Chapter 427 — Persons With Intellectual or Developmental Disabilities

2023 EDITION

INTELLECTUAL OR DEVELOPMENTAL DISABILITIES

MENTAL HEALTH; SUBSTANCE USE TREATMENT

GENERAL PROVISIONS

427.005 Definitions

427.007 Policy; Department of Human Services to facilitate community-based services

427.021 Application fees for providers of residential care to individuals with intellectual or developmental disabilities; rules

427.024 Reporting requirements for providers of community-based services to individuals with intellectual or developmental disabilities; rules

DEVELOPMENTAL DISABILITY SERVICES PROGRAM

(Eligibility for Services)

427.101 Definitions for ORS 427.115, 427.121, 427.154, 427.215, 430.662 and 430.664

427.104 Developmental disability services; rules

427.105 Diagnostic evaluations; contents; purpose; rules

(Rights of Persons Receiving Services)

427.107 Rights of persons receiving developmental disability services; rules

427.109 Complaint procedures

(Comprehensive Services for Adults With Developmental Disabilities)

427.115 Assessment of service needs and determination of service rate; rules

427.121 Choice of community living setting

(Support Services for Adults With Developmental Disabilities)

427.154 Individualized service plan; requirements; rules

427.163 Application of savings generated by support service brokerages

(Agency With Choice Services)

427.181 Department of Human Services to contract with organizations providing agency with choice services; contract requirements

(Paid Parent Providers)

427.191 Program to compensate parents to provide attendant care services to their minor children; report to Legislative Assembly; rules

INVOLUNTARY COMMITMENTS OF PERSONS WITH INTELLECTUAL DISABILITIES

427.215 Need for commitment

427.235 Notice to court of need for commitment; investigation; report and recommendation

427.245 Hearing; citation to appear; notice; right to legal counsel

427.255 Detention prior to investigation or hearing; care and maintenance while under custody

427.265 Court to advise person of nature of proceeding and rights; appointment of legal counsel

427.270 Report of diagnostic evaluation; recommendations of examining facility; appointment of persons to conduct additional examination

427.275 Fees of persons appointed by court to perform diagnostic evaluations; payment by counties; witnesses; fees; costs

427.280 Treatment given after citation issued; notice to court

427.285 Witnesses required at hearing; cross-examination

427.290 Determination by court of need for commitment; discharge; conditional release; commitment; appointment of guardian or conservator

427.292 Parental consent required for involuntary commitment of minor child

427.293 Disclosure of record of proceeding

427.295 Appeal of commitment order; appointment of legal counsel; costs

427.300 Assignment to appropriate facility; notice of transfer or discharge; appeal; hearing

427.306 Confinement of committed persons with intellectual disabilities in least restrictive setting; attendants required

COMMUNITY HOUSING

427.330 Definitions for ORS 427.330 to 427.340

427.335 Authority of department to develop community housing; sale of community housing; conditions; financial assistance to providers

427.340 Developmental Disabilities Community Housing Fund

427.347 Administration of Developmental Disabilities Community Housing Fund by Oregon Community Foundation

427.348 Appointment of advisory committee

OREGON HUMAN RIGHTS COMMISSION

427.401 Oregon Human Rights Commission established; membership; rules

427.403 Commission to establish statewide regional advisory committee

CIVIL PENALTIES

427.900 Authority of Department of Human Services to impose civil penalties; rules

GENERAL PROVISIONS

427.005 Definitions. As used in this chapter:

(1) “Adaptive behavior” means the effectiveness or degree with which an individual meets the standards of personal independence and social responsibility expected for age and cultural group.

(2) “Care” means:

(a) Supportive services, including, but not limited to, provision of room and board;

(b) Supervision;

(d) Assistance in bathing, dressing, grooming, eating, management of money, transportation or recreation.

(3) “Community developmental disabilities program director” means the director of a community developmental disabilities program described in ORS 430.620 (1)(a) or (c).

(4) “Developmental disability” means autism, cerebral palsy, epilepsy or other condition diagnosed by a qualified professional that:

(a) Originates before an individual is 22 years of age and is expected to continue indefinitely;

(b) Results in a significant impairment in adaptive behavior as measured by a qualified professional;

(c) Is not attributed primarily to other conditions including, but not limited to, a mental or emotional disorder, sensory impairment, substance abuse, personality disorder, learning disability or attention deficit hyperactivity disorder; and

(d) Requires supports similar to those required by an individual with an intellectual disability.

(5) “Director of the facility” means the person in charge of care, treatment and training programs at a facility.

(6) “Facility” means a group home, activity center, community mental health clinic or other facility or program that the Department of Human Services approves to provide necessary services to persons with intellectual disabilities or other developmental disabilities.

(7) “Incapacitated” means a person is unable, without assistance, to properly manage or take care of personal affairs, including but not limited to financial and medical decision-making, or is incapable, without assistance, of self-care.

(8) “Independence” means the extent to which persons with intellectual disabilities or other developmental disabilities exert control and choice over their own lives.

(9) “Integration” means:

(a) Use by persons with intellectual disabilities or other developmental disabilities of the same community resources that are used by and available to other persons;

(b) Participation by persons with intellectual disabilities or other developmental disabilities in the same community activities in which persons without disabilities participate, together with regular contact with persons without disabilities; and

(c) Residence by persons with intellectual disabilities or other developmental disabilities in homes or in home-like settings that are in proximity to community resources, together with regular contact with persons without disabilities in their community.

(10)(a) “Intellectual disability” means an intelligence quotient of 70 or below as measured by a qualified professional and existing concurrently with significant impairment in adaptive behavior, that is manifested before the individual is 18 years of age.

(b) An individual with intelligence quotients of 71 through 75 may be considered to have an intellectual disability if there is also significant impairment in adaptive behavior, as diagnosed and measured by a qualified professional.

(11) “Minor” means an unmarried person under 18 years of age.

(12) “Naturopathic physician” has the meaning given the term in ORS 685.010.

(13) “Physician” means a person licensed by the Oregon Medical Board to practice medicine and surgery.

(14) “Productivity” means regular engagement in income-producing work, preferably competitive employment with supports and accommodations to the extent necessary, by a person with an intellectual disability or another developmental disability which is measured through improvements in income level, employment status or job advancement or engagement by a person with an intellectual disability or another developmental disability in work contributing to a household or community.

(15) “Service coordination” means person-centered planning, case management, procuring, coordinating and monitoring of services under an individualized support plan to establish desired outcomes, determine needs and identify resources for a person with developmental disabilities and advocating for the person.

(16) “Training” means:

(a) The systematic, planned maintenance, development or enhancement of self-care, social or independent living skills; or

(b) The planned sequence of systematic interactions, activities, structured learning situations or education designed to meet each person’s specified needs in the areas of physical, emotional, intellectual and social growth.

(17) “Treatment” means the provision of specific physical, mental, social interventions and therapies that halt, control or reverse processes that cause, aggravate or complicate malfunctions or dysfunctions. [1959 c.331 §10; 1961 c.706 §27; 1965 c.339 §1; subsection (2) enacted as 1965 c.595 §5; 1967 c.299 §1; 1979 c.683 §2; 1985 c.463 §1; 1985 c.565 §69; 1991 c.67 §111; 2001 c.900 §126; 2007 c.70 §215; 2009 c.828 §24; 2011 c.720 §§165,234; 2013 c.36 §3; 2017 c.356 §49; 2019 c.455 §7; 2021 c.192 §3]

427.007 Policy; Department of Human Services to facilitate community-based services. (1)(a) Individuals with intellectual and other developmental disabilities and society as a whole benefit when the individuals exercise choice and self-determination, living and working in the most integrated community settings appropriate to their needs, with supportive services that are designed and implemented consistent with the choice of the individuals regarding services, providers, goals and activities. Individuals with developmental disabilities, together with their families and advocates, must play a major role in the planning, designing, funding, operation and monitoring of community services. These services should be ultimately focused on the outcomes of independence, integration and productivity.

(b) The employment of individuals with developmental disabilities in fully integrated work settings is the highest priority over unemployment, segregated employment, facility-based employment or day habilitation.

(c) Support for families with children who have developmental disabilities must be based upon principles of choice and self-determination, with families receiving the support they need to support their children at home. If a child with a developmental disability cannot remain safely at home even with supportive services, the child should live in a family-like setting with the ability to remain closely connected to the child’s family.

(d) Therefore, the Department of Human Services is directed to facilitate, provide or contract for appropriate community-based services, including family support, residential facilities, day programs, home care and other necessary support, care and training programs, in an orderly and systematic manner.

(2) In carrying out the directive in subsection (1) of this section, the department shall develop a biennial plan in conjunction with the budgeting process for review by each Legislative Assembly. In developing this plan, the department shall meet with and consider the input of representatives from the following constituencies: Consumer organizations, parent-family organizations, advocacy organizations, unions representing personal support workers and adult foster home providers, community provider organizations, state and local education officials and community developmental disabilities programs. Such plans shall include, where appropriate:

(a) Proposals for the orderly development of community-based services, including family support, residential facilities, day programs, home care and other necessary support, care and training programs, to accommodate persons eligible for and needing developmental disability services and to serve persons already in the community waiting for services. The proposals shall include services for persons who are leaving the public education system. Funding for these services shall be commensurate with individual need. These proposals may include provisions for an array of both publicly and privately operated services and shall include specific implementation plans requiring that new services developed are designed to significantly increase the independence, productivity and integration into the community of persons with intellectual disabilities or other developmental disabilities.

(b) Proposals for the location of community-based services for persons with intellectual disabilities or other developmental disabilities in proximity to family, friends, supportive services and home communities whenever possible.

(3) In further carrying out the directive in subsection (1) of this section, the department shall develop monitoring and evaluation systems that ensure competent management, program quality and cost-effectiveness of community-based services. Such systems shall include, where appropriate:

(a) A comprehensive system of service coordination that ensures an orderly movement of persons with intellectual disabilities or other developmental disabilities between community-based service alternatives, and ensures an effective system of service delivery to persons with intellectual disabilities or other developmental disabilities living in the community, based on individualized planning and close cooperation with consumers, families and guardians.

(b) Specific standards for each component within the array of services for persons with intellectual disabilities or other developmental disabilities, either operated or supported by the department, that ensure the competent management, program quality and cost-effectiveness of such services.

(4) Subject to available funds, the department shall ensure that each family with a member with an intellectual disability or another developmental disability has access to family support services, and that each person with an intellectual disability or another developmental disability living in the community, including those leaving the public education system, has access to community-based services necessary to enable the person to strive to achieve independence, productivity and integration. Specific services proposed for the person shall be identified in an individual support plan or in a family support service plan.

(5) Subject to available funds, the department shall determine the content of individual support plans and family support service plans, and the process whereby such plans are developed and updated. [1981 c.287 §1; 1985 c.463 §2; 1987 c.353 §1; 1987 c.609 §1; 1989 c.505 §1; 2001 c.900 §127; 2007 c.70 §216; 2011 c.658 §5; 2013 c.36 §4]

427.009 [1987 c.870 §1; repealed by 2001 c.900 §261]

427.010 [Amended by 1953 c.155 §7; 1965 c.339 §2; 1965 c.595 §3; 1969 c.391 §9; 1971 c.75 §1; 1973 c.262 §1; 1973 c.807 §3; 1979 c.683 §6; 1983 c.505 §2; 1983 c.740 §150; 2001 c.900 §128; 2007 c.70 §217; 2009 c.59 §2; 2011 c.658 §6; repealed by 2013 c.36 §73]

427.012 [Formerly 428.548; repealed by 1979 c.683 §37]

427.015 [1961 c.661 §2; 1967 c.534 §21; repealed by 1979 c.683 §37]

427.020 [1979 c.683 §28; 2011 c.658 §7; repealed by 2013 c.36 §73]

427.021 Application fees for providers of residential care to individuals with intellectual or developmental disabilities; rules. (1) The Department of Human Services shall establish application fees for initial and renewal license, certification and endorsement applications submitted by:

(a) Residential training homes and residential training facilities, as defined in ORS 443.400, for licenses under ORS 443.410.

(b) Adult foster homes, as defined in ORS 443.705, that provide residential care to adults with intellectual or developmental disabilities, for licenses under ORS 443.735.

(c) Facilities or other persons certified by the department to provide developmental disability services, as defined in ORS 427.101.

(2)(a) Fees collected under subsection (1)(a) and (c) of this section shall be deposited in the Department of Human Services Account established in ORS 409.060 to be used for the licensing and certification of entities described in subsection (1) of this section.

(b) Fees collected under subsection (1)(b) of this section shall be deposited to the Quality Care Fund established in ORS 443.001.

(3) The department shall prescribe by rule criteria for the waiver or reduction of any fee under this section when appropriate without compromising the quality of care provided or the safety of the recipients of the residential care or developmental disability services.

(4) No less frequently than every five years, the department shall review fees established under this section and make adjustments if necessary. [2023 c.206 §2]

427.024 Reporting requirements for providers of community-based services to individuals with intellectual or developmental disabilities; rules. (1) The Department of Human Services shall adopt rules to ensure fiscal transparency in the provision of community-based services to individuals with intellectual or developmental disabilities and to ensure individuals with intellectual or developmental disabilities receive high quality services from providers that are licensed, certified or endorsed by the department to provide community-based services. At a minimum, the rules must establish, for providers of community-based services to individuals with intellectual or developmental disabilities:

(a) Requirements to annually submit staffing data to a reporting survey organization specified by the department;

(b) Requirements to submit an annual report to the department that includes:

(A) A disclosure of executive compensation and benefits;

(B) A disclosure of starting, average and highest wages for direct support professionals that are employed by, under contract with or otherwise engaged with the provider to deliver community-based services to individuals with intellectual or developmental disabilities;

(D) Any other fiscal matters prescribed by the department;

(c) Requirements to ensure that wages and health benefits paid to direct support professionals delivering community-based supports reflect any increase in rates approved by the Legislative Assembly for the purpose of improving wages and health benefits;

(d) Criteria for conditions under which a provider may be prohibited from applying for a license, certificate or endorsement;

(e) Criteria for the inclusion of information about the organizational history of an applicant for a new license, certification or endorsement, not to exceed the 10 previous years; and

(f) A process for the consideration of the regulatory and safety compliance and operational experience of all providers in this state or in any other jurisdiction when issuing an initial license, certification or endorsement or renewing a license, certification or endorsement.

(2) Rules adopted by the department must, to the greatest extent practicable, consolidate new reporting requirements with existing reporting requirements to avoid the need for providers to make duplicative reports of the same information. [2022 c.91 §2]

Note: 427.024 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 427 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

427.025 [1961 c.661 §3; 1965 c.339 §3; 1967 c.534 §22; repealed by 1979 c.683 §37]

427.030 [Amended by 1953 c.155 §7; 1957 c.403 §6; 1959 c.331 §7; repealed by 1961 c.661 §20]

427.031 [1979 c.683 §29; repealed by 2013 c.36 §73]

427.035 [1961 c.661 §4; 1965 c.339 §4; repealed by 1979 c.683 §37]

427.040 [Amended by 1953 c.155 §7; repealed by 1961 c.661 §20]

427.041 [Formerly 427.150; 2007 c.70 §218; repealed by 2013 c.36 §73]

427.045 [1961 c.661 §§5,6; 1965 c.339 §5; repealed by 1979 c.683 §37]

427.050 [Amended by 1953 c.155 §7; 1957 c.388 §12; 1961 c.661 §11; renumbered 427.065]

427.051 [Formerly 427.305; 2007 c.70 §219; repealed by 2013 c.36 §73]

427.055 [1961 c.661 §§7,8; 1965 c.339 §6; repealed by 1979 c.683 §37]

427.059 [1961 c.661 §§9,10; 1965 c.339 §7; repealed by 1979 c.683 §37]

427.060 [Amended by 1961 c.661 §12; renumbered 427.067]

427.061 [1979 c.683 §32; 2011 c.658 §8; repealed by 2013 c.36 §73]

427.062 [1969 c.632 §§2,3,4; repealed by 1979 c.683 §37]

427.065 [Formerly 427.050; 1965 c.339 §8; 1975 c.155 §4; 1979 c.683 §12; renumbered 427.195]

427.067 [Formerly 427.060; repealed by 1979 c.683 §37]

427.070 [Amended by 1961 c.661 §13; repealed by 1965 c.339 §27]

427.075 [1969 c.38 §2; repealed by 1979 c.683 §37]

427.080 [Repealed by 1961 c.661 §20]

427.085 [1961 c.661 §15; 1967 c.534 §23; 1969 c.591 §299; repealed by 1979 c.683 §37]

427.090 [Amended by 1961 c.661 §16; 1965 c.339 §9; repealed by 1979 c.683 §37]

427.100 [Amended by 1965 c.339 §10; repealed by 1979 c.683 §37]

DEVELOPMENTAL DISABILITY SERVICES PROGRAM

(Eligibility for Services)

427.101 Definitions for ORS 427.115, 427.121, 427.154, 427.215, 430.662 and 430.664. As used in this section and ORS 427.115, 427.121, 427.154, 427.215, 430.662 and 430.664:

(1) “Community living setting” means:

(a) A residential setting;

(b) An individual’s home or the home of the individual’s family; or

(2) “Developmental disability services” means the following services as provided for individuals with intellectual or developmental disabilities:

(a) Services designed to develop or maintain the individual’s skills in the following areas:

(A) Eating, bathing, dressing, personal hygiene, mobility and other personal needs;

(B) Self-awareness and self-control, social responsiveness, social amenities, interpersonal skills, interpersonal relationships and social connections;

(D) Expressive and receptive skills in verbal and nonverbal language, the functional application of acquired reading and writing skills and other communication needs; and

(E) Planning and preparing meals, budgeting, laundering, housecleaning and other personal environmental needs;

(b) Case management;

(d) Employment services;

(e) Environmental accessibility adaptations;

(f) Specialized supports; and

(g) Specialized medical equipment and supplies.

(3) “Employment services” means services provided to develop or maintain the skills necessary for an individual to obtain and retain employment, including job assessment, job exploration, job development, job training, job coaching, work skills, and ongoing supports.

(4) “Environmental accessibility adaptations” means physical modifications to an individual’s home that are necessary to ensure the health, welfare and safety of the individual in the home, or that enable the individual to function with greater independence in the home.

(5) “Individualized service plan” means a plan described in ORS 427.107 (2)(i), (j) and (k) that identifies the resources, services and purchases necessary for an individual with a developmental disability to achieve identified personal goals and maximize self-determination.

(6) “Person-centered planning” means an informal or formal process for gathering and organizing information that helps an individual to:

(a) Enhance self-determination by choosing personal goals and lifestyle preferences;

(b) Design strategies and networks of support to achieve personal goals and a preferred lifestyle using individual strengths, relationships and resources; and

(7) “Residential setting” means one of the following community living settings licensed or regulated by the Department of Human Services:

(a) Residential facilities licensed under ORS 443.400 to 443.455;

(b) Licensed adult foster homes, as defined in ORS 443.705;

(d) Group homes; and

(e) Supported living programs.

(8) “Self-determination” means empowering individuals to:

(a) Make their own choices and decisions;

(b) Select and plan, together with freely chosen family members and friends, the developmental disability services that are necessary for an individual to live, work and recreate in the setting that the individual chooses and in the community;

(c) Control, or have input regarding, the manner in which resources are used to obtain needed services and supports, with the help of a social support network if needed;

(d) Live an autonomous life in the community, rich in community affiliations, through formal or informal arrangements of resources and personnel and contribute to their community in the ways they choose;

(e) Have a valued role in the community through competitive employment, organizational affiliations, personal development and general caring for others in the community, and to be accountable for spending public dollars in ways that are life-enhancing for the individual; and

(f) Speak or act on their own behalf or on behalf of others, including participating in policy-making and legislative processes.

(9) “Service provider” means any person who is paid a service rate by the department to provide one or more of the services identified in the individualized service plan of an individual with an intellectual or developmental disability regardless of where the service is provided.

(10) “Service rate” means the amount of reimbursement paid to a service provider to care for an individual with an intellectual or developmental disability.

(11)(a) “Specialized medical equipment and supplies” means:

(A) Devices, aids, controls, supplies or appliances that enable individuals:

(i) To increase their ability to perform activities of daily living; or

(ii) To perceive, control or communicate with the environment in which they live;

(B) Items necessary for life support, including ancillary supplies and equipment necessary to the proper functioning of these items; and

(b) “Specialized medical equipment and supplies” does not include items that have no direct medical or remedial benefit to the individual.

(12) “Specialized supports” means treatment, training, consultation or other unique services that are not available through the medical assistance program but are necessary to achieve the goals identified in the individualized service plan, or other developmental disability services prescribed by the department by rule.

(13) “Support service brokerage” means an entity that contracts with the department to provide or to arrange for developmental disability services. [Formerly 427.400; 2019 c.276 §1; 2023 c.339 §11]

427.104 Developmental disability services; rules. The Department of Human Services, with funds appropriated for that purpose by the legislature, shall:

(1) Contract with each community developmental disabilities program to determine the eligibility of individuals to receive developmental disability services;

(2) Provide consultation and training to community developmental disabilities programs in determining eligibility for developmental disability services;

(3) Develop and periodically revise rules for determining eligibility for developmental disability services;

(4) Coordinate diagnostic evaluations statewide to minimize duplication of tests and examinations; and

(5) Provide consultation to appropriate agencies and individuals regarding persons evaluated to receive developmental disability services. [1953 c.631 §1; 1965 c.339 §21; 1971 c.74 §1; 1979 c.683 §13; 2001 c.900 §129; 2009 c.595 §437; 2011 c.658 §9; 2013 c.36 §5]

427.105 Diagnostic evaluations; contents; purpose; rules. (1) Pursuant to rules of the Department of Human Services, a diagnostic evaluation conducted to determine eligibility for developmental disability services may include, but is not limited to, the following:

(a) A social history;

(b) A psychological evaluation, including an appropriate individual test of intellectual capacity, an academic achievement test, a social development assessment and an adaptive behavior assessment; and

(2) The diagnostic evaluation shall also attempt to determine the existence of a developmental disability, such as an intellectual disability, epilepsy, cerebral palsy or autism, and specific learning disorders and to outline the most appropriate services for the treatment and training of the person, whether those services are immediately available or not.

(3) A facility approved by the department to conduct diagnostic evaluations may contract with qualified persons to perform components of the evaluation. [1979 c.683 §14; 2013 c.36 §6]

427.106 [1953 c.631 §2; 1965 c.339 §22; 1969 c.53 §1; repealed by 1979 c.683 §37]

(Rights of Persons Receiving Services)

427.107 Rights of persons receiving developmental disability services; rules. (1) As used in this section:

(a) “Facility” means any of the following that are licensed or certified by the Department of Human Services or that contract with the department for the provision of services:

(A) A health care facility as defined in ORS 442.015;

(B) A domiciliary care facility as defined in ORS 443.205;

(D) An adult foster home as defined in ORS 443.705.

(b) “Person” means an individual who has an intellectual or developmental disability as defined in ORS 427.005 and receives services from a program or facility.

(c) “Program” means a community developmental disabilities program as described in ORS 430.662 and agencies with which the department or the program contracts to provide services.

(d) “Service” means a community-based service described in ORS 427.007.

(2) While receiving developmental disability services, every person shall have the right to:

(a) Be free from abuse or neglect and to report any incident of abuse or neglect without being subject to retaliation.

(b) Be free from seclusion or personal, chemical or mechanical restraints unless an imminent risk of physical harm to the person or others exists and only for as long as the imminent risk continues.

(c) Not receive services without informed voluntary written consent except in a medical emergency or as otherwise permitted by law.

(d) Not participate in experimentation without informed voluntary written consent.

(e) A humane environment that affords reasonable privacy and the ability to engage in private communications with people of the individual’s choosing through personal visits, mail, telephone or electronic means.

(f) Visit with family members, friends, advocates and legal and medical professionals.

(g) Participate regularly in the community and use community resources.

(h) Not be required to perform labor, except personal housekeeping duties, without reasonable and lawful compensation.

(i) Seek a meaningful life by choosing from available services and enjoying the benefits of community involvement and community integration in a manner that is least restrictive to the person’s liberty considering the person’s preferences and age.

(j) An individualized service plan, services based upon that plan and periodic review and reassessment of service needs.

(k) Ongoing participation in the planning of services, including the right to participate in the development and periodic revision of the plan for services, the right to be provided with an explanation of all service considerations in a manner that ensures meaningful individual participation and the right to invite others of the person’s choosing to participate in the plan for services.

(L) Not be involuntarily terminated or transferred from services without prior notice, notification of available sources of necessary continued services and exercise of a grievance procedure.

(m) Be informed at the start of services and annually thereafter of the rights guaranteed by this section, the contact information for the protection and advocacy system described in ORS 192.517 (1), and the procedures for filing grievances, hearings or appeals if services have been or are proposed to be reduced, eliminated or changed.

(n) Be encouraged and assisted in exercising all legal rights.

(o) Assert grievances with respect to infringement of the rights described in this section, including the right to have such grievances considered in a fair, timely and impartial grievance procedure without any form of retaliation or punishment.

(p) Manage the person’s own money and financial affairs unless that right has been taken away by court order or other legal procedure.

(q) Keep and use personal property and have a reasonable amount of personal storage space.

(3) The rights described in this section are in addition to, and do not limit, all other statutory and constitutional rights that are afforded all citizens including, but not limited to, the right to exercise religious freedom, vote, marry, have or not have children, own and dispose of property, enter into contracts and execute documents.

(4) A person who is receiving developmental disability services has the right under ORS 430.212 to be informed and to have the person’s guardian and any representative designated by the person be informed that a family member has contacted the department to determine the location of the person, and to be informed of the name and contact information, if known, of the family member.

(5) The rights described in this section may be asserted and exercised by the person, the person’s guardian and any representative designated by the person.

(6) Nothing in this section may be construed to alter any legal rights and responsibilities between parent and child.

(7) The department shall adopt rules concerning the rights described in this section that are consistent with the directives set forth in ORS 427.007. [2013 c.36 §1; 2019 c.276 §5]

Note: 427.107 and 427.109 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 427 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

427.108 [1953 c.631 §3; 1977 c.384 §6; 1979 c.683 §15; 2009 c.595 §437a; repealed by 2013 c.36 §73]

427.109 Complaint procedures. (1) The Oregon Human Rights Commission established under ORS 427.401 shall receive complaints of violations of the rights afforded to an individual under ORS 427.107. With the consent of the individual, the individual’s guardian or any representative designated by the individual, the commission may request and receive information from the Department of Human Services that is relevant to a complaint. The commission shall have the right to meet with the Director of Human Services or a designee of the director to resolve a complaint.

(2)(a) All confidential information received by the commission under this section must remain confidential and may be disclosed only in accordance with state and federal laws.

(b) Commission members and staff may not make any public comment or publicly disclose any materials that relate to the personally identifiable information of an individual who alleges a violation or who appears before the commission under subsection (1) of this section. [2013 c.36 §2; 2019 c.296 §4]

Note: See note under 427.107.

427.110 [Repealed by 1953 c.155 §7]

427.112 [1979 c.683 §30; 2009 c.595 §438; repealed by 2013 c.36 §73]

(Comprehensive Services for Adults With Developmental Disabilities)

427.115 Assessment of service needs and determination of service rate; rules. (1) The Department of Human Services or its designee shall assess the support needs for each individual with an intellectual or developmental disability who is receiving developmental disability services in a residential setting and shall determine a service rate that is sufficient to meet the support needs of the individual. If an assessment of support needs results in a change to the service rate being paid to the service provider, the department or the department’s designee shall provide to the individual and the individual’s service provider and case manager and, if appropriate, to the individual’s guardian, primary caregiver or family members, a detailed accounting of the service rate paid to the service provider and the factors and weighting of factors used to determine the service rate.

(2) The department or the department’s designee shall assess the support needs and determine the service rate, as described in subsection (1) of this section, no later than 90 days after the individual or the individual’s service provider, case manager, guardian, primary caregiver, family member or legal representative makes a request, based on significant changes to the individual’s support needs, for a new assessment of support needs and a redetermination of the service rate.

(3) The department shall adopt by rule the procedures and criteria for requesting and conducting an assessment of support needs and a determination of a service rate under this section, using an advisory committee appointed in accordance with ORS 183.333. The rules shall include a procedure for contesting the denial of a request for assessment of support needs and redetermination of a service rate or the failure of the department or the department’s designee to respond to a request for assessment and redetermination within a reasonable period of time, as prescribed by the department by rule. [2013 c.604 §2; 2019 c.276 §2]

427.120 [Amended by 1953 c.155 §7; 1959 c.331 §8; 1965 c.339 §11; repealed by 1979 c.683 §37]

427.121 Choice of community living setting. (1) As used in this section, “adult” means an individual:

(a) Who is at least 18 years of age;

(b) Who has an intellectual or developmental disability; and

(2) An adult has the right to choose the adult’s community living setting. The Department of Human Services or the department’s designee shall present to an adult at least three types of community living settings, including an option for services in the adult’s own or family home:

(a) Each year, prior to authorizing services in a community living setting for the adult.

(b) When an adult is moving from one community living setting to another community living setting.

(3) The department or the department’s designee may not authorize services in a new type of community living setting without first complying with subsection (2) of this section.

(4) The department or the department’s designee is not required to present the options under subsection (2) of this section if:

(a) The adult is at imminent risk to health or safety in the adult’s current placement setting; or

(b) The adult is moving from one nonresidential setting to another nonresidential setting. [2013 c.602 §2; 2019 c.276 §3]

427.130 [Amended by 1955 c.651 §10; repealed by 1957 c.160 §6]

427.140 [Repealed by 1957 c.388 §17]

427.150 [1953 c.155 §5; 1963 c.411 §1; 1965 c.339 §12; 1969 c.597 §93; 1979 c.683 §27; renumbered 427.041]

(Support Services for Adults With Developmental Disabilities)

427.154 Individualized service plan; requirements; rules. (1) Developmental disability services are intended to meet the needs of individuals with intellectual or developmental disabilities. The Department of Human Services shall establish by rule the application and eligibility determination processes for developmental disability services.

(2) Developmental disability services shall be provided pursuant to an individualized service plan that is developed and reassessed at least annually using a person-centered planning process.

(3) The department shall ensure that each individual receiving developmental disability services and the individual’s guardian or legal representative has an active role in choosing the services, activities and purchases that will best meet the individual’s needs and preferences and to express those choices verbally, using sign language or by other appropriate methods of communication.

(4) Developmental disability services must complement the existing formal and informal supports, services, activities and purchases available to an individual.

(5) The department shall ensure that each individual and the individual’s guardian or legal representative has the opportunity to confirm satisfaction with the developmental disability services that the individual receives and to make changes in the services as necessary.

(6) The department shall ensure that all individuals receiving developmental disability services have an equal opportunity for job placements. A provider of developmental disability services that offers job placements may not give preference to an individual who is a resident of a facility owned or operated by the provider when determining eligibility for a job placement. The residence of an individual may not be the exclusive factor in determining eligibility for a job placement. [Formerly 427.402; 2019 c.276 §4]

427.160 [Formerly 427.410; repealed by 2019 c.276 §8]

427.163 Application of savings generated by support service brokerages. The Department of Human Services shall apply any savings generated by support service brokerages developed under the Staley Settlement Agreement to provide services to individuals who are awaiting adult developmental disability support services and who are not receiving any services. [Formerly 427.450]

427.175 [Formerly 427.220; repealed by 2013 c.36 §73]

427.180 [1979 c.683 §8; 2009 c.595 §439; 2011 c.658 §10; repealed by 2013 c.36 §73]

(Agency With Choice Services)

427.181 Department of Human Services to contract with organizations providing agency with choice services; contract requirements. (1) As used in this section:

(a) “Agency with choice services” means support given to an individual in self-directing the individual’s services or in managing staff who are providing in-home services and supports to the individual, using a person-centered approach to ensure that the individual is at the center of the decision-making process regarding what services are needed, including by providing:

(A) Training, coaching and other forms of support to the individual on:

(i) Self-direction; and

(ii) The roles and responsibilities of the individual and the agency with choice services provider;

(B) Training, coaching and other forms of support to the individual in the overall management of staff providing direct support services to the individual, including in the recruitment, hiring, scheduling and training of staff, performance assessments of staff and dismissal of staff; and

(b) “Individual” means a child or adult with an intellectual or developmental disability, or the representative of the child or adult, who receives in-home services and supports through the Department of Human Services.

(2) The department shall contract with one or more organizations to deliver agency with choice services as a community-based services option under ORS 427.007 (1)(d).

(3) An organization contracting with the department under subsection (2) of this section shall be expected, at a minimum, to:

(a) Maximize an individual’s self-direction and autonomy by supporting the individual to direct the individual’s staff hired to provide direct support services to the individual and manage the day-to-day services of the individual’s staff hired to provide direct support services to the individual;

(b) Have a commitment to work with a broad coalition of stakeholders in an effort to understand the changing needs of the workforce and of individuals’ needs, rights and preferences; and

(c) Have the ability to meet the state’s interest in preventing or mitigating disruptions to individuals’ in-home services and supports.

(4) The department may not contract with an organization under subsection (2) of this section to provide agency with choice services if the owner of or an executive officer of the organization has been convicted of Medicaid fraud in any state within the 25-year period prior to entering into the contract. [2022 c.91 §1; 2023 c.568 §1]

Note: 427.181 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 427 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

Note: Section 2, chapter 568, Oregon Laws 2023, provides:

Sec. 2. The Department of Human Services shall contract with an organization to deliver agency with choice services under section 1, chapter 91, Oregon Laws 2022 [427.181], no later than July 1, 2024. [2023 c.568 §2]

427.185 [Formerly 427.225; 2009 c.595 §440; repealed by 2013 c.36 §73]

427.190 [1979 c.683 §10; 2009 c.595 §441; repealed by 2013 c.36 §73]

(Paid Parent Providers)

427.191 Program to compensate parents to provide attendant care services to their minor children; report to Legislative Assembly; rules. (1) As used in this section:

(a) “Agency” means an agency that hires, trains and supervises direct support professionals using state funds received from the Department of Human Services.

(b) “Attendant care services” means services provided directly to an individual with a disability to assist with activities of daily living, instrumental activities of daily living and health-related tasks.

(A) Has a developmental or intellectual disability; or

(B) Meets the eligibility criteria to receive services under the Medically Fragile (Hospital) Model Waiver or the Medically Involved Children’s Waiver approved by the Centers for Medicare and Medicaid Services under 42 U.S.C. 1396n(c).

(d) “Client” means an individual who receives attendant care services.

(e) “Client child” means a child who receives attendant care services from the child’s parent.

(f) “Developmental disability services” has the meaning given that term in ORS 427.101.

(g) “Direct support professional” means an individual who is hired, employed, trained, paid and supervised by an agency to provide attendant care services to a client of the agency.

(h) “Nonparent caregiver” means a direct support professional, personal support worker or similar provider who is paid to provide attendant care services to clients who are not the provider’s children.

(i) “Parent” includes a:

(A) Natural or adoptive parent of a child;

(B) Stepparent of a child; and

(j)(A) “Parent provider” means a parent who is paid to provide attendant care services to the parent’s minor child.

(B) “Parent provider” does not include a parent who is paid to provide attendant care services to a child who is 18 years of age or older.

(k)(A) “Personal support worker” means an individual who is employed by a client or the client’s representative and paid to provide attendant care services to the client.

(B) “Personal support worker” does not include a direct support professional.

(L) “State plan” means Oregon’s state plan for medical assistance, described in 42 U.S.C. 1396a, approved by the Centers for Medicare and Medicaid Services.

(m) “Very high behavioral needs” means a minor child’s extraordinary needs for support due to the child’s behavioral condition as indicated by a federally approved functional needs assessment adopted by the department that assigns the child to the highest service level.

(n) “Very high medical needs” means a minor child’s extraordinary needs for support due to the child’s medical condition as indicated by a federally approved functional needs assessment adopted by the department that assigns the child to the highest service level.

(2) Subject to rules adopted under subsection (8) of this section, to section 2, chapter 367, Oregon Laws 2023, and to available funding, the department shall administer a program to compensate parents to provide attendant care services to the parents’ children who have been assessed by the department to have very high medical or very high behavioral needs.

(3) To be eligible for the program described in this section:

(a) A parent provider must be employed by an agency and not by the child or the other parent of the child;

(b) The parent provider may not be paid to provide attendant care services to the client child by an agency that is owned by the parent, the child or any family member or for which the parent or other family member serves in any administrative or leadership capacity, including as a member of a board of directors; and

(A) May not employ a parent provider as an independent contractor;

(B) Shall pay parent providers overtime at the same rate and under the same circumstances as direct support professionals who are not parent providers;

(C) Except as authorized by the department by rule, may not pay providers of attendant care services, including parent providers, to provide services to a minor child during school hours unless the minor child is temporarily at home recovering from surgery or illness and the temporary absence from school is recommended by the child’s health care provider; and

(D) May not pay providers of attendant care services, including parent providers, to provide services to a minor child during school hours due to the determination of a school district or due to the choice of a parent of the client child to:

(i) Have the child regularly attend school less than the number of school hours attended by students without disabilities who are in the same grade and the same school district as the client child;

(ii) Homeschool the client child; or

(iii) Enroll the client child in a private school that offers fewer school hours than the school hours offered by the local public school to the majority of students in the same grade as the client child.

(4) Subsection (3)(c)(D) of this section does not prohibit a school district or other entity from compensating parents of students with disabilities for providing support for educational activities that would otherwise be the responsibility of the school district.

(5) A parent provider, during the hours that the parent provider is paid to provide one-on-one attendant care services to the client child:

(a) May not be responsible for a vulnerable adult who requires physical care and monitoring;

(b) May not be responsible for the care of a child, other than the client child, who is under 10 years of age and shall have another caregiver immediately available at all times to attend to the needs of the child; and

(c) Unless they are included as a goal or service in the child’s individual support plan and related to the child’s disability-related support needs, may not perform tasks that are not for the primary benefit of the client child, including but not limited to:

(A) Grocery shopping for the household;

(B) Housekeeping not required for the disability-related support needs of the client child;

(D) Transporting individuals other than the client child to or from activities or appointments.

(6) If required by the Centers for Medicare and Medicaid Services, the department may require a parent provider to assign an alternative legal representative for the client child to make decisions about or manage the development and implementation of the client child’s individual support plan. The assignment:

(a) Must be on a form prescribed by the department; and

(b) Must clearly state that the assignment is limited to decisions regarding the development and implementation of the child’s individual support plan and does not limit the authority of the parent provider to make decisions for the client child with respect to health care, education or religious training.

(7) A parent provider is subject to the requirements of mandatory reporting of abuse under ORS 124.060 and 419B.010, 24 hours per day, seven days per week.

(8) The department shall adopt rules for the program described in this section using an advisory committee appointed under ORS 183.333 that represents the interests of parents, children with developmental or intellectual disabilities, adults with disabilities, agencies, organizations of direct support professionals and personal support workers and organizations that advocate for persons with disabilities. The rules must include all of the following:

(a) Strategies to safeguard nonparent caregivers and avoid the displacement of nonparent caregivers by parent providers;

(b) Requirements for agencies to demonstrate consistent efforts to recruit, train and retain nonparent caregivers;

(A) Parent providers regarding federal and state administrative rules regulating home-based and community-based services, including the impact of the rules on parent-child relationships with respect to discipline, supervision, physical intervention and self-determination of client children during the hours that the parent provider is being paid to provide attendant care services;

(B) Client children to learn to advocate for themselves with respect to choosing and managing direct support professionals before and after reaching 18 years of age; and

(C) Community developmental disability programs related to the employment of parent providers, including on how to support families to manage issues concerning conflicts of interest, provider recruitment and retention and the empowerment of the client child to have a meaningful voice in the selection of the client child’s direct support professionals;

(d) A process for a client child to object to the hiring of any caregiver, including the child’s parent, or to raise concerns about a provider’s caregiving;

(e) Procedures to ensure that the program described in this section is implemented consistently and equitably throughout this state;

(f) A requirement that any appeal related to the requirements of or benefits under the program is the sole responsibility of the central office staff of the department; and

(g) Other requirements that the department deems necessary to carry out the provisions of this section.

(9) The department may adopt rules necessary to manage the cost, size and growth rate of the program described in this section that are necessary to protect the eligibility for and levels of services under programs serving individuals receiving developmental disability services provided for in the state plan, including the development of criteria to limit the number of children eligible to participate in the program.

(10) Annually, the department shall report to the interim committees of the Legislative Assembly related to human services or, if the Legislative Assembly is in session, to the committees of the Legislative Assembly related to human services, in the manner provided in ORS 192.245, updates on the program described in this section, including:

(a) The number of client children receiving attendant care services, the number of children receiving the services from parent providers and the number of children receiving the services from nonparent caregivers;

(b) The number of hours of attendant care services provided by parent providers and number of hours of attendant care services provided by nonparent caregivers;

(c) A comparison of the cost per child of providing attendant care services by parent providers under the program with the cost per child of providing attendant care services by nonparent caregivers; and

(d) A report on the adequacy of the direct care workforce in this state to provide services to all children with developmental disability services who are eligible for attendant care services. [2023 c.367 §1]

Note: 427.191 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 427 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

Note: Section 2, chapter 367, Oregon Laws 2023, provides:

Sec. 2. (1) Except as provided in section 4 of this 2023 Act, the Department of Human Services may not administer the program described in section 1 of this 2023 Act [427.191] without the Centers for Medicare and Medicaid Services’ approval of a new waiver or without other arrangements with the Centers for Medicare and Medicaid Services to receive federal financial participation in the costs of the program during a state of emergency or a public health emergency.

(2) The department may not administer a program that pays a parent to provide attendant care or personal care services to the parent’s minor child, including but not limited to the program described in section 1 of this 2023 Act, using General Fund moneys that are not matched by federal Medicaid funds. [2023 c.367 §2]

427.195 [Formerly 427.065; repealed by 2013 c.36 §73]

427.200 [1953 c.615 §1; repealed by 1957 c.202 §6]

427.205 [1979 c.683 §11; 1989 c.1006 §3; 2007 c.70 §220; 2009 c.11 §61; 2011 c.658 §11; repealed by 2013 c.36 §73]

427.210 [1959 c.331 §1; 1965 c.339 §13; 1973 c.827 §44; repealed by 1979 c.683 §37]

INVOLUNTARY COMMITMENTS OF PERSONS WITH INTELLECTUAL DISABILITIES

427.215 Need for commitment. For the purposes of ORS 427.235 to 427.292, a person with an intellectual disability is in need of commitment for residential care, treatment and training if the person is:

(1) Determined eligible for developmental disability services under ORS 427.104; and

(2)(a) Dangerous to self or others; or

(b) Unable to provide for the person’s basic personal needs and not receiving care as is necessary for the health, safety or habilitation of the person. [1979 c.683 §16; 2001 c.104 §153; 2011 c.658 §12; 2013 c.36 §7; 2023 c.339 §3]

427.220 [1959 c.331 §2; 1961 c.661 §17; 1965 c.339 §14; 1973 c.277 §1; 1979 c.683 §7; renumbered 427.175]

427.225 [1961 c.661 §19; 1965 c.339 §15; 1973 c.277 §2; 1979 c.683 §9; renumbered 427.185]

427.230 [1959 c.331 §6; 1965 c.339 §16; 1973 c.277 §3; repealed by 1979 c.683 §37]

427.235 Notice to court of need for commitment; investigation; report and recommendation. (1) Any two persons may notify the court having probate jurisdiction for the county or the circuit court, if it is not the probate court but its jurisdiction has been extended to include commitment of a person with an intellectual disability under ORS 3.275, that a person within the county has an intellectual disability and is in need of commitment for residential care, treatment and training. Such notice shall be in writing and sworn to before an officer qualified to administer an oath and shall set forth the facts sufficient to show the need for investigation. The circuit court shall forward notice to the community developmental disabilities program director in the county if it finds the notice sufficient to show the need for investigation. The director or the designee of the director shall immediately investigate to determine whether the person has an intellectual disability and is in need of commitment for residential care, treatment and training.

(2) Any person who acts in good faith shall not be held civilly liable for making of the notification under subsection (1) of this section.

(3) Any investigation conducted by the community developmental disabilities program director or the designee of the director under subsection (1) of this section shall commence with an interview or examination of the person alleged to have an intellectual disability, where possible, in the home of the person or other place familiar to the person. Further investigation if warranted shall include a diagnostic evaluation as described in ORS 427.105 and may also include interviews with the person’s relatives, neighbors, teachers and physician or naturopathic physician. The investigation shall also determine if any alternatives to commitment are available. The investigator shall also determine and recommend to the court whether the person is incapacitated and in need of a guardian or conservator.

(4) The investigation report shall be submitted to the court within 30 days of receipt of notice from the court. A copy of the investigation report and diagnostic evaluation, if any, shall also be made available to the Department of Human Services and to the person alleged to have an intellectual disability and, if the person is incapacitated, to the guardian of the person as soon as possible after its completion but in any case prior to a hearing held under ORS 427.245.

(5) Any person conducting an evaluation or investigation under this section shall in no way be held civilly liable for conducting the investigation or performing the diagnostic evaluation.

(6) If requested by a person conducting an investigation under this section, a physician or naturopathic physician who has examined the person alleged to have an intellectual disability may, with patient authorization or in response to a court order, provide any relevant information the physician or naturopathic physician has regarding the person alleged to have an intellectual disability. [1979 c.683 §17; 2003 c.89 §4; 2009 c.595 §442; 2011 c.658 §13; 2013 c.36 §8; 2017 c.356 §50; 2023 c.339 §4]

427.240 [1959 c.331 §3; 1965 c.339 §17; 1969 c.391 §10; 1973 c.277 §4; repealed by 1979 c.683 §37]

427.245 Hearing; citation to appear; notice; right to legal counsel. (1) If the court, following receipt of an investigation report under ORS 427.235, concludes that there is probable cause to believe that the subject of the investigation has an intellectual disability and is in need of commitment for residential care, treatment and training, it shall, through the issuance of a citation as provided in subsection (2) of this section, cause the person to be brought before it at such time and place as it may direct for a hearing to determine whether the person has an intellectual disability and is in need of commitment for residential care, treatment and training. The person shall be given the opportunity to appear at the hearing. If the person is detained pursuant to ORS 427.255, the court shall hold the hearing within seven judicial days.

(2) Upon a determination under subsection (1) of this section that probable cause exists to believe that the person has an intellectual disability and is in need of commitment for residential care, treatment and training, the court shall cause a citation to issue to the person or, if the person is incapacitated, to the legal guardian of the person. The citation shall state the specific reasons the person is believed to be in need of commitment for residential care, treatment and training. The citation shall also contain a notice of the time and place of the commitment hearing, the right to legal counsel, the right to have legal counsel appointed if the person is unable to afford legal counsel, the right to have legal counsel appointed immediately if so requested, the right to subpoena witnesses in behalf of the person to testify at the hearing, the right to cross-examine all witnesses and such other information as the court may direct. The citation shall be served on the person by the community developmental disabilities program director or the designee of the director delivering a duly certified copy of the original to the person prior to the hearing. The person or the legal guardian of the person shall have the opportunity to consult with legal counsel prior to being brought before the court. The community developmental disabilities program director or the designee of the director shall advise the person of the purpose of the citation and the possible consequences of the proceeding. [1979 c.683 §18; 1989 c.242 §1; 2009 c.595 §443; 2011 c.658 §14; 2023 c.339 §5]

427.250 [1959 c.331 §4; 1965 c.339 §18; 1969 c.391 §11; repealed by 1979 c.683 §37]

427.255 Detention prior to investigation or hearing; care and maintenance while under custody. (1) If the court finds that there is probable cause to believe that the failure to take into custody pending an investigation or hearing a person alleged to have an intellectual disability and be in need of commitment for residential care, treatment and training would pose an imminent and serious danger to the person or to others, the court may issue a warrant of detention to either the community developmental disabilities program director or the sheriff of the county directing that the director, the sheriff or the designee of the director or sheriff take the person into custody and produce the person at the time and place stated in the warrant. At the time the person is taken into custody, the custodian shall advise the person or, if the person is incapacitated, the guardian of the person of the person’s right to counsel, to have legal counsel appointed if the person is unable to afford legal counsel, and, if requested, to have legal counsel appointed immediately.

(2) A person taken into custody under subsection (1) of this section shall be provided all care, custody, evaluation and treatment required for the mental and physical health and safety of the person and the director of the facility retaining custody shall report any care, custody, evaluation or treatment provided the person to the court as required by ORS 427.280. Any diagnostic evaluation performed on such person shall be consistent with Department of Human Services rules and ORS 427.105. Any prescription or administration of drugs shall be the sole responsibility of the treating physician or naturopathic physician. The person shall have the right to the least hazardous treatment procedures while in custody, and the treating physician or naturopathic physician shall be notified immediately of the use of any mechanical restraints on the person. A note of each use of mechanical restraint and the reasons therefor shall be made a part of the person’s clinical record over the signature of the treating physician or naturopathic physician. [1979 c.683 §19; 2009 c.595 §444; 2011 c.658 §15; 2017 c.356 §51; 2023 c.339 §6]

427.260 [1959 c.331 §5; 1965 c.339 §19; 1973 c.277 §5; repealed by 1979 c.683 §37]

427.265 Court to advise person of nature of proceeding and rights; appointment of legal counsel. (1) At the time that a person who is alleged to have an intellectual disability and to be in need of commitment for residential care, treatment and training is brought before the court, the court shall advise the person of the reason for being brought before the court, the nature of the proceedings and the possible results of the proceedings. The court shall also advise the person of the right to subpoena witnesses and to suitable legal counsel possessing skills and experience commensurate with the nature of the allegations and complexity of the case during the proceedings, and that if the person does not have funds with which to retain suitable legal counsel, the court shall appoint such legal counsel to represent the person. If the person does not request legal counsel, the legal guardian, relative or friend may request the assistance of legal counsel on behalf of the person.

(2) If no request for legal counsel is made, the court shall appoint suitable legal counsel.

(3) If the person is unable to afford legal counsel, the court, if the matter is before a county or justice court, or the executive director of the Oregon Public Defense Commission, if the matter is before the circuit court, shall determine and allow, as provided in ORS 135.055, the reasonable expenses of the person and compensation for legal counsel. The expenses and compensation so allowed by a county court shall be paid by the county of residence of the person. The expenses and compensation determined by the executive director shall be paid by the executive director from funds available for the purpose. In all cases legal counsel shall be present at the hearing and may examine all witnesses offering testimony, and otherwise represent the person.

(4) The court may, for good cause, postpone the hearing for not more than 72 hours to allow preparation for the hearing and order the continuation of detention authorized under ORS 427.255 during a postponement, if requested by the person, the legal counsel, guardian of the person, an examiner or on the court’s own motion. [1979 c.683 §20; 1979 c.867 §13; 1981 s.s. c.3 §135; 2001 c.962 §71; 2011 c.658 §16; 2023 c.281 §73; 2023 c.339 §7]

427.270 Report of diagnostic evaluation; recommendations of examining facility; appointment of persons to conduct additional examination. (1) The examining facility conducting the diagnostic evaluation shall make its report in writing to the court. Where components of the diagnostic evaluation have been performed within the previous year according to Department of Human Services rules and ORS 427.105, and the records of the evaluation are available to the examining facility pursuant to ORS 179.505 and department rules, the results of such evaluation may be introduced in court in lieu of repetition of those components by the examining facility. If the facility finds, and shows by its report, that the person examined has an intellectual disability and is in need of commitment for residential care, treatment and training, the report shall include a recommendation as to the type of treatment or training facility most suitable for the person. The report shall also advise the court whether in the opinion of the examining facility the person and, if the person is incapacitated, the legal guardian of the person would cooperate with voluntary treatment or training and whether the person would benefit either from voluntary treatment or training or from appointment of a legal guardian or conservator.

(2) Upon request by the person or the legal guardian or legal counsel of the person, the court shall appoint an additional physician, naturopathic physician or psychologist, or both, to examine the person and make separate reports in writing to the court. However, the court shall not appoint more than one additional physician or naturopathic physician and one additional psychologist to examine the person. [1979 c.683 §21; 2011 c.658 §17; 2017 c.356 §52; 2023 c.339 §8]

427.275 Fees of persons appointed by court to perform diagnostic evaluations; payment by counties; witnesses; fees; costs. (1) Any physician, naturopathic physician or psychologist employed by the court to make a diagnostic evaluation of a person alleged to have an intellectual disability and to be in need of commitment for residential care, treatment and training, shall be allowed a fee as the court in its discretion determines reasonable for the evaluation. The costs of the evaluation shall be paid by the county of residence of the person or, if the person has no residence within the state, by the county in which the person is taken into custody. The county shall not be held responsible for the costs of prior examinations or tests reported to the court, or of diagnostic evaluations performed or arranged by the community developmental disabilities program or Department of Human Services.

(2) Witnesses subpoenaed to give testimony shall receive the same fees as are paid in criminal cases and are subject to compulsory attendance in the same manner as provided in ORS 136.567 to 136.603. The attendance of out-of-state witnesses may be secured in the same manner as provided in ORS 136.623 to 136.637. The party who subpoenas the witness or requests the court to subpoena the witness is responsible for payment of the cost of the subpoena and payment for the attendance of the witness at a hearing. When the witness has been subpoenaed on behalf of a person who is represented by appointed counsel, the fees and costs allowed for that witness shall be paid pursuant to ORS 135.055. [1979 c.683 §31; 1987 c.606 §10; 2001 c.962 §72; 2009 c.595 §445; 2011 c.658 §18; 2017 c.356 §53]

427.280 Treatment given after citation issued; notice to court. The community developmental disabilities program director or, if a person has been detained under ORS 427.255, the director of the facility retaining custody of a person alleged to be in need of commitment for residential care, treatment and training shall fully advise the court of all treatment known to have been administered to the person after a citation has been issued to the person. [1979 c.683 §22; 2009 c.595 §446; 2011 c.658 §19]

427.285 Witnesses required at hearing; cross-examination. The investigator and other appropriate persons or professionals as necessary shall appear at the hearing and present the evidence. The person alleged to have an intellectual disability and to be in need of commitment for residential care, treatment and training shall have the right to cross-examine all witnesses, the investigator and the representative. [1979 c.683 §23; 2011 c.658 §20]

427.290 Determination by court of need for commitment; discharge; conditional release; commitment; appointment of guardian or conservator. After hearing all of the evidence, and reviewing the findings of the investigation and other examiners, the court shall determine whether the person has an intellectual disability and is in need of commitment for residential care, treatment and training. If in the opinion of the court the person is not in need of commitment for residential care, treatment and training, the person shall be discharged. If in the opinion of the court the person has, by clear and convincing evidence, an intellectual disability and is in need of commitment for residential care, treatment and training, the court may order as follows:

(1) If the person can give informed consent and is willing and able to participate in treatment and training on a voluntary basis, and the court finds that the person will do so, the court shall order release of the person and dismiss the case.

(2) If a relative, a friend or legal guardian of the person requests that the relative, friend or legal guardian be allowed to care for the person for a period of one year in a place satisfactory to the court and shows that the relative, friend or legal guardian is able to care for the person and that there are adequate financial resources available for the care of the person, the court may commit the person and order that the person be conditionally released and placed in the care and custody of the relative, friend or legal guardian. The order may be revoked and the person committed to the Department of Human Services for the balance of the year whenever, in the opinion of the court, it is in the best interest of the person.

(3) If in the opinion of the court voluntary treatment and training or conditional release is not in the best interest of the person, the court may order the commitment of the person to the department for care, treatment or training. The commitment shall be for a period not to exceed one year with provisions for continuing commitment pursuant to ORS 427.235 to 427.292. A new diagnostic evaluation under ORS 427.270 is not required for proceedings to determine continued commitment.

(4) If in the opinion of the court the person may be incapacitated, the court may appoint a legal guardian or conservator pursuant to ORS chapter 125. The appointment of a guardian or conservator shall be a separate order from the order of commitment. [1979 c.683 §24; 1995 c.664 §97; 2011 c.658 §21; 2013 c.36 §9; 2023 c.339 §9]

427.292 Parental consent required for involuntary commitment of minor child. ORS 427.235 to 427.292 do not permit a court to order an involuntary commitment of a minor child to the Department of Human Services without the consent of the minor child’s parent or legal guardian. [2023 c.339 §2]

427.293 Disclosure of record of proceeding. (1) In any proceeding conducted under ORS 427.235 to 427.292, the court may not disclose any part of the record, including any report submitted to the court under ORS 427.270, to any person except:

(a) The court shall, pursuant to rules adopted by the Department of State Police, transmit the minimum information necessary, as defined in ORS 181A.290, to the Department of State Police for persons described in ORS 181A.290 (1)(c) to enable the department to maintain the information and transmit the information to the federal government as required under federal law;

(b) On request of the person subject to the proceeding;

(d) Pursuant to court order.

(2) In any proceeding described in subsection (1) of this section that is before the Supreme Court or the Court of Appeals, the limitations on disclosure imposed by this section apply to the appellate court record and to the trial court record while it is in the appellate court’s custody. The appellate court may disclose information from the trial or appellate court record in a decision, as defined in ORS 19.450, provided that the court uses initials, an alias or some other convention for protecting against public disclosure the identity of the person who is alleged to have an intellectual disability. [1999 c.82 §2; 2009 c.826 §3; 2011 c.332 §§3,6b; 2011 c.547 §46; 2013 c.1 §62; 2013 c.36 §10]

427.295 Appeal of commitment order; appointment of legal counsel; costs. If a person appeals a commitment order issued under ORS 427.290, the court, upon request of the person or upon its own motion and upon finding that the person is financially eligible for appointed counsel at state expense, shall appoint suitable legal counsel to represent the person. The compensation for legal counsel and costs and expenses necessary to the appeal shall be determined and paid by the executive director of the Oregon Public Defense Commission as provided in ORS 135.055 if the circuit court is the appellate court or as provided in ORS 138.500 if the Court of Appeals or Supreme Court is the appellate court. The compensation, costs and expenses so allowed shall be paid as provided in ORS 138.500. [1979 c.867 §15; 1981 s.s. c.3 §136; 1985 c.502 §26; 2001 c.962 §73; 2011 c.658 §22; 2023 c.281 §74]

427.300 Assignment to appropriate facility; notice of transfer or discharge; appeal; hearing. (1) The Department of Human Services may, at its discretion, direct any person with an intellectual disability who has been committed under ORS 427.290 to the facility best able to treat and train the person. The authority of the department on such matters shall be final.

(2)(a) At any time, for good cause and in the best interest of the person, the department may decide to transfer the person from one facility to another or discharge the person as no longer in need of residential care, treatment or training.

(b) At least 30 days prior to the transfer or discharge, the department shall notify, by regular mail, the person and the guardian or other individual entitled to custody of the person of the decision to transfer or discharge. The notice must inform the person of the right to appeal the department’s decision to transfer or discharge. In the case of a medical emergency, the department is not required to give 30 days’ notice but shall give the notice as soon as possible under the circumstances. The department shall define “medical emergency” by rule, including but not limited to an increase in the level of needed care or the person engaging in a behavior that poses an imminent danger to self or others.

(c) Except in a medical emergency, the person has the right to an administrative hearing prior to an involuntary transfer or discharge. ORS 441.605 (4) and the department’s rules governing transfer notices and hearings for residents of long term care facilities apply to a transfer or discharge under this section. If the person is being transferred or discharged for a medical emergency, the hearing must be held no later than seven days after the transfer or discharge. The department shall maintain a space in the facility for the person pending the administrative order.

(3) The department, pursuant to its rules, may delegate to a community developmental disabilities program director or a support services brokerage the responsibility for assignment of persons with intellectual disabilities to suitable facilities or transfer between such facilities under conditions that the department may define. [1979 c.683 §25; 2009 c.595 §447; 2011 c.658 §23; 2013 c.36 §11; 2023 c.339 §10]

427.305 [1973 c.585 §2; 1979 c.683 §33; renumbered 427.051]

427.306 Confinement of committed persons with intellectual disabilities in least restrictive setting; attendants required. (1) A person, not incarcerated upon a criminal charge, who has been alleged or adjudged to have an intellectual disability and to be in need of commitment for residential care, treatment and training, may not be confined in any prison, jail or other enclosure where those charged with a crime or a violation of a municipal ordinance are incarcerated.

(2) A person alleged or adjudged to have an intellectual disability and to be in need of commitment for residential care, treatment and training, who is not incarcerated on a criminal charge, may not be confined without an attendant in charge of the person. If the person is not confined in a hospital or a facility, the community developmental disabilities program director or sheriff having the person in custody shall select some suitable individual to act as attendant in quarters suitable for the comfortable, safe and humane confinement of the person. The person shall be detained in the least restrictive setting consistent with the person’s emotional and physical needs and the protection of others. [1979 c.683 §26; 2009 c.595 §448; 2011 c.658 §24; 2013 c.36 §12]

427.310 [1973 c.585 §3; repealed by 1979 c.683 §37]

427.315 [1973 c.585 §6; repealed by 1979 c.683 §37]

427.320 [1973 c.585 §4; repealed by 1979 c.683 §37]

427.325 [1973 c.585 §5; repealed by 1979 c.683 §37]

COMMUNITY HOUSING

427.330 Definitions for ORS 427.330 to 427.340. As used in ORS 427.330 to 427.340:

(1) “Care provider” means an individual, family member or entity that provides care.

(2) “Community housing” includes:

(a) Real property, including but not limited to buildings, structures, improvements to real property and related equipment, that is used or could be used to house and provide care for individuals with intellectual disabilities or other developmental disabilities; and

(b) A single-family home or multiple-unit residential housing that an individual with an intellectual disability or other developmental disability shares with other inhabitants, including but not limited to family members, care providers or friends.

(3) “Construct” means to build, install, assemble, expand, alter, convert, replace or relocate. “Construct” includes to install equipment and to prepare a site.

(4) “Equipment” means furnishings, fixtures, appliances, special adaptive equipment or supplies that are used or could be used to provide care in community housing.

(5) “Family member” means an individual who is related by blood or marriage to an individual with an intellectual disability or other developmental disability.

(6) “Financial assistance” means a grant or loan to pay expenses incurred to provide community housing.

(7) “Housing provider” means an individual or entity that provides community housing. [1999 c.753 §2; 2001 c.900 §130; 2007 c.70 §221; 2011 c.658 §25; 2013 c.36 §13]

427.335 Authority of department to develop community housing; sale of community housing; conditions; financial assistance to providers. (1) The Department of Human Services may, through contract or otherwise, acquire, purchase, receive, hold, exchange, operate, demolish, construct, lease, maintain, repair, replace, improve and equip community housing for the purpose of providing care to individuals with intellectual disabilities or other developmental disabilities.

(2) The department may dispose of community housing acquired under subsection (1) of this section in a public or private sale, upon such terms and conditions as the department considers advisable to increase the quality and quantity of community housing for individuals with intellectual disabilities or other developmental disabilities. The department may include in any instrument conveying fee title to community housing language that restricts the use of the community housing to provide care for individuals with intellectual disabilities or other developmental disabilities. Such restriction is not a violation of ORS 93.270. Any instrument conveying fee title to community housing under this subsection shall provide that equipment in the community housing is a part of and shall remain with the real property unless such equipment was modified or designed specifically for an individual’s use, in which case such equipment shall follow the individual.

(3) The department may provide financial assistance to a housing provider or a care provider that wishes to provide community housing for individuals with intellectual disabilities or other developmental disabilities under rules promulgated by the department.

(4) The department may transfer its ownership of equipment to care providers.

(5) When exercising the authority granted to the department under this section, the department is not subject to ORS 276.900 to 276.915 or 279A.250 to 279A.290 or ORS chapters 270 and 273. [1999 c.753 §3; 2003 c.794 §282; 2007 c.70 §222; 2011 c.658 §26]

427.340 Developmental Disabilities Community Housing Fund. (1) There is established a Developmental Disabilities Community Housing Fund in the State Treasury, separate and distinct from the General Fund. All moneys in the Developmental Disabilities Community Housing Fund are continuously appropriated to the Department of Human Services to pay expenses incurred by the Department of Human Services in carrying out the provisions of ORS 427.330 and 427.335. Interest earned on moneys in the fund shall be credited to the fund.

(2) The fund shall consist of:

(a) Moneys appropriated to the fund by the Legislative Assembly;

(b) Repayment of financial assistance provided to housing providers or care providers for community housing under ORS 427.335 (3);

(d) Any earnings or interest credited to the fund. [1999 c.753 §4; 2001 c.954 §32; 2015 c.178 §3; 2019 c.551 §3]

427.345 [1999 c.753 §5; 2013 c.36 §14; repealed by 2019 c.551 §4]

427.347 Administration of Developmental Disabilities Community Housing Fund by Oregon Community Foundation. (1) Notwithstanding the continuous appropriation of moneys in the Developmental Disabilities Community Housing Fund established under ORS 427.340, the balance of moneys remaining in the Community Housing Trust Account established in ORS 427.340 on January 1, 2020, that are unexpended, unobligated and not subject to any conditions shall be transferred to the Oregon Community Foundation for the purposes described in ORS 427.335. The foundation shall be advised by and shall consult with the advisory committee appointed under ORS 427.348 regarding any expenditures made from the moneys transferred to the foundation under this section.

(2) The Oregon Community Foundation shall annually report to the Department of Human Services the balance remaining of the moneys transferred under subsection (1) of this section and the uses for expenditures made from the moneys transferred. If the department finds that any expenditure is not authorized under the requirements of ORS 427.335, the foundation must pay to the department the amount of the unauthorized expenditure. The department shall deposit the payment to the Developmental Disabilities Community Housing Fund. [2019 c.551 §1]

Note: 427.347 and 427.348 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 427 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

427.348 Appointment of advisory committee. The Oregon Council on Developmental Disabilities shall appoint an advisory committee to advise and consult with the Oregon Community Foundation in making expenditures under ORS 427.347. The committee must include one individual each to represent:

(1) Support services brokerages;

(2) Community developmental disability programs;

(3) Oregon coalitions consisting of individuals with intellectual or developmental disabilities who encourage and facilitate self-advocacy by individuals with intellectual or developmental disabilities;

(4) Families of individuals with intellectual or developmental disabilities;

(5) The Housing and Community Services Department;

(6) Community-based residential providers of services to individuals with intellectual or developmental disabilities; and

(7) The system described in ORS 192.517 (1). [2019 c.551 §2]

Note: See note under 427.347.

427.400 [2011 c.658 §1; 2013 c.36 §15; 2013 c.604 §3; renumbered 427.101 in 2013]

OREGON HUMAN RIGHTS COMMISSION

427.401 Oregon Human Rights Commission established; membership; rules. (1) The Oregon Human Rights Commission is established within the Department of Human Services. The commission consists of nine members appointed by the Governor for not more than two consecutive three-year terms. The purpose of the commission is to safeguard the dignity and basic human rights of individuals who have an intellectual or developmental disability.

(2) The Governor shall appoint the following members who shall be confirmed by the Senate in the manner prescribed in ORS 171.562 and 171.565:

(a) One member who is an individual who has an intellectual or developmental disability and who receives services under ORS 427.007.

(b) One member who is a family member of an individual who has an intellectual or developmental disability.

(d) One member who is a self-advocate for the rights of individuals who have intellectual or developmental disabilities and who represents, in a professional capacity, an organization that promotes disability self-advocacy.

(e) Two members who are representatives from a disabilities advocacy organization.

(f) One member who is a service provider as defined in ORS 427.101.

(g) One member who represents the Department of Human Services.

(h) One member who is an expert regarding behavioral intervention models that have been approved by the Department of Human Services.

(3) In making appointments, the Governor shall solicit and consider recommendations from the Oregon Council on Developmental Disabilities and Disability Rights Oregon and shall make appointments in consideration of the different geographical regions of the state.

(4) The commission may appoint any medical, behavioral and educational professionals as the commission deems necessary to assist the commission in an advisory capacity only.

(5) A majority of the members of the commission constitutes a quorum for the transaction of business.

(6) Official action by the commission requires the approval of a majority of the members of the commission.

(7) The commission shall elect one of its members to serve as chairperson.

(8) If there is a vacancy for any cause, the Governor shall make an appointment to become immediately effective.

(9) The commission shall meet at times and places specified by the call of the chairperson or of a majority of the members of the commission.

(10) The commission may adopt any rules the commission considers necessary for the commission to carry out its duties under this section and ORS 427.109. [2019 c.296 §2]

427.402 [2011 c.658 §2; 2013 c.602 §3; renumbered 427.154 in 2013]

427.403 Commission to establish statewide regional advisory committee. The Oregon Human Rights Commission shall establish by rule a statewide regional advisory committee system. At a minimum, the system shall establish a process by which the regional advisory committees may conduct informational hearings regarding the violation of the rights of individuals who have intellectual or developmental disabilities and relay the information received to the commission for the commission’s consideration in adopting rules. [2019 c.296 §3]

427.410 [2011 c.658 §3; renumbered 427.160 in 2013]

427.450 [Formerly 430.218; renumbered 427.163 in 2013]

CIVIL PENALTIES

427.900 Authority of Department of Human Services to impose civil penalties; rules. (1) The Department of Human Services shall adopt by rule civil penalties to be imposed, in accordance with ORS 183.745, for a violation of a statutory requirement or a rule adopted by the department applicable to the provision of services described in ORS 409.010 (2) by any provider contracting with the department to provide intellectual or developmental disability services including, but not limited to:

(a) Residential training homes or residential training facilities, as defined in ORS 443.400;

(b) Adult foster homes, as defined in ORS 443.705, that provide residential care to individuals with intellectual or developmental disabilities; and

(2) This section may not be construed to supersede ORS 418.992 or 441.710 or any other statute that prescribes criteria for or limitations on the imposition of a civil penalty.

(3) Moneys collected by the department pursuant to rules adopted under this section shall be transferred to the State Treasury for deposit to the Department of Human Services Account established under ORS 409.060 and may be used by the division of the department that provides developmental disabilities services for system improvements and the implementation of policies.

(4) No less frequently than every five years, the department shall review and update, if appropriate, civil penalties established under this section.

(5) Civil penalties recovered from a residential training facility or a residential training home shall be deposited in the Long Term Care Ombudsman Account established in ORS 441.419. [2019 c.455 §8; 2023 c.206 §5]

Note: 427.900 was enacted into law by the Legislative Assembly but was not added to or made a part of ORS chapter 427 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

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