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Oregon Prison System’s Medical Rule and Policy Invalidated

The Oregon Court of Appeals held in March 2016 that an Oregon Department of Corrections (ODOC) rule which authorized the Health Services clinical director to appoint the chief medical officer for each state prison was invalid because it conflicted with a statute that gives that authority to each prison’s superintendent. The appellate court also found that a health services policy was invalid because it constituted a rule but had not been adopted in accordance with the rulemaking requirements of Oregon’s Administrative Procedures Act (APA).

Oregon state prisoner and successful litigator Arlen Smith filed a facial challenge to an ODOC health services rule and policy. ORS 183.400 authorizes courts to invalidate a rule if it violates constitutional provisions, exceeds the agency’s statutory authority or was adopted without compliance with APA requirements.

Smith first challenged OAR 291-124-0016(2), which purports to authorize the ODOC Health Services clinical director to “appoint a chief medical officer ... for each DOC institution.” Smith argued that the rule was invalid because it exceeded the ODOC’s statutory authority, as expressed in ORS 179.360(1)(f), which authorizes each prison’s superintendent to “designate a physician licensed by the Oregon Medical Board to serve as chief medical officer.”

The Court of Appeals agreed, holding that “because OAR 291-124-0016(2) contravenes ORS 179.360(1)(f), it is invalid.”

Smith also challenged ODOC Health Policy and Procedure #P-A-02.1, which “establishes the method and guidelines used to determine whether treatment will or will not be provided by DOC.” Smith argued that the policy constituted a rule, as defined by ORS 183.310(9), but was not promulgated pursuant to the APA’s rulemaking requirements and therefore was invalid.

The Court of Appeals first agreed that the policy satisfied ORS 183.310(9)’s definition of a rule. In reaching that conclusion, the Court rejected ODOC’s argument that the policy was not a rule because it simply mirrored the provisions of OAR 291-124-0041(1). The appellate court agreed with Smith that the provisions of the policy “amplify and refine the provisions of OAR 291-124­0041(1)” and, therefore, “the health policy is a rule as defined in ORS 183.310(9).”

The Court of Appeals then rejected ODOC’s contention that it did not need to comply with APA rulemaking requirements because the policy was an internal management directive exempt from the definition of a rule.

“The health policy constitutes a rule and not an internal management directive,” the Court concluded. “Therefore, the DOC should have followed the rulemaking procedures in adopting the health policy.” Because it did not, the policy was declared invalid. See: Smith v. Department of Corrections,276 Ore. App. 862, 369 P.3d 1213 (Or. Ct. App. 2016). 

Related legal case

Smith v. Department of Corrections