SENATORS Spada, White

To amend section 5123.19 of the Revised Code to revise

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the law governing the licensure of residential

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facilities for individuals with mental retardation

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or other developmental disability.

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

Section 1. That section 5123.19 of the Revised Code be	5
amended to read as follows:	6

Sec. 5123.19.  (A) As used in this section and in sections	7
5123.191, 5123.194, and 5123.20 of the Revised Code:	8

(1) "Residential facility" means a home or facility in which	9
a mentally retarded or developmentally disabled person resides,	10
except the home of a relative or legal guardian in which a	11
mentally retarded or developmentally disabled person resides, a	12
respite care home certified under section 5126.05 of the Revised	13
Code, a county home or district home operated pursuant to Chapter	14
5155. of the Revised Code, or a dwelling in which the only	15
mentally retarded or developmentally disabled residents are in an	16
independent living arrangement or are being provided supported	17
living.	18

(2) "Political subdivision" means a municipal corporation,	19
county, or township.	20

(3) "Independent living arrangement" means an arrangement in	21
which a mentally retarded or developmentally disabled person	22
resides in an individualized setting chosen by the person or the	23
person's guardian, which is not dedicated principally to the	24
provision of residential services for mentally retarded or	25
developmentally disabled persons, and for which no financial	26
support is received for rendering such service from any	27
governmental agency by a provider of residential services.	28

(4) "Supported living" has the same meaning as in section	29
5126.01 of the Revised Code.	30

(5) "Licensee" means the person or government agency that	31
has applied for a license to operate a residential facility and to	32
which the license was issued under this section.	33

(B) Every person or government agency desiring to operate a	34
residential facility shall apply for licensure of the facility to	35
the director of mental retardation and developmental disabilities	36
unless the residential facility is subject to section 3721.02,	37
3722.04, 5103.03, or 5119.20 of the Revised Code. Notwithstanding	38
Chapter 3721. of the Revised Code, a nursing home that is	39
certified as an intermediate care facility for the mentally	40
retarded under Title XIX of the "Social Security Act," 4979 Stat.	41
620286 (19351965), 42 U.S.C.A. 3011396, as amended, shall apply	42
for licensure of the portion of the home that is certified as an	43
intermediate care facility for the mentally retarded.	44

(C) The director of mental retardation and developmental	45
disabilities shall license and inspectsurvey the operation of	46
residential facilities. The director may deny or, renew,	47
terminate, and revoke such licenses.	48

Except as provided in divisions (G) and (O) of this section,	49
aAn initial license is valid until it isfor one year unless	50
terminated, revoked, or voluntarily surrendered earlier. AppealsA	51
renewed license is valid for three years unless terminated,	52
revoked, or voluntarily surrendered earlier.	53

Appeals from proceedings initiated to deny applications for	54
licenses or to terminate or revoke licenses shall be conducted in	55
accordance with Chapter 119. of the Revised Code.	56

In accordance with Chapter 119. of the Revised Code, the	57
director shall adopt and may amend and rescind rules for licensing	58
and regulating the operation of residential facilities. The rules	59
shall establish and specify the following:	60

(1) Procedures for issuing, denying, renewing, terminating,	61
and revoking licenses;	62

(2) Circumstances, including the circumstance specified in	63
division (G) of this section, under which a license is to be	64
terminated rather than revoked;	65

(3) Fees for issuing and renewing licenses;

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(3)(4) Procedures for the inspection ofsurveying	67
residential facilities;	68

(4)(5) Requirements for the training of residential facility	69
personnel;	70

(5)(6) Classifications for the various types of residential	71
facilities;	72

(6)(7) Certification procedures for licensees and management	73
contractors that the director determines are necessary to ensure	74
that they have the skills and qualifications to properly operate	75
or manage residential facilities;	76

(7)(8) The maximum number of persons who may be served in a	77
particular type of residential facility;	78

(8)(9) Uniform procedures for admission of persons to and	79
transfers and discharges of persons from residential facilities;	80

(9)(10) Other standards for the operation of residential	81
facilities and the services provided at residential facilities;	82

(10)(11) Procedures for waiving any provision of any rule	83
adopted under this section.	84

(D) Before issuing a license, the director of the department	85
or the director's designee shall conduct an inspectiona survey of	86
the residential facility for which application is made. The	87
director or the director's designee shall conduct an inspectiona	88
survey of each licensed residential facility at least once each	89
yearduring the period the license is valid and may conduct	90
additional inspections as needed. An inspectionA survey includes	91
but is not limited to an on-site examination and evaluation of the	92
residential facility, its personnel, and the services provided	93
there.	94

In conducting inspectionssurveys, the director or the	95
director's designee shall be given access to the residential	96
facility; all records, accounts, and any other documents related	97
to the operation of the facility; the licensee; the residents of	98
the facility; and all persons acting on behalf of, under the	99
control of, or in connection with the licensee. The licensee and	100
all persons on behalf of, under the control of, or in connection	101
with the licensee shall cooperate with the director or the	102
director's designee in conducting the inspectionsurvey.	103

Following each inspectionsurvey, unless the director	104
initiates a license revocation proceeding, the director or the	105
director's designee shall provide the licensee with a report	106
listing any deficiencies, specifying a timetable within which the	107
licensee shall submit a plan of correction describing how the	108
deficiencies will be corrected, and, when appropriate, specifying	109
a timetable within which the licensee must correct the	110
deficiencies. After a plan of correction is submitted, the	111
director or the director's designee shall approve or disapprove	112
the plan. A copy of the report and any approved plan of	113
correction shall be provided to any person who requests it.	114

If it is determined that a residential facility is not being	115
operated in compliance with this chapter or the rules adopted	116
under it, the director may take such steps as are necessary,	117
including, but not limited to, suspension of admissions to the	118
residential facility, placement of a monitor at the residential	119
facility, and the initiation of license revocation proceedings.	120

If it is determined that a person's operation of two or more	121
residential facilities is not in compliance with this chapter or	122
the rules adopted under it, the director may suspend admissions to	123
each residential facility that the person operates.	124

When the director initiates license revocation proceedings,	125
no opportunity for submitting a plan of correction shall be given.	126
The director shall notify the licensee by letter of the initiation	127
of such proceedings. The letter shall list the deficiencies of	128
the residential facility and inform the licensee that no plan of	129
correction will be accepted. The director shall also notify each	130
affected resident, the resident's guardian if the resident is an	131
adult for whom a guardian has been appointed, the resident's	132
parent or guardian if the resident is a minor, and the county	133
board of mental retardation and developmental disabilities.	134

Pursuant to rules which shall be adopted in accordance with	135
Chapter 119. of the Revised Code, the director may order the	136
immediate removal of residents from a residential facility	137
whenever conditions at the facility present an immediate danger of	138
physical or psychological harm to the residents.	139

In determining whether a residential facility is being	140
operated in compliance with this chapter or the rules adopted	141
under it, or whether conditions at a residential facility present	142
an immediate danger of physical or psychological harm to the	143
residents, the director may rely on information obtained by a	144
county board of mental retardation and developmental disabilities	145
or other governmental agencies in the course of investigating	146
major unusual incidents. The director shall adopt rules in	147
accordance with Chapter 119. of the Revised Code that specify what	148
constitute "major unusual incidents."	149

The director shall suspend without pay for a period of at	150
least three daysinitiate disciplinary action against any	151
department employee who notifies or causes the notification to any	152
unauthorized person of an unannounced inspectionsurvey of a	153
residential facility by an authorized representative of the	154
department.	155

(E) In proceedings initiated to deny or revoke licenses	156
under this section, the director may deny or revoke a license	157
regardless of whether some or all of the deficiencies that	158
prompted the proceedings have been corrected at the time of the	159
hearing.	160

(F) In addition to any other information which may be	161
required of applicants for a license pursuant to this section, the	162
director shall require each applicant to provide a copy of an	163
approved plan for a proposed residential facility pursuant to	164
section 5123.042 of the Revised Code.	165

(G) Pursuant to rules which shall be adopted in accordance	166
with Chapter 119. of the Revised Code, the director may require	167
notification to the department of any significant change in the	168
ownership of a residential facility or in the identity of the	169
licensee or management contractor. When such notification is not	170
given, the director may cancelterminate the residential	171
facility's license. If the director determines that a significant	172
change of ownership is proposed, the director shall consider the	173
proposed change to be an application for development by a new	174
operator pursuant to section 5123.042 of the Revised Code and	175
shall advise the applicant within sixty days of such notification	176
that the current license shall continue in effect or a new license	177
will be required pursuant to this section.	178

(H) A county board of mental retardation and developmental	179
disabilities, the legal rights service, and any interested person	180
may file complaints alleging violations of statute or department	181
rule relating to residential facilities with the department. All	182
complaints shall be in writing and shall state the facts	183
constituting the basis of the allegation. The department shall	184
not reveal the source of any complaint unless the complainant	185
agrees in writing to waive the right to confidentiality or until	186
so ordered by a court of competent jurisdiction.	187

The department shall acknowledge receipt of the complaint and	188
notify the complainant of the action that will be taken with	189
respect to it within five working days of receiving itadopt rules	190
in accordance with Chapter 119. of the Revised Code establishing	191
procedures for the receipt, referral, investigation, and	192
disposition of complaints filed with the department under this	193
division.	194

The substance of a complaint shall not be provided to a	195
licensee until the commencement of an inspection or investigation.	196

(I) The department shall establish procedures for the	197
notification of interested parties of the transfer or interim care	198
of residents from residential facilities that are closing or are	199
losing their license.	200

(J) Before issuing a license under this section to a	201
residential facility that will accommodate at any time more than	202
one mentally retarded or developmentally disabled individual, the	203
director shall, by first class mail, notify the following:	204

(1) If the facility will be located in a municipal	205
corporation, the clerk of the legislative authority of the	206
municipal corporation;	207

(2) If the facility will be located in unincorporated	208
territory, the clerk of the appropriate board of county	209
commissioners and the clerk of the appropriate board of township	210
trustees.	211

The director shall not issue the license for ten days after	212
mailing the notice, excluding Saturdays, Sundays, and legal	213
holidays, in order to give the notified local officials time in	214
which to comment on the proposed issuance.	215

Any legislative authority of a municipal corporation, board	216
of county commissioners, or board of township trustees that	217
receives notice under this division of the proposed issuance of a	218
license for a residential facility may comment on it in writing to	219
the director within ten days after the director mailed the notice,	220
excluding Saturdays, Sundays, and legal holidays. If the director	221
receives written comments from any notified officials within the	222
specified time, the director shall make written findings	223
concerning the comments and the director's decision on the	224
issuance of the license. If the director does not receive written	225
comments from any notified local officials within the specified	226
time, the director shall continue the process for issuance of the	227
license.	228

(K) Any person may operate a licensed residential facility	229
that provides room and board, personal care, habilitation	230
services, and supervision in a family setting for at least six but	231
not more than eight persons with mental retardation or a	232
developmental disability as a permitted use in any residential	233
district or zone, including any single-family residential district	234
or zone, of any political subdivision. These residential	235
facilities may be required to comply with area, height, yard, and	236
architectural compatibility requirements that are uniformly	237
imposed upon all single-family residences within the district or	238
zone.	239

(L)(K) Any person may operate a licensed residential	240
facility that provides room and board, personal care, habilitation	241
services, and supervision in a family setting for at least nine	242
but not more than sixteen persons with mental retardation or a	243
developmental disability as a permitted use in any multiple-family	244
residential district or zone of any political subdivision, except	245
that a political subdivision that has enacted a zoning ordinance	246
or resolution establishing planned unit development districts may	247
exclude these residential facilities from such districts, and a	248
political subdivision that has enacted a zoning ordinance or	249
resolution may regulate these residential facilities in	250
multiple-family residential districts or zones as a conditionally	251
permitted use or special exception, in either case, under	252
reasonable and specific standards and conditions set out in the	253
zoning ordinance or resolution to:	254

(1) Require the architectural design and site layout of the	255
residential facility and the location, nature, and height of any	256
walls, screens, and fences to be compatible with adjoining land	257
uses and the residential character of the neighborhood;	258

(2) Require compliance with yard, parking, and sign	259
regulation;	260

(3) Limit excessive concentration of these residential	261
facilities.	262

(M)(L) This section does not prohibit a political	263
subdivision from applying to residential facilities	264
nondiscriminatory regulations requiring compliance with health,	265
fire, and safety regulations and building standards and	266
regulations.	267

(N)(M) Divisions (J) and (K) and (L) of this section are not	268
applicable to municipal corporations that had in effect on June	269
15, 1977, an ordinance specifically permitting in residential	270
zones licensed residential facilities by means of permitted uses,	271
conditional uses, or special exception, so long as such ordinance	272
remains in effect without any substantive modification.	273

(O)(N)(1) The director may issue an interim license to	274
operate a residential facility to an applicant for a license under	275
this section if alleither of the following conditions are met:	276

(1)(a) All of the following conditions are met:

277

(i) The director determines that an emergency exists that	278
requires immediate placement of persons in a residential facility,	279
and insufficient licensed beds are available.	280

(2)(ii) The residential facility meets the standards in	281
rules for interim licenses that the director shall adopt in	282
accordance with Chapter 119. of the Revised Codeestablished in	283
rules adopted under this division.	284

(3)(iii) The director determines that the residential	285
facility is likely to receive a license under this section within	286
thirty days after issuance of the interim license.	287

(b) The director determines that the issuance of an interim	288
license is necessary to meet a temporary need for a residential	289
facility and the residential facility meets the standards for an	290
interim license established in rules adopted under this division.	291

(2) An interim license shall be valid for thirty days and may	292
be renewed by the director no more than twice. The director shall	293
adopt rules in accordance with Chapter 119. of the Revised Code	294
establishing standards for an interim license.	295

(P)(O) Notwithstanding rules adopted pursuant to this	296
section establishing the maximum number of persons who may be	297
served in a particular type of residential facility, a residential	298
facility shall be permitted to serve the same number of persons	299
being served by the facility on the effective date of such rules	300
or the number of persons for which the facility is authorized	301
pursuant to a current application for a certificate of need with a	302
letter of support from the department of mental retardation and	303
developmental disabilities and which is in the review process	304
prior to April 4, 1986.	305

(Q)(P) The director or the director's designee may enter at	306
any time, for purposes of investigation, any home, facility, or	307
other structure that has been reported to the director or that the	308
director has reasonable cause to believe is being operated as a	309
residential facility without a license issued under this section.	310

The director may petition the court of common pleas of the	311
county in which an unlicensed residential facility is located for	312
an order enjoining the person or governmental agency operating the	313
facility from continuing to operate without a license. The court	314
may grant the injunction on a showing that the person or	315
governmental agency named in the petition is operating a	316
residential facility without a license. The court may grant the	317
injunction, regardless of whether the residential facility meets	318
the requirements for receiving a license under this section.	319

Section 2. That existing section 5123.19 of the Revised Code	320
is hereby repealed.	321

Section 3. The Director of Mental Retardation and	322
Developmental Disabilities shall adopt rules in accordance with	323
Chapter 119. of the Revised Code establishing a schedule for	324
residential facilities licensed under section 5123.19 of the	325
Revised Code on the effective date of this section to seek renewal	326
of the license in accordance with the amendments made by this act	327
to that section.	328