2021 Legislation – Action Items
Carrie Connelly
From our Summer 2021 e-newsletter
Homelessness:
1. Pursuant to ORS 203.077, all cities and counties are required to enact policies recognizing the problem of homeless individuals camping on public property, and ensuring humane treatment in the event of removal from those sites. If your city does not yet have such a policy on the books, we can help you draft and adopt the requisite provisions. If you have previously enacted such policies, HB 3124 amended ORS 203.079 to increase the notice required prior to such removal, from 24 to 72 hours, and modified where unclaimed personal property must be stored. As these amendments went into effect upon passage, let us know if we can assist your city in adopting needed amendments as soon as possible.
2. HB 3115 requires municipalities to review their codes and ensure that “any city or county law that regulates the acts of sitting, lying, sleeping or keeping warm and dry outdoors on public property that is open to the public must be objectively reasonable as to time, place and manner with regards to persons experiencing homelessness,” in conformance with the Ninth Circuit’s decision in Martin v. City of Boise. HB 3115 has a delayed implementation date of July 1, 2023, providing some time for needed Code audits.
As HB 3115 applies expressly to “any city or county law,” by its own terms this new law does not impose any new obligations on special district entities. More importantly, it appears that the new law does not impact a special district entity’s ability to regulate access to its own property, particularly with regards to prohibiting trespassing.
Public meetings:
As of January 1, 2022, ORS 192.670 is amended by HB 2560 to require all meetings (excluding executive sessions) of the governing body of a public body to allow for virtual or electronic participation “to the extent reasonably possible.” Technical failures, disruptive participants and considerable added costs may render such participation “unreasonable.” Take steps now to allow virtual or electronic participation in your entity’s public meetings. Before electing that remote participation is unreasonable, be sure to evaluate your entity’s obligations under the Americans with Disabilities Act.
Mandatory Reporting:
HB 3071 amends ORS 124.050 to include all elected officials as mandatory reporters of child, elder and vulnerable adult abuse. This obligation is personal, and extends beyond events witnessed or learned of through official conduct. The push for this amendment stemmed from alleged sexual abuse and misconduct at a Salem church. Apparently, abuse was reported to the Church’s board of directors (whose members included law enforcement and elected officials) who did not report the allegations to appropriate law enforcement.
While reporting suspected abuse is not a difficult process, elected officials should know when and how to fulfill this new obligation. Scheduling a training prior to the bill’s effective date of January 1, 2022, may help them feel more comfortable in their new role.
Lift Charges:
Unless otherwise authorized by law, HB 2397 prohibits local governments from regulating long term and residential care facilities. This prohibition includes imposing fees exclusively on such facilities. EMS service providers regularly charge care facilities for calls to lift a fallen individual back into bed. Fortunately, both general and specific exceptions in HB 2397 allow EMS providers to continue charging such fees.
First off, the prohibition applies only to fees that apply “exclusively” to long term or residential care facilities, not those that are “generally applicable” to other business entities. Please double check that your entities’ fee schedules do not single out protected care facilities.
Beyond that, HB 2397 further clarifies that the prohibition does not apply to a “fine, fee, charge or sanction” against long term or residential care facilities that contact EMS providers to provide lift assist services to a fallen resident. This exemption, however, does include a qualifier; the facility must have “known, or reasonably should have known” that the fallen individual “does not require the services of an emergency medical services provider.”
As a result, care providers may argue that they are not medical professions, so cannot know which residents require EMS assistance after a fall. Only a court can clarify the parameters of this exemption. However, with the added protection for fees that do not apply only to such care facilities, chances are that such charges will not be successfully challenged.
While HB 2397 may not be as clear as the drafters hoped, EMS providers should be able to continue charging for lift services. Be sure that your fee schedule (and practices) do not charge a lift fee only to protected care facilities. Further, document carefully how and why a fallen individual clearly did not require EMS services. If in doubt, call our office on protected and prohibited charges.
