SENATOR Oelslager

To amend section 5120.17 of the Revised Code to modify

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the administrative procedures for inmate transport

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or transfer to psychiatric hospitals.

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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:

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(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 or retained by the department of rehabilitation and	71
correction and is appointed by the chief or chief clinical officer	72
of mental health services as a hospitalization hearing officer to	73
conduct due 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) PriorExcept 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 of the department or that	139
officer's designee and either a psychiatrist employed or retained	140
by the department or, in the absence of a psychiatrist, a	141
psychologist employed or retained by the department determines	142
that the inmate is mentally ill, presents an immediate danger to	143
self or others, and requires hospital-level care.	144

(2) The department may transfer an inmate to a psychiatric	145
hospital under an uncontested transfer order if both of the	146
following apply:	147

(a) A psychiatrist employed or retained by the department	148
determines all of the following apply:	149

(i) The inmate has a mental illness or is a mentally ill	150
person subject to hospitalization.	151

(ii) The inmate requires hospital care to address the mental	152
illness.	153

(iii) The inmate has the mental capacity to make a reasoned	154
choice regarding the inmate's transfer to a hospital.	155

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

156

(3) The written notice and the hearing required under	157
divisions (B)(1) and (2) of this section are not required for an	158
emergency transfer or uncontested transfer under division (C)(1)	159
or (2) of this section.	160

(4) After an emergency transfer under division (C)(1) of	161
this section, the department shall hold a hearing for continued	162
hospitalization within five working days after admission of the	163
transferred inmate to the psychiatric hospital. The department	164
shall hold subsequent hearings pursuant to division (F) of this	165
section at the same intervals as required for inmate patients who	166
are transported to a psychiatric hospital under division (B)(4) of	167
this section.	168

(5) After an uncontested transfer under division (C)(2) of	169
this section, the inmate may withdraw consent to the transfer in	170
writing at any time. Upon the inmate's withdrawal of consent, the	171
hospital shall discharge the inmate, or, within five working days,	172
the department shall hold a hearing for continued hospitalization.	173
The department shall hold subsequent hearings pursuant to division	174
(F) of this section at the same time intervals as required for	175
inmate patients who are transported to a psychiatric hospital	176
under division (B)(4) of this section.	177

(D)(1) If an independent decision-maker, pursuant to	178
division (B)(4) of this section, orders an inmate transported to a	179
psychiatric hospital or if an inmate is transferred pursuant to	180
division (C)(1) or (2) of this section, the staff of the	181
psychiatric hospital shall examine the inmate patient when	182
admitted to the psychiatric hospital as soon as practicable after	183
the inmate patient arrives at the hospital and no later than	184
twenty-four hours after the time of arrival. The attending	185
physician responsible for the inmate patient's care shall give the	186
inmate patient all information necessary to enable the patient to	187
give a fully informed, intelligent, and knowing consent to the	188
treatment the inmate patient will receive in the hospital. The	189
attending physician shall tell the inmate patient the expected	190
physical and medical consequences of any proposed treatment and	191
shall give the inmate patient the opportunity to consult with	192
another psychiatrist at the hospital and with the inmate advisor.	193

(2) No inmate patient who is transported or transferred to a	194
psychiatric hospital pursuant to division (B)(4) or (C)(1) or(2)	195
of this section and who is in the physical custody of the	196
department of rehabilitation and correction shall be subjected to	197
any of the following procedures:	198

(a) Convulsive therapy;

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(b) Major aversive interventions;

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(c) Any unusually hazardous treatment procedures;

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(d) Psychosurgery.

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(D)(E) The warden of the psychiatric hospital or the	203
warden's designee shall ensure that an inmate patient hospitalized	204
pursuant to this section receives or has all of the following:	205

(1) Receives sufficient professional care within twenty days	206
of admission to ensure that an evaluation of the inmate patient's	207
current status, differential diagnosis, probable prognosis, and	208
description of the current treatment plan have been formulated and	209
are stated on the inmate patient's official chart;	210

(2) Has a written treatment plan consistent with the	211
evaluation, diagnosis, prognosis, and goals of treatment;	212

(3) Receives treatment consistent with the treatment plan;

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(4) Receives periodic reevaluations of the treatment plan by	214
the professional staff at intervals not to exceed thirty days;	215

(5) Is provided with adequate medical treatment for physical	216
disease or injury;	217

(6) Receives humane care and treatment, including, without	218
being limited to, the following:	219

(a) Access to the facilities and personnel required by the	220
treatment plan;	221

(b) A humane psychological and physical environment;

222

(c) The right to obtain current information concerning the	223
treatment program, the expected outcomes of treatment, and the	224
expectations for the inmate patient's participation in the	225
treatment program in terms that the inmate patient reasonably can	226
understand;	227

(d) Opportunity for participation in programs designed to	228
help the inmate patient acquire the skills needed to work toward	229
discharge from the psychiatric hospital;	230

(e) The right to be free from unnecessary or excessive	231
medication and from unnecessary restraints or isolation;	232

(f) All other rights afforded inmates in the custody of the	233
department consistent with rules, policy, and procedure of the	234
department.	235

(E)(F) The department shall hold a hearing for the continued	236
hospitalization of an inmate patient who is transported or	237
transferred to a psychiatric hospital pursuant to division (B)(4)	238
or (C)(1) of this section prior to the expiration of the initial	239
thirty-day period of hospitalization and, if necessary, at	240
ninety-day intervals after the first hearing for continued	241
hospitalization.The department shall hold any subsequent	242
hearings, if necessary, not later than ninety days after the first	243
thirty-day hearing and then not later than each one hundred and	244
eighty days after the immediately prior hearing. An independent	245
decision-maker shall conduct the hearings at the psychiatric	246
hospital in which the inmate patient is confined. The inmate	247
patient shall be afforded all of the rights set forth in this	248
section for the hearing prior to transfer to the psychiatric	249
hospital. The department may not waive a hearing for continued	250
commitment. A hearing for continued commitment is mandatory, and	251
neither the department nor the inmate patient may waivefor an	252
inmate patient transported or transferred to a psychiatric	253
hospital pursuant to division (B)(4) or (C)(1) of this section	254
unless the inmate patient has the capacity to make a reasoned	255
choice to execute a waiver and waives the hearing in writing. An	256
inmate patient who is transferred to a psychiatric hospital	257
pursuant to an uncontested transfer under division (C)(2) of this	258
section and who has scheduled hearings after withdrawal of consent	259
for hospitalization may waive any of the scheduled hearings if the	260
inmate has the capacity to make a reasoned choice and executes a	261
written waiver of the hearing.	262

If upon completion of the hearing the independent	263
decision-maker does not find by clear and convincing evidence that	264
the inmate patient is a mentally ill person subject to	265
hospitalization, the independent decision-maker shall order the	266
inmate patient's discharge from the psychiatric hospital. If the	267
independent decision-maker finds by clear and convincing evidence	268
that the inmate patient is a mentally ill person subject to	269
hospitalization, the independent decision-maker shall order that	270
the inmate patient remain at the psychiatric hospital for another	271
period not to exceed ninety dayscontinued hospitalization until	272
the next required hearing.	273

If at any time prior to the expiration of the ninety-day	274
period, the warden of the psychiatric hospital or the warden's	275
designeenext required hearing for continued hospitalization, the	276
medical director of the hospital or the attending physician	277
determines that the treatment needs of the inmate patient could be	278
met equally well in an available and appropriate less restrictive	279
state correctional institution or unit, the warden or the warden's	280
designeemedical director or attending physician may discharge the	281
inmate to that facility.	282

(F)(G) An inmate patient is entitled to the credits toward	283
the reduction of the inmate patient's stated prison term pursuant	284
to Chapters 2967. and 5120. of the Revised Code under the same	285
terms and conditions as if the inmate patient were in any other	286
institution of the department of rehabilitation and correction.	287

(G)(H) The adult parole authority may place an inmate	288
patient on parole or under post-release control directly from a	289
psychiatric hospital.	290

(H)(I) If an inmate patient who is a mentally ill person	291
subject to hospitalization is to be released from a psychiatric	292
hospital because of the expiration of the inmate patient's stated	293
prison term, the warden of the psychiatric hospital, at least	294
fourteen days before the expiration date, may file an affidavit	295
under section 5122.11 or 5123.71 of the Revised Code with the	296
probate court in the county where the psychiatric hospital is	297
located or the probate court in the county where the inmate will	298
reside, alleging that the inmate patient is a mentally ill person	299
subject to hospitalization by court order or a mentally retarded	300
person subject to institutionalization by court order, whichever	301
is applicable. The proceedings in the probate court shall be	302
conducted pursuant to Chapter 5122. or 5123. of the Revised Code	303
except as modified by this division.	304

Upon the request of the inmate patient, the probate court	305
shall grant the inmate patient an initial hearing under section	306
5122.141 of the Revised Code or a probable cause hearing under	307
section 5123.75 of the Revised Code before the expiration of the	308
stated prison term. After holding a full hearing, the probate	309
court shall make a disposition authorized by section 5122.15 or	310
5123.76 of the Revised Code before the date of the expiration of	311
the stated prison term unless the court grants a continuance of	312
the hearing at the request of the inmate patient or the inmate	313
patient's counsel. No inmate patient shall be held in the custody	314
of the department of rehabilitation and correction past the date	315
of the expiration of the inmate patient's stated prison term.	316

(I)(J) The department of rehabilitation and correction shall	317
set standards for treatment provided to inmate patients,	318
consistent where applicable with the standards set by the joint	319
commission on accreditation of healthcare organizations.	320

(J)(K) A certificate, application, record, or report that is	321
made in compliance with this section and that directly or	322
indirectly identifies an inmate or former inmate whose	323
hospitalization has been sought under this section is	324
confidential. No person shall disclose the contents of any	325
certificate, application, record, or report of that nature or any	326
other psychiatric or medical record or report regarding a mentally	327
ill inmate unless one of the following applies:	328

(1) The person identified, or the person's legal guardian,	329
if any, consents to disclosure, and the director ofchief clinical	330
officer or designee of mental health services and psychiatry of	331
the department of rehabilitation and correction determines that	332
disclosure is in the best interests of the person.	333

(2) Disclosure is required by a court order signed by a	334
judge.	335

(3) An inmate patient seeks access to the inmate patient's	336
own psychiatric and medical records, unless access is specifically	337
restricted in the treatment plan for clear treatment reasons.	338

(4) Hospitals and other institutions and facilities within	339
the department of rehabilitation and correction may exchange	340
psychiatric records and other pertinent information with other	341
hospitals, institutions, and facilities of the department, but the	342
information that may be released about an inmate patient is	343
limited to medication history, physical health status and history,	344
summary of course of treatment in the hospital, summary of	345
treatment needs, and a discharge summary, if any.	346

(5) An inmate patient's family member who is involved in	347
planning, providing, and monitoring services to the inmate patient	348
may receive medication information, a summary of the inmate	349
patient's diagnosis and prognosis, and a list of the services and	350
personnel available to assist the inmate patient and family if the	351
attending physician determines that disclosure would be in the	352
best interest of the inmate patient. No disclosure shall be made	353
under this division unless the inmate patient is notified of the	354
possible disclosure, receives the information to be disclosed, and	355
does not object to the disclosure.	356

(6) The department of rehabilitation and correction may	357
exchange psychiatric hospitalization records, other mental health	358
treatment records, and other pertinent information with county	359
sheriffs' offices, hospitals, institutions, and facilities of the	360
department of mental health and with community mental health	361
agencies and boards of alcohol, drug addiction, and mental health	362
services with which the department of mental health has a current	363
agreement for patient care or services to ensure continuity of	364
care. Disclosure under this division is limited to records	365
regarding the inmate patient'sa mentally ill inmate's medication	366
history, physical health status and history, summary of course of	367
treatment, summary of treatment needs, and a discharge summary, if	368
any. No office, department, agency, or board shall disclose the	369
records and other information unless one of the following applies:	370

(a) The mentally ill inmate patient is notified of the	371
possible disclosure and consents to the disclosure.	372

(b) The mentally ill inmate patient is notified of the	373
possible disclosure, an attempt to gain the consent of the inmate	374
is made, and the office, department, agency, or board documents	375
the attempt to gain consent, the inmate's objections, if any, and	376
the reasons for disclosure in spite of the inmate's objections.	377

(7) Information may be disclosed to staff members designated	378
by the director of rehabilitation and correction for the purpose	379
of evaluating the quality, effectiveness, and efficiency of	380
services and determining if the services meet minimum standards.	381

(K) The name of an inmate patient shall not be retained with	382
the information obtained during the evaluations.	383

(L) The director of rehabilitation and correction may adopt	384
rules setting forth guidelines for the procedures required under	385
divisions (B), (C)(1), and (C)(2) of this section.	386

Section 2.  That existing section 5120.17 of the Revised Code	387
is hereby repealed.	388