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The Oregon Health Administration:
Pro-Life Policy, & the Need to Monitor
Jessica Stanton, J.D. | 19 November 2020
Administrative agencies are creating policies outside of the Oregon Legislature.
For the last three years, Oregon Right to Life (ORTL) has continued to keep a watchful eye on administrative agencies and unelected committees. The policies created by these administrative agencies increase abortion services, change how individuals communicate their end-of-life wishes, and harm disabled persons. The hope is that other pro-life policy analysts will learn how the administrative agencies work in Oregon and can utilize this information to keep a watch on other state agencies creating policies.
Specifically, the policies ORTL has been monitoring concern three pieces of legislation: the adoption of program components under House Bill 3391 (2017), the Advance Directive Adoption Committee (HB 4135, 2018), and Senate Bill 1606 (2020).
The Oregon Health Authority.
In Oregon, the Oregon Health Administration (OHA) is the agency that oversees all health policies and other health agencies. OHA manages twenty-four programs and seven divisions. Of the seven divisions, the Public Health Division is the primary arm of OHA ORTL has continued to monitor.
These agencies are granted the authority to create administrative rules for health care programs and divisions through specific language in legislation. While the rules process is technically open to public review and comment, unlike the legislative process, it is difficult for the average citizen to access. The persons responsible for drafting and approving the rules are not elected nor are they overseen by elected officials. Instead the process is wholly operated by state employees and appointees. Unless legislation specifies, any new rule or repeal of a rule does not have to be approved by the legislature. In other words, OHA creates its own rules with little to no accountability to the public or elected officials.
Rules change several times to expand abortion services and funding in Oregon.
A year after President Trump was elected to office in 2016, the Oregon Legislature further entrenched abortion access and funding into law through the passage of House Bill 3391 (2017). The language in HB 3391 gives OHA an incredible amount of authority to develop a program to provide Oregonians abortions at no cost. Since 2017, administrative agencies have implemented several changes pursuant to HB 3391. Even within the last month, changes to the implementation of HB 3391 are occurring through the rulemaking process.
OHA is not the only agency involved in policies on abortion services in Oregon. The Department of Consumer and Business Services (DCBS) ensures that all insurance policies provide abortions, and the Health Evidence Review Committee (HERC) reviews the services. Like OHA, DCBS proposed rules to change how insurance companies provided abortions.
OHA's first round of administrative rules implemented a portion of the program granting abortions to undocumented residents of Oregon below a certain poverty level. No legislative approval of the rules governing this portion of the law was required. OHA did submit a report on the program in 2018. However, there is no further requirement on OHA to continue providing annual reports to the Oregon Legislature.
The second round of administrative rule changes came after the federal government changed Title X requirements. Although OHA conducted a public hearing on the proposed rule changes, only six participants were involved, one member being a representative of Planned Parenthood. There was no legislative approval of the program rules.
In January of 2020, the program added another element that did not go through the rulemaking process. Just a simple notice of intent to contract with community partnerships was published on the OHA website. These community partnerships and organizations contract with clinics around Oregon to promote abortions. A month later, rules were adopted that exempted undocumented persons seeking abortions from being concerned about the public charge rule the Federal Government enacted. Again, no legislative oversight was required for this change.
Currently, another round of rule changes is underway. This time the rule changes provide more authority to OHA to sanction a local county health clinic if it declines to participate in the program.
ORTL seeks to be vigilant about the rule changes for this program. Monitoring the rule changes enables ORTL to update elected officials on how the program is implemented in their communities.
The unelected committee creates the Oregon Advance Directive form.
House Bill 4135 (HB 4135, 2018), another life-threatening law, granted a colossal amount of authority to an unelected committee governed by OHA. Under HB 4135 a health care representative has very broad authority to make end-of-life decisions on behalf of an incapacitated person. The bill also created an unelected committee, where the members must be from specific sectors within the healthcare industry.
The ADAC chairs met without the other members to draft a new Oregon advance directive. The draft by the chairs was not open to the public. The chairs then presented the draft to the remaining committee members, who provided feedback. For two years, the ADAC met seven times to draft the Oregon Advance Directive. ORTL submitted comments to the final advance directive draft. The ADAC largely ignored ORTLs comments.
Before the new advance directive form is effective, it must be adopted through the legislative process. Because ORTL has been monitoring the ADACs activities, they will be ready to oppose the bill's harmful sections during the 2021 session.
Limiting the Rights of the Disabled During Covid-19
The Oregon Legislature held two special sessions to implement laws directly concerning the Covid-19 pandemic. The first special session of 2020 was held June 24 through June 26. During those three short days, laws passed on a wide range of policies from health care, liability protection for business, rent caps, and police accountability. Amongst the twenty-six bills proposed, ORTL supported one: Senate Bill 1606 (SB 1606). SB 1606 ensures that individuals with a disability have a support person present and prohibit a health care provider from pressuring a disabled person from filling out a Physician Order for Life Sustaining Treatment (POLST) to receive necessary life-saving care.
After SB 1606 passed, OHA formed a rules advisory committee (RAC) to implement the rules. The RAC formed and drafted administrative rules without informing the chief sponsor of SB 1606. Three days before a permanent rulemaking public hearing, stakeholders were informed the RAC was creating language in the rules contrary to the legislation's intent. The legislative intent was to curb the abusive imposition of POLSTs with persons with disabilities. In contrast, the RAC wanted to insert language that information on a POLST was a right in Oregon.
ORTL opposed the RAC’s addition to make information on POLST a right because many individuals are pressured into filling out the form. Once a POLST is filled out, it becomes the physician’s order and must be followed. It is inflexible and, in most cases, will override the decision of an appointed health care representative. Thus, disabled individuals could be manipulated through the information to fill out a POLST and not receive life-sustaining care.
Continue keeping a watchful eye.
Each time there is a proposed administrative rule change or implementation of legislation, public notice must be given. The public notice requirement means the meeting's information is published on the appropriate agency page website. In spite of this requirement, many of these meetings and rules change without public awareness or input. While the rulemaking process is similar to the legislative process, administrative agencies are not as accountable as the legislature. Unlike an elected official, agency staff is not voted into office, and the people cannot remove them through their vote.
The three examples above of ORTLs experience with administrative agencies, committees, and the rulemaking process, enables ORTL to inform pro-life advocates, public officials and be prepared for upcoming sessions. Monitoring the activities of administrative agencies is paramount to ensure that every step of the policymaking process does not harm Oregonians.
 Section 2 (1) of House Bill 4135 (2018) https://olis.leg.state.or.us/liz/2018R1/Downloads/MeasureDocument/HB4135/Enrolled
Jessica Stanton, J.D.
Lobbyist, Oregon Right to Life