Oregon Health Authority
Health Systems Division: Behavioral Health Services - Chapter 309
Division 88
PLACEMENT OF DEFENDANTS WHO LACK FITNESS TO PROCEED
309-088-0115
Definitions
(1) “Acuity of symptoms” means intensity and severity of symptoms.
(2) “Authority” means the Oregon Health Authority.
(3) “Behavioral Health Treatment” means treatment for mental health, substance use disorder, and problem gambling.
(4) “Capacity” means that the defendant is able to:
(a) Understand the nature of the proceedings against the defendant;
(b) Assist and cooperate with the counsel of the defendant; and
(c) Participate in the defense of the defendant.
(5) “Care Coordination” means a process-oriented activity to facilitate ongoing communication and collaboration to meet multiple needs including facilitating communication between natural supports, community resources, and involved providers and agencies; organizing, facilitating and participating in client staffing meetings; and providing for continuity of care by creating linkages to and managing transitions between levels of care. Care coordination shall occur with the jurisdictional court or other designated agencies within the criminal justice system, State Hospital, CMHP, the Authority, tribal entities, CCO, and parties to the case to the extent permitted by law. Care coordination shall include, but is not limited to:
(a) Coordination of periodic forensic evaluations, in collaboration with the defendant’s attorney, to assess fitness to proceed;
(b) Coordinating or providing transportation to and from the forensic evaluations and court appearances in this case; and
(c) Communication of court ordered requirements, limitations, and court dates to the defendant as clinically indicated.
(6) “Case Management” means the services provided to assist individuals who reside in a community setting or are transitioning to a community setting in gaining access to needed medical, social, educational, entitlement, tribal resources, and other applicable services.
(7) "Community Mental Health Program (CMHP)" means the organization of various services for individuals with a mental health diagnosis or substance use disorders operated by or contractually affiliated with a local mental health authority and operated in a specific geographic area of the state under an agreement with the Division pursuant to Oregon Administrative Rule (OAR) chapter 309, division 014.
(8) “CMHP Director” means the director of a CMHP, or the director’s designee.
(9) “Community Consultation” means a consultation where the CMHP Director consults with the defendant and with any local entity that would be responsible for providing community restoration services to the defendant if the defendant were to be released in the community, which includes tribal entities and the defendant’s CCO, to determine whether appropriate community restoration services are present and available in the community. A report generated from that consultation is then provided to the court that ordered the Community Consultation. The community consultation is not an examination regarding fitness to proceed, and, therefore, does not need to be completed by a Certified Forensic Evaluator pursuant to ORS 161.365 and OAR chapter 309 division 090.
(10) “Community Restoration Services” means services and treatment necessary to safely
allow a defendant to gain or regain fitness to proceed in the community, which may include but are not limited to:
(a) Behavioral health treatment;
(b) Case management;
(c) Incidental supports;
(d) Legal skills training;
(e) Linkages to benefits;
(f) Medical treatment related to capacity;
(g) Medication management;
(h) Peer-delivered services; and
(i) Vocational services.
(11) “Court” means the court with jurisdiction regarding defendant’s fitness to proceed.
(12) “Fitness to Proceed” means the same as having capacity.
(13) “Incapacitated” means the defendant is unable to:
(a) Understand the nature of the proceedings against the defendant;
(b) Assist and cooperate with the counsel of the defendant; or
(c) Participate in the defense of the defendant.
(14) “Incidental Supports” means the provision of items that are not the direct provision of services. Incidental supports may include things such as clothing, food, and medication.
(15) “Judicial Day” means a day when court is open.
(16) “Legal Skills Training” means training on courtroom procedures, roles, language, and potential outcomes of the court process.
(17) “Linkages to Benefits” means assisting an individual obtain benefits for which they are eligible, including but not limited to:
(a) Medicaid;
(b) Social Security;
(c) Aging and People with Disabilities Services;
(d) Supplemental Nutrition Assistance Program; and
(e) housing.
(18) “Medical Treatment Related to Capacity” means the management and care of a defendant to combat disease or disorder that is related to their capacity.
(19) “Medication Management” means the prescribing and administering and reviewing of medications and their side effects, including both pharmacological management as well as supports and training to the individual.
(20) “Peer-Delivered Services” means community-based services and supports provided by peers, peer support specialists, and family support specialists to individuals with similar lived experience. These services are intended to support individuals in engaging with ongoing treatment and to live successfully in the community.
(21) “Qualified Mental Health Professional (QMHP)” means an individual who meets the qualification requirements outlined in OAR 309-019-0125.
(22) “State Hospital” means the Oregon State Hospital system, including all campuses.
(23) “Superintendent” means the chief executive officer of a state hospital, or designee, or an individual authorized by the superintendent to act in the superintendent's capacity.
(24) “Vocational Services” means employment support services that leads to competitive integrated employment. The Division encourages the use of fidelity IPS Supported Employment for providing vocational services.
Statutory/Other Authority: ORS 413.042, ORS 430.640 & SB 295 (2021)
Statutes/Other Implemented: ORS 430.640, ORS 161.370, ORS 161.365 & ORS 430.630
History:
BHS 3-2022, amend filed 01/24/2022, effective 02/01/2022
BHS 18-2021, temporary amend filed 08/18/2021, effective 08/18/2021 through 02/13/2022
BHS 1-2020, amend filed 01/10/2020, effective 01/12/2020
BHS 9-2019, temporary amend filed 07/16/2019, effective 07/16/2019 through 01/11/2020
MHS 2-2018, adopt filed 02/05/2018, effective 02/05/2018
MHS 13-2017, temporary adopt filed 10/23/2017, effective 10/23/2017 through 04/20/2018