SENATORS Jacobson, Carnes, Mumper, Nein, Wachtmann, Amstutz, Randy Gardner, Jordan, Harris, White

To amend sections 2305.10, 2315.21,

1

3721.02, and 3721.17 and to enact

2

section 5111.411 of the Revised Code relative to

3

the results of a home inspection or nursing

4

facility survey, liability of a residential care

5

facility or a home for punitive damages, and to the statute of limitations for home or residential facility care.

8

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

Section 1. That sections 2305.10, 2315.21,	9
3721.02, and 3721.17 be amended and section 5111.411 of the	10
Revised Code be enacted to read as follows:	11

Sec. 2305.10.  An action for bodily injury or injuring	5
personal property shall be brought within two years after the	6
cause thereof arose.	7

An action upon a claim that is asserted in any civil action	8
against a home or residential facility or against any employee or	9
agent of a home or residential facility, shall be commenced within	10
two years after the cause of action arose, including, but not	11
limited to: claims resulting from acts or omissions in providing	12
health care or from the hiring, training, supervision, retention,	13
or termination of health caregivers; or claims brought under	14
section 3721.17 of the Revised Code.	15

For purposes of this section, a cause of action for bodily	16
injury caused by exposure to asbestos or to chromium in any of its	17
chemical forms arises upon the date on which the plaintiff is	18
informed by competent medical authority that the plaintiff has	19
been injured by such exposure, or upon the date on which, by the	20
exercise of reasonable diligence, the plaintiff should have	21
become aware that the plaintiff had been injured by the exposure,	22
whichever date occurs first.	23

For purposes of this section, a cause of action for bodily	24
injury incurred by a veteran through exposure to chemical	25
defoliants or herbicides or other causative agents, including	26
agent orange, arises upon the date on which the plaintiff is	27
informed by competent medical authority that the plaintiff has	28
been injured by such exposure.	29

As used in this section, "agent:

30

(A) "Agent orange," "causative agent," and "veteran" have	31
the same meanings as in section 5903.21 of the Revised Code.	32

(B) "Home" has the same meaning as in section 3721.10 of the	33
Revised Code.	34

(C) "Residential facility" means a facility licensed under	35
section 5123.19 of the Revised Code.	36

For purposes of this section, a cause of action for bodily	37
injury which may be caused by exposure to diethylstilbestrol or	38
other nonsteroidal synthetic estrogens, including exposure before	39
birth, upon the date on which the plaintiff learns from a licensed	40
physician that the plaintiff has an injury which may be related	41
to such exposure, or upon the date on which by the exercise of	42
reasonable diligence the plaintiff should have become aware that	43
the plaintiff has an injury which may be related to such exposure,	44
whichever date occurs first.	45

Sec. 2315.21.  (A) As used in this section:

154

(1) "Tort action" means a civil action for damages for injury	155
or loss to person or property. "Tort action" includes a product	156
liability claim for damages for injury or loss to person or	157
property that is subject to sections 2307.71 to 2307.80 of the	158
Revised Code, but does not include a civil action for damages for	159
a breach of contract or another agreement between persons.	160

(2) "Trier of fact" means the jury or, in a nonjury action,	161
the court.	162

(3) "Home" has the same meaning as in section 3721.10 of the	163
Revised Code.	164

(B) Subject to division (D) of this section, punitive or	165
exemplary damages are not recoverable from a defendant in question	166
in a tort action unless both of the following apply:	167

(1) The actions or omissions of that defendant demonstrate	168
malice, aggravated or egregious fraud, oppression, or insult, or	169
that defendant as principal or master authorized, participated in,	170
or ratified actions or omissions of an agent or servant that so	171
demonstrate;.	172

(2) The plaintiff in question has adduced proof of actual	173
damages that resulted from actions or omissions as described in	174
division (B)(1) of this section.	175

(C)(1) In a tort action, the trier of fact shall determine	176
the liability of any defendant for punitive or exemplary damages	177
and the amount of those damages.	178

(2) In a tort action, the burden of proof shall be upon a	179
plaintiff in question, by clear and convincing evidence, to	180
establish that the plaintiff is entitled to recover punitive or	181
exemplary damages.	182

(D) This section does not apply to tort actions against the	183
state in the court of claims or to the extent that another section	184
of the Revised Code expressly provides any of the following:	185

(1) Punitive or exemplary damages are recoverable from a	186
defendant in question in a tort action on a basis other than that	187
the actions or omissions of that defendant demonstrate malice,	188
aggravated or egregious fraud, oppression, or insult, or on a	189
basis other than that the defendant in question as principal or	190
master authorized, participated in, or ratified actions or	191
omissions of an agent or servant that so demonstrate;.	192

(2) Punitive or exemplary damages are recoverable from a	193
defendant in question in a tort action irrespective of whether the	194
plaintiff in question has adduced proof of actual damages;.	195

(3) The burden of proof upon a plaintiff in question to	196
recover punitive or exemplary damages from a defendant in question	197
in a tort action is one other than clear and convincing evidence;.	198

(4) Punitive or exemplary damages are not recoverable from a	199
defendant in question in a tort action.	200

(E) When determining the amount of an award of punitive or	201
exemplary damages against either a home or a residential facility	202
licensed under section 5123.19 of the Revised Code, the trier of	203
fact shall consider all of the following:	204

(1) The ability of the home or residential facility to pay	205
the award of punitive or exemplary damages based on the home's or	206
residential facility's assets, income, and net worth;	207

(2) Whether the amount of punitive or exemplary damages is	208
sufficient to deter future tortious conduct;	209

(3) The financial ability of the home or residential	210
facility, both currently and in the future, to provide	211
accommodations, personal care services, and skilled nursing care.	212

Sec. 3721.02. (A) The director of health shall license homes	360
and establish procedures to be followed in inspecting and	361
licensing homes. The director may inspect a home at any time.	362
Each home shall be inspected by the director at least once prior	363
to the issuance of a license and at least once every fifteen	364
months thereafter. The state fire marshal or a township,	365
municipal, or other legally constituted fire department approved	366
by the marshal shall also inspect a home prior to issuance of a	367
license, at least once every fifteen months thereafter, and at any	368
other time requested by the director. A home does not have to be	369
inspected prior to issuance of a license by the director, state	370
fire marshal, or a fire department if ownership of the home is	371
assigned or transferred to a different person and the home was	372
licensed under this chapter immediately prior to the assignment or	373
transfer. The director may enter at any time, for the purposes of	374
investigation, any institution, residence, facility, or other	375
structure whichthat has been reported to the director or that the	376
director has reasonable cause to believe is operating as a nursing	377
home, residential care facility, or home for the aging without a	378
valid license required by section 3721.05 of the Revised Code or,	379
in the case of a county home or district home, is operating	380
despite the revocation of its residential care facility license.	381
The director may delegate the director's authority and duties	382
under this chapter to any division, bureau, agency, or official of	383
the department of health.	384

(B) A single facility may be licensed both as a nursing home	385
pursuant to this chapter and as an adult care facility pursuant to	386
Chapter 3722. of the Revised Code if the director determines that	387
the part or unit to be licensed as a nursing home can be	388
maintained separate and discrete from the part or unit to be	389
licensed as an adult care facility.	390

(C) In determining the number of residents in a home for the	391
purpose of licensing, the director shall consider all the	392
individuals for whom the home provides accommodations as one group	393
unless one of the following is the case:	394

(A)(1) The home is a home for the aging, in which case all	395
the individuals in the part or unit licensed as a nursing home	396
shall be considered as one group, and all the individuals in the	397
part or unit licensed as a rest home shall be considered as	398
another group;.	399

(B)(2) The home is both a nursing home and an adult care	400
facility. In that case, all the individuals in the part or unit	401
licensed as a nursing home shall be considered as one group, and	402
all the individuals in the part or unit licensed as an adult care	403
facility shall be considered as another group.	404

(C)(3) The home maintains, in addition to a nursing home or	405
residential care facility, a separate and discrete part or unit	406
that provides accommodations to individuals who do not require or	407
receive skilled nursing care and do not receive personal care	408
services from the home, in which case the individuals in the	409
separate and discrete part or unit shall not be considered in	410
determining the number of residents in the home if the separate	411
and discrete part or unit is in compliance with the Ohio basic	412
building code established by the board of building standards under	413
Chapters 3781. and 3791. of the Revised Code and the home permits	414
the director, on request, to inspect the separate and discrete	415
part or unit and speak with the individuals residing there, if	416
they consent, to determine whether the separate and discrete part	417
or unit meets the requirements of this division.	418

(D) The director of health shall charge an application fee	419
and an annual renewal licensing and inspection fee of one hundred	420
dollars for each fifty persons or part thereof of a home's	421
licensed capacity. All fees collected by the director for the	422
issuance or renewal of licenses shall be deposited into the state	423
treasury to the credit of the general operations fund created in	424
section 3701.83 of the Revised Code for use only in administering	425
and enforcing this chapter and rules adopted under it.	426

(E) (1) Except as otherwise provided in this section, the	427
results of an inspection or investigation of a home that is	428
conducted under this section, including any statement of	429
deficiencies and all findings and deficiencies cited in the	430
statement on the basis of the inspection or investigation, shall	431
be used solely to determine the home's compliance with this	432
chapter or another chapter of the Revised Code in any action or	433
proceeding other than an action commenced under division (I) of	434
section 3721.17 of the Revised Code. Those results of an	435
inspection or investigation, that statement of deficiencies, and	436
the findings and deficiencies cited in that statement shall not be	437
used in any court or in any action or proceeding that is pending	438
in any court and are not admissible in evidence in any action or	439
proceeding unless that action or proceeding is an appeal of an	440
action by the department of health under this chapter or is an	441
action by any department or agency of the state to enforce this	442
chapter or another chapter of the Revised Code.	443

(2) Nothing in division (E)(1) of this section prohibits the	444
results of an inspection or investigation conducted under this	445
section from being used in a criminal investigation or	446
prosecution.	447

Sec. 3721.17.  (A) Any resident who believes that the	448
resident's rights under sections 3721.10 to 3721.17 of the Revised	449
Code have been violated may file a grievance under procedures	450
adopted pursuant to division (A)(2) of section 3721.12 of the	451
Revised Code.	452

When the grievance committee determines a violation of	453
sections 3721.10 to 3721.17 of the Revised Code has occurred, it	454
shall notify the administrator of the home. If the violation	455
cannot be corrected within ten days, or if ten days have elapsed	456
without correction of the violation, the grievance committee shall	457
refer the matter to the department of health.	458

(B) Any person who believes that a resident's rights under	459
sections 3721.10 to 3721.17 of the Revised Code have been violated	460
may report or cause reports to be made of the information directly	461
to the department of health. No person who files a report is	462
liable for civil damages resulting from the report.	463

(C)(1) Within thirty days of receiving a complaint under	464
this section, the department of health shall investigate any	465
complaint referred to it by a home's grievance committee and any	466
complaint from any source that alleges that the home provided	467
substantially less than adequate care or treatment, or	468
substantially unsafe conditions, or, within seven days of	469
receiving a complaint, refer it to the attorney general, if the	470
attorney general agrees to investigate within thirty days.	471

(2) Within thirty days of receiving a complaint under this	472
section, the department of health may investigate any alleged	473
violation of sections 3721.10 to 3721.17 of the Revised Code, or	474
of rules, policies, or procedures adopted pursuant to those	475
sections, not covered by division (C)(1) of this section, or it	476
may, within seven days of receiving a complaint, refer the	477
complaint to the grievance committee at the home where the alleged	478
violation occurred, or to the attorney general if the attorney	479
general agrees to investigate within thirty days.	480

(D) If, after an investigation, the department of health	481
finds probable cause to believe that a violation of sections	482
3721.10 to 3721.17 of the Revised Code, or of rules, policies, or	483
procedures adopted pursuant to those sections, has occurred at a	484
home that is certified under the medicare or medicaid program, it	485
shall cite one or more findings or deficiencies under sections	486
5111.35 to 5111.62 of the Revised Code. If the home is not so	487
certified, the department shall hold an adjudicative hearing	488
within thirty days under Chapter 119. of the Revised Code.	489

(E) Upon a finding at an adjudicative hearing under division	490
(D) of this section that a violation of sections 3721.10 to	491
3721.17 of the Revised Code, or of rules, policies, or procedures	492
adopted pursuant thereto, has occurred, the department of health	493
shall make an order for compliance, set a reasonable time for	494
compliance, and assess a fine pursuant to division (F) of this	495
section. The fine shall be paid to the general revenue fund only	496
if compliance with the order is not shown to have been made within	497
the reasonable time set in the order. The department of health	498
may issue an order prohibiting the continuation of any violation	499
of sections 3721.10 to 3721.17 of the Revised Code.	500

Findings at the hearings conducted under this section may be	501
appealed pursuant to Chapter 119. of the Revised Code, except that	502
an appeal may be made to the court of common pleas of the county	503
in which the home is located.	504

The department of health shall initiate proceedings in court	505
to collect any fine assessed under this section whichthat is	506
unpaid thirty days after the violator's final appeal is exhausted.	507

(F) Any home found, pursuant to an adjudication hearing	508
under division (D) of this section, to have violated sections	509
3721.10 to 3721.17 of the Revised Code, or rules, policies, or	510
procedures adopted pursuant to those sections may be fined not	511
less than one hundred nor more than five hundred dollars for a	512
first offense. For each subsequent offense, the home may be fined	513
not less than two hundred nor more than one thousand dollars.	514

A violation of sections 3721.10 to 3721.17 of the Revised	515
Code is a separate offense for each day of the violation and for	516
each resident who claims the violation.	517

(G) No home or employee of a home shall retaliate against	518
any person who:	519

(1) Exercises any right set forth in sections 3721.10 to	520
3721.17 of the Revised Code, including, but not limited to, filing	521
a complaint with the home's grievance committee or reporting an	522
alleged violation to the department of health;	523

(2) Appears as a witness in any hearing conducted under this	524
section or section 3721.162 of the Revised Code;	525

(3) Files a civil action alleging a violation of sections	526
3721.10 to 3721.17 of the Revised Code, or notifies a county	527
prosecuting attorney or the attorney general of a possible	528
violation of sections 3721.10 to 3721.17 of the Revised Code.	529

If, under the procedures outlined in this section, a home or	530
its employee is found to have retaliated, the violator may be	531
fined up to one thousand dollars.	532

(H) When legal action is indicated, any evidence of criminal	533
activity found in an investigation under division (C) of this	534
section shall be given to the prosecuting attorney in the county	535
in which the home is located for investigation.	536

(I)(1)(a) Any resident whose rights under sections 3721.10	537
to 3721.17 of the Revised Code are violated has a cause of action	538
against any person or home committing the violation. The action	539
may be commenced by the resident or by the resident's sponsor on	540
behalf of the resident.	541

(b) An action under division (I)(1)(a) of this section may	542
be commenced by the resident or by the resident's legal guardian	543
or other legally authorized representative on behalf of the	544
resident or the resident's estate. If the resident or the	545
resident's legal guardian or other legally authorized	546
representative is unable to commence an action under that division	547
on behalf of the resident, the following persons in the following	548
order of priority have the right to and may commence an action	549
under that division on behalf of the resident or the resident's	550
estate:	551

(i) The resident's spouse;

552

(ii) The resident's parent or adult child;

553

(iii) The resident's guardian if the resident is a minor	554
child;	555

(iv) The resident's brother or sister;

556

(v) The resident's niece, nephew, aunt, or uncle.

557

(c) Notwithstanding any law as to priority of persons	558
entitled to commence an action, if more than one eligible person	559
within the same level of priority seeks to commence an action on	560
behalf of a resident or the resident's estate, the court shall	561
determine, in the best interest of the resident or the resident's	562
estate, the individual to commence the action. A court's	563
determination under this division as to the person to commence an	564
action on behalf of a resident or the resident's estate shall bar	565
another person from commencing the action on behalf of the	566
resident or the resident's estate.	567

(d) The result of an action commenced pursuant to division	568
(I)(1)(a) of this section by a person authorized under division	569
(I)(1)(b) of this section shall bind the resident or the	570
resident's estate that is the subject of the action.	571

(2)(a) The plaintiff in an action filed under division (I)(1)	572
of this section may obtain injunctive relief against the violation	573
of the resident's rights. The plaintiff also may recover	574
compensatory damages based upon a showing, by a preponderance of	575
the evidence, that the violation of the resident's rights resulted	576
from a negligent act or omission of the person or home and that	577
the violation was the proximate cause of the resident's injury,	578
death, or loss to person or property.	579

(b) If compensatory damages are awarded for a violation of	580
the resident's rights, section 2315.21 of the Revised Code, except	581
divisions (E)(1) and (2) of that section, shall apply to an award	582
of punitive or exemplary damages for the violation.	583

(b)(c) The court, in a case in which only injunctive relief	584
is granted, may award to the prevailing party reasonable	585
attorney's fees limited to the work reasonably performed.	586

(3) Division (I)(2)(a)(b) of this section shall be	587
considered to be purely remedial in operation and shall be applied	588
in a remedial manner in any civil action in which this section is	589
relevant, whether the action is pending in court or commenced on	590
or after July 9, 1998.	591

(4) Within thirty days after the filing of a complaint in an	592
action for damages brought against a home under division (I)(1)(a)	593
of this section by or on behalf of a resident or former resident	594
of the home, the plaintiff or plaintiff's counsel shall send	595
written notice of the filing of the complaint to the department of	596
job and family services if the department has a right of recovery	597
under section 5101.58 of the Revised Code against the liability of	598
the home for the cost of medical services and care arising out of	599
injury, disease, or disability of the resident or former resident.	600

Sec. 5111.411. The results of a survey of a nursing facility	601
that is conducted under section 5111.39 of the Revised Code,	602
including any statement of deficiencies and all findings and	603
deficiencies cited in the statement on the basis of the survey,	604
shall be used solely to determine the nursing facility's	605
compliance with certification requirements or with this chapter or	606
another chapter of the Revised Code. Those results of a survey,	607
that statement of deficiencies, and the findings and deficiencies	608
cited in that statement shall not be used in any court or in any	609
action or proceeding that is pending in any court and are not	610
admissible in evidence in any action or proceeding unless that	611
action or proceeding is an appeal of an administrative action by	612
the department of job and family services or contracting agency	613
under this chapter or is an action by any department or agency of	614
the state to enforce this chapter or another chapter of the	615
Revised Code.	616

Nothing in this section prohibits the results of a survey, a	617
statement of deficiencies, or the findings and deficiencies cited	618
in that statement on the basis of the survey under this section	619
from being used in a criminal investigation or prosecution.	620

Section 2. That existing sections 2305.10, 2315.21,	621
3721.02, and 3721.17 of the Revised Code are hereby	622
repealed.	623

Section 3. Nothing in this act applies to proceedings or	624
appeals involving workers' compensation claims under Chapter 4121.	625
or 4123. of the Revised Code.	626

Section 4. If any provision of section 2305.10, 2315.21,	627
3721.02, or 3721.17 of the Revised Code, as	628
amended by this act, any provision of section 5111.411 of the	629
Revised Code, as enacted by this act, or the application of any	630
provision of those sections to any person or circumstance is held	631
invalid, the invalidity does not affect other provisions or	632
applications of the particular section or related sections that	633
can be given effect without the invalid provision or application,	634
and to this end the provisions of the particular section are	635
severable.	636