Bill Text: OR HB4084 | 2012 | Regular Session | Enrolled
Bill Title: Relating to vulnerable persons; and declaring an emergency.
Spectrum: Unknown
Status: (Passed) 2012-03-27 - Chapter 70, (2012 Laws): Effective date March 27, 2012. [HB4084 Detail]
Download: Oregon-2012-HB4084-Enrolled.html
76th OREGON LEGISLATIVE ASSEMBLY--2012 Regular Session
Enrolled
House Bill 4084
Introduced and printed pursuant to House Rule 12.00. Presession
filed (at the request of House Interim Committee on Human
Services)
CHAPTER ................
AN ACT
Relating to vulnerable persons; creating new provisions; amending
ORS 124.085, 124.090, 131.125, 137.225, 181.534, 181.537,
192.586, 192.600, 192.602, 411.990, 441.671 and 443.004;
limiting expenditures; and declaring an emergency.
Be It Enacted by the People of the State of Oregon:
{ + NOTE: + } Section 1 was deleted by amendment. Subsequent
sections were not renumbered.
SECTION 2. ORS 131.125 is amended to read:
131.125. (1) A prosecution for aggravated murder, murder,
attempted murder or aggravated murder, conspiracy or solicitation
to commit aggravated murder or murder or any degree of
manslaughter may be commenced at any time after the commission of
the attempt, conspiracy or solicitation to commit aggravated
murder or murder, or the death of the person killed.
(2) A prosecution for any of the following felonies may be
commenced within six years after the commission of the crime or,
if the victim at the time of the crime was under 18 years of age,
anytime before the victim attains 30 years of age or within 12
years after the offense is reported to a law enforcement agency
or the Department of Human Services, whichever occurs first:
(a) Strangulation under ORS 163.187 (4).
(b) Criminal mistreatment in the first degree under ORS
163.205.
(c) Rape in the third degree under ORS 163.355.
(d) Rape in the second degree under ORS 163.365.
(e) Rape in the first degree under ORS 163.375.
(f) Sodomy in the third degree under ORS 163.385.
(g) Sodomy in the second degree under ORS 163.395.
(h) Sodomy in the first degree under ORS 163.405.
(i) Unlawful sexual penetration in the second degree under ORS
163.408.
(j) Unlawful sexual penetration in the first degree under ORS
163.411.
(k) Sexual abuse in the second degree under ORS 163.425.
(L) Sexual abuse in the first degree under ORS 163.427.
(m) Using a child in a display of sexual conduct under ORS
163.670.
(n) Encouraging child sexual abuse in the first degree under
ORS 163.684.
(o) Incest under ORS 163.525.
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(p) Promoting prostitution under ORS 167.012.
(q) Compelling prostitution under ORS 167.017.
(r) Luring a minor under ORS 167.057.
(3) A prosecution for any of the following misdemeanors may be
commenced within four years after the commission of the crime or,
if the victim at the time of the crime was under 18 years of age,
anytime before the victim attains 22 years of age or within four
years after the offense is reported to a law enforcement agency
or the Department of Human Services, whichever occurs first:
(a) Strangulation under ORS 163.187 (3).
(b) Sexual abuse in the third degree under ORS 163.415.
(c) Exhibiting an obscene performance to a minor under ORS
167.075.
(d) Displaying obscene materials to minors under ORS 167.080.
(4) In the case of crimes described in subsection (2)(m) of
this section, the victim is the child engaged in sexual conduct.
In the case of the crime described in subsection (2)(o) of this
section, the victim is the party to the incest other than the
party being prosecuted. In the case of crimes described in
subsection (2)(p) and (q) of this section, the victim is the
child whose acts of prostitution are promoted or compelled.
(5) A prosecution for arson in any degree may be commenced
within six years after the commission of the crime.
{ + (6) A prosecution for any of the following felonies may
be commenced within six years after the commission of the crime
if the victim at the time of the crime was 65 years of age or
older:
(a) Theft in the first degree under ORS 164.055.
(b) Aggravated theft in the first degree under ORS 164.057.
(c) Theft by extortion under ORS 164.075.
(d) Robbery in the third degree under ORS 164.395.
(e) Robbery in the second degree under ORS 164.405.
(f) Robbery in the first degree under ORS 164.415.
(g) Forgery in the first degree under ORS 165.013.
(h) Fraudulent use of a credit card under ORS 165.055 (4)(b).
(i) Identity theft under ORS 165.800. + }
{ - (6) - } { + (7) + } Except as provided in subsection
{ - (7) - } { + (8) + } of this section or as otherwise
expressly provided by law, prosecutions for other offenses must
be commenced within the following periods of limitations after
their commission:
(a) For any other felony, three years.
(b) For any misdemeanor, two years.
(c) For a violation, six months.
{ - (7) - } { + (8) + } If the period prescribed in
subsection { - (6) - } { + (7) + } of this section has
expired, a prosecution nevertheless may be commenced as follows:
(a) If the offense has as a material element either fraud or
the breach of a fiduciary obligation, prosecution may be
commenced within one year after discovery of the offense by an
aggrieved party or by a person who has a legal duty to represent
an aggrieved party and who is not a party to the offense, but in
no case shall the period of limitation otherwise applicable be
extended by more than three years;
(b) If the offense is based upon misconduct in office by a
public officer or employee, prosecution may be commenced at any
time while the defendant is in public office or employment or
within two years thereafter, but in no case shall the period of
limitation otherwise applicable be extended by more than three
years; or
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(c) If the offense is an invasion of personal privacy under ORS
163.700, prosecution may be commenced within one year after
discovery of the offense by the person aggrieved by the offense,
by a person who has a legal duty to represent the person
aggrieved by the offense or by a law enforcement agency, but in
no case shall the period of limitation otherwise applicable be
extended by more than three years.
{ - (8) - } { + (9) + } Notwithstanding subsection (2) of
this section, if the defendant is identified after the period
described in subsection (2) of this section on the basis of DNA
(deoxyribonucleic acid) sample comparisons, a prosecution for:
(a) Rape in the first degree, sodomy in the first degree,
unlawful sexual penetration in the first degree or sexual abuse
in the first degree may be commenced at any time after the
commission of the crime.
(b) Rape in the second degree, sodomy in the second degree or
unlawful sexual penetration in the second degree may be commenced
within 25 years after the commission of the crime.
{ - (9) - } { + (10) + } Notwithstanding subsection
{ - (8) - } { + (9) + } of this section, if a prosecution for
a felony listed in subsection { - (8) - } { + (9) + } of this
section would otherwise be barred by subsection (2) of this
section, the prosecution must be commenced within two years of
the DNA-based identification of the defendant.
SECTION 3. ORS 411.990 is amended to read:
411.990. (1) Violation of ORS 411.320 or 411.335 is a Class C
misdemeanor.
(2) Violation of any provision of ORS 411.630 or 411.840 is a
Class C felony which may be reduced to a Class A misdemeanor in
accordance with ORS 161.705.
(3) Violation of ORS 411.675 is a Class C felony.
(4) Criminal prosecution of violators of ORS 411.675 shall be
commenced in accordance with ORS 131.125 { - (6) and (7) - }
{ + (7) and (8) + }.
SECTION 4. ORS 137.225 is amended to read:
137.225. (1)(a) At any time after the lapse of three years from
the date of pronouncement of judgment, any defendant who has
fully complied with and performed the sentence of the court and
whose conviction is described in subsection (5) of this section
by motion may apply to the court where the conviction was entered
for entry of an order setting aside the conviction; or
(b) At any time after the lapse of one year from the date of
any arrest, if no accusatory instrument was filed, or at any time
after an acquittal or a dismissal of the charge, the arrested
person may apply to the court that would have jurisdiction over
the crime for which the person was arrested, for entry of an
order setting aside the record of the arrest. For the purpose of
computing the one-year period, time during which the arrested
person has secreted himself or herself within or without this
state is not included.
(2)(a) A copy of the motion and a full set of the defendant's
fingerprints shall be served upon the office of the prosecuting
attorney who prosecuted the crime or violation, or who had
authority to prosecute the charge if there was no accusatory
instrument filed, and opportunity shall be given to contest the
motion. The fingerprint card with the notation 'motion for
setting aside conviction,' or 'motion for setting aside arrest
record' as the case may be, shall be forwarded to the Department
of State Police. Information resulting from the fingerprint
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search along with the fingerprint card shall be returned to the
prosecuting attorney.
(b) When a prosecuting attorney is served with a copy of a
motion to set aside a conviction under this section, the
prosecuting attorney shall provide a copy of the motion and
notice of the hearing date to the victim, if any, of the crime by
mailing a copy of the motion and notice to the victim's
last-known address.
(c) When a person makes a motion under subsection (1)(a) of
this section, the person must pay a fee of $80 to the Department
of State Police. The person shall attach a certified check
payable to the Department of State Police in the amount of $80 to
the fingerprint card that is served upon the prosecuting
attorney. The office of the prosecuting attorney shall forward
the check with the fingerprint card to the Department of State
Police.
(d) In addition to the fee established under paragraph (c) of
this subsection, when a person makes a motion under subsection
(1)(a) of this section the person must pay the filing fee
established under ORS 21.135.
(3) Upon hearing the motion, the court may require the filing
of such affidavits and may require the taking of such proofs as
the court deems proper. The court shall allow the victim to make
a statement at the hearing. Except as otherwise provided in
subsection { - (13) - } { + (14) + } of this section, if the
court determines that the circumstances and behavior of the
applicant from the date of conviction, or from the date of arrest
as the case may be, to the date of the hearing on the motion
warrant setting aside the conviction, or the arrest record as the
case may be, the court shall enter an appropriate order that
shall state the original arrest charge and the conviction charge,
if any and if different from the original, date of charge,
submitting agency and disposition. The order shall further state
that positive identification has been established by the
Department of State Police and further identified as to
Department of State Police number or submitting agency number.
Upon the entry of the order, the applicant for purposes of the
law shall be deemed not to have been previously convicted, or
arrested as the case may be, and the court shall issue an order
sealing the record of conviction and other official records in
the case, including the records of arrest whether or not the
arrest resulted in a further criminal proceeding.
(4) The clerk of the court shall forward a certified copy of
the order to such agencies as directed by the court. A certified
copy must be sent to the Department of Corrections when the
person has been in the custody of the Department of Corrections.
Upon entry of the order, the conviction, arrest or other
proceeding shall be deemed not to have occurred, and the
applicant may answer accordingly any questions relating to its
occurrence.
(5) The provisions of subsection (1)(a) of this section apply
to a conviction of:
(a) A Class B felony, except for a violation of ORS 166.429 or
any crime classified as a person felony as that term is defined
in the rules of the Oregon Criminal Justice Commission.
(b) A Class C felony, except for criminal mistreatment in the
first degree under ORS 163.205 when it would constitute child
abuse as defined in ORS 419B.005 or any sex crime.
(c) The crime of possession of the narcotic drug marijuana when
that crime was punishable as a felony only.
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(d) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for:
(A) Any sex crime; or
(B) The following crimes when they would constitute child abuse
as defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS
163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
(e) A misdemeanor, including a violation of a municipal
ordinance, for which a jail sentence may be imposed, except for
endangering the welfare of a minor under ORS 163.575 (1)(a) when
it would constitute child abuse as defined in ORS 419B.005 or any
sex crime.
(f) A violation, whether under state law or local ordinance.
(g) An offense committed before January 1, 1972, that if
committed after that date would be:
(A) A Class C felony, except for any sex crime or for the
following crimes when they would constitute child abuse as
defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS
163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
(B) A crime punishable as either a felony or a misdemeanor, in
the discretion of the court, except for any sex crime or for the
following crimes when they would constitute child abuse as
defined in ORS 419B.005:
(i) Criminal mistreatment in the first degree under ORS
163.205; and
(ii) Endangering the welfare of a minor under ORS 163.575
(1)(a).
(C) A misdemeanor, except for endangering the welfare of a
minor under ORS 163.575 (1)(a) when it would constitute child
abuse as defined in ORS 419B.005 or any sex crime.
(D) A violation.
(6) Notwithstanding subsection (5) of this section, the
provisions of subsection (1) of this section do not apply to:
(a) A conviction for a state or municipal traffic offense.
(b) A person convicted, within the 10-year period immediately
preceding the filing of the motion pursuant to subsection (1) of
this section, of any other offense, excluding motor vehicle
violations, whether or not the other conviction is for conduct
associated with the same criminal episode that caused the arrest
or conviction that is sought to be set aside. Notwithstanding
subsection (1) of this section, a conviction that has been set
aside under this section shall be considered for the purpose of
determining whether this paragraph is applicable.
(c) A person who at the time the motion authorized by
subsection (1) of this section is pending before the court is
under charge of commission of any crime.
{ + (7) Notwithstanding subsection (5) of this section, the
provisions of subsection (1)(a) of this section do not apply to:
(a) Criminal mistreatment in the second degree under ORS
163.200 if the victim at the time of the crime was 65 years of
age or older; and
(b) Criminal mistreatment in the first degree under ORS 163.205
if the victim at the time of the crime was 65 years of age or
older. + }
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{ - (7) - } { + (8) + } Notwithstanding subsection (5) of
this section, the provisions of subsection (1)(a) of this section
do not apply to criminally negligent homicide under ORS 163.145,
when that offense was punishable as a Class C felony.
{ - (8) - } { + (9) + } Notwithstanding subsection (5) of
this section, the provisions of subsection (1)(a) of this section
apply to a conviction for a Class B felony described in
subsection (5)(a) of this section only if:
(a) Twenty years or more have elapsed from the date of the
conviction sought to be set aside or of the release of the person
from imprisonment for the conviction sought to be set aside,
whichever is later; and
(b) The person has not been convicted of or arrested for any
other offense, excluding motor vehicle violations, after the date
the person was convicted of the offense sought to be set aside.
Notwithstanding subsection (1) of this section, a conviction or
arrest that has been set aside under this section shall be
considered for the purpose of determining whether this paragraph
is applicable.
{ - (9) - } { + (10) + } The provisions of subsection
(1)(b) of this section do not apply to:
(a) A person arrested within the three-year period immediately
preceding the filing of the motion for any offense, excluding
motor vehicle violations, and excluding arrests for conduct
associated with the same criminal episode that caused the arrest
that is sought to be set aside. An arrest that has been set aside
under this section may not be considered for the purpose of
determining whether this paragraph is applicable.
(b) An arrest for driving while under the influence of
intoxicants if the charge is dismissed as a result of the
person's successful completion of a diversion agreement described
in ORS 813.200.
{ - (10) - } { + (11) + } The provisions of subsection (1)
of this section apply to convictions and arrests that occurred
before, as well as those that occurred after, September 9, 1971.
There is no time limit for making an application.
{ - (11) - } { + (12) + } For purposes of any civil action
in which truth is an element of a claim for relief or affirmative
defense, the provisions of subsection (3) of this section
providing that the conviction, arrest or other proceeding be
deemed not to have occurred do not apply and a party may apply to
the court for an order requiring disclosure of the official
records in the case as may be necessary in the interest of
justice.
{ - (12) - } { + (13) + } Upon motion of any prosecutor or
defendant in a case involving records sealed under this section,
supported by affidavit showing good cause, the court with
jurisdiction may order the reopening and disclosure of any
records sealed under this section for the limited purpose of
assisting the investigation of the movant. However, such an order
has no other effect on the orders setting aside the conviction or
the arrest record.
{ - (13) - } { + (14) + } Unless the court makes written
findings by clear and convincing evidence that granting the
motion would not be in the best interests of justice, the court
shall grant the motion and enter an order as provided in
subsection (3) of this section if the defendant has been
convicted of one of the following crimes and is otherwise
eligible for relief under this section:
(a) Abandonment of a child, ORS 163.535.
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(b) Attempted assault in the second degree, ORS 163.175.
(c) Assault in the third degree, ORS 163.165.
(d) Coercion, ORS 163.275.
(e) Criminal mistreatment in the first degree, ORS 163.205.
(f) Attempted escape in the first degree, ORS 162.165.
(g) Incest, ORS 163.525, if the victim was at least 18 years of
age.
(h) Intimidation in the first degree, ORS 166.165.
(i) Attempted kidnapping in the second degree, ORS 163.225.
(j) Attempted robbery in the second degree, ORS 164.405.
(k) Robbery in the third degree, ORS 164.395.
(L) Supplying contraband, ORS 162.185.
(m) Unlawful use of a weapon, ORS 166.220.
{ - (14) - } { + (15) + } As used in this section, 'sex
crime' has the meaning given that term in ORS 181.594.
SECTION 5. { + Section 6 of this 2012 Act is added to and made
a part of ORS 124.050 to 124.095. + }
SECTION 6. { + (1) Upon notice by a law enforcement agency
that an investigation into abuse is being conducted under ORS
124.070, and without the consent of the named elderly person or
of the named elderly person's caretaker, fiduciary or other legal
representative, a health care provider must:
(a) Permit the law enforcement agency to inspect and copy, or
otherwise obtain, protected health information of the named
elderly person; and
(b) Upon request of the law enforcement agency, consult with
the agency about the protected health information.
(2) A health care provider who in good faith discloses
protected health information under this section is not civilly or
criminally liable under state law for the disclosure.
(3) For purposes of this section:
(a) 'Health care provider' has the meaning given that term in
ORS 192.556.
(b) 'Protected health information' has the meaning given that
term in ORS 192.556. + }
SECTION 7. { + Section 8 of this 2012 Act is added to and made
a part of ORS 441.630 to 441.680. + }
SECTION 8. { + (1) Upon notice by a law enforcement agency
that an investigation into abuse is being conducted under ORS
441.650, and without the consent of the named resident or of the
named resident's caretaker, fiduciary or other legal
representative, a health care provider must:
(a) Permit the law enforcement agency to inspect and copy, or
otherwise obtain, protected health information of the named
resident; and
(b) Upon request of the law enforcement agency, consult with
the agency about the protected health information.
(2) A health care provider who in good faith discloses
protected health information under this section is not civilly or
criminally liable under state law for the disclosure.
(3) For purposes of this section:
(a) 'Health care provider' has the meaning given that term in
ORS 192.556.
(b) 'Protected health information' has the meaning given that
term in ORS 192.556. + }
SECTION 9. { + Section 10 of this 2012 Act is added to and
made a part of ORS 192.583 to 192.607. + }
SECTION 10. { + (1) Notwithstanding ORS 192.596, a financial
institution shall disclose and provide copies of the financial
records of a person who is the alleged victim in an investigation
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under ORS 124.070 or 441.650 in accordance with a subpoena issued
by a court or on behalf of a grand jury under ORS 136.563.
(2) A subpoena issued under this section shall specify:
(a) The name and Social Security number of the person about
whom financial records are sought; and
(b) That the person about whom financial records are sought is
the alleged victim in an abuse investigation under ORS 124.070 or
441.650.
(3) Disclosure and provision of copies under this section shall
be made:
(a) Without the consent of the person who is the alleged victim
in the abuse investigation, or of the person's caretaker,
fiduciary or other legal representative; and
(b) When made under subsection (7)(b) of this section, without
the consent of the person who is not the alleged victim in the
abuse investigation.
(4) A copy of the subpoena issued under this section may be
served upon the person or the person's caretaker, fiduciary or
other legal representative, in the discretion of the court or the
district attorney that issued the subpoena.
(5) Except when specifically directed by the court or district
attorney issuing the subpoena not to, a financial institution
that discloses and provides copies of financial records under
this section may, but is not required to:
(a) Inform the person about whom financial records have been
sought about the disclosure; or
(b) Inform the person's caretaker, fiduciary or other legal
representative, about the disclosure.
(6) A financial institution that provides copies of financial
records under this section may be reimbursed for costs incurred
as provided in ORS 192.602.
(7)(a) Financial records may be subpoenaed under this section
only with respect to a person who is the alleged victim of abuse
in an investigation under ORS 124.070 or 441.650.
(b) Notwithstanding paragraph (a) of this subsection, financial
records may be subpoenaed under this section when the financial
records pertain to an account, loan or other financial
relationship owned, held or maintained by a person who is the
alleged victim in an abuse investigation under ORS 124.070 or
441.650 together with one or more other persons who are not
alleged victims in the abuse investigation.
(8) A financial institution that discloses and provides copies
of financial records under this section is not liable to any
person for any loss, damage or injury arising out of or in any
way pertaining to the disclosure and provision of the copies. + }
SECTION 10a. ORS 192.586 is amended to read:
192.586. (1) Except as provided in ORS 192.588, 192.591,
192.593, 192.596, 192.598 and 192.603 { + and section 10 of this
2012 Act + } or as required by ORS 25.643 and 25.646 and the
Uniform Disposition of Unclaimed Property Act, ORS 98.302 to
98.436 and 98.992:
(a) A financial institution may not provide financial records
of a customer to a state or local agency.
(b) A state or local agency may not request or receive from a
financial institution financial records of customers.
(2) Subsection (1) of this section does not preclude a
financial institution, in the discretion of the financial
institution, from initiating contact with, and thereafter
communicating with and disclosing customer financial records to:
Enrolled House Bill 4084 (HB 4084-B) Page 8
(a) Appropriate state or local agencies concerning a suspected
violation of the law.
(b) The office of the State Treasurer if the records relate to
state investments in commercial mortgages involving the customer.
The records and the information contained therein are public
records but are exempt from disclosure under ORS 192.410 to
192.505 unless the public interest in disclosure clearly
outweighs the public interest in confidentiality. However, the
following records in the office must remain open to public
inspection:
(A) The contract or promissory note establishing a directly
held residential or commercial mortgage and information
identifying collateral;
(B) Any copy the office retains of the underlying mortgage note
in which the office purchases a participation interest; and
(C) Information showing that a directly held loan is in
default.
(c) An appropriate state or local agency in connection with any
business relationship or transaction between the financial
institution and the customer, if the disclosure is made in the
ordinary course of business of the financial institution and will
further the legitimate business interests of the customer or the
financial institution.
(3) ORS 192.583 to 192.607 do not prohibit any of the
following:
(a) The dissemination of any financial information that is not
identified with, or identifiable as being derived from, the
financial records of a particular customer.
(b) The examination by, or disclosure to, the Department of
Consumer and Business Services of financial records that relate
solely to the exercise of the department's supervisory function.
The scope of the department's supervisory function shall be
determined by reference to statutes that grant authority to
examine, audit, or require reports of financial records or
financial institutions.
(c) The furnishing to the Department of Revenue of information
by the financial institution, whether acting as principal or
agent, as required by ORS 314.360.
(d) Compliance with the provisions of ORS 708A.655 or 723.844.
(4) Notwithstanding subsection (1) of this section, a financial
institution may:
(a) Enter into an agreement with the Oregon State Bar that
requires the financial institution to make reports to the Oregon
State Bar whenever a properly payable instrument is presented for
payment out of an attorney trust account that contains
insufficient funds, whether or not the instrument is honored by
the financial institution; and
(b) Submit reports to the Oregon State Bar concerning
instruments presented for payment out of an attorney trust
account under a trust account overdraft notification program
established under ORS 9.685.
SECTION 10b. ORS 192.600 is amended to read:
192.600. (1) Nothing in ORS 192.583 to 192.607 shall require a
financial institution to inquire or determine that those seeking
disclosure have duly complied with the requirements set forth in
ORS 192.583 to 192.607, provided only that the customer
authorization, summons, subpoena or search warrant served upon or
delivered to a financial institution pursuant to ORS 192.593,
192.596 or 192.598 { + or section 10 of this 2012 Act + }shows
compliance on its face.
Enrolled House Bill 4084 (HB 4084-B) Page 9
(2) A financial institution which in good faith reliance
refuses to disclose financial records of a customer upon the
prohibitions of ORS 192.583 to 192.607, shall not be liable to
its customer, to a state or local agency, or to any person for
any loss or damage caused in whole or in part by such refusal.
(3) Financial institutions shall not be required to notify
their customers concerning the receipt by them of requests from
state or local agencies for disclosures of financial records of
such customers. However, except as otherwise provided in ORS
192.583 to 192.607, nothing in ORS 192.583 to 192.607 shall
preclude financial institutions from giving such notice to
customers. A court may order a financial institution to withhold
notification to a customer of the receipt of a summons, subpoena
or search warrant when the court finds that notice to the
customer would impede the investigation being conducted by the
state or local agency.
(4) Financial institutions that participate in a trust account
overdraft notification program established under ORS 9.685 are
not liable to a lawyer or law firm on the attorney trust account,
to a beneficiary of the trust account or to the Oregon State Bar
for loss or damage caused in whole or in part by that
participation or arising in any way out of that participation.
(5) A financial institution shall not be liable to any person
for any loss, damage or injury arising out of or in any way
pertaining to the release of information pursuant to ORS 192.586
(2)(a).
SECTION 10c. ORS 192.602 is amended to read:
192.602. (1) { + (a) + } A financial institution shall have a
reasonable period of time in which to comply with any proper
customer authorization, summons, subpoena or search warrant
permitting or seeking disclosure of financial records. { - For
the purposes of this section, - } { + Except as provided in
paragraphs (b) and (c) of this subsection, + } a 'reasonable
period of time' shall in no case be less than 10 days from the
date upon which the financial institution receives or is served
with a customer authorization, summons, subpoena or search
warrant.
{ + (b) + } { - However, in all cases in which - } { +
When + } disclosure is sought { - pursuant to - } { +
under + } ORS 192.596, the reasonable period of time shall be not
less than 20 days.
{ + (c) When disclosure is sought under section 10 of this
2012 Act, the reasonable period of time shall be that period of
time required by the circumstances but in no case more than five
days from the date upon which the financial institution receives
or is served with a subpoena under section 10 of this 2012
Act. + }
(2) Before making disclosures, a financial institution may
require that the requesting state or local agency reimburse the
financial institution for the reasonable costs incurred by the
financial institution in the course of compliance. These costs
include, but are not limited to, personnel costs, reproduction
costs and travel expenses. The following charges shall be
considered reasonable costs:
(a) Personnel costs, $30 per hour per person, computed on the
basis of $7.50 per quarter hour or fraction thereof, for time
expended by personnel of the financial institution in searching,
locating, retrieving, copying and transporting or conveying the
requested material to the place of examination.
Enrolled House Bill 4084 (HB 4084-B) Page 10
(b) Reproduction costs, $1 per page, including copies produced
by reader and printer reproduction processes. Photographs, films
and other materials shall be reimbursed at actual costs.
(c) Travel expenses, 50 cents per mile, plus other actual
costs, necessary to transport personnel to locate and retrieve
the information required or requested and to convey the required
or requested material to the place of examination.
(3) The provisions of subsection (2) of this section do not
apply in the case of records subpoenaed by a prosecuting attorney
as evidence of the crimes of negotiating a bad check under ORS
165.065, forgery under ORS 165.007 and 165.013, theft by
deception by means of a bad check under ORS 164.085, fraudulent
use of a credit card under ORS 165.055, identity theft under ORS
165.800 or racketeering activity under ORS 166.720 or of an
offense listed in ORS 137.700.
SECTION 11. ORS 124.085 is amended to read:
124.085. A proper record of complaints made under ORS 124.060
and 124.065 shall be maintained by the Department of Human
Services. The department shall prepare reports in writing when
investigation has shown that the condition of the elderly person
was the result of abuse even if the cause remains unknown. The
complaints and investigative reports shall be cataloged under the
name of the victim but shall be treated as confidential
information { + subject to ORS 124.090 + }, and shall be
disclosed only with the consent of that person or by judicial
process.
SECTION 12. ORS 124.090 is amended to read:
124.090. { + (1) + } Notwithstanding the provisions of ORS
192.410 to 192.505, the names of the public or private official
{ + or any other person + } who made the complaint, { + the + }
witnesses and the elderly persons { + , and the reports and
records + } compiled under the provisions of ORS 124.050 to
124.095 { + , + } are confidential and are not accessible for
public inspection. { - However, the Department of Human
Services shall make the information and any investigative report
available to - }
{ + (2) Notwithstanding subsection (1) of this section, the
Department of Human Services or the department's designee may, if
appropriate, make the names of the witnesses and the elderly
persons, and the reports and records compiled under ORS 124.050
to 124.095, available to:
(a) + } { - Any - } { + A + } law enforcement agency { - ,
to - } { + ; + } { +
(b) + } { - Any - } { + A + } public agency that licenses
or certifies residential facilities or licenses or certifies the
persons practicing { - therein, to - } { + in the facilities;
(c) + } { - Any - } { + A + } public agency { + or private
nonprofit agency or organization + } providing protective
services for the elderly person
{ - and to - } { + ;
(d) + } The Long Term Care Ombudsman { - , if appropriate. The
department shall also make the information and any investigative
report available to any private nonprofit agency providing
protective services for the elderly person. When this information
and any investigative report is made available to the private
agency, ORS 124.050 to 124.095 relating to confidentiality apply
to the private agency. - } { + ;
(e) A public agency that licenses or certifies a person that
has abused or is alleged to have abused an elderly person;
Enrolled House Bill 4084 (HB 4084-B) Page 11
(f) A court pursuant to a court order or as provided in ORS
125.012; and
(g) An administrative law judge in an administrative proceeding
when necessary to provide protective services as defined in ORS
410.040 to an elderly person, when in the best interests of the
elderly person or when necessary to investigate, prevent or treat
abuse of an elderly person.
(3) Information made available under subsection (2) of this
section, and the recipient of the information, are otherwise
subject to the confidentiality provisions of ORS 124.050 to
124.095. + }
SECTION 13. ORS 441.671 is amended to read:
441.671. (1) Notwithstanding the provisions of ORS 192.410 to
192.505, the names of complainants { + , witnesses + }and
residents { + , and the reports and records + } compiled under
the provisions of ORS
{ - 441.640 to 441.660 - } { + 441.630 to 441.680 + } { +
, + } are confidential and are not accessible for public
inspection. { - However, the Department of Human Services shall
make the information available to any - }
{ + (2) Notwithstanding subsection (1) of this section, the
Department of Human Services or the department's designee may, if
appropriate, make the names of witnesses and residents, and the
reports and records compiled under ORS 441.630 to 441.680,
available to:
(a) A + } law enforcement agency { - , to any - } { + ;
(b) A + } public agency { - which - } { + that + } licenses
or certifies long term care facilities { - or - } { + ;
(c) A public agency that + } licenses or certifies the persons
practicing the healing arts { - therein and to - } { + in
long term care facilities;
(d) + } The Long Term Care Ombudsman { - . - } { + ;
(e) A public agency that licenses or certifies a person that
has abused or is alleged to have abused a resident;
(f) A court pursuant to a court order or as provided in ORS
125.012; and
(g) An administrative law judge in an administrative proceeding
when necessary to provide protective services as defined in ORS
410.040 to a resident, when in the best interests of the resident
or when necessary to investigate, prevent or treat abuse of a
resident. + }
{ - (2) Except as provided in subsection (1) of this section,
the provisions of ORS 192.410 to 192.505 apply to all records and
reports compiled under ORS 441.640 to 441.665. - }
{ + (3) Information made available under subsection (2) of
this section, and the recipient of the information, are otherwise
subject to the confidentiality provisions of ORS 441.630 to
441.680. + }
SECTION 14. { + (1) The Resident Safety Review Council is
created, consisting of six members as follows:
(a) The Long Term Care Ombudsman;
(b) A representative of the Oregon Patient Safety Commission
established in ORS 442.820, to be appointed by the commission and
to serve as the chairperson of the council;
(c) A person with expertise in the area of geriatrics who is
licensed, registered or certified to provide care or services to
a person 65 years of age or older, to be appointed by the
President of the Senate;
Enrolled House Bill 4084 (HB 4084-B) Page 12
(d) A representative of the Oregon District Attorneys
Association, to be appointed by the Speaker of the House of
Representatives;
(e) A representative of a Medicare quality improvement
organization in Oregon, to be appointed by the Speaker of the
House of Representatives; and
(f) A representative of the Department of Human Services, to be
appointed by the Governor.
(2) All appointments to the council under subsection (1) of
this section must be completed on or before the date that is 30
days after the adjournment sine die of the 2012 regular session
of the Seventy-sixth Legislative Assembly.
(3) Members of the council shall receive no compensation for
their services but shall be allowed actual and necessary travel
expenses incurred in the performance of their duties.
(4) The council shall:
(a) Hold the first meeting of the council no later than May 30,
2012;
(b) Review information and reports from investigations of abuse
undertaken pursuant to ORS 124.070 or 441.650 that are provided
under section 15 of this 2012 Act;
(c) Perform a root cause analysis of the information received
under paragraph (b) of this subsection to determine whether the
occurrences of abuse or alleged abuse should be classified as
acts of abuse or as adverse events; and
(d) Prepare a report on the review and findings of the council,
together with recommendations for improvement to the processes of
investigation and for corrective actions with respect to
occurrences of abuse.
(5) The council shall submit the report prepared under
subsection (4)(d) of this section, and may include
recommendations for legislation, to the committees of the
Legislative Assembly related to the care, protection and
provision of services to elderly persons over 65 years of age and
residents of long term care facilities no later than February 15,
2013.
(6) The Oregon Patient Safety Commission shall provide staff
support to the council. + }
SECTION 15. { + (1) The Department of Human Services shall
provide information and reports from investigations of abuse
undertaken pursuant to ORS 124.070 or 441.650 to the Resident
Safety Review Council created under section 14 of this 2012 Act
no later than May 1, 2012.
(2) Information and reports provided under subsection (1) of
this section may not contain or reveal the name of or other
identifiable information regarding an alleged victim, a resident
or any other person identified in the information or reports. + }
SECTION 16. { + Sections 14 and 15 of this 2012 Act are
repealed on June 30, 2013. + }
SECTION 17. ORS 443.004 is amended to read:
443.004. (1) The Department of Human Services or the Oregon
Health Authority shall complete a criminal records check under
ORS 181.534 on:
(a) An employee of a residential facility or an adult foster
home;
(b) Any individual who is paid directly or indirectly with
public funds who has or will have contact with a recipient of
support services or a resident of an adult foster home or a
residential facility; and
Enrolled House Bill 4084 (HB 4084-B) Page 13
(c) A home care worker registering with the Home Care
Commission or renewing a registration with the Home Care
Commission.
(2)(a) A home health agency shall conduct a criminal background
check before hiring or contracting with an individual and before
allowing an individual to volunteer to provide services on behalf
of the home health agency, if the individual will have direct
contact with a patient of the home health agency.
(b) An in-home care agency shall conduct a criminal background
check before hiring or contracting with an individual and before
allowing an individual to volunteer to provide services on behalf
of the in-home care agency, if the individual will have direct
contact with a client of the in-home care agency.
(c) The authority shall prescribe by rule the process for
conducting a criminal background check.
(3) Public funds may not be used to support, in whole or in
part, the employment in any capacity having contact with a
recipient of support services or a resident of a residential
facility or an adult foster home, of an individual, other than a
mental health or substance abuse treatment provider, who has been
convicted:
(a) Of a crime described in ORS 163.095, 163.115, 163.118,
163.125, 163.145, 163.149, 163.165, 163.175, 163.185, 163.187,
163.200, 163.205, 163.225, 163.235, 163.263, 163.264, 163.266,
163.275, 163.465, 163.467, 163.535, 163.537, { + 163.547, + }
163.689, 163.700, 164.055, 164.057, 164.098, 164.125 (5)(c) or
(d), 164.215, 164.225, 164.325, 164.377 (2) or (3), 164.405,
164.415, { + 165.013, + } 165.022, 165.032, 165.800, 165.803,
167.012, 167.017
{ - or - } { + , + } 167.057 { + , 167.320 or 167.322 + };
{ + (b) Notwithstanding paragraph (a) of this subsection, of
a crime described in ORS 163.465, 163.467, 163.700, 164.055,
164.125 or 164.377, the date of conviction for which was within
the five years immediately preceding employment in any capacity
of an individual, other than a mental health or substance abuse
treatment provider, having contact with a recipient of support
services, a resident of a residential facility or a resident of
an adult foster home, when the recipient or resident is 65 years
of age or older; + }
{ - (b) - } { + (c) + } Of a crime listed in ORS 181.594;
{ - (c) - } { + (d) + } In the last 10 years, of a crime
involving the delivery or manufacture of a controlled substance;
{ - (d) - } { + (e) + } Of an attempt, conspiracy or
solicitation to commit a crime described in paragraphs (a) to
{ - (c) - } { + (d) + } of this subsection; or
{ - (e) - } { + (f) + } Of a crime in another jurisdiction
that is substantially equivalent, as defined by rule, to a crime
described in paragraphs (a) to { - (d) - } { + (e) + } of
this subsection.
(4) If the criminal background check conducted by a home health
agency or in-home care agency under subsection (2) of this
section reveals that the individual who is subject to the
criminal background check has been convicted of any of the crimes
described in subsection (3) of this section, the home health
agency or in-home care agency may not employ the individual.
(5) Public funds may not be used to support, in whole or in
part, the employment, in any capacity having contact with a
recipient of support services or a resident of a residential
facility or an adult foster home, of a mental health or substance
abuse treatment provider who has been convicted of committing, or
Enrolled House Bill 4084 (HB 4084-B) Page 14
convicted of an attempt, conspiracy or solicitation to commit, a
crime described in ORS 163.095, 163.115, 163.375, 163.405,
163.411 or 163.427.
(6) Upon the request of a mental health or substance abuse
treatment provider, the department or authority shall maintain a
record of the results of any fitness determination made under ORS
181.534 (11) and (12). The department or authority may disclose
the record only to a person the provider specifically authorizes,
by a written release, to receive the information.
(7) If the department or authority has a record of
substantiated abuse committed by an employee or potential
employee of a home health agency, in-home care agency, adult
foster home or residential facility, regardless of whether
criminal charges were filed, the department or authority shall
notify, in writing, the employer and the employee or potential
employee.
(8) As used in this section:
(a) 'Adult foster home' has the meaning given that term in ORS
443.705.
(b) 'Home care worker' has the meaning given that term in ORS
410.600.
(c) 'Home health agency' has the meaning given that term in ORS
443.005.
(d) 'In-home care agency' has the meaning given that term in
ORS 443.305.
(e) 'Mental health or substance abuse treatment provider '
means:
(A) A peer support specialist;
(B) An employee of a residential treatment facility or a
residential treatment home that is licensed under ORS 443.415 to
provide treatment for individuals with alcohol or drug
dependence;
(C) An individual who provides treatment or services for
persons with substance use disorders; or
(D) An individual who provides mental health treatment or
services.
(f) 'Peer support specialist' means a person who:
(A) Is providing peer support services as defined by the
authority by rule;
(B) Is under the supervision of a qualified clinical
supervisor;
(C) Has completed training required by the authority; and
(D) Is currently receiving or has formerly received mental
health services, or is in recovery from a substance use disorder
and meets the abstinence requirements for staff providing
services in alcohol or other drug treatment programs.
(g) 'Residential facility' has the meaning given that term in
ORS 443.400.
SECTION 18. ORS 181.534 is amended to read:
181.534. (1) As used in this section:
(a) 'Authorized agency' means state government as defined in
ORS 174.111 and the Oregon State Bar. 'Authorized agency ' does
not include:
(A) The Oregon State Lottery Commission or the Oregon State
Lottery; or
(B) A criminal justice agency, as defined in ORS 181.010, that
is authorized by federal law to receive fingerprint-based
criminal records checks from the Federal Bureau of Investigation.
(b) 'Subject individual' means a person from whom an authorized
agency may require fingerprints pursuant to statute for the
Enrolled House Bill 4084 (HB 4084-B) Page 15
purpose of enabling the authorized agency to request a state or
nationwide criminal records check.
(2) An authorized agency may request that the Department of
State Police conduct a criminal records check on a subject
individual for non-criminal justice purposes. If a nationwide
criminal records check of a subject individual is necessary, the
authorized agency may request that the Department of State Police
conduct the check, including fingerprint identification, through
the Federal Bureau of Investigation.
(3) The Department of State Police shall provide the results of
a criminal records check conducted pursuant to subsection (2) of
this section to the authorized agency requesting the check.
(4) The Federal Bureau of Investigation shall return or destroy
the fingerprint cards used to conduct the criminal records check
and may not keep any record of the fingerprints. If the federal
bureau policy authorizing return or destruction of the
fingerprint cards is changed, the Department of State Police
shall cease to send the cards to the federal bureau but shall
continue to process the information through other available
resources.
(5) If the Federal Bureau of Investigation returns the
fingerprint cards to the Department of State Police, the
department shall destroy the fingerprint cards and shall retain
no facsimiles or other material from which a fingerprint can be
reproduced.
(6) If only a state criminal records check is conducted, the
Department of State Police shall destroy the fingerprint cards
after the criminal records check is completed and the results of
the criminal records check provided to the authorized agency and
shall retain no facsimiles or other material from which a
fingerprint can be reproduced.
(7) An authorized agency may conduct criminal records checks on
subject individuals through the Law Enforcement Data System
maintained by the Department of State Police in accordance with
rules adopted, and procedures established, by the Department of
State Police.
(8) An authorized agency and the Department of State Police
shall permit a subject individual for whom a fingerprint-based
criminal records check was conducted to inspect the individual's
own state and national criminal offender records and, if
requested by the subject individual, provide the individual with
a copy of the individual's own state and national criminal
offender records.
(9) Each authorized agency, in consultation with the Department
of State Police, shall adopt rules to implement this section and
other statutes relating to criminal offender information obtained
through fingerprint-based criminal records checks. The rules
shall include but need not be limited to:
(a) Specifying categories of subject individuals who are
subject to criminal records checks.
(b) Specifying the information that may be required from a
subject individual to permit a criminal records check.
(c) Specifying which programs or services are subject to this
section.
(d) Specifying the types of crimes that may be considered in
reviewing criminal offender information of a subject individual.
(e) Specifying when a nationwide fingerprint-based criminal
records check must be conducted. An authorized agency shall
consider the additional cost of obtaining a nationwide
Enrolled House Bill 4084 (HB 4084-B) Page 16
fingerprint-based criminal records check when adopting rules
under this subsection.
(f) If the authorized agency uses criminal records checks for
agency employment purposes:
(A) Determining when and under what conditions a subject
individual may be hired on a preliminary basis pending a criminal
records check; and
(B) Defining the conditions under which a subject individual
may participate in training, orientation and work activities
pending completion of a criminal records check.
(g) Establishing fees in an amount not to exceed the actual
cost of acquiring and furnishing criminal offender information.
(10) The Department of State Police shall verify that an
authorized agency has adopted the rules required by subsection
(9) of this section.
(11) { + (a) + }Except as otherwise provided in ORS
181.612 { + and paragraph (b) of this subsection + }, an
authorized agency, using the rules adopted under subsection (9)
of this section, shall determine whether a subject individual is
fit to hold a position, provide services, be employed or be
granted a license, certification, registration or permit, based
on the criminal records check obtained pursuant to this section,
on any false statements made by the individual regarding the
criminal history of the individual and on any refusal to submit
or consent to a criminal records check including fingerprint
identification. If a subject individual is determined to be
unfit, then the individual may not hold the position, provide
services, be employed or be granted a license, certification,
registration or permit.
{ + (b) An individual prohibited from receiving public funds
for employment under ORS 443.004 (3) is not entitled to a
determination of fitness as a subject individual under paragraph
(a) of this subsection. + }
(12) Except as otherwise provided in ORS 181.612, in making the
fitness determination under subsection (11) of this section, the
authorized agency shall consider:
(a) The nature of the crime;
(b) The facts that support the conviction or pending indictment
or that indicate the making of the false statement;
(c) The relevancy, if any, of the crime or the false statement
to the specific requirements of the subject individual's present
or proposed position, services, employment, license,
certification or registration; and
(d) Intervening circumstances relevant to the responsibilities
and circumstances of the position, services, employment, license,
certification, registration or permit. Intervening circumstances
include but are not limited to:
(A) The passage of time since the commission of the crime;
(B) The age of the subject individual at the time of the crime;
(C) The likelihood of a repetition of offenses or of the
commission of another crime;
(D) The subsequent commission of another relevant crime;
(E) Whether the conviction was set aside and the legal effect
of setting aside the conviction; and
(F) A recommendation of an employer.
(13) An authorized agency and an employee of an authorized
agency acting within the course and scope of employment are
immune from any civil liability that might otherwise be incurred
or imposed for determining, pursuant to subsection (11) of this
section, that a subject individual is fit or not fit to hold a
Enrolled House Bill 4084 (HB 4084-B) Page 17
position, provide services, be employed or be granted a license,
certification, registration or permit. An authorized agency and
an employee of an authorized agency acting within the course and
scope of employment who in good faith comply with this section
are not liable for employment-related decisions based on
determinations made under subsection (11) of this section. An
authorized agency or an employee of an authorized agency acting
within the course and scope of employment is not liable for
defamation or invasion of privacy in connection with the lawful
dissemination of information lawfully obtained under this
section.
(14)(a) Each authorized agency shall establish by rule a
contested case process by which a subject individual may appeal
the determination that the individual is fit or not fit to hold a
position, provide services, be employed or be granted a license,
certification, registration or permit on the basis of information
obtained as the result of a criminal records check conducted
pursuant to this section. Challenges to the accuracy or
completeness of information provided by the Department of State
Police, the Federal Bureau of Investigation and agencies
reporting information to the Department of State Police or
Federal Bureau of Investigation must be made through the
Department of State Police, Federal Bureau of Investigation or
reporting agency and not through the contested case process
required by this paragraph.
(b) A subject individual who is employed by an authorized
agency and who is determined not to be fit for a position on the
basis of information obtained as the result of a criminal records
check conducted pursuant to this section may appeal the
determination through the contested case process adopted under
this subsection or applicable personnel rules, policies and
collective bargaining provisions. An individual's decision to
appeal a determination through personnel rules, policies and
collective bargaining provisions is an election of remedies as to
the rights of the individual with respect to the fitness
determination and is a waiver of the contested case process.
{ + (c) An individual prohibited from receiving public funds
for employment under ORS 443.004 (3) is not entitled to appeal a
determination under paragraph (a) or (b) of this subsection. + }
(15) Criminal offender information is confidential. Authorized
agencies and the Department of State Police shall adopt rules to
restrict dissemination of information received under this section
to persons with a demonstrated and legitimate need to know the
information.
(16) If a subject individual refuses to consent to the criminal
records check or refuses to be fingerprinted, the authorized
agency shall deny the employment of the individual, or revoke or
deny any applicable position, authority to provide services,
license, certification, registration or permit.
(17) If an authorized agency requires a criminal records check
of employees, prospective employees, contractors, vendors or
volunteers or applicants for a license, certification,
registration or permit, the application forms of the authorized
agency must contain a notice that the person is subject to
fingerprinting and a criminal records check.
SECTION 19. ORS 181.537 is amended to read:
181.537. (1) As used in this section:
(a) 'Care' means the provision of care, treatment, education,
training, instruction, supervision, placement services,
Enrolled House Bill 4084 (HB 4084-B) Page 18
recreation or support to children, the elderly or persons with
disabilities.
(b) 'Qualified entity' means a community mental health program,
a community developmental disabilities program, a local health
department or an individual or business or organization, whether
public, private, for-profit, nonprofit or voluntary, that
provides care, including a business or organization that
licenses, certifies or registers others to provide care.
(2) For the purpose of requesting a state or nationwide
criminal records check under ORS 181.534, the Department of Human
Services, the Oregon Health Authority and the Employment
Department may require the fingerprints of a person:
(a) Who is employed by or is applying for employment with
either department or the authority;
(b) Who provides or seeks to provide services to either
department or the authority as a contractor, subcontractor,
vendor or volunteer who:
(A) May have contact with recipients of care;
(B) Has access to personal information about employees of
either department or the authority, recipients of care from
either department or the authority or members of the public,
including Social Security numbers, dates of birth, driver license
numbers, medical information, personal financial information or
criminal background information;
(C) Has access to information the disclosure of which is
prohibited by state or federal laws, rules or regulations, or
information that is defined as confidential under state or
federal laws, rules or regulations;
(D) Has access to property held in trust or to private property
in the temporary custody of the state;
(E) Has payroll or fiscal functions or responsibility for:
(i) Receiving, receipting or depositing money or negotiable
instruments;
(ii) Billing, collections, setting up financial accounts or
other financial transactions; or
(iii) Purchasing or selling property;
(F) Provides security, design or construction services for
government buildings, grounds or facilities;
(G) Has access to critical infrastructure or secure facilities
information; or
(H) Is providing information technology services and has
control over or access to information technology systems;
(c) For the purposes of licensing, certifying, registering or
otherwise regulating or administering programs, persons or
qualified entities that provide care;
(d) For the purposes of employment decisions by or for
qualified entities that are regulated or otherwise subject to
oversight by the Department of Human Services or the Oregon
Health Authority and that provide care; or
(e) For the purposes of employment decisions made by a mass
transit district or transportation district for qualified
entities that, under contracts with the district or the Oregon
Health Authority, employ persons to operate motor vehicles for
the transportation of medical assistance program clients.
(3) The Department of Human Services and the Oregon Health
Authority may conduct criminal records checks on a person through
the Law Enforcement Data System maintained by the Department of
State Police, if deemed necessary by the Department of Human
Services or the Oregon Health Authority to protect children,
Enrolled House Bill 4084 (HB 4084-B) Page 19
elderly persons, persons with disabilities or other vulnerable
persons.
(4) The Department of Human Services and the Oregon Health
Authority may furnish to qualified entities, in accordance with
the rules of the Department of Human Services or the Oregon
Health Authority and the rules of the Department of State Police,
information received from the Law Enforcement Data System.
However, any criminal offender records and information furnished
to the Department of Human Services or the Oregon Health
Authority by the Federal Bureau of Investigation through the
Department of State Police may not be disseminated to qualified
entities.
(5) { + (a) + } A qualified entity, using rules adopted by the
Department of Human Services or the Oregon Health Authority,
shall determine under this section whether a person is fit to
hold a position, provide services, be employed or, if the
qualified entity has authority to make such a determination, be
licensed, certified or registered, based on the criminal records
check obtained pursuant to ORS 181.534, any false statements made
by the person regarding the criminal history of the person and
any refusal to submit or consent to a criminal records check
including fingerprint identification. If a person is determined
to be unfit, then that person may not hold the position, provide
services or be employed, licensed, certified or registered.
{ + (b) A person prohibited from receiving public funds for
employment under ORS 443.004 (3) is not entitled to a
determination of fitness under paragraph (a) of this
subsection. + }
(6) In making the fitness determination under subsection (5) of
this section, the qualified entity shall consider:
(a) The nature of the crime;
(b) The facts that support the conviction or pending indictment
or indicate the making of the false statement;
(c) The relevancy, if any, of the crime or the false statement
to the specific requirements of the person's present or proposed
position, services, employment, license, certification or
registration; and
(d) Intervening circumstances relevant to the responsibilities
and circumstances of the position, services, employment, license,
certification or registration. Intervening circumstances include
but are not limited to the passage of time since the commission
of the crime, the age of the person at the time of the crime, the
likelihood of a repetition of offenses, the subsequent commission
of another relevant crime and a recommendation of an employer.
(7) The Department of Human Services, the Oregon Health
Authority and the Employment Department may make fitness
determinations based on criminal offender records and information
furnished by the Federal Bureau of Investigation through the
Department of State Police only as provided in ORS 181.534.
(8) A qualified entity and an employee of a qualified entity
acting within the course and scope of employment are immune from
any civil liability that might otherwise be incurred or imposed
for determining pursuant to subsection (5) of this section that a
person is fit or not fit to hold a position, provide services or
be employed, licensed, certified or registered. A qualified
entity, employee of a qualified entity acting within the course
and scope of employment and an employer or employer's agent who
in good faith comply with this section and the decision of the
qualified entity or employee of the qualified entity acting
within the course and scope of employment are not liable for the
Enrolled House Bill 4084 (HB 4084-B) Page 20
failure to hire a prospective employee or the decision to
discharge an employee on the basis of the qualified entity's
decision. An employee of the state acting within the course and
scope of employment is not liable for defamation or invasion of
privacy in connection with the lawful dissemination of
information lawfully obtained under this section.
(9) The Department of Human Services and the Oregon Health
Authority shall develop systems that maintain information
regarding criminal records checks in order to minimize the
administrative burden imposed by this section and ORS 181.534.
Records maintained under this subsection are confidential and may
not be disseminated except for the purposes of this section and
in accordance with the rules of the Department of Human Services,
the Oregon Health Authority and the Department of State Police.
Nothing in this subsection permits the Department of Human
Services to retain fingerprint cards obtained pursuant to this
section.
(10) In addition to the rules required by ORS 181.534, the
Department of Human Services and the Oregon Health Authority, in
consultation with the Department of State Police, shall adopt
rules:
(a) Specifying which qualified entities are subject to this
section;
(b) Specifying which qualified entities may request criminal
offender information;
(c) Specifying which qualified entities are responsible for
deciding whether a subject individual is not fit for a position,
service, license, certification, registration or employment; and
(d) Specifying when a qualified entity, in lieu of conducting a
completely new criminal records check, may proceed to make a
fitness determination under subsection (5) of this section using
the information maintained by the Department of Human Services
and the Oregon Health Authority pursuant to subsection (9) of
this section.
(11) If a person refuses to consent to the criminal records
check or refuses to be fingerprinted, the qualified entity shall
deny or terminate the employment of the person, or revoke or deny
any applicable position, authority to provide services,
employment, license, certification or registration.
(12) If the qualified entity requires a criminal records check
of employees or other persons, the application forms of the
qualified entity must contain a notice that employment is subject
to fingerprinting and a criminal records check.
SECTION 20. { + No later than October 1, 2012, the Department
of Human Services shall make a report, and may include
recommendations for legislation, to the interim committees of the
Legislative Assembly related to reporting of abuse of vulnerable
persons regarding implementation of a statewide call system and
2-1-1 system integration to provide a means of making the report
required by ORS 124.060. + }
SECTION 21. { + (1) The Department of Human Services shall:
(a) Using new or existing materials, develop and implement a
training and continuing education curriculum for persons other
than law enforcement officers required by law to investigate
allegations of abuse under ORS 124.070 or 441.650. The curriculum
shall address the areas of training and education necessary to
facilitate the skills required to investigate reports of abuse,
including, but not limited to, risk assessment, investigatory
technique, evidence gathering and report writing.
Enrolled House Bill 4084 (HB 4084-B) Page 21
(b) Using new or existing materials, develop and implement
training for persons that provide care to vulnerable persons to
facilitate awareness of the dynamics of abuse, abuse prevention
strategies and early detection of abuse.
(2) For purposes of this section, 'vulnerable person' means a
person 65 years of age or older. + }
SECTION 22. { + No later than October 1, 2012, the Department
of Human Services shall make a report, and may include
recommendations for legislation, to the interim committees of the
Legislative Assembly related to reporting of abuse of persons 65
years of age or older regarding development and implementation of
the training and continuing education curriculum required by
section 21 of this 2012 Act. + }
SECTION 23. { + (1) It is the intent of the Legislative
Assembly to recreate the Oregon Elder Abuse Work Group, first
established on June 21, 2011, by section 1, chapter 444, Oregon
Laws 2011, and repealed on February 29, 2012, so that the work
group may complete its work as set forth in section 1, chapter
444, Oregon Laws 2011.
(2) The Oregon Elder Abuse Work Group shall consist of 17
members appointed as follows:
(a) The President of the Senate shall appoint two members from
among members of the Senate who shall cease being members of the
work group upon ceasing to be members of the Legislative
Assembly.
(b) The Speaker of the House of Representatives shall appoint
two members from among members of the House of Representatives
who shall cease being members of the work group upon ceasing to
be members of the Legislative Assembly.
(c) The Governor shall appoint 10 members as follows:
(A) The Long Term Care Ombudsman appointed under ORS 441.103;
(B) Three members representing long term care providers for
elderly persons;
(C) Two members representing law enforcement agencies, one of
whom shall be a representative from the Oregon District Attorneys
Association and one of whom shall be a representative from a
local law enforcement agency with expertise in investigating
elder abuse;
(D) Two members representing consumers who are elderly persons;
(E) An officer of a bank, as defined in ORS 706.008; and
(F) An officer of a credit union, as defined in ORS 723.008.
(d) The chairperson of the Governor's Commission on Senior
Services created under ORS 410.320 shall appoint one member.
(e) The Director of Human Services shall appoint two members as
follows:
(A) One member with expertise in elder abuse services and
investigations; and
(B) One member representing the office or department within the
Department of Human Services that performs criminal background
checks of individuals providing services to elderly persons or
conducting elder abuse investigations.
(3) The work group shall have its first meeting on or before
the later of 30 days after adjournment sine die of the 2012
regular session of the Seventy-sixth Legislative Assembly or
September 30, 2012.
(4) The work group shall study and make recommendations on:
(a) The definition of 'elder abuse. '
(b) The criminal background check system and its role in
prevention and investigation of elder abuse.
Enrolled House Bill 4084 (HB 4084-B) Page 22
(c) The process involved in conducting elder abuse
investigations.
(d) Elder abuse data reporting systems.
(e) Reports to the Legislative Assembly.
(f) Information that could be made available to the public
regarding elder abuse and investigations of elder abuse.
(5) The work group shall prepare a detailed assessment of the
costs to implement the work group's recommendations. The
assessment must address both current and future needs in
providing elder abuse prevention and investigation services. Each
agency or organization with a member on the work group shall
cooperate with the work group in assessing and identifying the
costs of complying with the work group's recommendations.
(6) A majority of the members of the work group constitutes a
quorum for the transaction of business.
(7) Official action by the work group requires the approval of
a majority of the members of the work group.
(8) The work group shall elect one of its members to serve as
chairperson.
(9) If there is a vacancy for any cause, the appointing
authority shall make an appointment to become immediately
effective.
(10) The work group shall meet at times and places specified by
the call of the chairperson or of a majority of the members of
the work group.
(11) The work group may adopt rules necessary for the operation
of the work group.
(12) The work group shall make a report, and may include
recommendations for legislation, to interim committees of the
Legislative Assembly related to the provision of services to
elderly persons and investigation of elder abuse no later than
January 15, 2013.
(13) The work group may accept donations of staff support,
office space and equipment from advocacy or service provider
organizations to assist the work group in the performance of its
functions.
(14) Notwithstanding ORS 171.072, members of the work group who
are members of the Legislative Assembly are not entitled to
mileage expenses or a per diem and serve as volunteers on the
work group. Other members of the work group are not entitled to
compensation or reimbursement for expenses and serve as
volunteers on the work group.
(15) All agencies of state government as defined in ORS 174.111
are directed to assist the work group in the performance of its
duties and, to the extent permitted by laws relating to
confidentiality, to furnish such information and advice as the
members of the work group consider necessary to perform their
duties. + }
SECTION 24. { + Section 23 of this 2012 Act is repealed on
June 30, 2013. + }
SECTION 25. { + Sections 6, 8 and 10 of this 2012 Act are
repealed. + }
SECTION 26. ORS 192.586, as amended by section 10a of this 2012
Act, is amended to read:
192.586. (1) Except as provided in ORS 192.588, 192.591,
192.593, 192.596, 192.598 and 192.603 { - and section 10 of
this 2012 Act - } or as required by ORS 25.643 and 25.646 and
the Uniform Disposition of Unclaimed Property Act, ORS 98.302 to
98.436 and 98.992:
Enrolled House Bill 4084 (HB 4084-B) Page 23
(a) A financial institution may not provide financial records
of a customer to a state or local agency.
(b) A state or local agency may not request or receive from a
financial institution financial records of customers.
(2) Subsection (1) of this section does not preclude a
financial institution, in the discretion of the financial
institution, from initiating contact with, and thereafter
communicating with and disclosing customer financial records to:
(a) Appropriate state or local agencies concerning a suspected
violation of the law.
(b) The office of the State Treasurer if the records relate to
state investments in commercial mortgages involving the customer.
The records and the information contained therein are public
records but are exempt from disclosure under ORS 192.410 to
192.505 unless the public interest in disclosure clearly
outweighs the public interest in confidentiality. However, the
following records in the office must remain open to public
inspection:
(A) The contract or promissory note establishing a directly
held residential or commercial mortgage and information
identifying collateral;
(B) Any copy the office retains of the underlying mortgage note
in which the office purchases a participation interest; and
(C) Information showing that a directly held loan is in
default.
(c) An appropriate state or local agency in connection with any
business relationship or transaction between the financial
institution and the customer, if the disclosure is made in the
ordinary course of business of the financial institution and will
further the legitimate business interests of the customer or the
financial institution.
(3) ORS 192.583 to 192.607 do not prohibit any of the
following:
(a) The dissemination of any financial information that is not
identified with, or identifiable as being derived from, the
financial records of a particular customer.
(b) The examination by, or disclosure to, the Department of
Consumer and Business Services of financial records that relate
solely to the exercise of the department's supervisory function.
The scope of the department's supervisory function shall be
determined by reference to statutes that grant authority to
examine, audit, or require reports of financial records or
financial institutions.
(c) The furnishing to the Department of Revenue of information
by the financial institution, whether acting as principal or
agent, as required by ORS 314.360.
(d) Compliance with the provisions of ORS 708A.655 or 723.844.
(4) Notwithstanding subsection (1) of this section, a financial
institution may:
(a) Enter into an agreement with the Oregon State Bar that
requires the financial institution to make reports to the Oregon
State Bar whenever a properly payable instrument is presented for
payment out of an attorney trust account that contains
insufficient funds, whether or not the instrument is honored by
the financial institution; and
(b) Submit reports to the Oregon State Bar concerning
instruments presented for payment out of an attorney trust
account under a trust account overdraft notification program
established under ORS 9.685.
Enrolled House Bill 4084 (HB 4084-B) Page 24
SECTION 27. ORS 192.600, as amended by section 10b of this 2012
Act, is amended to read:
192.600. (1) Nothing in ORS 192.583 to 192.607 shall require a
financial institution to inquire or determine that those seeking
disclosure have duly complied with the requirements set forth in
ORS 192.583 to 192.607, provided only that the customer
authorization, summons, subpoena or search warrant served upon or
delivered to a financial institution pursuant to ORS 192.593,
192.596 or 192.598 { - or section 10 of this 2012 Act - } { +
+ }shows compliance on its face.
(2) A financial institution which in good faith reliance
refuses to disclose financial records of a customer upon the
prohibitions of ORS 192.583 to 192.607, shall not be liable to
its customer, to a state or local agency, or to any person for
any loss or damage caused in whole or in part by such refusal.
(3) Financial institutions shall not be required to notify
their customers concerning the receipt by them of requests from
state or local agencies for disclosures of financial records of
such customers. However, except as otherwise provided in ORS
192.583 to 192.607, nothing in ORS 192.583 to 192.607 shall
preclude financial institutions from giving such notice to
customers. A court may order a financial institution to withhold
notification to a customer of the receipt of a summons, subpoena
or search warrant when the court finds that notice to the
customer would impede the investigation being conducted by the
state or local agency.
(4) Financial institutions that participate in a trust account
overdraft notification program established under ORS 9.685 are
not liable to a lawyer or law firm on the attorney trust account,
to a beneficiary of the trust account or to the Oregon State Bar
for loss or damage caused in whole or in part by that
participation or arising in any way out of that participation.
(5) A financial institution shall not be liable to any person
for any loss, damage or injury arising out of or in any way
pertaining to the release of information pursuant to ORS 192.586
(2)(a).
SECTION 28. ORS 192.602, as amended by section 10c of this 2012
Act, is amended to read:
192.602. (1) { - (a) - } A financial institution shall have a
reasonable period of time in which to comply with any proper
customer authorization, summons, subpoena or search warrant
permitting or seeking disclosure of financial records.
{ - Except as provided in paragraphs (b) and (c) of this
subsection, - } { + For the purposes of this section, + } a
'reasonable period of time' shall in no case be less than 10 days
from the date upon which the financial institution receives or is
served with a customer authorization, summons, subpoena or search
warrant.
{ - (b) - } { + However, in all cases in which + }
{ - When - } disclosure is sought under ORS 192.596, the
reasonable period of time shall be not less than 20 days.
{ - (c) When disclosure is sought under section 10 of this
2012 Act, the reasonable period of time shall be that period of
time required by the circumstances but in no case more than five
days from the date upon which the financial institution receives
or is served with a subpoena under section 10 of this 2012
Act. - }
(2) Before making disclosures, a financial institution may
require that the requesting state or local agency reimburse the
financial institution for the reasonable costs incurred by the
Enrolled House Bill 4084 (HB 4084-B) Page 25
financial institution in the course of compliance. These costs
include, but are not limited to, personnel costs, reproduction
costs and travel expenses. The following charges shall be
considered reasonable costs:
(a) Personnel costs, $30 per hour per person, computed on the
basis of $7.50 per quarter hour or fraction thereof, for time
expended by personnel of the financial institution in searching,
locating, retrieving, copying and transporting or conveying the
requested material to the place of examination.
(b) Reproduction costs, $1 per page, including copies produced
by reader and printer reproduction processes. Photographs, films
and other materials shall be reimbursed at actual costs.
(c) Travel expenses, 50 cents per mile, plus other actual
costs, necessary to transport personnel to locate and retrieve
the information required or requested and to convey the required
or requested material to the place of examination.
(3) The provisions of subsection (2) of this section do not
apply in the case of records subpoenaed by a prosecuting attorney
as evidence of the crimes of negotiating a bad check under ORS
165.065, forgery under ORS 165.007 and 165.013, theft by
deception by means of a bad check under ORS 164.085, fraudulent
use of a credit card under ORS 165.055, identity theft under ORS
165.800 or racketeering activity under ORS 166.720 or of an
offense listed in ORS 137.700.
SECTION 29. { + The repeal of sections 6, 8 and 10 of this
2012 Act by section 25 of this 2012 Act and the amendments to ORS
192.586, 192.600 and 192.602 by sections 26, 27 and 28 of this
2012 Act become operative on June 30, 2015. + }
SECTION 30. { + Notwithstanding any other law limiting
expenditures, the amount of $300,000 is established for the
biennium beginning July 1, 2011, as the maximum limit for payment
of expenses from fees, moneys or other revenues, including
Miscellaneous Receipts, but excluding lottery funds and federal
funds, collected or received by the Department of Human Services
for deposit into the Quality Care Fund established under ORS
443.001, for the purpose of providing technical support for data
acquisition and analysis and staff support and for other costs of
the Resident Safety Review Council created under section 14 of
this 2012 Act in the performance of the council's duties under
section 14 of this 2012 Act. + }
SECTION 31. { + The amendments to ORS 131.125 and 411.990 by
sections 2 and 3 of this 2012 Act apply to offenses committed
before, on or after the effective date of this 2012 Act, but do
not operate to revive a prosecution barred by the operation of
ORS 131.125 before the effective date of this 2012 Act. + }
SECTION 32. { + The amendments to ORS 137.225 by section 4 of
this 2012 Act apply to motions for entry of an order setting
aside a conviction made on or after the effective date of this
2012 Act that involve convictions that occurred before, on or
after the effective date of this 2012 Act. + }
SECTION 33. { + This 2012 Act being necessary for the
immediate preservation of the public peace, health and safety, an
emergency is declared to exist, and this 2012 Act takes effect on
its passage. + }
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Enrolled House Bill 4084 (HB 4084-B) Page 26
Passed by House February 28, 2012
.............................................................
Ramona Kenady Line, Chief Clerk of House
.............................................................
Bruce Hanna, Speaker of House
.............................................................
Arnie Roblan, Speaker of House
Passed by Senate March 1, 2012
.............................................................
Peter Courtney, President of Senate
Enrolled House Bill 4084 (HB 4084-B) Page 27
Received by Governor:
......M.,............., 2012
Approved:
......M.,............., 2012
.............................................................
John Kitzhaber, Governor
Filed in Office of Secretary of State:
......M.,............., 2012
.............................................................
Kate Brown, Secretary of State
Enrolled House Bill 4084 (HB 4084-B) Page 28
