ORS 127.765
Health care advocate; appointment; powers; limitations; term; approval of certain decisions; protest; training; rules


(1)

As used in this section:

(a)

“Attending physician” has the meaning given that term in ORS 127.505 (Definitions for ORS 127.505 to 127.660).

(b)

“Developmental disability” has the meaning given that term in ORS 427.005 (Definitions).

(c)

“Emergency treatment” means a procedure or treatment that, if delayed, is likely to:

(A)

Place the health of the individual in serious jeopardy;

(B)

Result in serious impairment to bodily functions; or

(C)

Result in serious dysfunction of any bodily organ.

(d)

“Health care advocate” means a person who is authorized to make health care decisions on behalf of an individual if the individual does not have a guardian or a health care representative.

(e)

“Health care decision” has the meaning given that term in ORS 127.505 (Definitions for ORS 127.505 to 127.660).

(f)

“Health care representative” has the meaning given that term in ORS 127.505 (Definitions for ORS 127.505 to 127.660).

(g)

“Individual” means an individual with an intellectual or developmental disability who receives services pursuant to an individualized written service plan.

(h)

“Individualized written service plan” has the meaning given that term in ORS 427.101 (Definitions for ORS 427.115, 427.121, 427.154, 430.662 and 430.664).

(i)

“Individualized written service plan team” means a group consisting of:

(A)

The individual;

(B)

The individual’s legal or designated representative;

(C)

The individual’s case manager; and

(D)

Other individuals who may be chosen by the individual, such as care providers or family members.

(j)

“Significant medical procedure” means any medical procedure that requires a hospital admission or the administration of general anesthesia in an outpatient setting.

(k)

“Treating physician” means a physician who has primary responsibility for the care and treatment of an individual.

(2)

An individualized written service plan team may appoint a health care advocate for an individual whom a court or a treating physician has determined to be incapable of making health care decisions.

(3)

A health care advocate must be a capable adult who is willing to serve as a health care advocate and who is approved by at least two-thirds of the individualized written service plan team, including the individual, except that the following persons may not serve as a health care advocate:

(a)

The individual’s attending physician or an employee of the attending physician or any other person providing care to the individual.

(b)

A parent whose parental rights are terminated.

(c)

A guardian if the guardianship is terminated.

(4)

A health care advocate is authorized to access the health records of the individual and consult with the individual’s medical providers for the purpose of making health care decisions on behalf of the individual.

(5)

A health care advocate may not make health care decisions on behalf of an individual with respect to any of the following:

(a)

An action or procedure described in ORS 127.540 (Limitations on authority of health care representative) (1) to (4).

(b)

Withholding or withdrawing of a life-sustaining procedure.

(c)

Withholding or withdrawing artificially administered nutrition and hydration other than hyperalimentation.

(d)

Testing for HIV, unless testing is necessary for obtaining treatment or care for the individual.

(e)

A request for medication for the purpose of ending the individual’s life pursuant to ORS 127.805 (Who may initiate a written request for medication) or other form of assisted suicide.

(f)

Euthanasia.

(g)

An experimental procedure, unless the procedure has been approved by an institutional review board and is determined by the treating physician to be in the best interest of the individual.

(h)

An experimental drug that has not been approved for use by the United States Food and Drug Administration, unless the drug is part of an approved clinical trial and the individual’s treating physician has determined that it is in the best interest of the individual.

(i)

The use of seclusion or physical or chemical restraints unless an imminent risk of harm to the individual or others exists but only for as long as the imminent risk continues except in the case of an emergency.

(6)

A health care advocate is appointed for a one-year term and may be reappointed as provided in subsection (3) of this section. The individualized written service plan team may revoke the appointment of a health care advocate by a majority vote.

(7)

A health care advocate may not disclose the contents of, and must maintain the confidentiality of, the individual’s health information, as required by state and federal laws.

(8)

A health care decision by a health care advocate regarding a significant medical procedure or treatment must be approved by a majority of the individualized written service plan team at an in-person meeting of the team at which the team considers and documents its consideration of:

(a)

Alternatives to the procedure or treatment;

(b)

Risks and benefits of the procedure or treatment;

(c)

The anticipated impact of the procedure or treatment on the individual’s well-being;

(d)

Any preferences in favor of or against the procedure or treatment communicated by the individual verbally or nonverbally; and

(e)

Any additional information that is needed before making the decision.

(9)

The individual must participate in the meeting described in subsection (8) of this section unless the individual declines to participate or is unable to participate due to the individual’s medical condition.

(10)

An individualized written service plan team must inform an individual of the team’s decision to seek a health care advocate for the individual prior to the appointment of the advocate.

(11)

A health care advocate must inform an individual of all health care decisions made or considered by the advocate.

(12)

An individual has the right to protest any health care decision made by a health care advocate. If the individual protests a health care decision by a health care advocate:

(a)

The health care decision is revoked;

(b)

The health care advocate’s authority is withdrawn with respect to the health care decision that is revoked under paragraph (a) of this subsection; and

(c)

The individualized written service plan team or the health care advocate shall notify the provider whose recommendation is the subject of the health care decision that is revoked under paragraph (a) of this subsection.

(13)

The Department of Human Services shall ensure that appropriate training is made available to at least two members of the individual’s individualized written service plan team before a health care advocate may be appointed for the individual.

(14)

The department shall adopt rules necessary to carry out the provisions of this section. [2019 c.477 §1]
Note: The division headings, subdivision headings and leadlines for 127.800 (Definitions) to 127.890 (Liabilities), 127.895 (Severability) and 127.897 (Form of the request) were enacted as part of Ballot Measure 16 (1994) and were not provided by Legislative Counsel.

Source
Last accessed
May. 15, 2020