OAR 309-114-0025: Contested Case Hearing

(1) Patient’s Rights: A patient has the right to contest the hospital’s determination that it has good cause to involuntarily administer a significant procedure without informed consent pursuant to OAR 309-114-0020(5)(c). If the patient is legally incapacitated, the guardian has the right to contest the hospital’s determination that it has good cause to involuntarily administer a significant procedure without informed consent pursuant to 309-114-0020(5)(c). (a) Instructions and a simple method of requesting such a hearing must be provided to every patient when they receive notice that the institution intends to administer a significant procedure without informed consent. The patient indicating in writing or verbally to any staff member a desire to challenge the institution’s decision must be sufficient to request a contested case hearing. (b) A patient’s verbal or written request for a hearing implies consent to the release of their Oregon State Hospital records and protected health information to their representative, the institution’s representative, and the Office of Administrative Hearings for the purpose of preparing for and conducting the contested case hearing. (c) After filing a request for an administrative hearing, an attorney or certified law student must be appointed by the Division to represent any patient who requests one. The patient has the right to be represented at the hearing by a representative appointed and paid by the state. The patient also has the right to be represented at the hearing by an attorney or certified law student of their choice and at their own expense. (d) If a patient requests a contested case hearing and is not already receiving the significant procedure pursuant to a valid physician’s or psychiatric nurse practitioner's order the patient has the right to not receive the significant procedure prior to and during the hearing. If the patient is already receiving the significant procedure pursuant to a valid physician’s or psychiatric nurse practitioner's order, the institution may continue to administer the significant procedure to the patient until the final order is issued. (2) Contested Case Hearing: The administrative hearing must conform to the requirements set forth in ORS 183.413 through 183.500, and the Attorney General’s Model Rules at OAR 137-003-0501 and the following: (a) The hearing must be held within 14 days of the date of the patient’s request, unless the patient or their representative or the state institution’s representative requests a delay for good cause or the patient or their representative and the state institution’s representative agree to a postponement. Good cause includes, but is not limited to, the following circumstances: the patient’s ward is quarantined at the time of the hearing, additional time is required to access necessary and relevant records not in the possession of the state institution, or titration of the patient’s medication is necessary to allow minimally adequate communication by the patient with their representative for purposes of the hearing. (b) These hearings are closed to all non-participants, except personnel from the institution or the Attorney General’s Office, personnel from Disability Rights Oregon, personnel from the Office of Administrative Hearings, or members of the patient’s family. Any exceptions to this policy must be agreed to in advance by the institution’s representative and the patient or their representative. The institution may exclude non-participants, otherwise allowed to attend these hearings, who are disruptive or represent a safety concern. (c) In lieu of discovery, the patient or their representative must be provided with the treating physician’s or psychiatric nurse practitioner's form, independent examining practitioner’s evaluation form, the superintendent’s or chief medical officer’s form approving or disapproving of the administration of the significant procedure, and the preprinted information regarding the risks and benefits of the proposed significant procedures. The patient or their representative may also review the patient’s chart and consult with the patient’s treating physician or psychiatric nurse practitioner. (d) The following procedures are not available in these contested case hearings: summary determination procedures as defined in OAR 137-003-580, pre-hearing motions as defined in OAR 137-003-0630, and pre-determination review procedures in OAR 137-003-0640. (e) A final order must be issued by the administrative law judge within two days, excluding weekends and holidays, after the hearing, except when the administrative law judge determines that there is good cause to delay the final order. All final orders must be issued within 3 days of the close of the hearing or the record, whichever is later, excluding weekends and holidays. A final order is effective immediately upon being signed or as otherwise provided in the order. (f) If after the hearing, the administrative law judge determines that there is an issue not raised by a party or the agency that impacts the outcome of the case, the administrative law judge must grant a continuance for good cause and inform the institution’s representative and the patient or their representative so that they may present additional arguments and evidence on that issue. (g) The administrative law judge must determine whether to affirm or reverse the state institution’s decision that it has good cause to involuntarily administer a significant procedure without informed consent from the patient as defined by the factors in OAR 309-114-0020(1) with regards to the significant procedures listed on the treating physician’s or psychiatric nurse practitioner's informed consent form. (h) A final order affirming or reversing the institution’s decision to involuntarily administer a significant procedure to the patient without informed consent includes all significant procedures listed on the treating physician’s or psychiatric nurse practitioner's informed consent form and all unlisted significant procedures of a similar class. (i) A final order approving the involuntary administration of the significant procedure without informed consent must be reexamined if the treating physician or psychiatric nurse practitioner determines that there is a substantial increase in the risk to the patient in administering the significant procedure during the term of a person's commitment, but in no case longer than 180 days. Approval of the significant procedure may also be reexamined pursuant to OAR 309-114-0020(8) if the treating physician or psychiatric nurse practitioner determines that there is substantial improvement in the patient’s capacity. (j) A final order disapproving the involuntary administration of the significant procedure without informed consent lasts for no longer than 180 days. If a substantial change in the patient’s condition occurs during this time, the institution may re-evaluate the patient using the entire OAR 309-114-0020 process, and must additionally document and explain what substantial change in the person’s capacity has occurred since the administrative law judge decision was issued. (k) If the final order reverses the institution’s decision to involuntarily administer a significant procedure and the patient is already receiving the significant procedure, then the hospital may continue to administer the significant procedure to the extent it is necessary to develop and implement a titration plan to safely discontinue the significant procedure according to current clinical practice. (l) If the patient withdraws their initial request for hearing or refuses to attend the initial hearing without good cause, the administrative law judge must issue a dismissal order pursuant to OAR 137-003-0672(3). A dismissal order must allow the institution to immediately administer the significant procedure without informed consent as if the patient had never requested a hearing. If a dismissal order is issued, the patient may request a second hearing. If the patient withdraws their second request for hearing or refuses to attend the second hearing without good cause, the hearing must occur as scheduled with the institution presenting a prima facie case pursuant to ORS 183.417(4) and the administrative law judge must issue a final order by default. The final order by default must be issued in a manner consistent with the time frames and process outlined in OAR 309-114-0025(2). (m) Any administrative law judge who must preside over a hearing regarding involuntary administration of a significant procedure without informed consent must complete agency approved training unique to administration of psychiatric treatment without consent. This training must be developed by the Division in consultation with Disability Rights Oregon. (n) Subject to the approval of the Attorney General, an agency officer or employee is authorized to appear, but not make legal argument, on behalf of the agency in contested case hearings involving the involuntary administration of a significant procedure to a patient. (A) For purposes of this rule, the term "legal argument" is used as defined in ORS 183.452 and OAR 137-003-0545. (B) When an agency officer or employee represents the agency, the presiding officer must advise such representative of the manner in which objections may be made and matters preserved for appeal. Such advice is of a procedural nature and does not change applicable law on waiver or the duty to make timely objection. Where such objections involve legal argument, the presiding officer must provide reasonable opportunity for the agency officer or employee to consult legal counsel and permit such legal counsel to file written legal argument within a reasonable time after the conclusion of the hearing.