Oregon Advisory Opinions December 03, 1979: OAG 79-128 (December 3, 1979)

OAG 79-128.

First Question: Before the 1979 legislative session, several provisions in ORS ch 426 required that certain costs associated with mental commitment proceedings be paid by the county of residence of a person alleged or found to be mentally ill. ORS 426.250; 426.255; 426.297; 426.310. Oregon Laws 1979, ch 392, sec 1 amended ORS 426.241 to require the county of residence to pay an emergency treatment facility for specified costs as well. The first question presented asks what guidelines and documentation are to be used in determining county of residence for purposes of these statutes.

To reply to this question we must first determine the meaning of "county of residence." For ORS 426.241 and 426.310 this was clarified by the 1979 amendment to the former statute. ORS 426.241 now provides:

"(4) For purposes of this section and ORS 426.310 'resident' means resident of the county in which the person maintains a current mailing address."

When ascertaining the probable intent of the legislature, a statute in question must be read in conjunction with other statutes relating to the same subject matter. Whenever possible, statutes which relate to the same subject and rest upon the same or similar policies should be construed so as to be uniform in their application and in the results which they accomplish. Clarkston v. Bridge, 273 Or 68, 78-79, 539 P2d 1094 (1975).

The purpose of all of the reimbursement provisions in ch 426 is apparently to protect a county which has little enduring contact with a person who happens to be present there at the time of commitment, from liability for the expenses of the commitment proceedings, if a more appropriate source of payment is available. The general scheme for reimbursement of counties for certain costs incurred in commitment proceedings for non-residents is the same in all of the statutes cited above. Thus the need for uniformity requires that the same interpretation of "resident" or "residence" be given to each one. We therefore conclude that "resident" and "residence," as used in ORS 426.250, 426.255, and 426.297, also refer to the county in which the person in question maintains a current mailing address.(fn4)

Given this meaning of "resident" and "residence," identification of the county where a person maintains a current mailing address is basically a matter of common sense. Any document on which the person has indicated his or her "home address" --including a mail forwarding notice to the post office, voter registration form, withholding tax (W-4) form, application for public assistance, a telephone, library card or job--would be "evidence" of the person's current mailing address.

If a person has two or more current mailing addresses, it is our opinion that the county of residence is the county which has the most significant contacts with that person. Among the factors relevant in determining a person's primary residence are: the amount of time spent in each residence; the residence which is held out by the person to be his or her usual place of abode; and any other factors which suggest that one particular residence is most often used. In case of a controversy between counties on this issue, the courts would have to decide the matter.

Second Question: The second question asks whether a county which pays for various involuntary commitment services furnished to a nonresident is entitled to reimbursement from the person's county of residence under ORS 426.310, and what documentation is necessary to substantiate a claim for reimbursement. ORS 426.310, as amended by Or Laws 1979, ch 392, sec 2, provides:

"(1) If the mentally ill person is a resident of some other county in this state, the county making the commitment shall be reimbursed by the county of which the person is a resident. All reasonable and actual expenses incurred and paid by the county by reason of the care, custody, treatment, investigation examination and commitment hearing shall, upon presentation of a copy of the order of the judge making the examination and commitment, together with a properly itemized and certified claim covering the expense, be promptly paid to the county by the county of which the person was a resident.

"(2) If an allegedly mentally ill person is a resident of some other county in this state, a county attempting a commitment shall be reimbursed by the county of which the person is a resident, as defined in ORS 426.241, for all actual, reasonable expenses incurred and paid by the county attempting commitment by reason of the care, custody, treatment, investigation examination and commitment hearing." (Emphasis added.)

(a) Pre-petition screening.

ORS 426.070 et seq. describe the court commitment procedures to be followed in this state. Non-emergency involuntary commitment proceedings are preceded by notification to the community mental health program director or the director's designee "in writing under oath by two persons or by the county health officer or any magistrate that any other person within the county is a mentally ill person and is in need of treatment, care or custody." ORS 426.070(1). Thereafter, the director or his or her designee conveys the notification of mental illness to the appropriate court. Id. In an emergency, the court may instead receive the initial notifica

tion of mental illness from a licensed physician, ORS 426.175(2), the superintendent of the state mental hospital, ORS 426.200, or a peace officer who has taken an allegedly mentally ill person into custody, ORS 426.215(3), depending upon the circumstances.

We assume that "pre-petition screening" refers to any "screening" which occurs before a judge is notified of alleged mental illness. Whether the costs of such screening are to be reimbursed by the county of residence pursuant to ORS 426.310 is unclear. It is possible that the legislature intended to limit reimbursement to the "investigation" required by ORS 426.070, which takes place after a judge is notified that a particular person may be mentally ill. See discussion of question 2(b), infra. The rationale for this distinction could be that if a person notifies the community mental health program director that another person is mentally ill, and the accuser acts either irresponsibly (without adequate evidence) or maliciously, it would be unfair to expect the county of residence to bear the resulting expense. This interpretation is not convincing, however, as the legislature has already undertaken to require the county of residence to provide reimbursement for expenses attributable to the "investigation" which takes place before a judge determines that there is probable cause to believe that the person investigated is mentally ill. Id.

It seems more likely that the legislature intended, in amending ORS 426.310, to require reimbursement from the county of residence for all actual and reasonable expenses incurred by another county in the commitment process, but omitted a specific reference to precommitment screening in ORS 426.310 because such screening is not specifically mentioned in or authorized by the applicable statutes. The term "investigation" could be interpreted to be broad enough to cover the screening as well as the inquiry which must be undertaken after a petition is filed with the court. See ORS 426.070(1), (2). Accordingly, we conclude that the county of residence of an allegedly mentally ill person must provide reimbursement for precommitment screening.

(b) Precommitment investigation.

In all involuntary commitment proceedings, after the appropriate court receives notification of mental illness the community mental health program director or his or her designee is required to conduct an investigation "to determine whether there is probable cause to believe that the person is in fact a mentally ill person." ORS 426.070(1).

ORS 426.310 previously authorized reimbursement of the committing county by the county of residence for expenses incurred and paid "by reason of the examination and commitment hearing." The 1979 Legislature amended ORS 426.310 to provide reimbursement for expenses incurred and paid "by reason of the care, custody, treatment, investigation examination and commitment hearing." In this context, the words "investigation examination" are unclear.

There are potentially two examinations which are part of the com-

mitment process. First, ORS 426.070 provides that upon being notified that a person is mentally ill and in need of treatment, care or custody the community mental health director or his or her designee must conduct an investigation, and

"(2) The investigation conducted should, where appropriate, include an interview or examination of the allegedly mentally ill person. . . ." (Emphasis added.)

Before ORS 426.310 was amended in 1979, it required the county of residence to provide reimbursement for the second, court-ordered "examination." We see no reason why the 1979 Legislature would have eliminated reimbursement for this expense, or authorized reimbursement for the investigation "examination"--which apparently is an interview, and not a medical examination--without covering the rest of the investigation costs. Rather, we believe that the words "investigation examination," which appear in ORS 426.310(1) and (2), should in fact be separated by a comma.

While it is true that punctuation may be resorted to as an aid in construction when it tends to throw light on the meaning, in general little reliance is placed upon punctuation and it will be disregarded where otherwise the legislative intent could not be given effect. Fleischhauer v. Bilstad, 233 Or 578, 586, 379 P2d 578 (1963). "For the purpose of arriving at the true meaning of a statute, courts read with such stops as are manifestly required." Id, quoting United States v. Lacher, 134 US 624, 628 (1890). We note that, consistent with this interpretation, when HB 2548 (Or Laws 1979, ch 392) was before the legislature the Deputy Administrator of the Mental Health Division (division) presented a memo to the Senate Committee on Health and Welfare stating that HB 2548 "would also enable counties to charge the county of residence for investigation, examination, and commitment hearings." Senate Committee on Health and Welfare, Minutes, HB 2548, Exhibit C (May 28, 1979). Also, the staff measure analysis of HB 2548 which was prepared for the Committee on Health and Welfare stated that "[t]he county attempting commitment would be authorized to charge the county of residence for investigation, examination and commitment hearings." Therefore we conclude that ORS 426.310 requires the county of residence to provide reimbursement for the actual and reasonable costs of the investigation.

(c) Emergency hold in a division-approved facility other than a state hospital (ORS 426.241).

ORS 426.241(1), as amended by Or Laws 1979, ch 392, sec 1, provides:

"Fifty percent of the cost of emergency care, custody and treatment provided by a hospital or other facility approved by the division, except a state mental hospital, for an allegedly mentally ill person admitted or detained under ORS 426.070, 426.140, 426.175 or 426.215, or for a mentally ill person admitted or detained under ORS 426.150, 426.223 or 426.290, shall be paid by the county of which the person is a resident

from state funds provided it for this purpose and 50 percent shall be paid from other funds available to the county. The hospital or other facility shall charge to and collect from the person, third party payors or other persons or agencies otherwise legally responsible therefor, the costs of the emergency care, custody and treatment . . . and any funds received shall be applied equally as offsets to county and state funds for the cost of the services provided under this section."

(d) Direct and indirect administration.

ORS 426.310 requires the county of residence to repay any identifiable costs of direct and indirect administration which may properly be characterized as reasonable and actual expenses incurred and paid by another county by reason of the care, custody, treatment, investigation, examination and commitment hearing.

(e) Client transportation.

1. To the emergency hold facility; from the emergency hold facility to the commitment hearing.

As originally drafted, Or Laws 1979, ch 392 amended ORS 426.310 to require the county of residence to reimburse other counties for reasonable and actual expenses incurred and paid for transportation of persons alleged or found to be mentally ill, whether or not such persons were actually committed. HB 2548, p 2, line 35; p 3, line 5. However, the word "transportation" was eventually deleted from the bill, and in the current version of ORS 426.310 there is no specific provision for reimbursement of expenses relating to transportation. We therefore believe that the county of residence has no obligation under ORS 426.310 to reimburse other counties for expenses incurred in transporting persons to emergency hold facilities or from such facilities to commitment hearings. See also ORS 426.200.

2. From the hearing or emergency hold facility to the state hospital.

These transportation expenses are not covered by ORS 426.310. See discussion of question 2(e)1, supra. See also ORS 204.421; 426.200; 426.320; 33 Op Atty Gen 551, 555 (1968).

(f) Disposition after commitment.

If "disposition after commitment" refers to the transportation of a person committed to the division and assigned to a mental health facility, the costs of such transportation are not eligible for reimbursement under ORS 426.310. See answer to question 2(e)1, supra. Other costs relating to disposition after commitment should be reimbursed by the county of residence under ORS 426.310 if they are reasonable and actual expenses incurred and paid by another county by reason of the commitment hearing.

(g) Attendants before and after the hearing.

If such attendants are required and are provided at county expense, the cost of providing them would be a reasonable expense incurred by reason of the commitment hearing and should be reimbursed by the county of residence.

(h) Logistical services to the court.

1. Provided by the court.

"Logistics" is defined as "the handling of the details of an operation." Webster's New Collegiate Dictionary 677 (1977). If a county incurs expenses for logistical services to the court, e.g., services covered by ORS 3.280(3), which are directly attributable to the care, custody, treatment, investigation, examination or--most likely--the commitment hearing of a person alleged or found to be mentally ill, such expenses are reimbursable by the person's county of residence in accordance with ORS 426.310.

2. Provided by the community mental health program.

The county in which the commitment hearing is held is also entitled to reimbursement of expenses described in ORS 426.310 which are incurred for logistical services provided by the community mental health program if such expenses are initially paid by the nonresident county. ORS 426.310.

In either of the above cases, the costs of such logistical services must be distinguishable from other, nonreimbursable, costs incurred by the county before reimbursement will be available under ORS 426.310.

(i) Costs if person is not committed.

As indicated above, reimbursement from the county of residence is available as provided by ORS 426.310(2) even if an allegedly mentally ill person is ultimately not committed.

(j) Revocation of trial visit.

The cost of emergency care, custody and treatment to a facility (other than a state hospital) resulting from revocation of a trial visit under ORS 426.290 shall now be paid by the county of residence. ORS 426.310(1). There is no provision in ORS ch 426 which requires the county of residence to reimburse another county for costs incurred pursuant to ORS 426.290.

(k) Recommitment.

ORS 426.307 provides for a recommitment examination and hearing upon request of the person seeking to avoid recommitment, and ORS 426.255 provides that the costs of such a hearing and the fees for physicians, other qualified persons and appointed attorneys shall be charged to the county of residence in the same manner provided by ORS 426.310. See note 2.

Third Question: The third question asks if a county is entitled to reimbursement for care, custody and treatment of nonresidents of the county provided under ORS 426.080, 426.140, 426.175, 426.180, 426.190, 426.215 and 426.241, and if so, when.

ORS 426.175 through 426.215 authorize emergency assistance for an allegedly mentally ill person.

Care provided under ORS 426.070(5), for a person placed in custody pending an investigation or hearing, is also considered "emergency" care for purposes of ORS 426.241. ORS 426.140 concerns the place of confinement. If any expenses are incurred by a county other than the county of residence (as distinguished from the treating facility) under these statutes, they are to be reimbursed by the county of residence pursuant to ORS 426.310.

ORS 426.080 covers making and filing a return on a warrant of detention or citation issued pursuant to ORS 426.090, and authorizes a person executing such warrant or citation to "require the assistance of any peace officer or other person." A warrant of detention may be issued under ORS 426.070(5) "pending the investigation or hearing" when a court finds probable cause to believe that an allegedly mentally ill person is dangerous to himself or herself or to others. Expenses incurred in obtaining and executing this warrant relate to the custody of the allegedly mentally ill person and thus are reimbursable under ORS 426.310. Expenses incurred under ORS 426.080 with respect to a citation to appear at a hearing which is issued as provided in ORS 426.090 after a court finds probable cause to believe that a person is mentally ill, ORS 426.070(3), are also to be repaid by the county of residence as provided in ORS 426.310.

Fourth Question: The fourth question asks who is the first, and who is the last, payor under ORS 426.241(1) and 426.310. Under ORS 426.241(1) 50 percent of the cost of emergency care, custody and treatment is initially paid by the county of residence from state funds provided it for this purpose, and 50 percent is "paid from other funds available to the county." Thereafter, any payments received "from the person [detained], third party payors or other persons or agencies otherwise legally responsible" for the emergency assistance costs are to be "applied equally as offsets to county and state funds."

Under ORS 426.310, the county where expenses are incurred is the first payor, and after a "properly itemized and certified claim covering the expense" is made as provided in the statute, the payment is to be reimbursed by the county of residence.

Fifth Question: The fifth question asks whether the county of residence at the time of commitment or the county of trial visit is responsible for the cost of supervising a person on trial visit under ORS 426.280. As there is no provision in ORS ch 426 for repayment of this cost by the county of residence, it must be borne by the county which pays for the necessary supervision (if supervision is provided at county expense) or any payor liable to that county for the expense. Cf. answer to question 2(j).

"Any physician or qualified person recommended by the division employed by the judge to make an examination as to the mental condition of a person alleged to be mentally ill shall be allowed a fee as the court in its discretion determines reasonable for the examination. Witnesses summoned to give testimony shall receive the same fees as are paid in civil cases. The costs of the examination shall be paid by the county of residence of the person or, if he has no residence within the state, by the county in which the person is taken into custody." (Emphasis added.)

" Costs of hearings conducted pursuant to ORS 426.307, and the fees for physicians, other qualified persons, and attorneys appointed thereunder, shall be charged to the county of the person's residence in the same manner provided by ORS 326.310, whether the hearing is held in the county of residence or county of the treating facility." (Emphasis added.)

"(1) The expenses of a proceeding under subsection (2) of ORS 426.295 shall be paid by the person, unless it appears from his affidavit or other evidence that he is unable to pay the expenses. If the person is unable to pay, the expenses of the proceedings shall be paid by the county of which the mentally ill person was a resident at the time of his admission. If the county of residence cannot be established, the county from which the person was admitted shall pay the expenses." (Emphasis added.)