As Introduced 1
123rd General Assembly 4
Regular Session S. B. No. 171 5
1999-2000 6
SENATORS SPADA-GARDNER-KEARNS 8
_________________________________________________________________ 10
A B I L L
To amend sections 2151.421, 5123.61, 5126.30, and 12
5126.31 and to enact sections 5123.50 to 5123.53 13
of the Revised Code to establish a registry of 14
persons found by the Department of Mental
Retardation and Developmental Disabilities to 15
have abused or neglected an individual with 16
mental retardation or a developmental disability,
to require the Department to investigate reports 17
of abuse and neglect involving children with 18
mental retardation or a developmental disability, 19
and to limit the types of abuse and neglect 20
reports that are referred to law enforcement
agencies.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO: 22
Section 1. That sections 2151.421, 5123.61, 5126.30, and 24
5126.31 be amended and sections 5123.50, 5123.51, 5123.52, and 25
5123.53 of the Revised Code be enacted to read as follows: 26
Sec. 2151.421. (A)(1)(a) No person described in division 35
(A)(1)(b) of this section who is acting in an official or 37
professional capacity and knows or suspects that a child under 38
eighteen years of age or a mentally retarded, developmentally 40
disabled, or physically impaired child under twenty-one years of 41
age has suffered or faces a threat of suffering any physical or 42
mental wound, injury, disability, or condition of a nature that 43
reasonably indicates abuse or neglect of the child, shall fail to 44
immediately report that knowledge or suspicion to the public 45
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children services agency or a municipal or county peace officer 47
in the county in which the child resides or in which the abuse or 48
neglect is occurring or has occurred.
(b) Division (A)(1)(a) of this section applies to any 51
person who is an attorney; physician, including a hospital intern 52
or resident; dentist; podiatrist; practitioner of a limited 53
branch of medicine as specified in section 4731.15 of the Revised 54
Code; registered nurse; licensed practical nurse; visiting nurse; 56
other health care professional; licensed psychologist; licensed 57
school psychologist; speech pathologist or audiologist; coroner; 58
administrator or employee of a child day-care center; 59
administrator or employee of a residential camp or child day 60
camp; administrator or employee of a certified child care agency 61
or other public or private children services agency; school 62
teacher; school employee; school authority; person engaged in 63
social work or the practice of professional counseling; or a 64
person rendering spiritual treatment through prayer in accordance 66
with the tenets of a well-recognized religion.
(2) An attorney or a physician is not required to make a 68
report pursuant to division (A)(1) of this section concerning any 70
communication the attorney or physician receives from a client or 73
patient in an attorney-client or physician-patient relationship, 74
if, in accordance with division (A) or (B) of section 2317.02 of 76
the Revised Code, the attorney or physician could not testify 77
with respect to that communication in a civil or criminal 78
proceeding, except that the client or patient is deemed to have 79
waived any testimonial privilege under division (A) or (B) of 81
section 2317.02 of the Revised Code with respect to that 83
communication and the attorney or physician shall make a report 85
pursuant to division (A)(1) of this section with respect to that 86
communication, if all of the following apply:
(a) The client or patient, at the time of the 88
communication, is either a child under eighteen years of age or a 89
mentally retarded, developmentally disabled, or physically 91
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impaired person under twenty-one years of age. 92
(b) The attorney or physician knows or suspects, as a 94
result of the communication or any observations made during that 96
communication, that the client or patient has suffered or faces a 97
threat of suffering any physical or mental wound, injury, 99
disability, or condition of a nature that reasonably indicates 100
abuse or neglect of the client or patient. 101
(c) The attorney-client or physician-patient relationship 103
does not arise out of the client's or patient's attempt to have 105
an abortion without the notification of her parents, guardian, or 107
custodian in accordance with section 2151.85 of the Revised Code. 108
(B) Anyone, who knows or suspects that a child under 110
eighteen years of age or a mentally retarded, developmentally 112
disabled, or physically impaired person under twenty-one years of 113
age has suffered or faces a threat of suffering any physical or 114
mental wound, injury, disability, or other condition of a nature 115
that reasonably indicates abuse or neglect of the child, may 116
report or cause reports to be made of that knowledge or suspicion 117
to the public children services agency or to a municipal or 119
county peace officer. 120
(C) Any report made pursuant to division (A) or (B) of 122
this section shall be made forthwith either by telephone or in 123
person and shall be followed by a written report, if requested by 125
the receiving agency or officer. The written report shall
contain: 126
(1) The names and addresses of the child and the child's 128
parents or the person or persons having custody of the child, if 129
known;
(2) The child's age and the nature and extent of the 131
child's known or suspected injuries, abuse, or neglect or of the 132
known or suspected threat of injury, abuse, or neglect, including 133
any evidence of previous injuries, abuse, or neglect; 134
(3) Any other information that might be helpful in 136
establishing the cause of the known or suspected injury, abuse, 137
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or neglect or of the known or suspected threat of injury, abuse, 138
or neglect. 139
Any person, who is required by division (A) of this section 141
to report known or suspected child abuse or child neglect, may 142
take or cause to be taken color photographs of areas of trauma 143
visible on a child and, if medically indicated, cause to be 144
performed radiological examinations of the child. 145
(D)(1) Upon the receipt of a report concerning the 147
possible abuse or neglect of a child or the possible threat of 148
abuse or neglect of a child, the municipal or county peace 149
officer who receives the report shall refer the report to the 150
appropriate public children services agency. 152
(2) On receipt of a report pursuant to this division or 155
division (A) or (B) of this section, the public children services 157
agency shall comply with section 2151.422 of the Revised Code. 158
(3) ON RECEIPT OF A REPORT UNDER THIS DIVISION OR DIVISION 160
(A) OR (B) OF THIS SECTION THAT INVOLVES A CHILD WITH MENTAL 161
RETARDATION OR A DEVELOPMENTAL DISABILITY AND INCLUDES AN 162
ALLEGATION OF ABUSE OR NEGLECT BY AN MR/DD EMPLOYEE, AS DEFINED 163
IN SECTION 5123.50 OF THE REVISED CODE, THE PUBLIC CHILDREN 164
SERVICES AGENCY SHALL, IN ADDITION TO COMPLYING WITH DIVISION 165
(D)(2) OF THIS SECTION, IMMEDIATELY NOTIFY THE DEPARTMENT OF
MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES OF THE REPORT. 166
(E) No township, municipal, or county peace officer shall 168
remove a child about whom a report is made pursuant to this 169
section from the child's parents, stepparents, or guardian or any 170
other persons having custody of the child without consultation 171
with the public children services agency, unless, in the judgment 174
of the officer, and, if the report was made by physician, the 175
physician, immediate removal is considered essential to protect 176
the child from further abuse or neglect. The agency that must be 179
consulted shall be the agency conducting the investigation of the 180
report as determined pursuant to section 2151.422 of the Revised 181
Code. 182
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(F)(1) Except as provided in section 2151.422 of the 185
Revised Code, the public children services agency shall 187
investigate, within twenty-four hours, each report of known or 189
suspected child abuse or child neglect and of a known or 190
suspected threat of child abuse or child neglect that is referred 191
to it under this section to determine the circumstances 192
surrounding the injuries, abuse, or neglect or the threat of 193
injury, abuse, or neglect, the cause of the injuries, abuse, 194
neglect, or threat, and the person or persons responsible. The 195
investigation shall be made in cooperation with the law
enforcement agency and in accordance with the memorandum of 196
understanding prepared under division (J) of this section. A 198
failure to make the investigation in accordance with the 199
memorandum is not grounds for, and shall not result in, the 201
dismissal of any charges or complaint arising from the report or 202
the suppression of any evidence obtained as a result of the 203
report and does not give, and shall not be construed as giving, 204
any rights or any grounds for appeal or post-conviction relief to 205
any person. The public children services agency shall report 208
each case to a central registry which the state department of 210
human services shall maintain in order to determine whether prior 211
reports have been made in other counties concerning the child or 212
other principals in the case. The public children services 213
agency shall submit a report of its investigation, in writing, to 215
the law enforcement agency.
(2) The public children services agency shall make any 218
recommendations to the county prosecuting attorney or city 220
director of law that it considers necessary to protect any 221
children that are brought to its attention. 222
(G)(1)(a) Except as provided in division (H)(3) of this 224
section, anyone or any hospital, institution, school, health 225
department, or agency participating in the making of reports 226
under division (A) of this section, anyone or any hospital, 227
institution, school, health department, or agency participating 228
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in good faith in the making of reports under division (B) of this 229
section, and anyone participating in good faith in a judicial 230
proceeding resulting from the reports, shall be immune from any 231
civil or criminal liability for injury, death, or loss to person 232
or property that otherwise might be incurred or imposed as a 233
result of the making of the reports or the participation in the 234
judicial proceeding. 235
(b) Notwithstanding section 4731.22 of the Revised Code, 238
the physician-patient privilege shall not be a ground for 239
excluding evidence regarding a child's injuries, abuse, or 240
neglect, or the cause of the injuries, abuse, or neglect in any 241
judicial proceeding resulting from a report submitted pursuant to 242
this section.
(2) In any civil or criminal action or proceeding in which 244
it is alleged and proved that participation in the making of a 245
report under this section was not in good faith or participation 246
in a judicial proceeding resulting from a report made under this 247
section was not in good faith, the court shall award the 248
prevailing party reasonable attorney's fees and costs and, if a 249
civil action or proceeding is voluntarily dismissed, may award 250
reasonable attorney's fees and costs to the party against whom 251
the civil action or proceeding is brought. 252
(H)(1) Except as provided in divisions (D)(3), (H)(4), 254
(M), and (N) of this section, a report made under this section is 256
confidential. The information provided in a report made pursuant 257
to this section and the name of the person who made the report 258
shall not be released for use, and shall not be used, as evidence 259
in any civil action or proceeding brought against the person who 260
made the report. In a criminal proceeding, the report is 261
admissible in evidence in accordance with the Rules of Evidence 262
and is subject to discovery in accordance with the Rules of 263
Criminal Procedure. 264
(2) No person shall permit or encourage the unauthorized 266
dissemination of the contents of any report made under this 267
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section. 268
(3) A person who knowingly makes or causes another person 270
to make a false report under division (B) of this section that 271
alleges that any person has committed an act or omission that 272
resulted in a child being an abused child or a neglected child is 273
guilty of a violation of section 2921.14 of the Revised Code. 274
(4) A public children services agency shall advise a 277
person alleged to have inflicted abuse or neglect on a child who 278
is the subject of a report made pursuant to this section of the
disposition of the investigation. The agency shall not provide 279
to the person any information that identifies the person who made 281
the report, statements of witnesses, or police or other
investigative reports. 282
(I) Any report that is required by this section shall 284
result in protective services and emergency supportive services 285
being made available by the public children services agency on 287
behalf of the children about whom the report is made, in an 289
effort to prevent further neglect or abuse, to enhance their 290
welfare, and, whenever possible, to preserve the family unit 291
intact. The agency required to provide the services shall be the 293
agency conducting the investigation of the report pursuant to 294
section 2151.422 of the Revised Code. 296
(J)(1) Each public children services agency shall prepare 298
a memorandum of understanding that is signed by all of the 300
following:
(a) If there is only one juvenile judge in the county, the 303
juvenile judge of the county or the juvenile judge's 304
representative;
(b) If there is more than one juvenile judge in the 308
county, a juvenile judge or the juvenile judges' representative 309
selected by the juvenile judges or, if they are unable to do so 310
for any reason, the juvenile judge who is senior in point of 311
service or the senior juvenile judge's representative; 312
(c) The county peace officer; 315
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(d) All chief municipal peace officers within the county; 318
(e) Other law enforcement officers handling child abuse 320
and neglect cases in the county; 321
(f) The prosecuting attorney of the county; 324
(g) If the public children services agency is not the 326
county department of human services, the county department of 328
human services. 329
(2) A memorandum of understanding shall set forth the 331
normal operating procedure to be employed by all concerned 333
officials in the execution of their respective responsibilities 334
under this section and division (C) of section 2919.21, division 335
(B)(1) of section 2919.22, division (B) of section 2919.23, and 336
section 2919.24 of the Revised Code and shall have as two of its 337
primary goals the elimination of all unnecessary interviews of 338
children who are the subject of reports made pursuant to division 339
(A) or (B) of this section and, when feasible, providing for only 340
one interview of a child who is the subject of any report made 341
pursuant to division (A) or (B) of this section. A failure to 342
follow the procedure set forth in the memorandum by the concerned 344
officials is not grounds for, and shall not result in, the 345
dismissal of any charges or complaint arising from any reported 346
case of abuse or neglect or the suppression of any evidence 347
obtained as a result of any reported child abuse or child neglect 348
and does not give, and shall not be construed as giving, any 349
rights or any grounds for appeal or post-conviction relief to any 350
person. 351
(3) A memorandum of understanding shall include all of the 353
following: 354
(a) The roles and responsibilities for handling emergency 357
and non-emergency cases of abuse and neglect; 359
(b) Standards and procedures to be used in handling and 361
coordinating investigations of reported cases of child abuse and 362
reported cases of child neglect, methods to be used in 363
interviewing the child who is the subject of the report and who 364
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allegedly was abused or neglected, and standards and procedures 365
addressing the categories of persons who may interview the child 366
who is the subject of the report and who allegedly was abused or 367
neglected. 368
(K)(1) Except as provided in division (K)(4) of this 371
section, a person who is required to make a report pursuant to 372
division (A) of this section may make a reasonable number of 373
requests of the public children services agency that receives or 374
is referred the report to be provided with the following 376
information:
(a) Whether the agency has initiated an investigation of 379
the report;
(b) Whether the agency is continuing to investigate the 382
report;
(c) Whether the agency is otherwise involved with the 386
child who is the subject of the report;
(d) The general status of the health and safety of the 388
child who is the subject of the report; 389
(e) Whether the report has resulted in the filing of a 391
complaint in juvenile court or of criminal charges in another 392
court. 393
(2) A person may request the information specified in 395
division (K)(1) of this section only if, at the time the report 396
is made, the person's name, address, and telephone number are 397
provided to the person who receives the report.
When a municipal or county peace officer or employee of a 399
public children services agency receives a report pursuant to 402
division (A) or (B) of this section the recipient of the report 403
shall inform the person of the right to request the information 405
described in division (K)(1) of this section. The recipient of
the report shall include in the initial child abuse or child 406
neglect report that the person making the report was so informed 407
and, if provided at the time of the making of the report, shall 408
include the person's name, address, and telephone number in the 409
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report.
Each request is subject to verification of the identity of 411
the person making the report. If that person's identity is 414
verified, the agency shall provide the person with the 416
information described in division (K)(1) of this section a 417
reasonable number of times, except that the agency shall not
disclose any confidential information regarding the child who is 419
the subject of the report other than the information described in 420
those divisions.
(3) A request made pursuant to division (K)(1) of this 422
section is not a substitute for any report required to be made 423
pursuant to division (A) of this section. 424
(4) If an agency other than the agency that received or 427
was referred the report is conducting the investigation of the 428
report pursuant to section 2151.422 of the Revised Code, the 430
agency conducting the investigation shall comply with the 431
requirements of division (K) of this section. 432
(L) The department of human services shall adopt rules in 434
accordance with Chapter 119. of the Revised Code to implement 437
this section. The department may enter into a plan of 439
cooperation with any other governmental entity to aid in ensuring 440
that children are protected from abuse and neglect. The 441
department shall make recommendations to the attorney general 442
that the department determines are necessary to protect children 443
from child abuse and child neglect. 444
(M) No later than the end of the day following the day on 447
which a public children services agency receives a report of 448
alleged child abuse or child neglect, or a report of an alleged 449
threat of child abuse or child neglect, that allegedly occurred 450
in or involved an out-of-home care entity, the agency shall 451
provide written notice of the allegations contained in and the 453
person named as the alleged perpetrator in the report to the 454
administrator, director, or other chief administrative officer of 455
the out-of-home care entity that is the subject of the report 456
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unless the administrator, director, or other chief administrative 457
officer is named as an alleged perpetrator in the report. If the 458
administrator, director, or other chief administrative officer of 459
an out-of-home care entity is named as an alleged perpetrator in 460
a report of alleged child abuse or child neglect, or a report of 461
an alleged threat of child abuse or child neglect, that allegedly 462
occurred in or involved the out-of-home care entity, the agency 463
shall provide the written notice to the owner or governing board 465
of the out-of-home care entity that is the subject of the report. 466
The agency shall not provide witness statements or police or 468
other investigative reports.
(N) No later than three days after the day on which a 471
public children services agency that conducted the investigation 472
as determined pursuant to section 2151.422 of the Revised Code 473
makes a disposition of an investigation involving a report of 474
alleged child abuse or child neglect, or a report of an alleged 475
threat of child abuse or child neglect, that allegedly occurred 476
in or involved an out-of-home care entity, the agency shall send 479
written notice of the disposition of the investigation to the 480
administrator, director, or other chief administrative officer 481
and the owner or governing board of the out-of-home care entity. 482
The agency shall not provide witness statements or police or 484
other investigative reports.
Sec. 5123.50. AS USED IN THIS SECTION AND SECTIONS 5123.51 486
AND 5123.52 OF THE REVISED CODE: 487
(A) "ABUSE" MEANS ALL OF THE FOLLOWING: 489
(1) KNOWINGLY CAUSING PHYSICAL HARM OR RECKLESSLY CAUSING 491
SERIOUS PHYSICAL HARM; 492
(2) AN ACT THAT WOULD CONSTITUTE ONE OF THE OFFENSES 494
DESCRIBED IN SECTIONS 2907.02, 2907.03, 2907.04, 2907.05, 495
2907.06, 2907.07, 2913.02, AND 2913.04 OF THE REVISED CODE; 496
(3) AN ACT THAT COULD RESULT IN A FINDING THAT A CHILD IS 498
AN "ABUSED CHILD," AS DEFINED IN SECTION 2151.031 OF THE REVISED 499
CODE. 500
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(B) "LICENSED HEALTH PROFESSIONAL" AND "MISAPPROPRIATION" 502
HAVE THE SAME MEANINGS AS IN SECTION 3721.21 OF THE REVISED CODE. 503
(C) "NEGLECT" MEANS ALL OF THE FOLLOWING: 505
(1) KNOWINGLY FAILING TO PROVIDE AN INDIVIDUAL WITH ANY 507
TREATMENT, CARE, GOODS, OR SERVICES THAT ARE NECESSARY TO 508
MAINTAIN THE HEALTH AND SAFETY OF THE INDIVIDUAL WHEN THE FAILURE 509
RESULTS IN PHYSICAL HARM; 510
(2) RECKLESSLY FAILING TO PROVIDE AN INDIVIDUAL ANY 512
TREATMENT, CARE, GOODS, OR SERVICES WHEN THE FAILURE RESULTS IN 513
SERIOUS PHYSICAL HARM; 514
(3) AN ACT THAT COULD RESULT IN A FINDING THAT A CHILD IS 516
A "NEGLECTED CHILD," AS DEFINED IN SECTION 2151.03 OF THE REVISED 517
CODE. 518
(D) "MR/DD EMPLOYEE" MEANS ALL OF THE FOLLOWING: 520
(1) AN EMPLOYEE OF THE DEPARTMENT OF MENTAL RETARDATION 522
AND DEVELOPMENTAL DISABILITIES; 523
(2) A "COUNTY BOARD WORKER" AS DEFINED IN SECTION 5126.35 525
OF THE REVISED CODE; 526
(3) AN "ICF/MR WORKER," AS DEFINED IN SECTION 5123.193 OF 528
THE REVISED CODE; 529
(4) ANY OTHER INDIVIDUAL WHO OPERATES PROGRAMS OR PROVIDES 531
SERVICES TO INDIVIDUALS WITH MENTAL RETARDATION OR DEVELOPMENTAL 532
DISABILITIES. 533
(E) "PHYSICAL HARM" AND "SERIOUS PHYSICAL HARM" HAVE THE 535
SAME MEANINGS AS IN SECTION 2901.01 OF THE REVISED CODE. 536
(F) "PROVIDER" MEANS ANY PERSON OR GOVERNMENT ENTITY THAT 538
OPERATES A PROGRAM OR PROVIDES A SERVICE TO INDIVIDUALS WITH 539
MENTAL RETARDATION OR DEVELOPMENTAL DISABILITIES AND EMPLOYS OR 540
CONTRACTS WITH MR/DD EMPLOYEES. 541
Sec. 5123.51. (A) IN ADDITION TO ANY OTHER ACTION 543
REQUIRED BY SECTIONS 5123.61 AND 5126.31 OF THE REVISED CODE, THE 544
DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES 545
SHALL REVIEW EACH REPORT RECEIVED BY THE DEPARTMENT OF ABUSE OR 546
NEGLECT OF AN INDIVIDUAL WITH MENTAL RETARDATION OR A 547
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DEVELOPMENTAL DISABILITY OR MISAPPROPRIATION OF AN INDIVIDUAL'S 548
PROPERTY THAT INCLUDES AN ALLEGATION THAT AN MR/DD EMPLOYEE 549
COMMITTED OR WAS RESPONSIBLE FOR THE ABUSE, NEGLECT, OR 550
MISAPPROPRIATION.
(B) THE DEPARTMENT SHALL MAKE FINDINGS REGARDING EACH 552
ALLEGATION DESCRIBED IN DIVISION (A) OF THIS SECTION AFTER DOING 553
BOTH OF THE FOLLOWING: 554
(1) INVESTIGATING THE ALLEGATION AND DETERMINING WHETHER 556
THERE IS A REASONABLE BASIS FOR IT OR ADOPTING THE FINDINGS OF AN 557
INVESTIGATION CONDUCTED BY A COUNTY BOARD OF MENTAL RETARDATION 558
AND DEVELOPMENTAL DISABILITIES; 559
(2) GIVING NOTICE TO THE MR/DD EMPLOYEE NAMED IN THE 561
ALLEGATION AND AFFORDING THE EMPLOYEE A REASONABLE OPPORTUNITY 562
FOR A HEARING.
(C) NOTICE TO THE MR/DD EMPLOYEE NAMED IN AN ALLEGATION 565
SHALL BE GIVEN AND THE HEARING SHALL BE CONDUCTED PURSUANT TO 566
RULES ADOPTED BY THE DIRECTOR OF MENTAL RETARDATION AND 567
DEVELOPMENTAL DISABILITIES UNDER SECTION 5123.53 OF THE REVISED 568
CODE.
FOR PURPOSES OF CONDUCTING A HEARING UNDER THIS SECTION, 570
THE DEPARTMENT MAY ISSUE SUBPOENAS COMPELLING ATTENDANCE OF 571
WITNESSES OR PRODUCTION OF DOCUMENTS. THE SUBPOENAS SHALL BE 572
SERVED IN THE SAME MANNER AS SUBPOENAS AND SUBPOENAS DUCES TECUM 573
ISSUED FOR A TRIAL OF A CIVIL ACTION IN A COURT OF COMMON PLEAS. 574
IF A PERSON WHO IS SERVED A SUBPOENA FAILS TO ATTEND A HEARING OR 575
TO PRODUCE DOCUMENTS, OR REFUSES TO BE SWORN OR TO ANSWER ANY 576
QUESTIONS, THE DEPARTMENT MAY APPLY TO THE COMMON PLEAS COURT OF 577
THE COUNTY IN WHICH THE PERSON RESIDES, OR THE COUNTY IN WHICH 578
THE MR/DD EMPLOYEE IS OPERATING PROGRAMS OR PROVIDING SERVICES TO 579
INDIVIDUALS WITH MENTAL RETARDATION OR DEVELOPMENTAL 580
DISABILITIES, FOR A CONTEMPT ORDER, AS IN THE CASE OF A FAILURE 581
OF A PERSON WHO IS SERVED A SUBPOENA ISSUED BY THE COURT TO 582
ATTEND OR TO PRODUCE DOCUMENTS OR A REFUSAL OF SUCH PERSON TO 583
TESTIFY.
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(D)(1) IF THE DEPARTMENT FINDS THAT AN MR/DD EMPLOYEE HAS 586
ABUSED OR NEGLECTED AN INDIVIDUAL WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY OR MISAPPROPRIATED THE INDIVIDUAL'S 587
PROPERTY, THE DEPARTMENT SHALL NOTIFY THE EMPLOYEE, THE PROVIDER 588
WHO EMPLOYS OR CONTRACTS WITH THE MR/DD EMPLOYEE, AND THE 590
ATTORNEY GENERAL, COUNTY PROSECUTOR, OR OTHER APPROPRIATE LAW 591
ENFORCEMENT AGENCY. THE DEPARTMENT SHALL, IN ACCORDANCE WITH
SECTION 5123.52 OF THE REVISED CODE, INCLUDE IN THE REGISTRY 594
ESTABLISHED UNDER THAT SECTION A STATEMENT DETAILING THE FINDINGS
PERTAINING TO THE INDIVIDUAL. IF THE MR/DD EMPLOYEE IS A 595
LICENSED HEALTH PROFESSIONAL, THE DEPARTMENT SHALL NOTIFY THE 597
APPROPRIATE AGENCY, BOARD, DEPARTMENT, OR OTHER ENTITY 598
RESPONSIBLE FOR REGULATING THE EMPLOYEE'S PROFESSIONAL PRACTICE. 599
(2) AN MR/DD EMPLOYEE ABOUT WHOM A STATEMENT IS REQUIRED 601
BY THIS DIVISION TO BE INCLUDED IN THE REGISTRY MAY PROVIDE THE 603
DEPARTMENT WITH A STATEMENT DISPUTING THE DEPARTMENT'S FINDINGS 604
AND EXPLAINING THE CIRCUMSTANCES OF THE ALLEGATION. THE 605
STATEMENT SHALL BE INCLUDED IN THE REGISTRY WITH THE DEPARTMENT'S 606
FINDINGS.
(E)(1) IF IT FINDS THAT AN ALLEGATION CANNOT BE 608
SUBSTANTIATED, THE DEPARTMENT SHALL NOTIFY THE MR/DD EMPLOYEE AND 609
EXPUNGE ALL FILES AND RECORDS OF THE INVESTIGATION AND THE 610
HEARING BY DOING ALL OF THE FOLLOWING: 611
(a) REMOVING AND DESTROYING THE FILES AND RECORDS, 613
ORIGINALS AND COPIES, AND DELETING ALL INDEX REFERENCES; 614
(b) REPORTING TO THE MR/DD EMPLOYEE THE NATURE AND EXTENT 617
OF ANY INFORMATION ABOUT THE EMPLOYEE TRANSMITTED TO ANY OTHER 618
PERSON OR GOVERNMENT ENTITY BY THE DEPARTMENT; 619
(c) OTHERWISE ENSURING THAT ANY EXAMINATION OF FILES AND 621
RECORDS IN QUESTION SHOW NO RECORD WHATEVER WITH RESPECT TO THE 622
EMPLOYEE.
(2) WHEN FILES AND RECORDS HAVE BEEN EXPUNGED UNDER 624
DIVISION (E)(1) OF THIS SECTION, ALL RIGHTS AND PRIVILEGES ARE 626
RESTORED, AND THE MR/DD EMPLOYEE, THE DEPARTMENT, AND ANY PERSON 627
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OR GOVERNMENT ENTITY MAY PROPERLY REPLY TO AN INQUIRY THAT NO 628
SUCH RECORD EXISTS AS TO THE MATTER EXPUNGED. 629
Sec. 5123.52. (A) THE DEPARTMENT OF MENTAL RETARDATION 631
AND DEVELOPMENTAL DISABILITIES SHALL ESTABLISH A REGISTRY OF 632
MR/DD EMPLOYEES FOUND BY THE DEPARTMENT TO HAVE ENGAGED IN ABUSE 633
OR NEGLECT OF AN INDIVIDUAL WITH MENTAL RETARDATION OR A 635
DEVELOPMENTAL DISABILITY OR MISAPPROPRIATION OF THE INDIVIDUAL'S 636
PROPERTY.
(B) THE REGISTRY SHALL INCLUDE BOTH OF THE FOLLOWING: 638
(1) THE STATEMENT DESCRIBED IN DIVISION (D)(1) OF SECTION 640
5123.51 OF THE REVISED CODE DETAILING FINDINGS BY THE DEPARTMENT 641
UNDER THAT SECTION REGARDING ALLEGED ABUSE OR NEGLECT OF AN 642
INDIVIDUAL WITH MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY 643
OR MISAPPROPRIATION OF THE INDIVIDUAL'S PROPERTY; 644
(2) ANY STATEMENT PROVIDED BY THE MR/DD EMPLOYEE UNDER 646
DIVISION (D)(2) OF SECTION 5123.51 OF THE REVISED CODE. 648
(C) WHENEVER AN INQUIRY IS RECEIVED AS TO THE INFORMATION 650
CONTAINED IN THE REGISTRY CONCERNING AN MR/DD EMPLOYEE ABOUT WHOM 651
A STATEMENT DESCRIBED IN DIVISION (D)(1) OF SECTION 5123.51 OF 652
THE REVISED CODE IS INCLUDED IN THE REGISTRY, THE DEPARTMENT 654
SHALL DISCLOSE THE STATEMENT OR A SUMMARY OF THE STATEMENT AND 655
ANY STATEMENT OR SUMMARY OF THE STATEMENT DESCRIBED IN DIVISION 656
(D)(2) OF THAT SECTION. IF THERE IS NO STATEMENT REGARDING THE
MR/DD EMPLOYEE IN THE REGISTRY, THE DEPARTMENT SHALL INFORM THE 657
PERSON MAKING THE INQUIRY THAT THERE IS NO STATEMENT. 658
(D) NO PROVIDER SHALL USE AN INDIVIDUAL AS AN MR/DD 660
EMPLOYEE FOR MORE THAN FOUR MONTHS UNLESS THE PROVIDER HAS 662
RECEIVED FROM THE REGISTRY THE INFORMATION CONCERNING THE 663
INDIVIDUAL THAT IS CONTAINED IN THE REGISTRY. NEITHER THE 664
DEPARTMENT NOR ANY COUNTY BOARD OF MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES MAY ENTER INTO A NEW CONTRACT OR RENEW 665
A CONTRACT WITH A PROVIDER WHO FAILS TO COMPLY WITH THIS DIVISION 666
UNTIL THE DEPARTMENT OR BOARD IS SATISFIED THAT THE PROVIDER WILL 667
COMPLY.
16
(E) INFORMATION CONTAINED IN THE REGISTRY IS A PUBLIC 669
RECORD FOR THE PURPOSES OF SECTION 149.43 OF THE REVISED CODE AND 670
IS SUBJECT TO INSPECTION AND COPYING UNDER SECTION 1347.08 OF THE 671
REVISED CODE. 673
Sec. 5123.53. THE DIRECTOR OF MENTAL RETARDATION AND 675
DEVELOPMENTAL DISABILITIES SHALL ADOPT RULES UNDER CHAPTER 119. 677
OF THE REVISED CODE TO IMPLEMENT SECTIONS 5123.51 AND 5123.52 OF 678
THE REVISED CODE, INCLUDING RULES PRESCRIBING REQUIREMENTS FOR 679
THE NOTICE AND HEARING REQUIRED UNDER SECTION 5123.51 OF THE 680
REVISED CODE. THE NOTICE AND HEARING REQUIRED UNDER THAT SECTION 681
ARE NOT SUBJECT TO CHAPTER 119. OF THE REVISED CODE; HOWEVER, THE 682
RULES MAY PROVIDE FOR THE NOTICE TO BE PROVIDED AND THE HEARING 683
TO BE CONDUCTED IN ACCORDANCE WITH THAT CHAPTER. 684
Sec. 5123.61. (A) As used in this section: 693
(1) "Mentally retarded or developmentally disabled adult" 695
means a person who is eighteen years of age or older and is a 696
mentally retarded or developmentally disabled person. 697
(2) "Law enforcement agency" means the state highway 699
patrol, the police department of a municipal corporation, or a 700
county sheriff. 701
(B) The department of mental retardation and developmental 703
disabilities shall establish a registry office for the purpose of 704
maintaining reports of abuse and neglect made to the department 705
under this section and reports received from county boards of 706
mental retardation and developmental disabilities under section 707
5126.31 of the Revised Code. 708
(C)(1) Any person listed in division (C)(2) of this 710
section, having reason to believe that a mentally retarded or 711
developmentally disabled adult has suffered any wound, injury, 712
disability, or condition of such a nature as to reasonably 713
indicate abuse or neglect of that adult, shall immediately report 714
or cause reports to be made of such information to a law 715
enforcement agency or to the county board of mental retardation 716
and developmental disabilities, except that if the report 717
17
concerns a resident of a facility operated by the department of 718
mental retardation and developmental disabilities the report 719
shall be made either to a law enforcement agency or to the 720
department. 721
(2) All of the following persons are required to make a 723
report under division (C)(1) of this section: 724
(a) Any physician, including a hospital intern or 726
resident, any dentist, podiatrist, chiropractor, practitioner of 727
a limited branch of medicine as specified in section 4731.15 of 730
the Revised Code, hospital administrator or employee of a 731
hospital, nurse licensed under Chapter 4723. of the Revised Code, 732
employee of an ambulatory health facility as defined in section 733
5101.61 of the Revised Code, employee of a home health agency, 734
employee of an adult care facility licensed under Chapter 3722. 735
of the Revised Code, or employee of a community mental health
facility; 736
(b) Any school teacher or school authority, social worker, 738
psychologist, attorney, peace officer, coroner, clergyman, or 739
residents' rights advocate as defined in section 3721.10 of the 740
Revised Code; 741
(c) A superintendent, board member, or employee of a 743
county board of mental retardation and developmental 744
disabilities; an administrator, board member, or employee of a 745
residential facility licensed under section 5123.19 of the 746
Revised Code; or an administrator, board member, or employee of 747
any other public or private provider of services to a mentally 748
retarded or developmentally disabled adult; 749
(d) A member of a citizen's advisory council established 751
at an institution or branch institution of the department of 752
mental retardation and developmental disabilities under section 753
5123.092 of the Revised Code; 754
(e) A person who, while acting in an official or 756
professional capacity, renders spiritual treatment through prayer 758
in accordance with the tenets of an organized religion.
18
(3) The reporting requirements of this division do not 760
apply to members of the legal rights service commission or to 761
employees of the legal rights service. 762
(D) The reports required under division (C) of this 764
section shall be made forthwith by telephone or in person and 765
shall be followed by a written report. The reports shall contain 766
the following: 767
(1) The names and addresses of the mentally retarded or 769
developmentally disabled adult and the adult's custodian, if 770
known;
(2) The mentally retarded or developmentally disabled 772
adult's age and the nature and extent of the adult's injuries or 773
physical neglect, including any evidence of previous injuries or 774
physical neglect; 775
(3) Any other information which might be helpful in 777
establishing the cause of the injury, abuse, or physical neglect. 778
(E) When a physician performing services as a member of 780
the staff of a hospital or similar institution has reason to 781
believe that a mentally retarded or developmentally disabled 782
adult has suffered injury, abuse, or physical neglect, the 783
physician shall notify the person in charge of the institution or 784
that person's designated delegate, who shall make the necessary 785
reports.
(F) Any person having reasonable cause to believe that a 787
mentally retarded or developmentally disabled adult has suffered 788
abuse or neglect may report the belief, or cause a report to be 789
made, to a law enforcement agency or the county board of mental 790
retardation and developmental disabilities, or, if the adult is a 791
resident of a facility operated by the department of mental 792
retardation and developmental disabilities, to a law enforcement 793
agency or to the department. 794
(G)(1) Upon the receipt of a report concerning the 796
possible nonaccidental infliction of a physical injury upon a 797
mentally retarded or developmentally disabled adult, the law 798
19
enforcement agency shall inform the county board of mental 799
retardation and developmental disabilities or, if the adult is a 800
resident of a facility operated by the department of mental 801
retardation and developmental disabilities, the director of the 802
department or the director's designee. 803
(2) On receipt of a report under this section THAT 805
INCLUDES AN ALLEGATION OF ABUSE OR NEGLECT, AS DESCRIBED IN 806
DIVISION (A)(1) OR (2) OR (C)(1) OR (2) OF SECTION 5123.50 OF THE 807
REVISED CODE, the department of mental retardation and 808
developmental disabilities shall notify the law enforcement 809
agency.
(3) When a county board of mental retardation and 811
developmental disabilities receives a report under this section 812
THAT INCLUDES AN ALLEGATION OF ABUSE OR NEGLECT, AS DESCRIBED IN 813
DIVISION (A)(1) OR (2) OR (C)(1) OR (2) OF SECTION 5123.50 OF THE 814
REVISED CODE, the superintendent of the board or an individual 815
the superintendent designates under division (H) of this section 817
shall notify the law enforcement agency and the department of 818
mental retardation and developmental disabilities. 819
(H) The superintendent of the board may designate an 821
individual to be responsible for notifying the law enforcement 822
agency and the department when the county board receives a report 823
under this section. 824
(I) A mentally retarded or developmentally disabled adult 826
about whom a report is made may be removed from the adult's place 827
of residence only by law enforcement officers who consider that 828
the adult's immediate removal is essential to protect the adult 829
from further injury or abuse or in accordance with the order of a 830
court made pursuant to section 5126.33 of the Revised Code. 831
(J) A law enforcement agency shall investigate each report 833
of abuse or neglect made under this section. In addition, the 834
department, in cooperation with law enforcement officials, shall 835
investigate each report regarding a resident of a facility 836
operated by the department to determine the circumstances 837
20
surrounding the injury, the cause of the injury, and the person 838
responsible. The department shall determine, with the registry 839
office which shall be maintained by the department, whether prior 840
reports have been made concerning the mentally retarded or 841
developmentally disabled adult or other principals in the case. 842
The department shall submit a report of its investigation, in 843
writing, to the law enforcement agency, and with the consent of 844
the adult, shall provide such protective services as are 845
necessary to protect the adult. The law enforcement agency shall 846
make a written report of its findings to the department. 847
If the adult is not a resident of a facility operated by 849
the department, the county board of mental retardation and 850
developmental disabilities shall review the report of abuse or 851
neglect in accordance with sections 5126.30 to 5126.33 of the 852
Revised Code and the law enforcement agency shall make the 853
written report of its findings to the county board. 854
(K) Any person or any hospital, institution, school, 856
health department, or agency participating in the making of 857
reports pursuant to this section, any person participating as a 858
witness in an administrative or judicial proceeding resulting 859
from the reports, or any person or governmental entity that 860
discharges responsibilities under sections 5126.31 to 5126.33 of 861
the Revised Code shall be immune from any civil or criminal 862
liability that might otherwise be incurred or imposed as a result 863
of such actions except liability for perjury, unless the person 864
or governmental entity has acted in bad faith or with malicious 865
purpose. 866
(L) No employer or any person with the authority to do so 868
shall discharge, demote, transfer, prepare a negative work 869
performance evaluation, reduce pay or benefits, terminate work 870
privileges, or take any other action detrimental to an employee 871
or retaliate against an employee as a result of the employee's 872
having made a report under this section. This division does not 873
preclude an employer or person with authority from taking action 874
21
with regard to an employee who has made a report under this 875
section if there is another reasonable basis for the action. 876
(M) Reports made under this section are not public records 878
as defined in section 149.43 of the Revised Code. Information 879
contained in the reports on request shall be made available to 880
the adult who is the subject of the report, to the adult's legal 881
counsel, and to agencies authorized to receive information in the 883
report by the department or by a county board of mental 884
retardation and developmental disabilities. 885
(N) Notwithstanding section 4731.22 of the Revised Code, 887
the physician-patient privilege shall not be a ground for 888
excluding evidence regarding a mentally retarded or 889
developmentally disabled adult's injuries or physical neglect or 890
the cause thereof in any judicial proceeding resulting from a 891
report submitted pursuant to this section. 892
Sec. 5126.30. As used in sections 5126.30 to 5126.33 of 901
the Revised Code: 902
(A) "Mentally retarded or developmentally disabled adult" 904
and "adult" mean a person eighteen years of age or older who is 905
developmentally disabled or mentally retarded. 906
(B) "Caretaker" means a person who is responsible for the 908
care of an adult by order of a court, including an order of 909
guardianship, or who assumes the responsibility for the care of 910
an adult as a volunteer, as a family member, by contract, or by 911
the acceptance of payment for care. 912
(C) "Abuse" means any of the following: 914
(1) An act, or a failure to act, that results or could 916
result in emotional or physical injury to an adult, unless the 917
act is done in self-defense or by accident; 918
(2) An act that constitutes "sexual activity" as defined 920
in section 2907.01 HAS THE SAME MEANING AS IN SECTION 5123.50 of 923
the Revised Code and would constitute an offense under Chapter 924
2907., EXCEPT THAT IT INCLUDES A MISAPPROPRIATION, AS DEFINED IN 925
SECTION 3721.21 of the Revised Code; 926
22
(3) Insulting or coarse language or gestures directed 928
toward an adult that subject him to humiliation or degradation; 930
(4) An act that deprives an adult of real or personal 932
property by fraudulent or illegal means. 933
(D) "Neglect" means the failure of an adult or a caretaker 935
to provide goods and services necessary for the adult to avoid 936
physical harm HAS THE SAME MEANING AS IN SECTION 5123.50 OF THE 938
REVISED CODE.
(E) "Working day" means Monday, Tuesday, Wednesday, 940
Thursday, or Friday, except when that day is a holiday as defined 941
in section 1.14 of the Revised Code. 942
(F) "Incapacitated" means lacking understanding or 944
capacity, with or without the assistance of a caretaker, to make 945
and carry out decisions regarding food, clothing, shelter, health 946
care, or other necessities, but does not include mere refusal to 947
consent to the provision of services. 948
Sec. 5126.31. (A) A county board of mental retardation 957
and developmental disabilities shall review reports of abuse and 958
neglect made under section 5123.61 of the Revised Code and 959
reports referred to it under section 5101.611 of the Revised Code 960
to determine whether the person who is the subject of the report 961
is a mentally retarded or developmentally disabled adult in need 962
of services to deal with the abuse or neglect. The board shall 963
give notice of each report to the registry office of the 964
department of mental retardation and developmental disabilities 965
established pursuant to section 5123.61 of the Revised Code on 966
the first working day after receipt of the report. If the report 967
alleges that there is a substantial risk to the adult of 968
immediate physical harm or death, the board shall initiate review 969
within twenty-four hours of its receipt of the report. If the 970
board determines that the person is sixty years of age or older 971
but is not mentally retarded or developmentally disabled, it 972
shall refer the case to the county department of human services. 973
If the board determines that the person is a mentally retarded or 974
23
developmentally disabled adult, it shall continue its review of 975
the case. 976
(B) For each review over which the board retains 978
responsibility under division (A) of this section, it shall do 979
all of the following: 980
(1) Give both written and oral notice of the purpose of 982
the review to the adult and, if any, to his THE ADULT'S legal 983
counsel or caretaker, in simple and clear language; 985
(2) Visit the adult, in his THE ADULT'S residence if 987
possible, and explain the notice given under division (B)(1) of 989
this section;
(3) Request from the registry office any prior reports 991
concerning the adult or other principals in the case; 992
(4) Consult, if feasible, with the person who made the 994
report under section 5101.61 or 5123.61 of the Revised Code and 995
with any agencies or persons who have information about the 996
alleged abuse or neglect; 997
(5) Cooperate fully with the law enforcement agency 999
responsible for investigating the report and for filing any 1,000
resulting criminal charges and, on request, turn over evidence to 1,001
the agency; 1,002
(6) Determine whether the adult needs services, and 1,004
prepare a written report stating reasons for the determination. 1,005
No adult shall be determined to be abused, neglected, or in need 1,006
of services for the sole reason that, in lieu of medical 1,007
treatment, he THE ADULT relies on or is being furnished spiritual 1,009
treatment through prayer alone in accordance with the tenets and 1,010
practices of a church or religious denomination of which he THE 1,011
ADULT is a member or adherent. 1,013
(C) The board shall arrange for the provision of services 1,015
for the prevention, correction or discontinuance of abuse or 1,016
neglect or of a condition resulting from abuse or neglect for any 1,017
adult who has been determined to need the services and consents 1,018
to receive them. These services may include, but are not limited 1,019
24
to, case management, fiscal management, medical, mental health, 1,020
home health care, homemaker, legal, and residential services and 1,021
the provision of temporary accommodations and necessities such as 1,022
food and clothing. The services do not include acting as a 1,023
guardian, trustee, or protector as defined in section 5123.55 of 1,024
the Revised Code. If the provision of residential services would 1,025
require expenditures by the department of mental retardation and 1,026
developmental disabilities, the board shall obtain the approval 1,027
of the department prior to arranging the residential services. 1,028
To arrange services, the board shall: 1,030
(1) Develop an individual INDIVIDUALIZED service plan 1,032
identifying the types of services required for the adult, the 1,033
goals for the services, and the persons or agencies that will 1,034
provide them; 1,035
(2) In accordance with rules established by the director 1,037
of mental retardation and developmental disabilities, obtain the 1,038
consent of the adult or his THE ADULT'S guardian to the provision 1,040
of any of these services and obtain the signature of the adult or 1,041
guardian on the individual service plan. An adult who has been 1,042
found incompetent under Chapter 2111. of the Revised Code may 1,043
consent to services. If the board is unable to obtain consent, 1,044
it may seek, if the adult is incapacitated, a court order 1,045
pursuant to section 5126.33 of the Revised Code authorizing the 1,046
board to arrange these services. 1,047
(D) The board shall ensure that the adult receives the 1,049
services arranged by the board from the provider and shall have 1,050
the services terminated if the adult withdraws consent. 1,051
(E) On completion of a review, the board shall submit a 1,053
written report to the law enforcement agency responsible for 1,054
investigating the report and to the registry office ESTABLISHED 1,055
UNDER SECTION 5123.61 OF THE REVISED CODE. IF THE REPORT 1,056
INCLUDES A FINDING THAT A MENTALLY RETARDED OR DEVELOPMENTALLY 1,057
DISABLED ADULT IS A VICTIM OF ABUSE OR NEGLECT, AS DESCRIBED IN 1,058
DIVISION (A)(1) OR (2) OR (C)(1) OR (2) OF SECTION 5123.50 OF THE 1,059
25
REVISED CODE, THE BOARD SHALL SUBMIT THE REPORT TO THE LAW
ENFORCEMENT AGENCY RESPONSIBLE FOR INVESTIGATING THE REPORT. 1,060
Reports prepared under this section are not public records as 1,061
defined in section 149.43 of the Revised Code. 1,062
(F) The board shall provide comprehensive formal training 1,064
for employees and other persons authorized to implement the 1,065
requirements of this section. 1,066
Section 2. That existing sections 2151.421, 5123.61, 1,068
5126.30, and 5126.31 of the Revised Code are hereby repealed. 1,069
Section 3. Section 2151.421 of the Revised Code is 1,071
presented in this act as a composite of the section as amended by 1,072
both Sub. H.B. 606 and Am. S.B. 212 of the 122nd General 1,073
Assembly, with the new language of neither of the acts shown in 1,075
capital letters. This is in recognition of the principle stated 1,076
in division (B) of section 1.52 of the Revised Code that such 1,077
amendments are to be harmonized where not substantively 1,078
irreconcilable and constitutes a legislative finding that such is 1,079
the resulting version in effect prior to the effective date of 1,080
this act.