309-120-0080 Procedures for Transfer (l) 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. Statutory/Other Authority: ORS 179.040, 179.473, 179.479 & 413.042 Statutes/Other Implemented: ORS 179.471-179.486, 179.495-179.508 & 420.500-420.525 History: MHD 9-2005, f. 12-28-05, cert. ef. 1-1-06 MHD 8-2005(Temp), f. & cert. ef. 7-15-05 thru 1-7-06