71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
House Bill 3113
Sponsored by Representative KNOPP; Representatives BACKLUND,
CLOSE, HAYDEN, G SMITH, T SMITH, WITT, ZAUNER, Senators R
BEYER, GEORGE, STARR (at the request of Oregon Right to Life)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
Includes medical facility operated substantially for purpose of
performing abortions in definition of ambulatory surgical center.
A BILL FOR AN ACT
Relating to medical facilities; amending ORS 65.800, 127.646,
192.525, 419B.050, 432.500, 442.015, 442.700, 678.730 and
688.132 and ORCP 55 H.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 442.015 is amended to read:
442.015. As used in ORS chapter 441 and this chapter, unless
the context requires otherwise:
(1) 'Adjusted admission' means the sum of all inpatient
admissions divided by the ratio of inpatient revenues to total
patient revenues.
(2) 'Affected persons' has the same meaning as given to '
party' in ORS 183.310 (6).
(3) 'Acquire' or 'acquisition' refers to obtaining equipment,
supplies, components or facilities by any means, including
purchase, capital or operating lease, rental or donation, with
intention of using such equipment, supplies, components or
facilities to provide health services in Oregon. When equipment
or other materials are obtained outside of this state,
acquisition is considered to occur when the equipment or other
materials begin to be used in Oregon for the provision of health
services or when such services are offered for use in Oregon.
{ + (4)(a) 'Ambulatory surgical center' means:
(A) A facility that performs outpatient surgery that is not
routinely or customarily performed in the office of a physician
or dentist and that meets facility licensure requirements.
(B) A facility that operates substantially for the purpose of
performing abortions.
(b) For purposes of this subsection, a facility operates
substantially for the purpose of performing abortions if:
(A) Ten or more abortions in any calendar month of a calendar
year or 100 or more abortions per calendar year are performed on
the premises of the facility;
(B) The facility holds itself out to the public as an abortion
provider by advertising by any public means, including but not
limited to newspaper, telephone directory, magazine or electronic
media, that it performs abortions; and
(C) The facility is open for any period of time during the day
and has on-site at the facility or on call a physician licensed
under ORS chapter 677 to perform abortions.
(c) As used in this subsection, 'abortion' means the use or
prescription of any instrument, medicine, drug or any other
substance or device to terminate the pregnancy of a woman known
to be pregnant, with the intention other than to increase the
probability of a live birth, to preserve the life or health of
the child after live birth or to remove a dead fetus. + }
{ - (4) - } { + (5) + } 'Audited actual experience' means
data contained within financial statements examined by an
independent, certified public accountant in accordance with
generally accepted auditing standards.
{ - (5) - } { + (6) + } 'Budget' means the projections by
the hospital for a specified future time period of expenditures
and revenues with supporting statistical indicators.
{ - (6) - } { + (7) + } 'Case mix' means a calculated index
for each hospital, based on financial accounting and case mix
data collection as set forth in ORS 442.425, reflecting the
relative costliness of that hospital's mix of cases compared to a
state or national mix of cases.
{ - (7) - } { + (8) + } 'Council' means the Oregon Health
Council.
{ - (8) - } { + (9) + } 'Department' means the Department
of Human Services of the State of Oregon.
{ - (9) - } { + (10) + } 'Develop' means to undertake those
activities which on their completion will result in the offer of
a new institutional health service or the incurring of a
financial obligation, as defined under applicable state law, in
relation to the offering of such a health service.
{ - (10) - } { + (11) + } 'Director' means the Director of
Human Services.
{ - (11) - } { + (12) + } 'Expenditure' or 'capital
expenditure' means the actual expenditure, an obligation to an
expenditure, lease or similar arrangement in lieu of an
expenditure, and the reasonable value of a donation or grant in
lieu of an expenditure but not including any interest thereon.
{ - (12) - } { + (13) + } 'Governmental unit' means the
state, or any county, municipality or other political
subdivision, or any related department, division, board or other
agency.
{ - (13) - } { + (14) + } 'Gross revenue' means the sum of
daily hospital service charges, ambulatory service charges,
ancillary service charges and other operating revenue. 'Gross
revenue' does not include contributions, donations, legacies or
bequests made to a hospital without restriction by the donors.
{ - (14) - } { + (15)(a) + } 'Health care facility'
{ - means - } { + includes but is not limited to + }:
{ - (a) - } { + (A) + } A 'hospital' with an organized
medical staff, with permanent facilities that include inpatient
beds, and with medical services, including physician services and
continuous nursing services under the supervision of registered
nurses, to provide diagnosis and medical or surgical treatment
primarily for but not limited to acutely ill patients and
accident victims, or to provide treatment for the mentally ill or
to provide treatment in special inpatient care facilities. A
'special inpatient care facility' is a facility with permanent
inpatient beds and other facilities designed and utilized for
special health care purposes, to include but not limited to:
Rehabilitation center, college infirmary, chiropractic facility,
facility for the treatment of alcoholism or drug abuse, or
inpatient care facility meeting the requirements of ORS 441.065,
and any other establishment falling within a classification
established by the division, after determination of the need for
such classification and the level and kind of health care
appropriate for such classification.
{ - (b) - } { + (B) + } A 'long term care facility' with
permanent facilities that include inpatient beds, providing
medical services, including nursing services but excluding
surgical procedures except as may be permitted by the rules of
the director, to provide treatment for two or more unrelated
patients. ' Long term care facility' includes the terms 'skilled
nursing facility' and 'intermediate care facility,' but such
definition shall not be construed to include facilities licensed
and operated pursuant to ORS 443.400 to 443.455. Such definitions
shall include:
{ - (A) - } { + (i) + } A 'skilled nursing facility'
whether an institution or a distinct part of an institution,
which is primarily engaged in providing to inpatients skilled
nursing care and related services for patients who require
medical or nursing care, or rehabilitation services for the
rehabilitation of injured, disabled or sick persons.
{ - (B) - } { + (ii) + } An 'intermediate care facility'
which provides, on a regular basis, health-related care and
services to individuals who do not require the degree of care and
treatment which a hospital or skilled nursing facility is
designed to provide, but who because of their mental or physical
condition require care and services above the level of room and
board which can be made available to them only through
institutional facilities.
{ - (c) - } { + (C) + } An { - ' - } ambulatory surgical
center { + . + } { - ' means a health care facility which
performs outpatient surgery not routinely or customarily
performed in a physician's or dentist's office, and is able to
meet health facility licensure requirements. - }
{ - (d) An establishment furnishing primarily domiciliary
care is not a 'health care facility.' - }
{ - (e) - } { + (b) + } { - A - } 'Health care facility'
does not { - mean - } { + include + } an establishment
{ - furnishing - } { + that:
(A) Furnishes primarily domiciliary care;
(B) Furnishes + } residential care or treatment { + that:
(i) Does + } not { - meeting - } { + meet + } federal
intermediate care standards { - , - } { + ; and
(ii) Does + } not { - following - } { + follow + } a
primarily medical model of treatment { - , - } { + ;
(C) Is + } prohibited from admitting persons requiring 24-hour
nursing care { - and - } { + ; or
(D) Is + } licensed or approved under the rules of the Mental
Health and Developmental Disability Services Division, Senior and
Disabled Services Division, State Office for Services to Children
and Families, Department of Corrections or Vocational
Rehabilitation Division.
{ - (f) - } { + (c) + } A 'freestanding birthing center'
means a health care facility licensed for the primary purpose of
performing low risk deliveries.
{ - (15) - } { + (16) + } 'Health maintenance organization'
or 'HMO ' means a public organization or a private organization
organized under the laws of any state which:
(a) Is a qualified HMO under section 1310 (d) of the U.S.
Public Health Services Act; or
(b)(A) Provides or otherwise makes available to enrolled
participants health care services, including at least the
following basic health care services: Usual physician services,
hospitalization, laboratory, X-ray, emergency and preventive
services, and out-of-area coverage;
(B) Is compensated, except for copayments, for the provision of
the basic health care services listed in subparagraph (A) of this
paragraph to enrolled participants on a predetermined periodic
rate basis; and
(C) Provides physicians' services primarily directly through
physicians who are either employees or partners of such
organization, or through arrangements with individual physicians
or one or more groups of physicians organized on a group practice
or individual practice basis.
{ - (16) - } { + (17) + } 'Health services' means
clinically related diagnostic, treatment or rehabilitative
services, and includes alcohol, drug or controlled substance
abuse and mental health services that may be provided either
directly or indirectly on an inpatient or ambulatory patient
basis.
{ - (17) - } { + (18) + } 'Institutional health services'
means health services provided in or through health care
facilities and includes the entities in or through which such
services are provided.
{ - (18) - } { + (19) + } 'Medically indigent' means a
person who has insufficient resources or assets to pay for needed
medical care without utilizing resources required to meet basic
needs for shelter, food and clothing.
{ - (19) - } { + (20) + } 'Net revenue' means gross revenue
minus deductions from revenue.
{ - (20) - } { + (21) + } 'New hospital' means a facility
that did not offer hospital services on a regular basis within
its service area within the prior 12-month period and is
initiating or proposing to initiate such services. 'New hospital'
also includes any replacement of an existing hospital that
involves a substantial increase or change in the services
offered.
{ - (21) - } { + (22) + } 'New skilled nursing or
intermediate care service or facility' means a service or
facility that did not offer long term care services on a regular
basis by or through the facility within the prior 12-month period
and is initiating or proposing to initiate such services. A 'new
skilled nursing or intermediate care service or facility' also
includes the rebuilding of a long term care facility, the
relocation of buildings which are a part of a long term care
facility, the relocation of long term care beds from one facility
to another or an increase in the number of beds of more than 10
or 10 percent of the bed capacity, whichever is the lesser,
within a two-year period.
{ - (22) - } { + (23) + } 'Major medical equipment' means
medical equipment which is used to provide medical and other
health services and which costs more than $1 million. 'Major
medical equipment' does not include medical equipment acquired by
or on behalf of a clinical laboratory to provide clinical
laboratory services, if the clinical laboratory is independent of
a physician's office and a hospital and has been determined under
Title XVIII of the Social Security Act to meet the requirements
of paragraphs (10) and (11) of section 1861(s) of that Act.
{ - (23) - } { + (24) + } 'Offer' means that the health
care facility holds itself out as capable of providing, or as
having the means for the provision of, specified health services.
{ - (24) - } { + (25) + } 'Operating expenses' means the
sum of daily hospital service expenses, ambulatory service
expenses, ancillary expenses and other operating expenses,
excluding income taxes.
{ - (25) - } { + (26) + } 'Person' means an individual, a
trust or estate, a partnership, a corporation (including
associations, joint stock companies and insurance companies), a
state, or a political subdivision or instrumentality, including a
municipal corporation, of a state.
{ - (26) - } { + (27) + } 'State agency' means the office
of the Director of Human Services.
{ - (27) - } { + (28) + } 'Total deductions from gross
revenue' or ' deductions from revenue' means reductions from
gross revenue resulting from inability to collect payment of
charges. Such reductions include bad debts; contractual
adjustments; uncompensated care; administrative, courtesy and
policy discounts and adjustments and other such revenue
deductions. The deduction shall be net of the offset of
restricted donations and grants for indigent care.
SECTION 2. ORS 65.800 is amended to read:
65.800. For purposes of ORS 65.803 to 65.815:
(1) 'Hospital' means a hospital as described in ORS 442.015
{ - (14)(a) - } { + (15)(a)(A) + }.
(2) 'Noncharitable entity' means any person or entity that is
not a public benefit or religious corporation and is not wholly
owned or controlled by one or more public benefit or religious
corporations.
SECTION 3. ORS 127.646 is amended to read:
127.646. As used in ORS 127.646 to 127.654:
(1) 'Health care organization' means a home health agency,
hospice program, hospital, long term care facility or health
maintenance organization.
(2) 'Health maintenance organization' has that meaning given in
ORS 750.005, except that 'health maintenance organization'
includes only those organizations that participate in the federal
Medicare or Medicaid programs.
(3) 'Home health agency' has that meaning given in ORS 443.005.
(4) 'Hospice program' has that meaning given in ORS 443.850.
(5) 'Hospital' has that meaning given in ORS 442.015
{ - (14) - } { + (15) + }, except that 'hospital' does not
include a special inpatient care facility.
(6) 'Long term care facility' has that meaning given in ORS
442.015 { - (14) - } { + (15) + }, except that 'long term
care facility' does not include an intermediate care facility for
individuals with mental retardation.
SECTION 4. ORS 192.525 is amended to read:
192.525. (1) The Legislative Assembly declares that it is the
policy of the State of Oregon to protect both the right of an
individual to have the medical history of the individual
protected from disclosure to persons other than the health care
provider and insurer of the individual who needs such
information, and the right of an individual to review the medical
records of that individual. It is recognized that both rights may
be limited, but only to benefit the patient. These rights of
confidentiality and full access must be protected by private and
public institutions providing health care services and by private
practitioners of the healing arts. The State of Oregon commits
itself to fulfilling the objectives of this public policy for
public providers of health care. Private practitioners of the
healing arts and private institutions providing health care
services are encouraged to adopt voluntary guidelines that will
grant health care recipients access to their own medical records
while preserving those records from unnecessary disclosure.
(2) Except as otherwise provided by law, a health care provider
must disclose a patient's medical records after receiving a
written release authorization that directs the health care
provider to produce the patient's medical records. If the patient
is able to give consent to the release, the authorization must be
signed by the patient. If the patient is not able to give consent
to the release, the authorization must be signed by a person
authorized by law to obtain the medical records sought under the
authorization.
(3) A written release authorization under this section must be
in substantially the following form:
_________________________________________________________________
AUTHORIZATION TO DISCLOSE
MEDICAL RECORDS
This authorization must be written, dated and signed by the
patient or by a person authorized by law to give authorization.
I authorize _______ (name of hospital/health care provider) to
release a copy of the medical information for _____ (name of
patient) to _____ (name and address of recipient).
The information will be used on my behalf for the following
purpose(s):
_________________________________________________________________
_________________________________________________________________
By initialing the spaces below, I specifically authorize the
release of the following medical records, if such records exist:
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
_
All hospital records (including nursing
records and progress notes)
_
Transcribed hospital reports
_
Medical records needed for continuity
of care
_
Most recent five-year history
_
Laboratory reports
_
Pathology reports
_
Diagnostic imaging reports
_
Clinician office chart notes
_
Dental records
_
Physical therapy records
_
Emergency and urgency care records
_
Billing statements
_
Other
_______________
_
Please send the entire medical record (all
information) to the above named recipient.
The recipient understands this record may
be voluminous and agrees to pay all
reasonable charges associated with
providing this record.
_
*HIV/AIDS-related records
_
*Mental health information
_
*Genetic testing information
*Must be initialed to be included in other
documents.
_
**Drug/alcohol diagnosis, treatment
or referral information:
_______________
**Federal Regulation, 42 CFR Part 2, requires
a description of how much and what kind of
information is to be disclosed.
_
This authorization is limited to the
following treatment:
_______________
_
This authorization is limited to the
following time period:
_______________
_
This authorization is limited to a workers'
compensation claim for injuries of
______
(date).
This authorization may be revoked at any time. The only exception
is when action has been taken in reliance on the authorization.
Unless revoked earlier, this consent will expire 180 days from
the date of signing or shall remain in effect for the period
reasonably needed to complete the request.
____NOTE_TO_GOPHER_CUSTOMERS:__________________________________
THE FOLLOWING TABULAR TEXT MAY BE IRREGULAR.
FOR COMPLETE INFORMATION PLEASE SEE THE PRINTED MEASURE.
_______________________________________________________________
_____
________
(Date) (Signature of patient)
_____
________
(Date) (Signature of person
authorized by law)
____________________________________________________________
END OF POSSIBLE IRREGULAR TABULAR TEXT
____________________________________________________________
_________________________________________________________________
(4) A health care provider may withhold another health care
provider's medical record after receiving a written release
authorization in the form provided for in subsection (3) of this
section. If a health care provider withholds any medical record
for any reason after receiving a written release authorization in
the form provided for in subsection (3) of this section, the
withheld medical record must be identified by the health care
provider in the response to the release authorization by
disclosing the author of the medical record and the date of the
medical record.
(5) Notwithstanding subsection (2) of this section, if, in the
professional judgment of a physician licensed under ORS chapter
677 or in the professional judgment of a licensed mental health
care provider, the disclosure of a medical record or any part of
a medical record would be injurious to a patient, the health care
provider may withhold a medical record or provide an accurate and
representative summary of the factual information contained in
the medical record. A health care provider must give notice if a
medical record is withheld or a summary is provided under this
subsection in the response to the release authorization.
(6) A health care provider may charge a reasonable fee for
responding to a release authorization under this section.
(7) A patient may not maintain an action for damages against a
health care provider for disclosures made by the health care
provider in good faith reliance on a properly executed written
release authorization as provided for in this section.
(8) For the purposes of this section, 'medical records '
includes chart notes, reports, laboratory reports,
correspondence, transcribed records, patient questionnaires and
any other record concerning the patient's care, diagnosis or
treatment. 'Medical records' does not include personal office
notes of the health care provider that do not concern the
patient's care, diagnosis or treatment.
(9) For the purposes of this section, 'health care provider'
means a person licensed by one of the following agencies, or any
employee of a person licensed by one of the following agencies:
(a) State Board of Examiners for Speech-Language Pathology and
Audiology;
(b) State Board of Chiropractic Examiners;
(c) State Board of Clinical Social Workers;
(d) Oregon Board of Licensed Professional Counselors and
Therapists;
(e) Oregon Board of Dentistry;
(f) State Board of Denture Technology;
(g) Board of Examiners of Licensed Dietitians;
(h) State Board of Massage Therapists;
(i) State Mortuary and Cemetery Board;
(j) Board of Naturopathic Examiners;
(k) Oregon State Board of Nursing;
(L) Board of Examiners of Nursing Home Administrators;
(m) Oregon Board of Optometry;
(n) State Board of Pharmacy;
(o) Board of Medical Examiners;
(p) Occupational Therapy Licensing Board;
(q) Physical Therapist Licensing Board;
(r) State Board of Psychologist Examiners; or
(s) Board of Radiologic Technology.
(10) For the purposes of this section, 'health care provider'
includes a health care facility described in ORS 442.015
{ - (14) - } { + (15) + } and emergency medical technicians
certified by the Health Division.
SECTION 5. ORS 419B.050 is amended to read:
419B.050. (1) Upon notice by either a law enforcement agency or
the State Office for Services to Children and Families that a
child abuse investigation is being conducted under ORS 419B.020,
a health care provider may permit the law enforcement agency or
the office to inspect and copy medical records, including, but
not limited to, prenatal and birth records, of the child involved
in the investigation without the consent of the child, or the
parent or guardian of the child. A health care provider who in
good faith disclosed medical records under this section is not
civilly or criminally liable for the disclosure.
(2)(a) As used in this section, 'health care provider ' means a
person licensed by one of the following agencies, or any employee
of a person licensed by one of the following agencies:
(A) State Board of Examiners for Speech-Language Pathology and
Audiology;
(B) State Board of Chiropractic Examiners;
(C) State Board of Clinical Social Workers;
(D) Oregon Board of Licensed Professional Counselors and
Therapists;
(E) Oregon Board of Dentistry;
(F) State Board of Denture Technology;
(G) Board of Examiners of Licensed Dietitians;
(H) State Board of Massage Therapists;
(I) State Mortuary and Cemetery Board;
(J) Board of Naturopathic Examiners;
(K) Oregon State Board of Nursing;
(L) Board of Examiners of Nursing Home Administrators;
(M) Oregon Board of Optometry;
(N) State Board of Pharmacy;
(O) Board of Medical Examiners;
(P) Occupational Therapy Licensing Board;
(Q) Physical Therapist Licensing Board;
(R) State Board of Psychologist Examiners; or
(S) Board of Radiologic Technology.
(b) For the purposes of this section, 'health care provider'
includes a health care facility described in ORS 442.015
{ - (14) - } { + (15) + } and emergency medical technicians
certified by the Health Division.
SECTION 6. ORS 432.500 is amended to read:
432.500. As used in ORS 432.510 to 432.550 and 432.900:
(1) 'Division' means the Health Division of the Department of
Human Services or its authorized representative.
(2) 'Health care facility' has the meaning given that term in
ORS 442.015 { - (14)(a) and (c) - } { + (15)(a)(A) and
(C) + }.
(3) 'Practitioner' means any person whose professional license
allows the person to diagnose or treat cancer in patients.
SECTION 7. ORS 442.700 is amended to read:
442.700. As used in ORS 442.700 to 442.760:
(1) 'Board of governors' means the governors of a cooperative
program as described in ORS 442.720.
(2) 'Cooperative program' means a program among two or more
health care providers for the purpose of providing heart and
kidney transplant services including, but not limited to, the
sharing, allocation and referral of physicians, patients,
personnel, instructional programs, support services, facilities,
medical, diagnostic, laboratory or therapeutic services,
equipment, devices or supplies, and other services traditionally
offered by health care providers.
(3) 'Director' means the Director of Human Services.
(4) 'Health care provider' means a hospital, physician or
entity, a significant part of whose activities consist of
providing hospital or physician services in this state. For
purposes of the immunities provided by ORS 442.700 to 442.760 and
646.740, 'health care provider' includes any officer, director,
trustee, employee, or agent of, or any entity under common
ownership and control with, a health care provider.
(5) 'Hospital' means a health care facility defined in ORS
442.015 { - (14)(a) to (d) - } { + (15)(a) + } and licensed
under ORS 441.015 to 441.097 and includes community health
programs established under ORS 430.610 to 430.695.
(6) 'Order' means a decision issued by the director under ORS
442.710 either approving or denying an application for a
cooperative program and includes modifications of an original
order under ORS 442.730 (3)(b) and ORS 442.740 (1) and (4).
(7) 'Party to a cooperative program agreement' or 'party '
means an entity that enters into the principal agreement to
establish a cooperative program and applies for approval under
ORS 442.700 to 442.760 and 646.740 and any other entity that,
with the approval of the director, becomes a member of a
cooperative program.
(8) 'Physician' means a physician defined in ORS 677.010 (12)
and licensed under ORS chapter 677.
SECTION 8. ORS 678.730 is amended to read:
678.730. (1) Any individual is qualified for licensure as a
nursing home administrator who:
(a) Meets the training or experience and other standards
established by rules of the Board of Examiners of Nursing Home
Administrators. The board shall accept one year of experience as
an administrator serving a dual facility in lieu of any residency
or intern requirement established pursuant to this paragraph; and
(b) Has passed an examination as provided in ORS 678.740.
(2) Each license as a nursing home administrator may be renewed
by the board upon compliance by the licensee with the
requirements of ORS 678.760 and by presenting evidence of the
completion of the continuing education work required by the
board. The board may require up to 50 hours of continuing
education in any one-year period.
(3) In establishing educational standards pursuant to
subsection (1)(a) of this section, the board shall require a
baccalaureate degree from an accredited school of higher
education. However, the educational requirement does not apply to
any person who:
(a) Was a licensed administrator in any jurisdiction of the
United States prior to January 1, 1983; or
(b) Was an administrator of a dual facility meeting the
experience requirements pursuant to subsection (1)(a) of this
section.
(4) Notwithstanding the requirements established under
subsection (1) of this section, upon the request of the governing
body of a health care facility as defined in ORS 442.015
{ - (14)(a) - } { + (15)(a)(A) + }, the board shall deem a
health care administrator to have met the requirements for
licensure as a nursing home administrator if the health care
administrator possesses an advanced degree in management and has
at least 10 years of experience in health care management.
SECTION 9. ORS 688.132 is amended to read:
688.132. (1) If a licensed physical therapist administers
physical therapy to a person as authorized in ORS 688.130 (1)(a),
the physical therapist must immediately refer the person to a
medical doctor, osteopathic physician, chiropractic physician,
podiatric physician and surgeon, naturopathic physician, dentist,
physician assistant or nurse practitioner if:
(a) Signs and symptoms are present that require treatment or
diagnosis by such providers or for which physical therapy is
contraindicated or for which treatment is outside the knowledge
of the physical therapist or scope of practice of physical
therapy; or
(b) The physical therapist continues therapy and 30 days have
passed since the initial physical therapy treatment has been
administered, unless:
(A) The individual is a child or a student eligible for special
education, as defined by state or federal law, and is being seen
pursuant to the child's or the student's individual education
plan or individual family service plan;
(B) The individual is a student athlete at a public or private
school, college or university and is seeking treatment in that
role as athlete; or
(C) The individual is a resident of a long term care facility
as defined in ORS 442.015 { - (14)(b)(A) and (B) - } { +
(15)(a)(B) + }, a residential facility as defined in ORS 443.400,
an adult foster home as defined in ORS 443.705 or an intermediate
care facility for mental retardation pursuant to federal
regulations.
(2) Notwithstanding any provision of ORS 742.520 to 742.542,
personal injury protection benefits are not required to be paid
for physical therapy treatment of a person covered by the
applicable insurance policy unless the person is referred to the
physical therapist by a licensed physician, podiatric physician
and surgeon, naturopathic physician, dentist, physician's
assistant or nurse practitioner.
SECTION 10. ORCP 55 H is amended to read:
H Hospital records.
H(1) Hospital. As used in this rule, unless the context
requires otherwise, 'hospital' means a health care facility
defined in ORS 442.015 { - (14)(a) through (d) - }
{ + (15)(a) + } and licensed under ORS 441.015 through 441.097
and community health programs established under ORS 430.610
through 430.695.
H(2) Mode of compliance. Hospital records may be obtained by
subpoena only as provided in this section. However, if disclosure
of any requested records is restricted or otherwise limited by
state or federal law, then the protected records shall not be
disclosed in response to the subpoena unless the requirements of
the pertinent law have been complied with and such compliance is
evidenced through an appropriate court order or through execution
of an appropriate consent. Absent such consent or court order,
production of the requested records not so protected shall be
considered production of the records responsive to the subpoena.
If an appropriate consent or court order does accompany the
subpoena, then production of all records requested shall be
considered production of the records responsive to the subpoena.
H(2)(a) Except as provided in subsection (4) of this section,
when a subpoena is served upon a custodian of hospital records in
an action in which the hospital is not a party, and the subpoena
requires the production of all or part of the records of the
hospital relating to the care or treatment of a patient at the
hospital, it is sufficient compliance therewith if a custodian
delivers by mail or otherwise a true and correct copy of all the
records responsive to the subpoena within five days after receipt
thereof. Delivery shall be accompanied by the affidavit described
in subsection (3) of this section. The copy may be photographic
or microphotographic reproduction.
H(2)(b) The copy of the records shall be separately enclosed in
a sealed envelope or wrapper on which the title and number of the
action, name of the witness, and date of the subpoena are clearly
inscribed. The sealed envelope or wrapper shall be enclosed in an
outer envelope or wrapper and sealed. The outer envelope or
wrapper shall be addressed as follows: (i) if the subpoena
directs attendance in court, to the clerk of the court, or to the
judge thereof if there is no clerk; (ii) if the subpoena directs
attendance at a deposition or other hearing, to the officer
administering the oath for the deposition, at the place
designated in the subpoena for the taking of the deposition or at
the officer's place of business; (iii) in other cases involving a
hearing, to the officer or body conducting the hearing at the
official place of business; (iv) if no hearing is scheduled, to
the attorney or party issuing the subpoena. If the subpoena
directs delivery of the records in accordance with subparagraph
H(2)(b)(iv), then a copy of the subpoena shall be served on the
person whose records are sought and on all other parties to the
litigation, not less than 14 days prior to service of the
subpoena on the hospital.
H(2)(c) After filing and after giving reasonable notice in
writing to all parties who have appeared of the time and place of
inspection, the copy of the records may be inspected by any party
or the attorney of record of a party in the presence of the
custodian of the court files, but otherwise shall remain sealed
and shall be opened only at the time of trial, deposition, or
other hearing, at the direction of the judge, officer, or body
conducting the proceeding. The records shall be opened in the
presence of all parties who have appeared in person or by counsel
at the trial, deposition, or hearing. Records which are not
introduced in evidence or required as part of the record shall be
returned to the custodian of hospital records who submitted them.
H(2)(d) For purposes of this section, the subpoena duces tecum
to the custodian of the records may be served by first class
mail. Service of subpoena by mail under this section shall not be
subject to the requirements of section D(3) of this rule.
H(3) Affidavit of custodian of records.
H(3)(a) The records described in subsection (2) of this section
shall be accompanied by the affidavit of a custodian of the
hospital records, stating in substance each of the following:
(i) that the affiant is a duly authorized custodian of the
records and has authority to certify records; (ii) that the copy
is a true copy of all the records responsive to the subpoena;
(iii) that the records were prepared by the personnel of the
hospital, staff physicians, or persons acting under the control
of either, in the ordinary course of hospital business, at or
near the time of the act, condition, or event described or
referred to therein.
H(3)(b) If the hospital has none of the records described in
the subpoena, or only part thereof, the affiant shall so state in
the affidavit, and shall send only those records of which the
affiant has custody.
H(3)(c) When more than one person has knowledge of the facts
required to be stated in the affidavit, more than one affidavit
may be made.
H(4) Personal attendance of custodian of records may be
required.
H(4)(a) The personal attendance of a custodian of hospital
records and the production of original hospital records is
required if the subpoena duces tecum contains the following
statement:
_________________________________________________________________
The personal attendance of a custodian of hospital records and
the production of original records is required by this subpoena.
The procedure authorized pursuant to Oregon Rule of Civil
Procedure 55 H(2) shall not be deemed sufficient compliance with
this subpoena.
_________________________________________________________________
H(4)(b) If more than one subpoena duces tecum is served on a
custodian of hospital records and personal attendance is required
under each pursuant to paragraph (a) of this subsection, the
custodian shall be deemed to be the witness of the party serving
the first such subpoena.
H(5) Tender and payment of fees. Nothing in this section
requires the tender or payment of more than one witness and
mileage fee or other charge unless there has been agreement to
the contrary.
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