Chapter 471 Oregon Laws 2005

AN ACT

SB 880

Relating to practice of nursing; amending ORS 109.640, 109.650, 137.473, 169.076, 432.165, 433.085, 433.110, 433.260, 435.305, 496.018, 678.390, 680.545 and 807.240.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 433.260 is amended to read:

433.260. (1) Whenever any administrator has reason to suspect that any child or employee has or has been exposed to any restrictable disease and is required by the rules of the Department of Human Services to be excluded from a school or children’s facility, the administrator shall send such person home and, if the disease is one that must be reported to the department, report the occurrence to the local health department by the most direct means available.

(2) Any person excluded under subsection (1) of this section [shall] may not be permitted to be in the school or facility until the person presents a certificate from a physician, nurse practitioner, local health department nurse or school nurse stating that the person does not have or is not a carrier of any restrictable disease.

SECTION 2. ORS 433.085 is amended to read:

433.085. (1) Notwithstanding any other provision of law, any law enforcement officer as defined in ORS 414.805, parole and probation officer, corrections officer, emergency medical technician, licensed health care provider, firefighter or paramedic who in the performance of the individual’s official duties comes into contact with the bodily fluids of another person may seek to have the source person tested for HIV and hepatitis B or C by petitioning the circuit court for an order compelling the testing.

(2) The petition submitted to the court must set forth the facts and circumstances of the contact and the reasons the petitioner and a medically trained person representing the petitioner, if available, believe the exposure was substantial and the testing would be appropriate. The petition must also include information sufficient to identify the alleged source person and the location of the alleged source person, if known. The court shall hold an ex parte hearing in person or by telephone on the day of receipt of the petition, if possible, or within a reasonable period not to exceed three judicial days. Upon a showing that the petitioner has been exposed to the bodily fluids of another person and the circumstances create probable cause to conclude that a significant possibility exists that the petitioner has been exposed to HIV or hepatitis B or C, the court shall order the testing of the source person.

(3) If the court orders a test under subsection (2) of this section:

(a) The order shall direct the source person to allow the required test to be performed by a licensed health care provider without delay and may specify a time when the test must be completed. If the source person is in custody or otherwise subject to the legal control of another person, the order may be directed to the agency with custody of, or the other person with legal control over, the source person and direct the agency or other person to provide the source person with a copy of the order and ensure that the required test is performed.

(b) The petitioner shall designate a physician or nurse practitioner to receive the test results on behalf of the petitioner.

(c) The order must inform the source person, agency or other person of who is to receive the results of the test and of how to obtain payment for costs under subsection (6) of this section.

(d) The order shall be served on the source person, or the agency with custody of or other person with legal control over the source person, in the manner directed by the court. The court may provide for service of the order by any means appropriate to the circumstances of the source person, including but not limited to service by the petitioner or by directing the sheriff to serve the order. Any costs of service shall be paid as provided under subsection (6) of this section.

(e) The order is enforceable through the contempt powers of the court.

(4) The results of any test ordered under this section are confidential and subject to the confidentiality provisions of ORS 433.045 (3). The results shall be made available only to those persons authorized under ORS 433.045 (3) and to the petitioner, [the] any physician or nurse practitioner designated by the petitioner to receive the results, the Department of Human Services[,] and the [subject] source person [and any physician designated by the subject person to receive the results].

(5) If the test results are negative, the court may order the [subject] source person to submit to additional testing six months after the first test was conducted.

(6) No charge or filing fee may be imposed for the filing of a petition under this section. The cost of any testing ordered under this section shall be the responsibility of the employer of the petitioner.

SECTION 3. ORS 433.110 is amended to read:

433.110. Every physician or nurse attending a person affected with any communicable disease shall use [such] all precautionary measures to prevent the spread of the disease as the Department of Human Services may prescribe by rule.

SECTION 4. ORS 432.165 is amended to read:

432.165. (1) All superintendents or managers or other persons in charge of institutions shall keep a record of personal data concerning each person admitted or confined to the institution. This record shall include [such] information as required for the certificates of birth and death and the reports of fetal death and induced termination of pregnancy required by this chapter. The record shall be made at the time of admission from information provided by the person being admitted or confined, but when it cannot be so obtained, the information shall be obtained from relatives or other persons acquainted with the facts. The name and address of the person providing the information shall be a part of the record.

(2) When a dead body or fetus is released or disposed of by an institution, the person in charge of the institution shall keep a record showing the name of the decedent, Social Security number, if issued, date of death, name and address of the person to whom the body or fetus is released and the date of removal from the institution. If final disposition is made by the institution, the date, place and manner of disposition shall also be recorded.

(3) A funeral service practitioner, embalmer, sexton or other person who removes from the place of death, transports or makes final disposition of a dead body or fetus, in addition to filing any certificate or other report required by this chapter or rules adopted pursuant thereto, shall keep a record which shall identify the body, and [such] information pertaining to receipt, removal, delivery, burial or cremation of the body as may be required by rules adopted by the State Registrar of the Center for Health Statistics.

(4) A medical examiner, [or a] physician or nurse practitioner authorized by law to sign a death certificate who is notified of the death of a person not under the care of institutions shall keep a record.

(5) Copies of records described in this section shall be sent to the state registrar at least monthly. Records maintained under this section shall be retained by the institution, medical examiner, [or] physician or nurse practitioner and the persons described in subsection (3) of this section for a period of not less than two years and shall be made available for inspection by the state registrar or a representative of the state registrar upon demand.

SECTION 5. ORS 435.305 is amended to read:

435.305. (1) A person may be sterilized by appropriate means upon request and upon the advice of a physician licensed by the Board of Medical Examiners for the State of Oregon.

(2) No physician or hospital may be held liable for performing a sterilization without obtaining the consent of the spouse of the person sterilized.

(3) Free clinics to sterilize males under subsection (1) of this section may be conducted as a part of the program provided for in ORS 435.205.

(4)(a) A nurse practitioner licensed by the Oregon State Board of Nursing under ORS 678.375 and acting within the scope of practice authorized by the board may provide medical advice to any person about a sterilization procedure.

(b) A nurse practitioner may acknowledge and sign a consent to sterilization procedure form if, no fewer than 30 days before the procedure, the form is provided to and signed by the person on whom the procedure will be performed.

(c) A nurse practitioner may not acknowledge or sign a consent to sterilization procedure form if the form is provided to or signed by the person on whom the procedure will be performed fewer than 30 days before the procedure.

(d) A nurse practitioner may not perform a sterilization procedure on any person.

SECTION 6. ORS 169.076 is amended to read:

169.076. Each local correctional facility shall:

(1) Provide sufficient staff to perform all audio and visual functions involving security, control, custody and supervision of all confined detainees and prisoners, with personal inspection at least once each hour. [Such] The supervision may include the use of electronic monitoring equipment when approved by the Department of Corrections and the governing body of the area in which the facility is located.

(2) Have a comprehensive written policy with respect to:

(a) Legal confinement authority.

(b) Denial of admission.

(c) Telephone calls.

(d) Admission and release medical procedures.

(e) Medication and prescriptions.

(f) Personal property accountability which complies with ORS 133.455.

(g) Vermin and communicable disease control.

(h) Release process to include authority, identification and return of personal property.

(i) Rules of the facility governing correspondence and visitations.

(3) Formulate and publish plans to meet emergencies involving escape, riots, assaults, fires, rebellions and other types of emergencies; and regulations for the operation of the facility.

(4) Not administer any physical punishment to any prisoner at any time.

(5) Provide for emergency medical and dental health, having written policies providing for:

(a) Licensed physician or nurse practitioner review of the facility’s medical and dental plans.

(b) The security of medication and medical supplies.

(c) A medical and dental record system to include request for medical and dental attention, treatment prescribed, prescriptions, special diets and other services provided.

(d) First aid supplies and staff first aid training.

(6) Prohibit firearms from the security area of the facility except in times of emergency as determined by the administrator of the facility.

(7) Insure that confined detainees and prisoners:

(a) Will be fed daily at least three meals served at regular times, with no more than 14 hours between meals except when routinely absent from the facility for work or other [such] purposes.

(b) Will be fed nutritionally adequate meals in accordance with a plan reviewed by a registered dietitian or the Department of Human Services.

(c) Be provided special diets as prescribed by the designated facility physician or nurse practitioner.

(d) Shall have food procured, stored, prepared, distributed and served under sanitary conditions, as defined by the Department of Human Services rules as authorized by ORS 624.100.

(8) Insure that the facility be clean, and provide each confined detainee or prisoner:

(a) Materials to maintain personal hygiene.

(b) Clean clothing twice weekly.

(c) Mattresses and blankets that are clean and fire-retardant.

(9) Require each prisoner to shower at least twice weekly.

(10) Forward, without examination or censorship, each prisoner’s outgoing written communications to the Governor, jail administrator, Attorney General, judge, Department of Corrections or the attorney of the prisoner.

(11) Keep the facility safe and secure in accordance with the State of Oregon Structural Specialty Code and Fire and Life Safety Code.

(12) Have and provide each prisoner with written rules for inmate conduct and disciplinary procedures. If a prisoner cannot read or is unable to understand the written rules, the information shall be conveyed to the prisoner orally.

(13) Not restrict the free exercise of religion unless failure to impose the restriction will cause a threat to facility or order.

(14) Safeguard and insure that the prisoner’s legal rights to access to legal materials are protected.

SECTION 7. ORS 109.640 is amended to read:

109.640. Any physician or nurse practitioner may provide birth control information and services to any person without regard to the age of [such] the person. [and] A minor 15 years of age or older[,] may give consent to hospital care, medical or surgical diagnosis or treatment by a physician licensed by the Board of Medical Examiners for the State of Oregon, and dental or surgical diagnosis or treatment by a dentist licensed by the Oregon Board of Dentistry, without the consent of a parent or guardian, except as may be provided by ORS 109.660. A minor 15 years of age or older may give consent to diagnosis and treatment by a nurse practitioner who is licensed by the Oregon State Board of Nursing under ORS 678.375 and who is acting within the scope of practice for a nurse practitioner, without the consent of a parent or guardian of the minor.

SECTION 8. ORS 109.650 is amended to read:

109.650. A hospital or any physician, nurse practitioner or dentist as described in ORS 109.640 may advise the parent or parents or legal guardian of any [such] minor of [such] the care, diagnosis or treatment or the need for any treatment, without the consent of the patient, and any [such] hospital, physician, nurse practitioner or dentist [shall not be] is not liable for advising [such] the parent, parents or legal guardian without the consent of the patient.

SECTION 9. ORS 137.473 is amended to read:

137.473. (1) The punishment of death shall be inflicted by the intravenous administration of a lethal quantity of an ultra-short-acting barbiturate in combination with a chemical paralytic agent and potassium chloride or other equally effective substances sufficient to cause death. The judgment shall be executed by the superintendent of the Department of Corrections institution in which the execution takes place, or by the designee of that superintendent. All executions shall take place within the enclosure of a Department of Corrections institution designated by the Director of the Department of Corrections. The superintendent of the institution shall be present at the execution and shall invite the presence of one or more physicians or nurse practitioners, the Attorney General, the sheriff of the county in which the judgment was rendered and representatives from the media. At the request of the defendant, the superintendent shall allow no more than two members of the clergy designated by the defendant to be present at the execution. At the discretion of the superintendent, no more than five friends and relatives designated by the defendant may be present at the execution. The superintendent shall allow the presence of any peace officers as the superintendent thinks expedient.

(2) The person who administers the lethal injection under subsection (1) of this section shall not thereby be considered to be engaged in the practice of medicine.

(3)(a) Any wholesale drug outlet, as defined in ORS 689.005, registered with the State Board of Pharmacy under ORS 689.305 may provide the lethal substance or substances described in subsection (1) of this section upon written order of the Director of the Department of Corrections, accompanied by a certified copy of the judgment of the court imposing the punishment.

(b) For purposes of ORS 689.765 (7) the director shall be considered authorized to purchase the lethal substance or substances described in subsection (1) of this section.

(c) The lethal substance or substances described in subsection (1) of this section are not controlled substances when purchased, possessed or used for purposes of this section.

(4) The superintendent may require that persons who are present at the execution under subsection (1) of this section view the initial execution procedures, prior to the point of the administration of the lethal injection, by means of a simultaneous closed circuit television transmission under the direction and control of the superintendent.

SECTION 10. ORS 680.545 is amended to read:

680.545. Denturists licensed prior to January 1, 2004, who have not received an oral pathology endorsement from the State Board of Denture Technology may not treat any person without having first received a statement, dated within 30 days of the date of treatment and signed by a dentist, [or a] physician or nurse practitioner, that [such] the person’s oral cavity is substantially free from disease and mechanically sufficient to receive a denture.

SECTION 11. ORS 807.240 is amended to read:

807.240. The Department of Transportation shall provide for issuance of hardship driver permits in a manner consistent with this section. A hardship driver permit grants the driving privileges provided in this section or under the permit. Except as otherwise provided in this section, a hardship driver permit is subject to the fees, provisions, conditions, prohibitions and penalties applicable to a license. The following apply to a hardship driver permit:

(1) The department may only issue a permit to a person whose driving privileges under the vehicle code have been suspended.

(2) Except as provided in ORS 813.520, the department may reinstate the privilege to operate a motor vehicle of any person whose license to operate a motor vehicle has been suspended by issuing the person a hardship permit described under this section if such person qualifies under this section, ORS 807.250, 807.252 and 813.500. However, the department may not issue a hardship permit authorizing a person to drive a commercial motor vehicle.

(3) To qualify for a hardship permit, a person must do all of the following in addition to any applicable provisions under ORS 807.250, 807.252 and 813.500:

(a) The person must submit to the department an application for the permit that demonstrates the person’s need for the permit.

(b) The person must present satisfactory evidence, as determined by the department by rule:

(A) That the person must operate a motor vehicle as a requisite of the person’s occupation or employment;

(B) That the person must operate a motor vehicle to seek employment or to get to or from a place of employment;

(C) That the person must operate a motor vehicle to get to or from an alcohol or drug treatment or rehabilitation program;

(D) That the person or a member of the person’s immediate family requires medical treatment on a regular basis and that the person must operate a motor vehicle in order that the treatment may be obtained; or

(E) That the person’s driving privileges are suspended for driving uninsured in violation of ORS 806.010 or for violation of ORS 165.805 or 471.430 and are not suspended for any other reason and that the person must operate a motor vehicle in order to provide necessary services to the person or to a member of the person’s family. The department shall determine by rule what constitutes necessary services for purposes of this subparagraph. The rule shall include as necessary services, but need not be limited to, grocery shopping, driving the person or the person’s children to school, driving to medical appointments and caring for elderly family members.

(c) If the person is applying for a permit because the person or a member of the person’s immediate family requires medical treatment on a regular basis, the person must present, in addition to any evidence required by the department under paragraph (b) of this subsection, a statement signed by a licensed physician or certified nurse practitioner that indicates that the person or a member of the person’s immediate family requires medical treatment on a regular basis.

(d) The person must show that the person is not incompetent to drive nor a habitual incompetent, reckless or criminally negligent driver as established by the person’s driving record in this or any other jurisdiction.

(e) The person must make a future responsibility filing.

(f) The person must submit any other information the department may require for purposes of determining whether the person qualifies under this section, ORS 807.250, 807.252, 813.500 and 813.520.

(4) If the department finds that the person meets the requirements of this section and any applicable requirements under ORS 807.250, 807.252, 813.500 and 813.520, the department may issue the person a hardship permit, valid for the duration of the suspension or for a shorter period of time established by the department unless sooner suspended or revoked under this section. If the department issues the permit for a period shorter than the suspension period, renewal of the permit shall be on such terms and conditions as the department may require. The permit:

(a) Shall limit the holder to operation of a motor vehicle only during specified times.

(b) May bear other reasonable limitations relating to the hardship permit or the operation of a motor vehicle that the department deems proper or necessary. The limitations may include any limitation, condition or requirement. Violation of a limitation is punishable as provided by ORS 811.175 or 811.182.

(5) The department, upon receiving satisfactory evidence of any violation of the limitations of a permit issued under this section or limitations placed on a hardship permit under ORS 807.252 or 813.510, may suspend or revoke the hardship permit.

(6) The fee charged for application or issuance of a hardship driver permit is the hardship driver permit application fee under ORS 807.370. The department may not refund the fee if the application is denied or if the driver permit is suspended or revoked. The fee upon renewal of the driver permit is the same fee as that charged for renewal of a license. The application fee charged under this subsection is in addition to any fee charged for reinstatement of driving privileges under ORS 807.370.

(7) The department may issue a permit granting the same driving privileges as those suspended or may issue a permit granting fewer driving privileges, as the department determines necessary to assure safe operation of motor vehicles by the permit holder.

SECTION 12. ORS 496.018 is amended to read:

496.018. In order to be considered a person with a disability under the wildlife laws, a person shall provide to the State Fish and Wildlife Commission either:

(1) Written certification from a licensed physician or certified nurse practitioner that states that the person:

(a) Is permanently unable to walk without the use of, or assistance from, a brace, cane, crutch, prosthetic device, wheelchair, scooter or walker;

(b) Is restricted by lung disease to the extent that the person’s forced expiratory volume for one second, when measured by a spirometer, is less than 35 percent predicted, or arterial oxygen tension is less than 55 mm/Hg on room air at rest;

(c) Has a cardiac condition to the extent that the person’s functional limitations are classified in severity as Class III or Class IV, according to standards established by the American Heart Association;

(d) Has a permanent, physical impairment that prevents the person from holding or shooting a firearm or bow or from holding a fishing rod in hand; or

(e) Has central visual acuity that permanently does not exceed 20/200 in the better eye with corrective lenses, or the widest diameter of the visual field is no greater than 20 degrees; or

(2) Written proof that the last official certification of record by the United States Department of Veterans Affairs or any branch of the Armed Forces of the United States shows the person to be at least 65 percent disabled.

SECTION 13. ORS 678.390 is amended to read:

678.390. (1) The Oregon State Board of Nursing may grant to a certified nurse practitioner the privilege of writing prescriptions described in the formulary under ORS 678.385.

(2) A certified nurse practitioner may submit an application to the Oregon State Board of Nursing to dispense prescription drugs. The Oregon State Board of Nursing shall provide immediate notice to the State Board of Pharmacy upon receipt and upon approval of an application from a certified nurse practitioner for authority to dispense prescription drugs to the patients of the applicant.

(3) An application for the authority to dispense prescription drugs as authorized under subsection (1) of this section must include:

(a) Evidence of completion of a prescription drug dispensing training program jointly developed and adopted by rule by the Oregon State Board of Nursing and the State Board of Pharmacy.

(b) Except when a certified nurse practitioner is seeking authority to dispense prescription drugs at a qualified institution of higher education as defined in ORS 399.245,demonstration of a lack of readily available access to pharmacy services in the practice area of the applicant and that the lack of access would be corrected by granting authority to dispense prescription drugs by the applicant. Lack of readily available access to pharmacy services for patients may be established by evidence:

(A) That the patients of the applicant are located:

(i) Outside the boundaries of a metropolitan statistical area;

(ii) Thirty or more highway miles from the closest hospital within the major population center in a metropolitan statistical area; or

(iii) In a county with a population of less than 75,000; or

(B) Of financial barrier to access, including but not limited to receiving services from a health care safety net clinic or eligibility for participation in a patient assistance program of a pharmaceutical company.

(c) Any other information required by the Oregon State Board of Nursing.

(4) The Oregon State Board of Nursing shall adopt rules requiring:

(a) Drugs dispensed by certified nurse practitioners to be in the formulary established under ORS 678.385 and be either prepackaged by a manufacturer registered with the State Board of Pharmacy or repackaged by a pharmacist licensed by the State Board of Pharmacy under ORS chapter 689;

(b) Labeling requirements for drugs dispensed by certified nurse practitioners that are the same as labeling requirements required of pharmacies licensed under ORS chapter 689;

(c) Record keeping requirements for prescriptions and drug dispensing by a certified nurse practitioner that are the same as the record keeping requirements required of pharmacies licensed under ORS chapter 689;

(d) A dispensing certified nurse practitioner to have available at the dispensing site a hard copy or electronic version of prescription drug reference works commonly used by professionals authorized to dispense prescription medications; and

(e) A dispensing certified nurse practitioner to allow representatives of the State Board of Pharmacy, upon receipt of a complaint, to inspect a dispensing site after prior notice to the Oregon State Board of Nursing.

(5) The Oregon State Board of Nursing has sole disciplinary authority regarding certified nurse practitioners who have drug dispensing authority.

(6) The privilege of writing prescriptions and dispensing drugs may be denied, suspended or revoked by the Oregon State Board of Nursing upon proof that the privilege has been abused. The procedure shall be a contested case under ORS chapter 183. Disciplinary action under this subsection is grounds for discipline of the certified nurse practitioner in the same manner as a licensee may be disciplined under ORS 678.111.

Approved by the Governor July 7, 2005

Filed in the office of Secretary of State July 7, 2005

Effective date January 1, 2006

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