluntary Placement Agreement, the parent or legal guardian retains legal authority over the child and is obligated to continue to exercise and perform all parental authority and legal responsibilities, except those that the parent or legal guardian specifically delegates to the Department by a binding agreement. The agreement specifies, while the child is in placement, the legal status of the child and the rights and obligations of the parent or legal guardian, the child, and the Department.

(2) The Department must use a Voluntary Placement Agreement (CF 499) under ORS 418.312 in all cases in which the sole reason for placing the child in a foster home, group home, or institutional child care setting is the need to obtain services for the child's emotional, behavioral, or mental disorder or developmental or physical disability.

(3) Under a Voluntary Placement Agreement, the Department has responsibility for the child's placement and care.

(4) The parent or legal guardian who requests substitute care for the child through a Voluntary Placement Agreement may enter into a child support agreement with the Division of Child Support (DCS) or receive a child support order.

(a) The caseworker must inform the parent or legal guardian that he or she may enter into a non-adversarial support agreement with DCS to discharge support obligations. Other, existing child obligations of the parent or legal guardian are not superseded by support agreements with DCS.

(b) The caseworker must provide the parent or legal guardian who signs the Voluntary Placement Agreement with the "DCS Referral for Non-Adversarial Support Agreement" (CF 496). The parent or legal guardian completes the form and returns it to the caseworker. If the form is not returned to the caseworker within 30 days, a support order may be entered.

(c) The caseworker must forward the completed form (CF 496) and a signed copy of the Voluntary Placement Agreement to the Children's Benefits Unit of the Department.

(5) The parent or legal guardian must provide information to the Department about insurance and other financial resources to meet the medical, dental, and mental health needs of the child by completing a Medical Resource Report Form (DHS 415H).

(6) A Child Welfare Program Manager must approve entering into a Voluntary Placement Agreement.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.015, 418.312
Hist.: CWP 4-2007, f. & cert. ef. 3-20-07

413-020-0075

Legal Consent

(1) Only a parent or legal guardian who has legal custody of the child may enter into a "Voluntary Placement Agreement".

(2) All persons who have legal custody of the child must sign the agreement unless one person with legal custody of the child is missing.

(3) If one person with legal custody of the child is missing, all other persons with legal custody of the child must sign the agreement and must provide the Department the persons and places likely to have knowledge of the missing person's whereabouts. The Department must immediately begin a reasonably diligent search to find the other person with legal custody of the child to provide him or her notice of the agreement.

(4) If the child is an Indian child who is an enrolled member of or may be eligible for membership in an Indian tribe, each parent or Indian custodian who has legal custody of the child must sign the "Voluntary Placement Agreement" in a hearing before a judge of a court with appropriate jurisdiction. The child must be more than 10 days old. Refer to Child Welfare Policy I-E.2.1, "Placement of Indian Children", OAR 413-070-0240 for detailed requirements.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.015, 418.312
Hist.: CWP 4-2007, f. & cert. ef. 3-20-07

413-020-0080

Developing the Family Support Services Case Plan and a Voluntary Placement Agreement with the Department

(1) The caseworker must prepare the Voluntary Placement Agreement (CF 499), which must specify the legal status of the child and the rights and obligations of the parent or legal guardian, the child, and the Department.

(2) The caseworker must develop a family support services case plan (see OAR 413-030-0016) with the parent or legal guardian who signs a Voluntary Placement Agreement.

(3) The caseworker must develop a visit and contact plan as described in OAR 413-070-0800 to 413-070-0880.

(4) The parent or legal guardian must agree to:

(a) Full and ongoing cooperation in the family support services case plan described in OAR 413-030-0006(2)(a)-(c) and in making decisions for the child based on the child's identified needs;

(b) Visit and financially support the child to the fullest extent possible; and

(c) Work cooperatively with the Department.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.015, 418.312
Hist.: CWP 4-2007, f. & cert. ef. 3-20-07

413-020-0085

Required Reviews

Federal and state law, including the Adoptions and Safe Families Act (Pub. L. 105-89), require review of the cases of all children in substitute care. The child placed by the Department with a Voluntary Placement Agreement will be scheduled for Citizen Review Board and court reviews pursuant to OAR 413-040-0100 to 413-040-0170. Under state law:

(1) When the child remains in voluntary placement for more than 180 days, the juvenile court must make a determination within the first 180 days of the placement that the placement is in the best interests of the child.

(2) The juvenile court must hold a permanency hearing as provided in ORS 419B.476 to determine the future status of the child no later than 14 months after the child's original voluntary placement and not less frequently than once every 12 months thereafter during the continuation of the child's original voluntary placement.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.015, 418.312
Hist.: CWP 4-2007, f. & cert. ef. 3-20-07

413-020-0090

Termination of Voluntary Agreement

(1) Either the Department or a parent or legal guardian who signed the Voluntary Placement Agreement may terminate the agreement by providing 48 hours written notice. The child support agreement may be terminated at the same time by sending a copy of the written termination notice to the Children's Benefits Unit of the Department.

(2) If the parent or legal guardian requests the termination of the Voluntary Placement Agreement and there is reason to believe the child is unsafe, the caseworker must report the information to a CPS screener.

(3) OAR 413-070-0240(5) governs the withdrawal by a parent or Indian custodian of consent concerning an Indian child who is in substitute care and the subject of a Voluntary Placement Agreement with the Department. OAR 413-070-0240(5) prescribes:

(a) That the parent or Indian custodian may withdraw consent orally or in writing at any time;

(b) That an Indian child shall immediately be released to the parent or Indian custodian upon withdrawal of a voluntary consent; and

(c) Notification to the court and other actions required when return of an Indian child to the parent or Indian custodian would place the child in imminent danger or harm.

(4) A Voluntary Placement Agreement ends when the child reaches 18 years of age.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.015, 418.312, 419C.080
Hist.: CWP 4-2007, f. & cert. ef. 3-20-07

Guardian and Legal Custodian Consents

413-020-0100

Purpose

The purpose of OAR 413-020-0100 through 413-020-0170 is to:

(1) Define the Department's authority as guardian and legal custodian of children in its care or in the care of its agents;

(2) Specify how that authority will be exercised by the Department and its agents; and

(3) Specify requirements to be met when this authority is exercised.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.640 & ORS 418.312
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 12-2003, f. & cert. ef. 1-9-03

413-020-0110

Definitions

(1) "Child Placement Agreement" means an agreement between the legal parent(s)/legal guardian of a child and the Department. The Parent(s) retain "all legal authority for child while services are being provided by the Department.

(2) "Department" means Department of Human Services.

(3) "Guardian" means a person or agency having the powers and responsibilities of a parent to make binding decisions for a child, including the authority to:

(a) Authorize surgery for the child;

(b) Authorize enlistment in the armed forces;

(c) Consent to the child's adoption when the child is in the permanent custody of the agency;

(d) Make other decisions of substantial legal significance concerning the child; but

(e) A guardian is not a conservator of the child's property or estate.

(4) "Legal Custody" means that a person or agency has legal authority:

(a) To have physical custody and control of a child;

(b) To supply the child with food, clothing, shelter and other necessities;

(c) To provide the child with care, education and discipline;

(d) To authorize medical, dental, psychiatric, psychological, hygienic or other remedial care or treatment for the child, and in any emergency where the child's safety appears urgently to require it, to authorize surgery or other extraordinary care; and

(e) Legal custody includes temporary custody of a child under an order pursuant to ORS 419B.233 and 419B.331.

(5) "Permanent Custody" means legal custody of a child:

(a) Who has been permanently committed to the Department by the juvenile court after parental rights have been terminated under ORS 419B.527;

(b) Who has been released and surrendered to the Department by the parents under ORS 418.270.

(6) "Physical Custodian" means a person or agency, including a child's legal or biological parent, a relative, foster parent, adoptive parent or a licensed child-caring agency who is authorized by the Department to provide a residence and day-to-day care for a child who is in the legal custody of the Department.

(7) "Service Worker" means the agency staff person assigned primary responsibility for a child served by the Department.

(8) "Voluntary Custody" means legal custody given to the Department, by written agreement, by a parent or legal guardian of a child.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.640 & ORS 418.312
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 12-2003, f. & cert. ef. 1-9-03

413-020-0120

Responsibility of Staff to Secure a Legal Consent

Whenever the legal consent of a parent or guardian is needed for a child in the care and custody of the Department, the service worker shall secure the consent of the person authorized to approve the proposed service or activity. Relevant information shall be provided the authorized person to assure the Department's authority to consent, the need for and advisability of the service or activity, and whenever feasible, the concurrence of parents and/or physical custodians.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.640 & ORS 418.312
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 12-2003, f. & cert. ef. 1-9-03

413-020-0130

Authority in Child Placement Agreements

(1) When a parent or guardian of a child authorizes a Child Placement Agreement with the Department, the parent(s) or guardian will remain guardian of the child and will retain legal authority, and are obligated to continue to exercise and perform all parental duties and legal responsibilities except those delegated to the Department by the signed CF 499 Child Placement Agreement.

(2) When a child is in the voluntary custody of the Department, the Department or the physical custodian will exercise the authority of a legal custodian as assigned in the CF 1005 Voluntary Custody Agreement.

(3) In the event the parent or legal guardian is unavailable or unwilling to fulfill the responsibilities of a guardian, the Department will petition the Juvenile Court and request authority to provide essential services to the child.

NOTE: Please refer to Child Placement Agreement/Voluntary Custody OAR 413-020-0000 through 413-020-0050 (CAF Policy I-B.1.3) for additional information regarding these two options for services.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.640 & ORS 418.312
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 12-2003, f. & cert. ef. 1-9-03

413-020-0140

Exercise and Delegation of Legal Authority

Where the Department has legal custody of a child through a Voluntary Custody Agreement, a court order, or a Release and Surrender Agreement, the Department will exercise its authority through Department staff and through delegation to other persons as follows:

(1) Physical Custodian. The Department delegates the following responsibilities to the physical custodian by this administrative rule. This delegation shall continue as long as the child is in the legal custody of the Department and resides with the physical custodian. Any exception to this rule shall be given in writing to the child's custodian and a copy will be maintained in the child's case record with the Department. The department will delegate to the child's Physical Custodian its authority to consent to:

(a) The child/youth's registration in public school; assisting them with selecting or changing class schedules; authorizing absence from school; participation in school and extracurricular activities; and enrollment in school meal and school insurance programs. Consent for traditional school testing as deemed necessary. School pictures, except those listed under 413-020-0130(2)(c);

(b) Routine medical care and dental care, including vaccinations and immunization; routine examinations and lab tests;

(c) Short term inter-county travel;

(d) Application for work permits or releases.

(2) Service Worker. The Service Worker may exercise the Department's consent authority to any action to which the physical custodian may consent. In addition, the child's Service Worker may exercise the Department's authority to give consent for the following:

(a) Education records, academic or school behavioral records; or any specialized school testing. The Department Service Worker may not assume the role or responsibilities of Educational Surrogate, per OAR 581-015-0099.

(b) Psychiatric or psychological evaluation, outpatient psychiatric or psychological treatment, and behavioral rehabilitation services for the child; and

(c) Photograph(s) taken for publicity purposes or media promotions that may draw attention to the individual.

(3) Service Delivery Area (SDA) Manager or Designee. The SDA Manager or Designee may exercise the Department's consent authority to any action to which the Physical Custodian or Services Worker may consent. In addition, the SDA Manager or Designee may exercise the Department's authority to consent to the following actions with respect to children serviced by the SDA:

(a) Emergency medical care and/or surgery, to include anesthesia;

(b) Major medical and surgical procedures that are not extraordinary or controversial, to include anesthesia;

(c) Admission to a state training center for the retarded, or to SAIP (Secure Adolescent Inpatient Program), SCIP (Secure Children's Inpatient Program), or a private hospital for purpose of psychiatric treatment;

(d) Registration in special schools, including private or alternative schools;

(e) Application for driver's training, permits and license;

(f) Interstate travel and international travel;

(g) Examination by law enforcement agency (e.g., polygraphs, interrogations without a warrant, etc.).

(h) Use of firearms for purpose of recreational hunting, target practice, and/or Hunter Safety Course.

Stat. Auth.: ORS 161.390, 418.005
Stats. Implemented: ORS 109.640, 161.327, 161.336, 161.341, 161, 346, 161.365, 161.370, 418.005, 418.312
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 12-2003, f. & cert. ef. 1-9-03; CWP 2-2006, f. & cert. ef. 2-1-06

413-020-0150

Exercise and Delegation of Legal Guardian Authority

Where the Department has legal custody of a child through a court order in which the Department has specifically been given guardianship, or a Release and Surrender Agreement, the Department will exercise its authority through agency staff as follows:

(1) Service Delivery Area (SDA) Manager or Designee: may exercise the Department's authority to consent to the following actions with respect to children served by that SDA:

(a) Enlistment of a child in the Armed Forces or the Job Corps; and

(b) Marriage;

(2) Department Adoption Manager; may exercise the Department's authority to consent to the adoption of a child who is in the permanent custody of the agency. (ORS 109.316)

(3) Department Assistant Director for Community Human Services (CHS) or Department Assistant Director for Children, Adults and Families (CAF) or the Department Director, or in their absence and in the event of an emergency the Deputy Assistant Director for CHS or CAF may consent to the following actions for a child:

(a) Termination of a pregnancy, except when a young woman 15 years of age or older exercises her statutory right to consent to her own termination of a pregnancy;

(b) Extraordinary or controversial medical or surgical procedures, such as: Do Not Resuscitate Order (DNR), organ transplants, kidney dialysis, open heart surgery, or any procedure involving substantial life threat;

(c) Any medical or surgical procedure to which a legal parent or guardian of the child or the child is opposed;

(d) Sterilization under ORS Chapter 436, but only when such procedure is necessary to protect the child's life.

(4) Department Director, Assistant Director for Children, Adults and Families (CAF), and Assistant Director for Community Human Services (CHS) may exercise the Department's authority to consent to any action to which the Physical Custodian, Services Worker, Service Delivery Area (SDA Manager may consent.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.640 & ORS 418.312
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 12-2003, f. & cert. ef. 1-9-03

413-020-0160

Actions Not Authorized

(1) No Department employee will consent to educational planning which is defined as the responsibility of a surrogate parent. (OAR 581-015-0099).

(2) No Department employee, or agent will exercise the Department's authority to give consent to the purchase of, or ownership of, a motor vehicle by a child in legal custody of the agency. This prohibition does not prevent a child in the legal custody of the agency from exercising the right to purchase or own a motor vehicle on his or her own account.

(3) No Department employee shall co-sign or counter-sign any purchase contract for a child in the Department's custody.

(4) No Department employee will accept responsibility or serve as conservator of a child's property or estate.

(5) No Department employee, or agent shall consent to the sterilization of a child, except pursuant to ORS Chapter 436, and to save the child's life.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.640 & ORS 418.312
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 12-2003, f. & cert. ef. 1-9-03

413-020-0170

General Provisions

(1) The Department acknowledges the right of a minor 15 years of age or older to consent to hospital care, medical and surgical diagnosis or treatment without the consent of the parent or guardian. (ORS 109.640)

(2) The Department acknowledges the right of a minor 14 years of age or older may obtain, without parental knowledge or consent, outpatient diagnosis or treatment of a mental or emotional disorder or chemical dependency, excluding methadone maintenance, by a physician. (ORS 109.675)

(3) Whenever Department staff exercise the agency's authority to authorize actions described as the responsibility of a legal guardian under these rules, Department staff shall:

(a) Consider the impact of the proposed action upon the welfare of the child, the child's family and the community prior to deciding whether to consent to or authorize the proposed action;

(b) Consult with the physical custodian of the child;

(c) When the child is not in the permanent custody of the Department, make reasonable efforts to consult the child's legal parent(s) or guardian(s) about the action proposed and consider the parent(s) or guardian's preference concerning the action proposed prior to making a decision to consent to or authorize the proposed action unless there is cause to believe such consultation will be detrimental to the child;

(d) Prepare a brief written record of the circumstances of the action consented to whenever the Department provides a written consent for actions defined as the responsibility of a guardian. The written record and a copy of any consent made in writing will be filed in the child's case record.

(4) In any case where Department staff consider it necessary or appropriate, they may notify the juvenile court, and/or seek the court's concurrence, prior to consenting to or authorizing any of the actions described in these rules with respect to children in the Department's custody.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 109.675
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; CWP 12-2003, f. & cert. ef. 1-9-03

CANS Screening and Enhanced Supervision

413-020-0200

Purpose

The purpose of these rules (OAR 413-020-0200 to 413-020-0255), is to describe the responsibilities of the Department to:

(1) Identify the supervision needs of a child or young adult in substitute care with a certified family;

(2) Develop a supervision plan describing the actions and activities provided by a certified family, the Department, and other individuals to meet the child or young adult's need for enhanced supervision;

(3) Describe the responsibilities of the certified family and the Department when physical restraint is used;

(4) Monitor the completion of behavior and crisis management training when physical restraint is included in a child or young adult's supervision plan; and

(5) Conduct a CANS screening during the negotiation of guardianship assistance pursuant to OAR 413-070-0900 through 413-070-0974 or negotiation of adoption assistance pursuant to OAR 413-130-0000 through 413-130-0130.

Stat. Auth.: ORS 418.005


Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SCF 4-1996, f. & cert. ef. 9-11-96; CWP 3-2003, f. & cert. ef. 1-7-03; CWP 6-2007, f. & cert. ef. 5-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 9-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 29-2011, f. 12-27-11, cert. ef. 12-28-11

413-020-0210

Definitions

The following definitions apply to OAR 413-020-0200 to 413-020-0255:

(1) "Adoption assistance agreement" means a written agreement, binding on the parties to the agreement, between the Department and the pre-adoptive family or adoptive family of an eligible child or young adult, setting forth the assistance the Department is to provide on behalf of the child or young adult, the responsibilities of the pre-adoptive family or adoptive family and the Department, and the manner in which the agreement and amount of assistance may be modified or terminated.

(2) "Adoptive family" means an individual or individuals who have legalized a parental relationship to the child through a judgment of the court.

(3) "BRS" means Behavior Rehabilitation Services, a Medicaid funded program that provides behavioral intervention, counseling, or skill building services in a professional, shelter, or residential (including therapeutic foster care formerly referred to as proctor care) placement setting.

(4) "CANS screener" means an individual, who performs CANS screenings under the supervision of the Level of Care Manager, under a contract with the Department, and who annually completes the training in the use of the Oregon CANS Comprehensive Screening Tool with a documented reliability score of 0.70 or greater.

(5) "CANS screening" means Child and Adolescent Needs and Strengths screening, a process of gathering information on a child or young adult's needs and strengths used for one or more of the following purposes:

(a) Identifying case planning, service planning, and supervision needs of the child or young adult in substitute care with a certified family;

(b) Determining the level of care payment while in substitute care with a certified family; and

(c) Determining the level of care payment included in an adoption assistance agreement or guardianship assistance agreement.

(6) "Certified family" means an individual or individuals who hold a current Certificate of Approval from the Department to operate a home to provide care, in the home in which he or she resides, to a child or young adult in the care or custody of the Department.

(7) "Certifier" means a Child Welfare employee who conducts assessments of applicants interested in providing relative or foster care to a child or young adult in the care or custody of the Department, determines whether or not to recommend approval of the operation of a relative care or foster home, and monitors the compliance of a relative care or foster care home with Child Welfare certification rules.

(8) "Child" means a person under 18 years of age.

(9) "Department" means Department of Human Services, Child Welfare.

(10) "Enhanced supervision" means the additional support, direction, observation, and guidance necessary to promote and ensure the safety and well-being of a child or young adult when the child or young adult qualifies for a level of care payment.

(11) "Foster parent" means an individual who operates a home that has been approved by the Department to provide care for an unrelated child or young adult placed in the home by the Department.

(12) "Guardian" means an individual who has been granted guardianship of the child through a judgment of the court.

(13) "Guardianship assistance" means assistance provided on behalf of an eligible child or young adult to offset the costs associated with establishing the guardianship and meeting the ongoing needs of the child or young adult. Guardianship assistance may be in the form of payments, medical coverage or reimbursement of nonrecurring guardianship expenses.

(14) "Guardianship assistance agreement" means a written agreement, binding on the parties to the agreement, between the Department and the guardian of an eligible child or young adult setting forth the assistance the Department is to provide on behalf of the child or young adult, the responsibilities of the guardian and the Department, and the manner in which the agreement and amount of assistance may be modified or terminated.

(15) "Level of care payment" means the payment provided to an approved or certified family, a guardian, a pre-adoptive family or an adoptive family based on the child or young adult's need for enhanced supervision as determined by applying the CANS algorithm to the results of the CANS screening.

(16) "Mechanical restraint" means the use of any physical device to involuntarily restrain the movement of all or a portion of a child's body as a means of controlling his or her physical activities in order to protect the child or other persons from injury. Mechanical restraint does not apply to movement restrictions stemming from medicinal, dental, diagnostic, or surgical procedures which are based on widely accepted, clinically appropriate methods of treatment by qualified professionals operating within the scope of their licensure.

(17) "Participating tribe" means a federally recognized Indian tribe in Oregon with a Title IV E agreement with the Department.

(18) "Physical restraint" means the act of restricting a child or young adult's voluntary movement as an emergency measure to manage and protect the child or young adult or others from injury when no alternate actions are sufficient to manage the child or young adult's behavior. Physical restraint does not include temporarily holding a child or young adult to assist him or her or assure his or her safety, such as preventing a child from running onto a busy street.

(19) "Potential guardian" means an individual who:

(a) Has been approved by the Department or participating tribe to be a child's guardian; and

(b) Is in the process of legalizing the relationship to the child through the judgment of the court.

(20) "Pre-adoptive family" means an individual or individuals who:

(a) Has been selected to be a child's adoptive family; and

(b) Is in the process of legalizing the relationship to the child through the judgment of the court.

(21) "Relative caregiver" means an individual who operates a home that has been approved by the Department to provide care for a related child or young adult placed in the home by the Department.

(22) "Seclusion" means the involuntary confinement of a child alone in a specifically designed room from which the child is physically prevented from leaving.

(23) "Supervision plan" means a documented set of strategies that is developed to assist a relative caregiver or foster parent in providing the additional support, observation, direction, and guidance necessary to promote and ensure a child or young adult's safety and well-being.

(24) "Young adult" means a person aged 18 through 20 years.

Stat. Auth.: ORS 418.005 & 418.340
Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SCF 4-1996, f. & cert. ef. 9-11-96; SCF 8-1997, f. 8-12-97, cert. ef. 8-25-97; CWP 3-2002, f. & cert. ef. 1-7-03; CWP 6-2007, f. & cert. ef. 5-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 9-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 29-2011, f. 12-27-11, cert. ef. 12-28-11

413-020-0230

Referral for and Review of the CANS Screening

(1) The caseworker of the child or young adult must complete a CANS screening referral:

(a) Within the first 20 days of a child's initial placement in substitute care with a certified family;

(b) Unless subsection (d) of this section applies, ten months from the date of the most recent CANS screening and annually thereafter when the child or young adult has continuously lived with a certified family and the certified family has received a level of care payment; and

(c) Unless subsection (d) of this section applies, five business days after a child or young adult, whose initial placement in substitute care was a BRS placement, moves to the home of a certified family.

(d) When a child's permanency plan is adoption or guardianship and the caseworker has submitted an adoption assistance application or a guardianship assistance application, the caseworker must consult with the Adoption Assistance and Guardianship Assistance Unit prior to submitting a referral.

(2) After consultation with and approval of a supervisor, the caseworker of a child or young adult may complete and submit to the Level of Care Manager a CANS screening referral under any of the following circumstances unless subsection (1)(d) of this rule applies:

(a) When a child or young adult currently living with a certified family has never had a CANS screening and is currently exhibiting ongoing behavior or functioning that may indicate the need for enhanced supervision and a level of care payment;

(b) When a child or young adult returns to a placement with a certified family after a BRS placement of six months or longer;

(c) When a child or young adult is living with a certified family and the certified family has observed ongoing, documented changes in behavior or functioning which:

(A) Have not improved after a revision of the supervision actions and activities provided by the certified family and other individuals; or

(B) Endanger the safety of the child or young adult or the safety of others.

(3) An adoption assistance coordinator or guardianship assistance coordinator may complete and submit a CANS screening referral to the Level of Care Manager under the following circumstances:

(a) Written documentation of the current behavior and functioning of the child or young adult has been submitted to the adoption assistance and guardianship assistance coordinator by one of the following individuals:

(A) An adoptive family of the child or young adult, regardless of whether there has been a previous CANS screening;

(B) A child's pre-adoptive family when the child is not in the legal custody of the Department;

(C) A guardian of the child or young adult, regardless of whether there has been a previous CANS screening; or

(D) A potential guardian of the child or young adult who has been approved by a participating tribe.

(b) The written documentation submitted under subsection (a) of this section demonstrates ongoing behavior or functioning indicating the need for enhanced supervision and a level of care payment, and one of the following apply:

(A) A CANS screening has never been completed;

(B) A CANS screening has not been completed within the past twelve months; or

(C) The child or young adult exhibits a significant, ongoing change in behavior since the CANS screening that was completed within the 12 month period following the previous CANS screening.

(4) The Level of Care Manager, within five business days of receipt of a CANS screening referral submitted under section (2) or (3) of this rule:

(a) May approve a CANS screening after reviewing the referral, if the child or young adult's behavior and functioning, as described in the referral, indicates a CANS screening is needed to assess the need for enhanced supervision and a level of care payment;

(b) Must notify the individual who submitted the CANS screening referral whether a CANS screening has been approved and the basis for the decision; and

(c) Must send an approved CANS screening referral to a CANS screener.

(5) A CANS screener, upon receipt of the CANS screening referral submitted under section (1) or section (4) of this rule must:

(a) Review the referral information;

(b) Contact the caseworker, when the child is in substitute care, to gather information about the child or young adult's strengths and needs;

(c) Contact the certified family, pre-adoptive family, adoptive family, potential guardian identified by a participating tribe, or guardian of the child or young adult and gather information about the child or young adult's strengths and needs;

(d) Contact the child or young adult and other individuals who provide services to the child or young adult as appropriate and gather sufficient information to understand the child or young adult's strengths and needs to complete the CANS screening; and

(e) When a child or young adult has current suicidal ideation or intent:

(A) Notify the child or young adult's caseworker or adoption or guardianship assistance coordinator and, if applicable, notify the pre-adoptive family, adoptive family, potential guardian, or guardian; and

(B) Immediately develop a supervision plan with the certified family when the child or young adult is in substitute care with a certified family.

(6) After the CANS screener has gathered information regarding the child or young adult's strengths and needs, as described in subsections (5)(a)-(d), the CANS screener rates each element of a child or young adult's behavior and functioning on a scale of zero to three, in a manner consistent with the principles of the Child and Adolescent Needs and Strengths Comprehensive Screening Tool appropriate for the child or young adult's age. The CANS screener documents the appropriate rating for each element and provides written explanation for any rating of either 2 or 3 on an element that is a need and any rating of 0 or 1 on an element that is a strength.

(a) When the child is five years old or younger, the CANS screener rates the child using the DHS 9601 — Child and Adolescent Needs and Strengths Comprehensive Screening Tool Ages Birth through Five, dated August 2009, and revised in June 2011, which by reference is incorporated in OAR 413-090-0010(2)(f)(A).

(b) When the child or young adult is six years old or older, the CANS screener rates the child or young adult using the DHS 9602 - Child and Adolescent Needs and Strengths Comprehensive Screening Tool ages Six through Twenty dated July, 2009, and revised in June 2011, which by reference is incorporated in OAR 413-090-0010(2)(f)(B).

(c) The Department maintains these documents on the Department's website. Printed copies of these documents may be obtained by contacting the Department of Human Services, Children, Adults and Families, ATTN: Level of Care Manager, 500 Summer Street NE, E-93, Salem, OR 97301.

(7) The CANS screener must complete the activities in sections (5) and (6) and submit the CANS screening results to the Level of Care Manager within fifteen business days following the receipt of the referral.

(8) Within ten business days of the receipt of the CANS screening results, the Level of Care Manager or designee:

(a) Reviews the CANS screening results;

(b) Contacts the CANS screener when results appear inconsistent with the referral information or documentation of a child or young adult's strengths and needs and may instruct the CANS screener to:

(A) Gather additional information;

(B) Reapply the CANS ratings; and

(C) Resubmit the CANS screening results.

(c) Approves the CANS screening results unless subsection (b) applies; and

(d) Applies the CANS algorithm which by reference is incorporated in OAR 413-090-0010(2)(f)(C) to the approved CANS screening results to determine whether:

(A) The child or young adult living with a certified family is eligible for a level of care payment and requires enhanced supervision; or

(B) The child or young adult eligible for adoption assistance or guardianship assistance is eligible for a level of care payment.

(9) The Level of Care Manager may approve a revision of the ratings of an approved CANS screening when new or different information relevant to the correct application of the CANS screening has been presented:

(a) In preparation for a contested case hearing requested under OAR 413-010-0500(2)(a)-(c):

(b) During an informal conference under OAR 413-010-0520; or

(c) During the renegotiation of an adoption assistance agreement under OAR 413-130-0075 or a guardianship assistance agreement under OAR 413-070-0969.

(10) The Level of Care Manager or designee sends the CANS screening results to the following individuals:

(a) The child or young adult's caseworker and the certified family, with whom the child or young adult is living, on behalf of the child or young adult; or

(b) The adoption assistance and guardianship assistance coordinator and child or young adult's pre-adoptive family, adoptive family, guardian or the potential guardian identified by a participating tribe.

(11) When the caseworker receives a child or young adult's CANS screening results, the caseworker must:

(a) Contact the certified family to review the CANS screening results;

(b) When the CANS screening results indicated the child or young adult currently has suicidal ideation or intent, review the supervision plan developed during the CANS screening no later than one business day after the receipt of the CANS screening results to determine whether the plan continues to be appropriate;

(c) Incorporate the needs and strengths identified in the CANS screening into the case plan; and

(d) Determine whether a supervision plan must be developed, modified, or terminated under OAR 413-020-0233 and 413-020-0236.

Stat. Auth.: ORS 418.005 & 418.340
Stats. Implemented: ORS 418.005, 418.330, 418.335 & 418.340
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SCF 4-1996, f. & cert. ef. 9-11-96; CWP 3-2002, f. & cert. ef. 1-7-03; CWP 6-2007, f. & cert. ef. 5-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 9-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 29-2011, f. 12-27-11, cert. ef. 12-28-11

413-020-0233

When a Supervision Plan is Required

(1) The caseworker must develop a supervision plan with the certified family with whom the child or young adult lives within 30 days of:

(a) The receipt of the CANS screening results that indicates enhanced supervision is necessary to maintain the safety and support the well-being of the child or young adult and the child or young adult qualifies for a level of care payment; or

(b) When a child or young adult who has enhanced supervision needs and is receiving a level of care moves from one certified family to another certified family.

(2) A supervision plan is not required for a level of care payment included in an adoption assistance agreement or guardianship assistance agreement.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: CWP 6-2007, f. & cert. ef. 5-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 9-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 29-2011, f. 12-27-11, cert. ef. 12-28-11

413-020-0236

Development, Documentation, and Termination of a Supervision Plan

(1) After the caseworker has reviewed the CANS screening results for a child or young adult living with a certified family that indicates the child or young adult has enhanced supervision needs and qualifies for a level of care payment, the caseworker must:

(a) Contact the certified family to explain the supervision needs identified in the CANS screening results; and

(b) During a meeting with the certified family, the child or young adult, as appropriate, and others who may participate in a supervision plan, explain the supervision requirements necessary to maintain the safety and support the well-being of the child or young adult and develop a supervision plan that meets the supervision needs of the child or young adult.

(A) If the child or young adult qualifies for Level 1 (moderate needs), the supervision plan must require the certified family to provide an environment with the additional support, direction, observation, and guidance from the certified family necessary to ensure a child or young adult's safety and well-being, beyond the level of supervision that typically is required for a child or young adult of the same age.

(B) If the child or young adult qualifies for Level 2 (intermediate needs), the supervision plan must require the certified family to provide a structured environment, additional support, direction, observation, and guidance necessary to ensure a child or young adult's safety and well-being, beyond the level of supervision that typically is required for a child or young adult of the same age.

(C) If the child or young adult qualifies for Level 3 (advanced needs), the supervision plan must require the certified family to provide a highly structured environment, additional support, direction, observation, and guidance necessary to ensure a child or young adult's safety and well-being, beyond the level of supervision that typically is required for a child or young adult of the same age.

(2) The supervision plan must include:

(a) The supervision actions or activities that are to be provided by the certified family and other individuals to meet the child or young adult's identified needs. Examples of appropriate supervision actions or activities may include, but are not limited to: proactive use of space, use of routine, structure of the environment, positive reinforcement, and de-escalation techniques;

(b) The actions and assistance the Department will provide to support the certified family in addressing the supervision needs of the child or young adult and to maintain the child or young adult in the home;

(c) The actions the child or young adult will take to support the supervision plan;

(d) The persons responsible for monitoring the child or young adult's supervision needs and the supervision actions and activities;

(e) How the persons responsible for monitoring the child or young adult's supervision needs and the supervision actions and activities are to communicate with each other; and

(f) A requirement that the supervision plan be reviewed during the first monthly face-to-face contact described in OAR 413-080-0054 after the date the supervision plan is signed by the individuals identified in section (3) of this rule.

(3) The supervision plan must be signed by:

(a) The caseworker;

(b) The certified family;

(c) The child or young adult, if able; and

(d) Any other individuals who are to provide specific actions or activities in the supervision plan.

(4) The supervision plan must be approved by the caseworker's supervisor.

(5) A supervision plan may include physical restraint as a supervision action or activity only if the certified family has completed the physical restraint training requirements described in OAR 413-020-0240.

(6) A supervision plan that authorizes a certified family to use physical restraint must:

(a) Focus on intervention strategies that are designed to modify a child or young adult's behavior without the need for physical restraint;

(b) Explain that a physical restraint is to be used only when the child or young adult's behavior poses an imminent danger to self or others, and when no alternate actions are sufficient to stop a child or young adult's behavior;

(c) Be approved by the Child Welfare program manager; and

(d) Require the certified family:

(A) To document and report the circumstances of each use of physical restraint in writing as soon as reasonably possible after the use of physical restraint on a form approved by the Department, which explains:

(i) The behavior that required the use of physical restraint;

(ii) The specific attempts to stop the child or young adult's behavior without the use of physical restraint;

(iii) The time the physical restraint started; and

(iv) The time the physical restraint ended.

(B) To orally report to the child or young adult's caseworker or the caseworker's supervisor within one business day of the physical restraint; and

(C) To submit the documentation required in paragraph (A) of this subsection to the child or young adult's caseworker within two business days after the use of physical restraint.

(7) The caseworker must provide a copy of the signed supervision plan to the certified family and the certified family's certifier, and file a copy in the Department's information system.

(8) When a child or young adult has a supervision plan and the CANS screening results indicate that the child or young adult no longer has enhanced supervision needs and no longer qualifies for a level of care payment, the caseworker must:

(a) Terminate the supervision plan;

(b) Document in the Department's information system the date the supervision plan terminated and the reason the plan terminated; and

(c) Notify the certified family and the certified family's certifier that the supervision plan terminated and the reason the plan terminated.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: CWP 6-2007, f. & cert. ef. 5-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 9-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 29-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 1-2013, f. & cert. ef. 1-15-13

413-020-0240

Use of Physical Restraint

(1) A physical restraint may be used by a certified family when the behavior of a child or young adult places the child or young adult or others in imminent risk of harm and only when:

(a) Good judgment indicates that a physical restraint may safely be implemented; and

(b) The certified family has received the individual Behavior and Crisis Management Training in physical restraint specific to the supervision needs of the child or young adult by Department trained staff.

(2) Physical restraint must be implemented with the least force necessary to prevent the risk of harm to self or others and should end as soon as the risk of harm no longer exists.

(3) If the behavior of a child or young adult places the child or young adult or others in imminent risk of harm, and good judgment indicates that a physical restraint cannot be implemented safely, the certified family must call the local law enforcement agency to request intervention. The certified family must:

(a) Orally report the incident to the caseworker and the caseworker's supervisor as soon as reasonably possible;

(b) Document the incident in writing on a form approved by the Department; and

(c) Submit the completed form to the caseworker within two business days.

(4) If the child or young adult is injured during the incident, whether or not a physical restraint is used, the certified family immediately must notify the Department's emergency 24-hour contact.

(5) A certified family may not use mechanical restraint or seclusion of a child or young adult in an emergency or at any other time as a supervision action or activity.

(6) Notwithstanding the training required in OAR 413-020-0255, when a situation arises and the behavior of a child or young adult places the child or young adult or another individual in imminent risk of harm and if good judgment indicates that a physical restraint may safely be implemented, the certified family may use a physical restraint even when:

(a) The certified family has not attended Behavior and Crisis Management Training; or

(b) The child or young adult does not have a supervision plan.

(c) If physical restraint is used under this section, the certified family must document and report the incident in accordance with the requirements of OAR 413-020-0236(6)(c).

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95; SCF 4-1996, f. & cert. ef. 9-11-96; SOSCF 8-2001, f. 6-29-01, cert. ef. 7-1-01; CWP 3-2002, f. & cert. ef. 1-7-03; CWP 6-2007, f. & cert. ef. 5-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 9-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 29-2011, f. 12-27-11, cert. ef. 12-28-11

413-020-0245

Responsibilities in Monitoring a Child or Young Adult's Supervision in a Certified Family

(1) During each monthly face-to-face contact described in OAR 413-080-0054, in addition to assessing the safety of the child or young adult, Department staff must determine:

(a) Whether the certified family is meeting the supervision needs of the child or young adult.

(b) Whether the supervision needs of the child or young adult have changed.

(c) If there is a current supervision plan, whether the supervision actions and activities described in the supervision plan are effective in meeting the child or young adult's supervision needs.

(2) If, after assessing the safety of the child or young adult as described in OAR 413-080-0054, the caseworker determines that the child or young adult currently is safe in the home but his or her supervision needs are not being met, the caseworker must:

(a) Consult with the certified family's certifier or the certifier's supervisor to determine if available resources or training are able to provide the additional support the certified family may need to meet the child or young adult's supervision needs;

(b) If there is a current supervision plan for the child or young adult, determine whether the supervision plan should be revised, and if so, meet with the certified family to revise the plan; and

(c) Determine whether there has been an observed, ongoing change in a child or young adult's behavior or functioning such that the observed changes must be documented and submitted with a CANS screening under referral OAR 413-020-0230(2).

(3) The caseworker documents the monitoring activities described in this rule in the Department's information system.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: CWP 6-2007, f. & cert. ef. 5-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 9-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 29-2011, f. 12-27-11, cert. ef. 12-28-11; CWP 1-2013, f. & cert. ef. 1-15-13

413-020-0255

Training and the Planned Use of Physical Restraint

(1) The Department has approved and schedules Behavior and Crisis Management Training as the standard training curriculum for any certified family who requires training on crisis management. The training curriculum focuses on strengthening a certified family's supervision skills.

(2) Before implementing a supervision plan that authorizes a certified family to use physical restraint, the caseworker must:

(a) Consult with the certifier to confirm that the certified family has completed Behavior and Crisis Management Training; and

(b) Contact the Level of Care Manager to schedule the certified family to receive Behavior and Crisis Management Training, by Department-trained staff, in physical restraint specific to the supervision needs of the child or young adult.

(3) A foster care coordinator or designee may approve comparable behavior and crisis management training obtained by a certified family for a specific child or young adult in place of Behavior and Crisis Management Training if:

(a) The training was selected by a school district and used in the school; or

(b) The training was approved by the Department of Human Services, Addictions and Mental Health Division and used in a Children's Intensive Mental Health Treatment Services program.

Stat. Auth.: ORS 418.005
Stats. Implemented: ORS 418.005
Hist.: CWP 6-2007, f. & cert. ef. 5-1-07; CWP 6-2009(Temp), f. & cert. ef. 7-1-09 thru 12-28-09; CWP 11-2009(Temp), f. & cert. ef. 9-25-09 thru 12-28-09; CWP 21-2009, f. & cert. ef. 12-29-09; CWP 9-2011(Temp), f. & cert. ef. 6-30-11 thru 12-27-11; CWP 29-2011, f. 12-27-11, cert. ef. 12-28-11

Investigation of Suspected Medical Neglect

413-020-0600

Purpose

(1) The purpose of these rules is to comply with Public Law 98-457, which requires that procedures be established within Oregon's Child Protective Services (hereafter referred to as CPS) program to respond to reports of suspected medical neglect, including reports of withholding medically indicated treatment for disabled infants with life-threatening conditions. The regulations indicate that the focus of the Department CPS work will be, "as it is in responding to other reports of child abuse and neglect, to protect the child and assist the family." Hospitals are encouraged to form review committees to assist with medical and ethical dilemmas arising in the care of disabled infants with life-threatening conditions. Due to the sensitive nature of these cases and the specialized skills required to complete the investigations, the Department will designate a Child Welfare staff person in each of the three cities having tertiary care centers (Portland, Eugene, and Medford) to be a specialist in Medical Neglect investigations. These Medical Neglect Investigators, along with the CPS program manager, will be available to provide telephone consultation and investigations of reports alleging medical neglect of handicapped infants with life-threatening conditions. The Medical Neglect Investigators will form a special investigation "team" with a Designated Consultant Neonatologist and a local CPS caseworker.

(2) The federal regulations emphasize that parents are the decision makers concerning treatment for their disabled infant based on advice and reasonable medical judgment of their physician(s) with advice from the Hospital Review Committee, if one exists. It is not the Department nor the HRC, nor any other committee, who makes decisions regarding the care and treatment for a child except in highly unusual circumstances where the course treatment is inconsistent with applicable standards established by law.

(3) The legislation requires that appropriate nutrition, hydration, and medication shall always be provided to the infant, and that the effectiveness of treatment shall not be based on subjective opinions about the future "quality of life" of an infant. In response to a report of medical neglect of a disabled infant with a life-threatening condition, Department's investigative role is to determine if the decision made to withhold treatment was based on reasonable medical judgment consistent with the definition of "withholding of medically indicated treatment." (see Definition section)

Stat. Auth.: HB 2004
Stats. Implemented: PL98-457
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95

413-020-0610

Definitions

(1) "Designated Consultant Neonatologist" means a neonatologist whose services are available to Child Welfare to review medical information and consult with Child Welfare and other experts deemed necessary in cases of suspected medical neglect.

(2) "Designated Hospital Liaison" means an individual(s), usually the hospital administrator, designated by each respective hospital to assist Child Welfare with coordination, consultation, and prompt notification of suspected cases of medical neglect.

(3) "Disabled Infant" means a child of less than one year of age having a physical or mental impairment which may substantially limit one or more major life functions such as breathing, seeing, hearing, walking, caring for one's self, performing manual tasks, learning and working.

(4) "Hospital Review Committee (HRC)" is a committee established by a medical facility or hospital to offer counsel and review in cases involving a disabled infant with life-threatening conditions.

(5) "Medical Neglect" means the failure to provide adequate medical care, including the withholding of medically indicated treatment from disabled infants with life-threatening conditions.

(6) "Medical Neglect Investigator" means Child Welfare staff designated and trained to provide consultation and complete investigations of alleged medical neglect reports.

(7) "Medically Indicated Treatment" means treatment (including appropriate nutrition, hydration, and medication) which, in the treating physician's reasonable medical judgment will be most likely to be effective in ameliorating or correcting all such life-threatening conditions. It does not include the failure to provide treatment other than nutrition, hydration or medication to an infant when in the treating physician's reasonable medical judgment any of the following circumstances apply:

(a) The infant is chronically irreversibly comatose;

(b) The provision of such treatment would merely prolong dying, not be effective in ameliorating or correcting all of the infant's life-threatening conditions, or otherwise be futile in terms of survival of the infant;

(c) The provisions of treatment would be virtually futile in terms of the survival of the infant and the treatment itself under such circumstances would be inhumane.

(8) "Reasonable Medical Judgment" means a medical judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved.

(9) "Tertiary Care Center" is a hospital with facilities and medical staff to perform very complex medical procedures and have teaching programs in nursing, pharmacology and/or medicine.

(10) "Withholding of Medically Indicated Treatment" means the failure to respond to the infant's life-threatening conditions.

Stat. Auth.: HB 2004
Stats. Implemented: PL98-457
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95

413-020-0620

Policy

Intake. Any person may make a report that a handicapped infant in a medical facility is not receiving adequate and necessary medical care. Reports which indicate withholding of medical treatment from disabled newborns with life-threatening conditions will be considered an emergency and assigned for investigation within one hour. Each Child Welfare branch will develop local procedures to assure that such reports received after normal work hours will be promptly investigated. Anonymous reports will be accepted at Intake.

(1) Obtain from the reporting person as much of the following information as possible:

(a) Name and address of the hospital;

(b) Name and address of infant and infant's parents;

(c) The infant's name and birth date;

(d) The name of the infant's attending physician;

(e) The condition of the infant and in particular information regarding whether the infant may die or suffer harm within the immediate future if medically indicated treatment is withheld;

(f) The basis of the reporter's suspicion or belief that medically indicated treatment or appropriate nutrition, hydration, or medication is being or will be withheld;

(g) Name of the person making the report, source of the information, position to have reliable information (i.e., nurse, friend, family member, etc.), address and telephone number.

(2) Criteria to determine if an investigation is indicated:

(a) Would the reported circumstances, if true, constitute "medical neglect";

(b) Is there reasonable cause to believe that medically indicated treatment is being withheld? This must be based on the condition of the child, health care professional's statements, information that the parents have refused to consent to treatment, and consultation with the worker's supervisor;

(c) A Medical Neglect investigator will be contacted to help determine if assignment for a CPS investigation is indicated. (Consultation with a Designated Consultant Neonatologist from a hospital other than the one where the infant is receiving treatment may be utilized at this point.)

(3) Reporting the Alleged Neglect. When a report of suspected medical neglect is received, the local Law Enforcement Agency will be contacted per ORS 419B.020.

Stat. Auth.: HB 2004
Stats. Implemented: PL98-457
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95

413-020-0630

Preliminary Investigation

(1) When a report of suspected medical neglect of a disabled infant with life-threatening conditions is received and assigned for investigation, the CPS caseworker will immediately contact a Medical Neglect Investigator for consultation and assistance in initiating a preliminary investigation. The Medical Neglect Investigator will have the responsibility to determine the role/activities of the CPS caseworker and the Medical Neglect Investigator during preliminary investigation and "on site" investigation of a report. The Medical Neglect Investigator will conduct the investigations whenever possible.

(2) During the preliminary investigation, the CPS caseworker or Medical Neglect Investigator will contact the Designated Consultant Neonatologist from a hospital other than the one where the infant is receiving care, for consultation and assistance. (Names of consultant neonatologists are available from the CPS program manager.)

(a) The Medical Neglect Investigator (or Designated Consultant Neonatologist) shall contact the hospital liaison, advise that person of the nature of the reported suspected medical neglect, and request assistance to obtain the following information:

(A) Whether the infant is in the hospital;

(B) The name and location of the infant's parents;

(C) The medical condition of the infant, i.e., does the infant have a life-threatening condition;

(D) The nature of the care and treatment being provided to the infant and what, if any, additional or alternative treatment could be provided;

(E) If the infant's parents are in agreement with the care and treatment being provided or if they have refused to consent to recommended treatment;

(F) If there is a critical time pressure and thus a need for immediate court action;

(G) The analysis of the HRC or other review body;

(H) Whether the attending physician has consulted with other medical professionals concerning the care and treatment of the infant and whether the medical professionals are in agreement with the care and treatment being given.

(b) If treatment is indicated and recommended by the physician and the parents are refusing to consent to treatment, then court action should be immediately initiated or further counseling with the parents pursued. In addition to filing a petition in juvenile court, Child Welfare shall request that a guardian ad litem (GAL) or court appointed special advocate (CASA) be appointed for the child.

(c) Criteria for continuing or closing preliminary investigation:

(A) If the facts confirmed by the treatment team indicate any of the following circumstances, then the investigation shall be terminated and the case closed: (The facts should be documented in the case file.)

(i) The infant is chronically and irreversibly comatose;

(ii) The provision of treatment would merely prolong dying, not be effective in ameliorating or correcting all the infant's life-threatening conditions, or otherwise be futile in terms of survival of the infant;

(iii) The provision of treatment would be virtually futile in terms of survival of the infant and the treatment itself under such circumstances would be inhumane.

(B) Where there remains doubt about the hospital's compliance with state laws, parents refuse to authorize medically-indicated treatment, or there is a need for additional information to substantiate a conclusion, the investigation should be continued.

Stat. Auth.: HB 2004
Stats. Implemented: PL98-457
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95

413-020-0640

Investigation

When additional information is necessary to substantiate a conclusion to the medical neglect report, the Medical Neglect Investigator shall form a special investigative team with a consultant neonatologist from a hospital other than the one where the infant is receiving care, a local CPS caseworker and any other necessary professionals such as a nutritionist or the local district attorney. The on-site investigation shall be completed in the shortest possible time.

(1) The Medical Neglect Investigator, with the assistance of the special investigation team members and designated hospital liaison, will complete the following:

(a) Interview treating physicians and others involved in the treatment;

(b) Arrange as early as possible meeting with HRC or other hospital review boards or committees. Determine at minimum the following: Did the HRC verify the diagnosis? How were the parents involved in the process? What treatment alternatives exist?

(c) Review medical records. The parents shall be requested to sign a release of information to allow CPS investigation and/or medical consultant to review records. If determined necessary, court intervention may be used to give access to medical records;

(d) Interview parents (after first determining with hospital social worker appropriateness and context for interviewing parents) to determine the parent's understanding of the child's condition and treatment alternatives, the decisions they have made, and the basis for those decisions.

(2) When necessary, the Medical Neglect Investigator may take the following actions:

(a) Make an on-site visit to the medical facility to observe the care and treatment being provided to the infant;

(b) If an alternative diagnosis was not entertained, and no consultants brought in, or there was not a procedure for reviewing the diagnosis and treatment recommendation, then the investigator may wish to arrange for an independent medical consultant and/or exam. The Medical Neglect Investigator shall recommend to the parent(s) that an independent medical examination or evaluation be performed. If the parent(s) do not consent, the specialist will seek a court order to obtain an independent medical examination or evaluation.

(3) Concluding the Investigation:

(a) Following the investigation, the Medical Neglect Investigator will determine:

(A) Whether the report of suspected medical neglect of the handicapped infant with life-threatening conditions is valid. Information from the HRC or consulting physicians, including the Designated Consultant Neonatologist, shall be used to determine whether the treating physician exercised reasonable medical judgment. The reasonable medical judgment of the treating physician may differ from that of other physicians. Grounds for overriding the refusal of the parents of the infant to consent to medical care and treatment exist only if any reasonable medical judgment would be that treatment is medically indicated. The parents' refusal to consent shall be respected if the attending physician, the Review Committee, or a consulting physician finds that treatment is not medically indicated;

(B) Whether further action should be taken by the Department, and if there is a basis for juvenile court jurisdiction.

(b) If the parents of the infant refuse to consent to the medical care and treatment found to be necessary and adequate by the attending physician and the HRC, or by another consulting medical professional, or the attending physician refuses to provide treatment, Child Welfare shall initiate the filing of a petition in juvenile court on behalf of the infant requesting the court to take jurisdiction of the infant so that medically indicated treatment may be provided. Child Welfare will also request that a Guardian Ad Litem (GAL) or Court Appointed Special Advocate (CASA) be appointed for the child. The caseworker will document these actions in the case record;

(c) If the infant's parents do not desire medical treatment beyond that being provided and if the reasonable medical judgment of the attending physician, HRC, or other consulting medical professional is that medically indicated treatment is being provided, the Medical Neglect Investigator will document this agreement in the case record. The CPS caseworker will close the case and take no further action;

(d) If the infant's parents desire medical care or treatment for the infant which is not being provided by the attending physician or the medical facility, the Medical Neglect Investigator will advise the parents of their option to seek another medical opinion or additional medical resources. The Medical Neglect Investigator shall document the advice given the parents in the case record, the caseworker will close the case and take no further action;

(e) The Child Welfare caseworker shall assist the parent(s) with referrals to support groups, community educational resources, and agencies which provide services for disabled infants and their families, and to agencies with financial resources for medical and rehabilitative services;

(f) Following completion of the investigation, the Medical Neglect Investigator shall notify the assistant administrator for the Program Operations by telephone of the report, the investigation and the actions taken. The telephone report is to be followed by a written report and documented in the case record.

Stat. Auth.: HB 2004
Stats. Implemented: PL98-457
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95

413-020-0650

Annual Information Update

Each local Child Welfare branch manager shall contact each hospital in their county and obtain the name, title, and telephone number of the designated hospital liaison who is responsible for coordination, consultation, and notification of the Child Welfare of cases of suspected medical neglect. The branch managers shall update this information annually.

Stat. Auth.: HB 2004
Stats. Implemented: PL98-457
Hist.: SCF 6-1995, f. 12-22-95, cert. ef. 12-29-95

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