309-035-0175 Temporary rule language in effect until 06/27/2026. Rights, Freedoms, and Protections (1) Each resident must be assured the same civil and human rights accorded to other citizens, except as otherwise limited by a court, OHA, CMHP, or PSRB order. These rights must be assured unless expressly limited by a court in the case of a resident who has been adjudicated incompetent and not restored to legal capacity. The rights described in paragraphs (2) and (3) of this section are in addition to and do not limit all other statutory and constitutional rights that are afforded to citizens including, but not limited to, the right to vote, marry, have or not have children, own and dispose of property, enter into contracts, and execute documents. (2) A provider must actively work to support and ensure each resident’s rights described in this rule are not limited or infringed upon by the provider except where expressly allowed under these rules. (3) The provider must ensure that residents receiving mental health services have the rights set forth in ORS 430.210, unless otherwise limited by court order, administrative rule, administrative order, or statute. (4) A resident also has a right to the following: (a) Adequate food, shelter, and clothing; (b) A reasonable accommodation if, due to their disability, the housing and services are not sufficiently accessible; (c) Confidential communication including receiving and opening personal mail, private visits with family members and other guests, and access to a telephone with privacy for making and receiving telephone calls, unless such access is legally restricted; (d) Express sexuality in a socially appropriate and consensual manner; (e) Access to community resources including recreation, religious services, agency services, employment, and day programs unless such access is legally restricted; (f) Be free of discrimination in regard to race, color, national origin, gender, religion, sexual orientation, or disability; (g) Have religious freedom; (h) Be free from seclusion and restraint except as outlined in OAR 309-035-0205. (i) To review the program's policies and procedures; (j) Not participate in research without informed voluntary written consent; and (k) Not be required to perform labor, except personal housekeeping duties, without reasonable and lawful compensation as outlined in ORS 430.210. (5) A resident also has the following HCBS rights: (a) Live under a legally enforceable residency agreement in compliance with protections substantially equivalent to landlord-tenant laws as described in this rule; (b) Have visitors of the resident’s choosing at any time and the freedom to visit with guests within the common areas of the setting and the resident’s unit; (c) The freedom and support to control the resident’s own schedule and activities including but not limited to accessing the community without restriction; (d) Have a lockable door in the resident’s unit that may be locked by the resident, and only appropriate program staff have a key to access the unit; (e) A choice of roommates when sharing a unit; (f) Furnish and decorate the resident’s unit according to the Residency Agreement; (g) The freedom and support to have access to food at any time; and (h) Privacy in the resident’s unit. (6) A SRTF is not required to maintain the qualities or obligations identified in section (5) (b), (c), (d), (e) and (h). The provider is not required to seek an individually-based limitation for any modified HCBS right but these modifications must be included in the person-centered service plan, if applicable, and the residential service plan. (7) Programs may not take any of the following actions based, in whole or in part, on a resident’s actual or perceived sexual orientation, gender identity, gender expression, or human immunodeficiency virus status: (a) Deny admission, transfer, or discharge, or refuse to transfer or discharge when requested by the resident; (b) Deny a request by a resident to choose the resident’s roommate, when a resident is sharing a room; (c) If rooms are assigned by gender, assign, reassign, or refuse to assign a room to a transgender or other LGBTQIA2S+ resident other than in accordance with the resident’s gender identity, unless at the request of the resident or if required by federal law; (d) Prohibit a resident from using or harass a resident who seeks to use or does use, a restroom that is available to other individuals of the same gender identity as the resident, regardless of whether the resident is making a gender transition, has taken or is taking hormones, has undergone gender affirmation surgery, or presents as gender nonconforming; (e) Repeatedly and willfully refuse to use a resident’s chosen name or pronouns after being reasonably informed of the resident’s chosen name or pronouns; (f) Deny a resident the right to wear or be dressed in clothing, accessories or cosmetics, or to engage in grooming practices, that are permitted to any other resident; (g) Restrict a resident’s right to associate with other residents or with visitors, including the resident’s right to consensual sexual relations or to display physical affection; (h) Deny or restrict medical or nonmedical care that is appropriate to a resident's organs and bodily needs, or provide medical or nonmedical care that, to a similarly situated, reasonable person, unduly demeans the resident's dignity or causes avoidable discomfort; (i) Fail to accept a resident's verbal or written attestation of the resident’s gender identity or require a resident to provide proof of the resident’s gender identity using any form of identification; (j) Fail to take reasonable actions, within the provider's control, to prevent discrimination or harassment when the provider knows or should have known about the discrimination or harassment; or (k) Refuse or willfully fail to provide any service, care, or reasonable accommodation to a resident or a proposed resident for services or care. (8) A transgender resident must be provided access to any assessments, therapies, and treatments that are recommended by the resident's health care provider, including but not limited to, transgender-related medical care, hormone therapy, and supportive counseling. (9) A provider may modify or limit the rights identified in sections (1), (3), and (5) of this rule when providing services to a resident, who is placed with the provider by a court, OHA, CMHP, or PSRB order under ORS chapters 161 or 426 when the order specifically identifies required limitations. The provider is not required to seek an individually-based limitation for such a resident to comply with these rules. The limitations must be included in the resident’s person-centered service plan, if applicable, and the residential service plan. (10) For the purpose of this section, these terms have the following meanings: (a) “Fresh air” means the inflow of air from outside the program where the resident is receiving services. “Fresh air” may be accessed through an open window or similar method as well as through access to the outdoors; (b) “Outdoors” means an area with fresh air that is not completely enclosed overhead. “Outdoors” may include a courtyard or similar area; (c) If a resident requests access to fresh air or the outdoors or the resident's treating health care provider determines that fresh air or the outdoors would be beneficial to the resident, the program in which the resident is receiving services must provide daily access to fresh air and the outdoors unless this access would create a significant risk of harm to the resident or others; (d) The determination whether a significant risk of harm to the resident or others exists must be made by the resident's treating health care provider. The treating health care provider may find that a significant risk of harm to the resident or others exists if: (A) The resident's circumstances and condition indicate an unreasonable risk of harm to the resident or others that cannot be reasonably accommodated by the program should the resident be allowed access to fresh air and the outdoors; or (B) The program’s existing physical setting prevents the provision of access to fresh air and the outdoors in a manner that maintains the safety of the resident or others. (e) If a provider determines that its existing physical setting prevents the provision of access to fresh air and the outdoors in a safe manner, the provider must make a good faith effort at the time of any significant renovation to the physical setting that involves renovation of the unit or relocation of where residents are treated to include changes to the physical setting or location that allows access to fresh air and the outdoors, so long as such changes do not add an unreasonable amount to the cost of the renovation. (11) The program must have and implement written policies and procedures that protect residents' rights and freedoms and encourage and assist residents to understand and exercise their rights and freedoms. The program must post a listing of resident rights and freedoms under these rules in a place readily accessible to all residents and visitors. Statutory/Other Authority: ORS 413.042 & 443.450 Statutes/Other Implemented: ORS 413.032, 443.400 - 443.465 & 443.991 History: BHS 32-2025, temporary amend filed 12/30/2025, effective 01/01/2026 through 06/27/2026 BHS 4-2025, amend filed 02/28/2025, effective 03/01/2025 BHS 15-2024, amend filed 06/25/2024, effective 07/01/2024 BHS 6-2024, amend filed 04/11/2024, effective 04/11/2024 BHS 41-2023, temporary amend filed 10/12/2023, effective 10/15/2023 through 04/11/2024 MHS 5-2017, f. & cert. ef. 6-8-17 MHS 2-2017(Temp), f. 3-3-17, cert. ef. 3-4-17 thru 8-30-17 MHS 13-2016(Temp), f. 9-6-16, cert. ef. 9-7-16 thru 3-3-17 MHD 4-2005, f. & cert. ef. 4-1-05 MHD 4-1998, f. 5-21-98, cert. ef. 6-1-98 MHD 9-1985, f. & ef. 6-7-85 MHD 9-1984(Temp), f. & ef. 12-10-84