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Oregon Passes Pay-to-Stay Law

The 2001 Oregon Legislature unanimously passed Senate Bill (SB) 183, authorizing, but not requiring, the Oregon Department (ODOC) to assess prisoners for costs associated with their imprisonment, including "but . . . not limited to, such items as medical care, room, board, administrative costs and other costs not otherwise excluded by law."

SB 183 amends ORS 179.620(1) to provide that a "person and the personal estate of the person, or a decedent's estate, is liable for the full cost of care" and Section (2) of that statute provides that: "while the person is liable for the full cost of care, the maximum amount a person is required to pay toward the full cost of care shall be determined according to the person's ability to pay." ORS 179.701 authorizes the ODOC to determine "the cost-of-care rates for a person."

In determining a prisoner's ability to pay, SB 183 requires the prisoner to "provide all financial information requested . . . that is necessary to determine the person's ability to pay."

It also authorizes the ODOC to "use any information available to the agency, including information provided by the Department of Revenue from personal income tax returns . . . and elderly rental assistance claims." If a prisoner or authorized personal representative "fails to provide evidence to demonstrate an inability to pay full cost of care, the (ODOC) may determine the person has the ability to pay the full cost of care."

SB 183 amends ORS 179.640 to require the ODOC to establish rules for determining prisoners' ability to pay. Those rules "shall require, in addition to other relevant factors, consideration of the personal estate, the person's need for funds for personal support after release, and the availability of third-party benefits such as, but not limited to, Medicare or private insurance." SB 183 defines "personal estate" as "all income and benefits as well as all assets, including all personal and real property of a living person, and includes assets held by the person's authorized representative and all other assets held by any other individual or entity holding funds or receiving benefits or income on behalf of any person." However, ORS 179.640(1)(b) also requires the ODOC to "consider the person's needs for funds to pay for the support of the person's children and to pay any monetary obligations imposed on the person as a result of the person's conviction."

ORS 179.640(5) provides that at "any time during the person's stay at the state institution or within 36 months from the date the person is released, if the agency receives new financial information that shows a change in the person's financial circumstances, the agency shall consider the changed circumstances and issue a new ability-to-pay order." Section (6) of that statute provides that "orders issued after the person is released may not require the person to make payments toward the cost of care for more than 36 consecutive months following release." But the ODOC "may collect beyond the 36-month period any payments that became due but were not paid within the 36 months following release."

ORS 179.640(7) authorizes a prisoner who "disagrees with any ability-to-pay order" to "request a contested case hearing." However, it is not clear whether the prisoner or the ODOC would have the burden of proof as to ability-to-pay, or what that burden is.

SB 183 amends ORS 179.653 to provide that if any person or authorized representative refuses to pay for the cost of care as ordered . . . the amount unpaid plus interest shall be a lien in favor of the State of Oregon. . . . The lien shall be upon the title to and interest in the real and personal property of the personal estate." Additionally, ORS 179.745 authorizes the ODOC to "take title to real and personal property to carry out the provisions of" SB 183.

The ODOC suggests that the average cost of care for prisoners is currently $65 per day, or $23,725 per year. SB 183 became effective October 2, 2001, but the ODOC has not yet established rules for determining ability to pay, as required by ORS 179.640(1)(a). ODOC Spokeswoman Perrin Damon told The Oregonian newspaper in June 2001, that the ODOC didn't yet know how many of its 10,500 prisoners SB 183 would apply to, but said the best guess was that it was only a small percentage of prisoners.

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