Current through Register Vol. 63, No. 9, September 1, 2024
(1) The OYA
close custody facility Superintendent, the Director of the OYA, or the
Director's designee may request that the Superintendent of a state mental
hospital or a facility designated by the Authority for evaluation and treatment
accept a transfer of a mentally ill offender to a state mental hospital or
facility designated by the Authority.
(2) If the Superintendent of the state mental
hospital or facility designated by the Authority approves a transfer request
made under paragraph (1) of this rule, the offender will be
transferred.
(3) An offender may be
transferred to a state mental hospital or a facility designated by the
Authority for stabilization and evaluation for mental health treatment for a
period not to exceed 30 days unless the transfer is extended with offender
consent or following an administrative commitment hearing pursuant to paragraph
(4) of this rule.
(4)
Administrative commitments for offenders in the legal custody of the DOC and in
the physical custody of the OYA will be accomplished through a hearing
conducted by an OYA hearing officer in accordance with these rules. DOC
offenders in OYA physical custody requiring mental health evaluation and
treatment will be transferred directly from an OYA facility to a state mental
hospital listed in ORS
426.010 or a hospital or
facility designated by the Authority and returned directly to the OYA
facility.
(5) The Authority will
provide for an administrative commitment hearing conducted by a hearing officer
employed or under contract with the OYA for administrative commitment or
extension of the transfer of the offender if:
(a) The Authority determines that
administrative commitment for treatment for a mental illness is necessary or
advisable or that the Authority needs more than 30 days to stabilize or
evaluate the offender; and
(b) The
offender does not consent to the administrative commitment or an extension of
the transfer.
(6) The
administrative commitment hearing process will, at a minimum, include the
following procedures:
(a) Not less than 24
hours before the administrative commitment hearing is scheduled to occur, the
hearing officer will provide written notice of the hearing to the offender and
the offender's parent/guardian if the offender is less than 18 years of
age.
(b) The notice will include
the following information:
(A) A statement
that an administrative commitment to a state mental hospital listed in ORS
426.010 or a facility designated
by the Authority, or an extension of the transfer, is being
considered.
(B) A concise statement
of the reason for administrative commitment or extension of the
transfer.
(C) The offender's right
to a hearing.
(D) The time and
place of the hearing.
(E) Notice
that the purpose of the administrative commitment hearing is to determine
whether there is clear and convincing evidence that the offender is a mentally
ill person as defined in ORS
426.005 such that administrative
commitment or an extension of the transfer is warranted.
(F) The names of persons who have given
information relevant to of the administrative commitment or extension of the
transfer, and the offender's right to have these persons present at the
administrative commitment hearing for the purposes of confrontation and
cross-examination.
(G) The
offender's right to admit or deny the allegations and present letters,
documents, affidavits, or persons with relevant information at the
administrative hearing in support of his/her defense or contentions, subject to
the exclusions and restrictions provided in these rules.
(H) The offender's right to be represented by
an attorney at his/her own expense. Assistance by a qualified and independent
person approved by the hearing officer will be ordered upon a finding that
assistance is necessary based upon the offender's financial inability to
provide an assistant, language barriers, or competence and capacity of an
offender to prepare a defense, to understand the proceedings, or to understand
the rights available to him or her. An offender subject to an administrative
commitment hearing may not receive assistance from another offender.
(I) A copy of this rule.
(c) The administrative commitment hearing
will be held no more than five (5) days from the date of the written notice of
the hearing.
(A) Prior to the commencement of
the administrative commitment hearing, the hearing officer will furnish the
offender a written explanation of the proceedings.
(B) The administrative commitment hearing
will be conducted by a hearing officer employed or under contract with the OYA.
The hearing officer will not have participated in any previous way in the
assessment process.
(C) At the
administrative commitment hearing, the offender will have an opportunity to be
heard in person and through his/her attorney or independent assistant, if
any.
(d) The
administrative commitment hearing will be conducted in the following manner.
(A) Statement and evidence of the Authority
in support of the action.
(B)
Statement and evidence of the offender.
(C) Questioning, examination, or
cross-examination of witnesses, unless in the opinion of the hearing officer an
informant or witness would be subjected to risk of harm if his/her identity is
disclosed.
(i) The offender's attorney or
assistant, if any, may cross-examine witnesses, unless the hearing officer
determines that it is necessary to deny cross-examination to preserve the
anonymity of the witness.
(ii) If
the offender has no attorney, the OYA Superintendent or designee will, if
he/she has not already done so, appoint a qualified and independent person not
directly involved with the offender, to cross-examine the witness for the
offender. The hearing may be recessed if necessary for this
purpose.
(D) The
administrative commitment hearing may be continued with recesses as determined
by the hearing officer.
(E) The
hearing officer may set reasonable time limits for oral presentation and may
exclude or limit cumulative, repetitious or immaterial evidence.
(F) The burden of presenting evidence to
support a fact or position rests on the proponent of that fact or position. An
offender may be administratively committed or the transfer extended only if the
hearing officer finds by clear and convincing evidence that the offender is a
mentally ill person as defined in ORS
426.005.
(G) Exhibits will be marked and the markings
will identify the person offering the exhibit. The exhibits will be preserved
by the OYA as part of the record of the proceedings.
(H) Evidentiary rules are as follows.
(i) Evidence of a type commonly relied upon
by reasonably prudent persons in conduct of their serious affairs is
admissible.
(ii) Irrelevant,
immaterial, or unduly repetitious evidence will be excluded.
(iii) All offered evidence, not objected to,
will be received by the hearing officer subject to his/her power to exclude
irrelevant, immaterial, or unduly repetitious evidence.
(iv) Evidence objected to may be received by
the hearing officer with rulings on its admissibility or exclusion to be made
at the hearing or at the time a final order is issued.
(I) All testimony will be given under oath.
(J) The hearing officer may
discontinue the commitment proceedings at any time and may return the offender
to the OYA facility.
(7) The hearing officer will make a written
summary of what occurs at the hearing, including the response of the offender
and the substance of the documents or evidence given in support of
administrative commitment.
(a) A mechanical
recording of all oral testimony and presentations will be made. This tape may
be reviewed by the hearing officer before any findings are determined, or in
the event of a judicial review.
(b)
Tapes will be kept at least 120 days after the final order is issued.
(8) The hearing officer will issue
a written proposed order that contains:
(a)
Rulings on admissibility of offered evidence and other matters;
(b) Findings of fact (each ultimate fact as
determined by the hearing officer based on the evidence before it);
and
(c) Conclusions and
recommendations for action by the hearing officer.
(A) No Justification: The hearing officer may
find that the evidence does not support placement in a state mental hospital
listed in ORS 426.010 or a hospital or
facility designated by the Authority, in which case the hearing officer will
recommend that the offender return to his or her former status with all rights
and privileges of that status. The hearing record will be processed with final
action subject to review by the Director of the Authority or designee. The
findings must be on the merits. Technical or clerical errors in the writing or
processing of the transfer request, or both, will not be grounds for a no
justification finding, unless there is substantial prejudice to the
offender.
(B) Justification: The
hearing officer may find the evidence supports the offender's placement in a
state mental hospital listed in ORS
426.010 or a hospital or
facility designated by the Authority, in which case the hearing officer will so
inform the offender and recommend that the offender's administrative commitment
exceed 30 days. The hearing record will be processed with final action subject
to review by the Director of the Authority or designee. An offender's
administrative commitment to a state mental hospital will not exceed 180 days
unless the commitment is renewed in a subsequent administrative hearing in
accordance with these rules.
(9) Hearing Record:
(a) Upon completion of a hearing, the hearing
officer will prepare and cause to be delivered to the Director of the Authority
or designee a hearing record within three (3) days from the date of the
hearing.
(b) The hearing record
will include:
(A) Examination
reports
(B) Notice of hearing and
rights;
(C) Recording of
hearing;
(D) Supporting
material(s); and
(E) Findings of
Fact, Conclusions, and Recommendation of the hearing officer.
(10) The results of any
hearing held to place an offender in a state mental hospital for administrative
commitment will be reviewed and approved by the Director of the Authority or
designee. The Director of the Authority or designee will review the
Findings-of-Fact, Conclusions, and Recommendation of the hearing officer, in
terms of the following factors:
(a) Was there
substantial compliance with this rule;
(b) Was the decision based on substantial
information; and
(c) Was the
decision proportionate to the information and consistent with the provisions of
this rule.
(11) Within
three (3) days of the receipt of the hearing officer's report, the Director of
the Authority or designee will enter an order, which may:
(a) Affirm the recommendation;
(b) Modify the recommendation;
(c) Reverse the recommendation; or
(d) Reopen the hearing for the introduction
and consideration of additional evidence.
(12) When the Director of the Authority or
designee takes action to modify or reverse, he or she must state the reason(s)
in writing and immediately notify the offender, hearing officer, and the
Superintendent of the sending OYA facility.
(13) When the Director of the Authority or
designee reopens the hearing under this rule, the hearing officer will,
pursuant to these rules, conduct the reopened hearing and prepare an amended
hearing record within three (3) days of the reopened hearing. The Director of
the Authority or designee will review the hearing officer's recommendation and
enter an amended order, which may affirm, modify, or reverse the hearing
officer's recommendation.
(14)
Extension of Transfer: If the Authority determines that the administrative
commitment must exceed 180 days in order to stabilize the offender; the
administrative commitment must be renewed in a subsequent administrative
commitment hearing held in accordance with these rules.
(15) Notwithstanding this rule, an
administrative commitment may not continue beyond the term of legal custody to
which the offender was sentenced.
Stat. Auth.: ORS
179.040,
179.473,
179.479 &
413.042
Stats. Implemented: ORS
179.471-179.486,
179.495-179.508&
420.500-420.525
