H. B. No. 355 As Introduced

REPRESENTATIVE Willamowski

A BILL

To amend section 5120.17 of the Revised Code to modify

the administrative procedures for inmate

commitments to correctional institutions.

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That section 5120.17 of the Revised Code be	4
amended as follows:	5

Sec. 5120.17. (A) As used in this section:

(1) "Mental illness" means a substantial disorder of thought,	7
mood, perception, orientation, or memory that grossly impairs	8
judgment, behavior, capacity to recognize reality, or ability to	9
meet the ordinary demands of life.	10

(2) "Mentally ill person subject to hospitalization" means a	11
mentally ill person to whom any of the following applies because	12
of the person's mental illness:	13

(a) The person represents a substantial risk of physical	14
harm to the person as manifested by evidence of threats of, or	15
attempts at, suicide or serious self-inflicted bodily harm.	16

(b) The person represents a substantial risk of physical	17
harm to others as manifested by evidence of recent homicidal or	18
other violent behavior, evidence of recent threats that place	19
another in reasonable fear of violent behavior and serious	20
physical harm, or other evidence of present dangerousness.	21

(c) The person represents a substantial and immediate risk	22
of serious physical impairment or injury to the person as	23
manifested by evidence that the person is unable to provide for	24
and is not providing for the person's basic physical needs because	25
of the person's mental illness and that appropriate provision for	26
those needs cannot be made immediately available in the ~~community~~	27
correctional institution in which the inmate is currently housed.	28

(d) The person would benefit from treatment in a hospital	29
for the person's mental illness and is in need of treatment in a	30
hospital as manifested by evidence of behavior that creates a	31
grave and imminent risk to substantial rights of others or the	32
person.	33

(3) "Psychiatric hospital" means a facility that is operated	34
by the department of rehabilitation and correction, is designated	35
as a psychiatric hospital, is licensed by the department of mental	36
health pursuant to section 5119.20 of the Revised Code, and is in	37
substantial compliance with the standards set by the joint	38
commission on accreditation of healthcare organizations.	39

(4) "Inmate patient" means an inmate who is admitted to a	40
psychiatric hospital.	41

(5) "Admitted" to a psychiatric hospital means being accepted	42
for and staying at least one night at the psychiatric hospital.	43

(6) "Treatment plan" means a written statement of reasonable	44
objectives and goals for an inmate patient that is based on the	45
needs of the inmate patient and that is established by the	46
treatment team, with the active participation of the inmate	47
patient and with documentation of that participation. "Treatment	48
plan" includes all of the following:	49

(a) The specific criteria to be used in evaluating progress	50
toward achieving the objectives and goals;	51

(b) The services to be provided to the inmate patient during	52
the inmate patient's hospitalization;	53

(c) The services to be provided to the inmate patient after	54
discharge from the hospital, including, but not limited to,	55
housing and mental health services provided at the state	56
correctional institution to which the inmate patient returns after	57
discharge or community mental health services.	58

(7) "Mentally retarded person subject to institutionalization	59
by court order" has the same meaning as in section 5123.01 of the	60
Revised Code.	61

(8) "Emergency transfer" means the transfer of a mentally ill	62
inmate to a psychiatric hospital when the inmate presents an	63
immediate danger to self or others and requires hospital-level	64
care.	65

(9) "Uncontested transfer" means the transfer of a mentally	66
ill inmate to a psychiatric hospital when the inmate has the	67
mental capacity to, and has waived, the hearing required by	68
division (B) of this section.	69

(10)(a) "Independent decision-maker" means a person who is	70
employed by the department of rehabilitation and correction and is	71
appointed by the chief or chief clinical officer of mental health	72
services as a hospitalization hearing officer to conduct due	73
process hearings.	74

(b) An independent decision-maker who presides over any	75
hearing or issues any order pursuant to this section shall be a	76
psychiatrist, psychologist, or attorney, shall not be specifically	77
associated with the institution in which the inmate who is the	78
subject of the hearing or order resides at the time of the hearing	79
or order, and previously shall not have had any treatment	80
relationship with nor have represented in any legal proceeding the	81
inmate who is the subject of the order.	82

(B)(1) IfExcept as provided in division (C) of this section,	83
if the warden of a state correctional institution or the warden's	84
designee believes that an inmate should be transferred from the	85
institution to a psychiatric hospital, the department shall hold a	86
hearing to determine whether the inmate is a mentally ill person	87
subject to hospitalization. The department shall conduct the	88
hearing at the state correctional institution in which the inmate	89
is confined, and the department shall provide qualified ~~and~~	90
independent assistance to the inmate for the hearing. An	91
independent decision-maker provided by the department shall	92
preside at the hearing and determine whether the inmate is a	93
mentally ill person subject to hospitalization.	94

(2) ~~Prior~~Except as provided in division (C) of this section,	95
prior to the hearing held pursuant to division (B)(1) of this	96
section, the warden or the warden's designee shall give written	97
notice to the inmate that the department is considering	98
transferring the inmate to a psychiatric hospital, that it will	99
hold a hearing on the proposed transfer at which the inmate may be	100
present, that at the hearing the inmate has the rights described	101
in division (B)(3) of this section, and that the department will	102
provide qualified ~~and~~ independent assistance to the inmate with	103
respect to the hearing. The department shall not hold the hearing	104
until the inmate has received written notice of the proposed	105
transfer and has had sufficient time to consult with the person	106
appointed by the department to provide assistance to the inmate	107
and to prepare for a presentation at the hearing.	108

(3) At the hearing held pursuant to division (B)(1) of this	109
section, the department shall disclose to the inmate the evidence	110
that it relies upon for the transfer and shall give the inmate an	111
opportunity to be heard. Unless the independent decision-maker	112
finds good cause for not permitting it, the inmate may present	113
documentary evidence and the testimony of witnesses at the hearing	114
and may confront and cross-examine witnesses called by the	115
department.	116

(4) If the independent decision-maker does not find clear	117
and convincing evidence that the inmate is a mentally ill person	118
subject to hospitalization, the department shall not transfer the	119
inmate to a psychiatric hospital but shall continue to confine the	120
inmate in the same state correctional institution or in another	121
state correctional institution that the department considers	122
appropriate. If the independent decision-maker finds clear and	123
convincing evidence that the inmate is a mentally ill person	124
subject to hospitalization, the decision-maker shall order that	125
the inmate be transported to a psychiatric hospital for	126
observation and treatment for a period of not longer than thirty	127
days. After the hearing, the independent decision-maker shall	128
submit to the department a written decision that states one of the	129
findings described in division (B)(4) of this section, the	130
evidence that the decision-maker relied on in reaching that	131
conclusion, and, if the decision is that the inmate should be	132
transferred, the reasons for the transfer.	133

~~(5) The director of rehabilitation and correction shall~~	134
~~adopt rules setting forth guidelines for the procedures required~~	135
~~under division (B) of this section.~~	136

(C)(1) The department may transfer an inmate to a psychiatric	137
hospital under an emergency transfer order if the chief clinical	138
officer of mental health services or that officer's designee and	139
either a psychiatrist or, in the absence of a psychiatrist, a	140
psychologist determines that the inmate is mentally ill, presents	141
an immediate danger to self or others, and requires hospital-level	142
care.	143

(2) The department may transfer an inmate to a psychiatric	144
hospital under an uncontested transfer order if both of the	145
following apply:	146

(a) A psychiatrist determines all of the following apply:

147

(i) The inmate has a mental illness or is a mentally ill	148
person subject to hospitalization.	149

(ii) The inmate requires hospital care to address the mental	150
illness.	151

(iii) The inmate has the mental capacity to make a reasoned	152
choice regarding the inmate's transfer to a hospital.	153

(b) The inmate agrees to a transfer to a hospital.

154

(3) The written notice and the hearing required under	155
divisions (B)(1) and (2) of this section are not required for an	156
emergency transfer or uncontested transfer under division (C)(1)	157
or (2) of this section.	158

(4) After an emergency transfer under division (C)(1) of	159
this section, the department shall hold a hearing for continued	160
hospitalization within five working days after admission of the	161
transferred inmate to the psychiatric hospital. The department	162
shall hold subsequent hearings pursuant to division (F) of this	163
section at the same intervals as required for inmate patients who	164
are transported to a psychiatric hospital under division (B)(4) of	165
this section.	166

(5) After an uncontested transfer under division (C)(2) of	167
this section, the inmate may withdraw consent to the transfer in	168
writing at any time. Upon the inmate's withdrawal of consent, the	169
hospital shall discharge the inmate, or, within five working days,	170
the department shall hold a hearing for continued hospitalization.	171
The department shall hold subsequent hearings pursuant to division	172
(F) of this section at the same time intervals as required for	173
inmate patients who are transported to a psychiatric hospital	174
under division (B)(4) of this section.	175

(D)(1) If an independent decision-maker, pursuant to	176
division (B)(4) of this section, orders an inmate transported to a	177
psychiatric hospital or if an inmate is transferred pursuant to	178
division (C)(1) or (2) of this section, the staff of the	179
psychiatric hospital shall examine the inmate patient when	180
admitted to the psychiatric hospital as soon as practicable after	181
the inmate patient arrives at the hospital and no later than	182
twenty-four hours after the time of arrival. The attending	183
physician responsible for the inmate patient's care shall give the	184
inmate patient all information necessary to enable the patient to	185
give a fully informed, intelligent, and knowing consent to the	186
treatment the inmate patient will receive in the hospital. The	187
attending physician shall tell the inmate patient the expected	188
physical and medical consequences of any proposed treatment and	189
shall give the inmate patient the opportunity to consult with	190
another psychiatrist at the hospital and with the inmate advisor.	191

(2) No inmate patient who is transported or transferred to a	192
psychiatric hospital pursuant to division (B)(4) or (C)(1) or(2)	193
of this section and who is in the physical custody of the	194
department of rehabilitation and correction shall be subjected to	195
any of the following procedures:	196

(a) Convulsive therapy;

197

(b) Major aversive interventions;

198

199

(d) Psychosurgery.

200

~~(D)~~(E) The warden of the psychiatric hospital or the	201
warden's designee shall ensure that an inmate patient hospitalized	202
pursuant to this section receives or has all of the following:	203

(1) Receives sufficient professional care within twenty days	204
of admission to ensure that an evaluation of the inmate patient's	205
current status, differential diagnosis, probable prognosis, and	206
description of the current treatment plan have been formulated and	207
are stated on the inmate patient's official chart;	208

(2) Has a written treatment plan consistent with the	209
evaluation, diagnosis, prognosis, and goals of treatment;	210

(3) Receives treatment consistent with the treatment plan;

211

(4) Receives periodic reevaluations of the treatment plan by	212
the professional staff at intervals not to exceed thirty days;	213

(5) Is provided with adequate medical treatment for physical	214
disease or injury;	215

(6) Receives humane care and treatment, including, without	216
being limited to, the following:	217

(a) Access to the facilities and personnel required by the	218
treatment plan;	219

(b) A humane psychological and physical environment;

220

(c) The right to obtain current information concerning the	221
treatment program, the expected outcomes of treatment, and the	222
expectations for the inmate patient's participation in the	223
treatment program in terms that the inmate patient reasonably can	224
understand;	225

(d) Opportunity for participation in programs designed to	226
help the inmate patient acquire the skills needed to work toward	227
discharge from the psychiatric hospital;	228

(e) The right to be free from unnecessary or excessive	229
medication and from unnecessary restraints or isolation;	230

(f) All other rights afforded inmates in the custody of the	231
department consistent with rules, policy, and procedure of the	232
department.	233

~~(E)~~(F) The department shall hold a hearing for the continued	234
hospitalization of an inmate patient who is transported or	235
transferred to a psychiatric hospital pursuant to division (B)(4)	236
or (C)(1) of this section prior to the expiration of the initial	237
thirty-day period of hospitalization ~~and, if necessary, at~~	238
~~ninety-day intervals after the first hearing for continued~~	239
~~hospitalization~~.The department shall hold any subsequent	240
hearings, if necessary, not later than ninety days after the first	241
thirty-day hearing and then not later than each one hundred and	242
eighty days after the immediately prior hearing. An independent	243
decision-maker shall conduct the hearings at the psychiatric	244
hospital in which the inmate patient is confined. The inmate	245
patient shall be afforded all of the rights set forth in this	246
section for the hearing prior to transfer to the psychiatric	247
hospital. The department may not waive a hearing for continued	248
commitment. A hearing for continued commitment is mandatory~~, and~~	249
~~neither the department nor the inmate patient may waive~~for an	250
inmate patient transported or transferred to a psychiatric	251
hospital pursuant to division (B)(4) or (C)(1) of this section	252
unless the inmate patient has the capacity to make a reasoned	253
choice to execute a waiver and waives the hearing in writing. An	254
inmate patient who is transferred to a psychiatric hospital	255
pursuant to an uncontested transfer under division (C)(2) of this	256
section and who has scheduled hearings after withdrawal of consent	257
for hospitalization may waive any of the scheduled hearings if the	258
inmate has the capacity to make a reasoned choice and executes a	259
written waiver of the hearing.	260

If upon completion of the hearing the independent	261
decision-maker does not find by clear and convincing evidence that	262
the inmate patient is a mentally ill person subject to	263
hospitalization, the independent decision-maker shall order the	264
inmate patient's discharge from the psychiatric hospital. If the	265
independent decision-maker finds by clear and convincing evidence	266
that the inmate patient is a mentally ill person subject to	267
hospitalization, the independent decision-maker shall order that	268
the inmate patient remain at the psychiatric hospital for ~~another~~	269
~~period not to exceed ninety days~~continued hospitalization until	270
the next required hearing.	271

If at any time prior to the ~~expiration of the ninety-day~~	272
~~period, the warden of the psychiatric hospital or the warden's~~	273
~~designee~~next required hearing for continued hospitalization, the	274
medical director of the hospital or the attending physician	275
determines that the treatment needs of the inmate patient could be	276
met equally well in an available and appropriate less restrictive	277
state correctional institution or unit, the ~~warden or the warden's~~	278
~~designee~~medical director or attending physician may discharge the	279
inmate to that facility.	280

~~(F)~~(G) An inmate patient is entitled to the credits toward	281
the reduction of the inmate patient's stated prison term pursuant	282
to Chapters 2967. and 5120. of the Revised Code under the same	283
terms and conditions as if the inmate patient were in any other	284
institution of the department of rehabilitation and correction.	285

~~(G)~~(H) The adult parole authority may place an inmate	286
patient on parole or under post-release control directly from a	287
psychiatric hospital.	288

~~(H)~~(I) If an inmate patient who is a mentally ill person	289
subject to hospitalization is to be released from a psychiatric	290
hospital because of the expiration of the inmate patient's stated	291
prison term, the warden of the psychiatric hospital, at least	292
fourteen days before the expiration date, may file an affidavit	293
under section 5122.11 or 5123.71 of the Revised Code with the	294
probate court in the county where the psychiatric hospital is	295
located or the probate court in the county where the inmate will	296
reside, alleging that the inmate patient is a mentally ill person	297
subject to hospitalization by court order or a mentally retarded	298
person subject to institutionalization by court order, whichever	299
is applicable. The proceedings in the probate court shall be	300
conducted pursuant to Chapter 5122. or 5123. of the Revised Code	301
except as modified by this division.	302

Upon the request of the inmate patient, the probate court	303
shall grant the inmate patient an initial hearing under section	304
5122.141 of the Revised Code or a probable cause hearing under	305
section 5123.75 of the Revised Code before the expiration of the	306
stated prison term. After holding a full hearing, the probate	307
court shall make a disposition authorized by section 5122.15 or	308
5123.76 of the Revised Code before the date of the expiration of	309
the stated prison term ~~unless the court grants a continuance of~~	310
~~the hearing at the request of the inmate patient or the inmate~~	311
~~patient's counsel~~. No inmate patient shall be held in the custody	312
of the department of rehabilitation and correction past the date	313
of the expiration of the inmate patient's stated prison term.	314

~~(I)~~(J) The department of rehabilitation and correction shall	315
set standards for treatment provided to inmate patients,	316
consistent where applicable with the standards set by the joint	317
commission on accreditation of healthcare organizations.	318

~~(J)~~(K) A certificate, application, record, or report that is	319
made in compliance with this section and that directly or	320
indirectly identifies an inmate or former inmate whose	321
hospitalization has been sought under this section is	322
confidential. No person shall disclose the contents of any	323
certificate, application, record, or report of that nature unless	324
one of the following applies:	325

(1) The person identified, or the person's legal guardian,	326
if any, consents to disclosure, and the ~~director of~~chief clinical	327
officer or designee of mental health services ~~and psychiatry~~ of	328
the department of rehabilitation and correction determines that	329
disclosure is in the best interests of the person.	330

(2) Disclosure is required by a court order signed by a	331
judge.	332

(3) An inmate patient seeks access to the inmate patient's	333
own psychiatric and medical records, unless access is specifically	334
restricted in the treatment plan for clear treatment reasons.	335

(4) Hospitals and other institutions and facilities within	336
the department of rehabilitation and correction may exchange	337
psychiatric records and other pertinent information with other	338
hospitals, institutions, and facilities of the department, but the	339
information that may be released about an inmate patient is	340
limited to medication history, physical health status and history,	341
summary of course of treatment in the hospital, summary of	342
treatment needs, and a discharge summary, if any.	343

(5) An inmate patient's family member who is involved in	344
planning, providing, and monitoring services to the inmate patient	345
may receive medication information, a summary of the inmate	346
patient's diagnosis and prognosis, and a list of the services and	347
personnel available to assist the inmate patient and family if the	348
attending physician determines that disclosure would be in the	349
best interest of the inmate patient. No disclosure shall be made	350
under this division unless the inmate patient is notified of the	351
possible disclosure, receives the information to be disclosed, and	352
does not object to the disclosure.	353

(6) The department of rehabilitation and correction may	354
exchange psychiatric hospitalization records, other mental health	355
treatment records, and other pertinent information with county	356
sheriffs' offices, hospitals, institutions, and facilities of the	357
department of mental health and with community mental health	358
agencies and boards of alcohol, drug addiction, and mental health	359
services with which the department of mental health has a current	360
agreement for patient care or services to ensure continuity of	361
care. Disclosure under this division is limited to records	362
regarding the inmate patient's medication history, physical health	363
status and history, summary of course of treatment, summary of	364
treatment needs, and a discharge summary, if any. No office,	365
department, agency, or board shall disclose the records and other	366
information unless one of the following applies:	367

(a) The inmate patient is notified of the possible	368
disclosure and consents to the disclosure.	369

(b) The inmate patient is notified of the possible	370
disclosure, an attempt to gain the consent of the inmate is made,	371
and the office, department, agency, or board documents the attempt	372
to gain consent, the inmate's objections, if any, and the reasons	373
for disclosure in spite of the inmate's objections.	374

(7) Information may be disclosed to staff members designated	375
by the director of rehabilitation and correction for the purpose	376
of evaluating the quality, effectiveness, and efficiency of	377
services and determining if the services meet minimum standards.	378

~~(K)~~ The name of an inmate patient shall not be retained with	379
the information obtained during the evaluations.	380

(L) The director of rehabilitation and correction may adopt	381
rules setting forth guidelines for the procedures required under	382
divisions (B), (C)(1), and (C)(2) of this section.	383

Section 2. That existing section 5120.17 of the Revised Code	384
is hereby repealed.	385