As Introduced

130th General Assembly Regular Session 2013-2014

S. B. No. 270

Senators Skindell, Bacon 

Cosponsors: Senators Tavares, Brown, Jones, Turner, Beagle 

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A BILL

To amend sections 5123.162, 5123.19, 5123.191,

1

5123.21, 5123.61, 5123.75, and 5123.76 of the

2

Revised Code to require copies of surveys

3

conducted by the Director of Developmental

4

Disabilities and related plans of correction to be

5

made available on the Department of Developmental

6

Disabilities' web site and to modify statutory

7

references to the Director's designee.

8

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

Section 1.  That sections 5123.162, 5123.19, 5123.191,	9
5123.21, 5123.61, 5123.75, and 5123.76 of the Revised Code be	10
amended to read as follows:	11

Sec. 5123.162. (A) The director of developmental	12
disabilities may conduct surveys of persons and government	13
entities that seek a supported living certificate to determine	14
whether the persons and government entities meet the certification	15
standards. The director may also conduct surveys of providers to	16
determine whether the providers continue to meet the certification	17
standards. The director shall conduct the surveys in accordance	18
with rules adopted under section 5123.1610 of the Revised Code.	19

(B) Following each survey of a provider, the director shall	20
issue a report listing the date of the survey and any citations	21
issued as a result of the survey. Except when the director	22
initiates a proceeding to revoke a provider's certification, the	23
director shall do all of the following:	24

(1) Specify a date by which the provider may appeal any of	25
the citations;	26

(2) Specify a timetable within which the provider must submit	27
a plan of correction describing how the problems specified in the	28
citations will be corrected;	29

(3) When appropriate, specify a timetable within which the	30
provider must correct the problems specified in the citations.	31

(C) If the director initiates a proceeding to revoke a	32
provider's certification, the director shall include the report	33
required by division (B) of this section with the notice of the	34
proposed revocation the director sends the provider. In this	35
circumstance, the provider may not appeal the citations or submit	36
a plan of correction.	37

(D) After a plan of correction is submitted, the director	38
shall approve or disapprove the plan. If the plan of correction is	39
approved, a copy of the approved plan shall be provided, not later	40
than five business days after it is approved, to any person or	41
government entity that requests it and made available on the	42
internet web site maintained by the department of developmental	43
disabilities. If the plan of correction is not approved and the	44
director initiates a proceeding to revoke the provider's	45
certification, a copy of the survey report shall be provided to	46
any person or government entity that requests it and made	47
available on the internet web site maintained by the department.	48

The(E) In addition to survey reports described in this	49
section, all other records ofassociated with surveys conducted	50
under this section are public records for the purpose of section	51
149.43 of the Revised Code and shall be made available on the	52
request of any person or government entity.	53

Sec. 5123.19.  (A) As used in sections 5123.19 to 5123.20 of	54
the Revised Code:	55

(1) "Independent living arrangement" means an arrangement in	56
which a mentally retarded or developmentally disabled person	57
resides in an individualized setting chosen by the person or the	58
person's guardian, which is not dedicated principally to the	59
provision of residential services for mentally retarded or	60
developmentally disabled persons, and for which no financial	61
support is received for rendering such service from any	62
governmental agency by a provider of residential services.	63

(2) "Licensee" means the person or government agency that has	64
applied for a license to operate a residential facility and to	65
which the license was issued under this section.	66

(3) "Political subdivision" means a municipal corporation,	67
county, or township.	68

(4) "Related party" has the same meaning as in section	69
5123.16 of the Revised Code except that "provider" as used in the	70
definition of "related party" means a person or government entity	71
that held or applied for a license to operate a residential	72
facility, rather than a person or government entity certified to	73
provide supported living.	74

(5)(a) Except as provided in division (A)(5)(b) of this	75
section, "residential facility" means a home or facility,	76
including an ICF/IID, in which an individual with mental	77
retardation or a developmental disability resides.	78

(b) "Residential facility" does not mean any of the	79
following:	80

(i) The home of a relative or legal guardian in which an	81
individual with mental retardation or a developmental disability	82
resides;	83

(ii) A respite care home certified under section 5126.05 of	84
the Revised Code;	85

(iii) A county home or district home operated pursuant to	86
Chapter 5155. of the Revised Code;	87

(iv) A dwelling in which the only residents with mental	88
retardation or developmental disabilities are in independent	89
living arrangements or are being provided supported living.	90

(B) Every person or government agency desiring to operate a	91
residential facility shall apply for licensure of the facility to	92
the director of developmental disabilities unless the residential	93
facility is subject to section 3721.02, 5103.03, 5119.33, or	94
division (A)(9)(b) of section 5119.34 of the Revised Code.	95

(C) Subject to section 5123.196 of the Revised Code, the	96
director of developmental disabilities shall license the operation	97
of residential facilities. An initial license shall be issued for	98
a period that does not exceed one year, unless the director denies	99
the license under division (D) of this section. A license shall be	100
renewed for a period that does not exceed three years, unless the	101
director refuses to renew the license under division (D) of this	102
section. The director, when issuing or renewing a license, shall	103
specify the period for which the license is being issued or	104
renewed. A license remains valid for the length of the licensing	105
period specified by the director, unless the license is	106
terminated, revoked, or voluntarily surrendered.	107

(D) If it is determined that an applicant or licensee is not	108
in compliance with a provision of this chapter that applies to	109
residential facilities or the rules adopted under such a	110
provision, the director may deny issuance of a license, refuse to	111
renew a license, terminate a license, revoke a license, issue an	112
order for the suspension of admissions to a facility, issue an	113
order for the placement of a monitor at a facility, issue an order	114
for the immediate removal of residents, or take any other action	115
the director considers necessary consistent with the director's	116
authority under this chapter regarding residential facilities. In	117
the director's selection and administration of the sanction to be	118
imposed, all of the following apply:	119

(1) The director may deny, refuse to renew, or revoke a	120
license, if the director determines that the applicant or licensee	121
has demonstrated a pattern of serious noncompliance or that a	122
violation creates a substantial risk to the health and safety of	123
residents of a residential facility.	124

(2) The director may terminate a license if more than twelve	125
consecutive months have elapsed since the residential facility was	126
last occupied by a resident or a notice required by division (K)	127
of this section is not given.	128

(3) The director may issue an order for the suspension of	129
admissions to a facility for any violation that may result in	130
sanctions under division (D)(1) of this section and for any other	131
violation specified in rules adopted under division (H)(2) of this	132
section. If the suspension of admissions is imposed for a	133
violation that may result in sanctions under division (D)(1) of	134
this section, the director may impose the suspension before	135
providing an opportunity for an adjudication under Chapter 119. of	136
the Revised Code. The director shall lift an order for the	137
suspension of admissions when the director determines that the	138
violation that formed the basis for the order has been corrected.	139

(4) The director may order the placement of a monitor at a	140
residential facility for any violation specified in rules adopted	141
under division (H)(2) of this section. The director shall lift the	142
order when the director determines that the violation that formed	143
the basis for the order has been corrected.	144

(5) If the director determines that two or more residential	145
facilities owned or operated by the same person or government	146
entity are not being operated in compliance with a provision of	147
this chapter that applies to residential facilities or the rules	148
adopted under such a provision, and the director's findings are	149
based on the same or a substantially similar action, practice,	150
circumstance, or incident that creates a substantial risk to the	151
health and safety of the residents, the director shall conduct a	152
survey as soon as practicable at each residential facility owned	153
or operated by that person or government entity. The director may	154
take any action authorized by this section with respect to any	155
facility found to be operating in violation of a provision of this	156
chapter that applies to residential facilities or the rules	157
adopted under such a provision.	158

(6) When the director initiates license revocation	159
proceedings, no opportunity for submitting a plan of correction	160
shall be given. The director shall notify the licensee by letter	161
of the initiation of the proceedings. The letter shall list the	162
deficiencies of the residential facility and inform the licensee	163
that no plan of correction will be accepted. The director shall	164
also send a copy of the letter to the county board of	165
developmental disabilities. The county board shall send a copy of	166
the letter to each of the following:	167

(a) Each resident who receives services from the licensee;

168

(b) The guardian of each resident who receives services from	169
the licensee if the resident has a guardian;	170

(c) The parent or guardian of each resident who receives	171
services from the licensee if the resident is a minor.	172

(7) Pursuant to rules which shall be adopted in accordance	173
with Chapter 119. of the Revised Code, the director may order the	174
immediate removal of residents from a residential facility	175
whenever conditions at the facility present an immediate danger of	176
physical or psychological harm to the residents.	177

(8) In determining whether a residential facility is being	178
operated in compliance with a provision of this chapter that	179
applies to residential facilities or the rules adopted under such	180
a provision, or whether conditions at a residential facility	181
present an immediate danger of physical or psychological harm to	182
the residents, the director may rely on information obtained by a	183
county board of developmental disabilities or other governmental	184
agencies.	185

(9) In proceedings initiated to deny, refuse to renew, or	186
revoke licenses, the director may deny, refuse to renew, or revoke	187
a license regardless of whether some or all of the deficiencies	188
that prompted the proceedings have been corrected at the time of	189
the hearing.	190

(E) The director shall establish a program under which public	191
notification may be made when the director has initiated license	192
revocation proceedings or has issued an order for the suspension	193
of admissions, placement of a monitor, or removal of residents.	194
The director shall adopt rules in accordance with Chapter 119. of	195
the Revised Code to implement this division. The rules shall	196
establish the procedures by which the public notification will be	197
made and specify the circumstances for which the notification must	198
be made. The rules shall require that public notification be made	199
if the director has taken action against the facility in the	200
eighteen-month period immediately preceding the director's latest	201
action against the facility and the latest action is being taken	202
for the same or a substantially similar violation of a provision	203
of this chapter that applies to residential facilities or the	204
rules adopted under such a provision. The rules shall specify a	205
method for removing or amending the public notification if the	206
director's action is found to have been unjustified or the	207
violation at the residential facility has been corrected.	208

(F)(1) Except as provided in division (F)(2) of this section,	209
appeals from proceedings initiated to impose a sanction under	210
division (D) of this section shall be conducted in accordance with	211
Chapter 119. of the Revised Code.	212

(2) Appeals from proceedings initiated to order the	213
suspension of admissions to a facility shall be conducted in	214
accordance with Chapter 119. of the Revised Code, unless the order	215
was issued before providing an opportunity for an adjudication, in	216
which case all of the following apply:	217

(a) The licensee may request a hearing not later than ten	218
days after receiving the notice specified in section 119.07 of the	219
Revised Code.	220

(b) If a timely request for a hearing that includes the	221
licensee's current address is made, the hearing shall commence not	222
later than thirty days after the department receives the request.	223

(c) After commencing, the hearing shall continue	224
uninterrupted, except for Saturdays, Sundays, and legal holidays,	225
unless other interruptions are agreed to by the licensee and the	226
director.	227

(d) If the hearing is conducted by a hearing examiner, the	228
hearing examiner shall file a report and recommendations not later	229
than ten days after the last of the following:	230

(i) The close of the hearing;

231

(ii) If a transcript of the proceedings is ordered, the	232
hearing examiner receives the transcript;	233

(iii) If post-hearing briefs are timely filed, the hearing	234
examiner receives the briefs.	235

(e) A copy of the written report and recommendation of the	236
hearing examiner shall be sent, by certified mail, to the licensee	237
and the licensee's attorney, if applicable, not later than five	238
days after the report is filed.	239

(f) Not later than five days after the hearing examiner files	240
the report and recommendations, the licensee may file objections	241
to the report and recommendations.	242

(g) Not later than fifteen days after the hearing examiner	243
files the report and recommendations, the director shall issue an	244
order approving, modifying, or disapproving the report and	245
recommendations.	246

(h) Notwithstanding the pendency of the hearing, the director	247
shall lift the order for the suspension of admissions when the	248
director determines that the violation that formed the basis for	249
the order has been corrected.	250

(G) Neither a person or government agency whose application	251
for a license to operate a residential facility is denied nor a	252
related party of the person or government agency may apply for a	253
license to operate a residential facility before the date that is	254
one year after the date of the denial. Neither a licensee whose	255
residential facility license is revoked nor a related party of the	256
licensee may apply for a residential facility license before the	257
date that is five years after the date of the revocation.	258

(H) In accordance with Chapter 119. of the Revised Code, the	259
director shall adopt and may amend and rescind rules for licensing	260
and regulating the operation of residential facilities. The rules	261
for residential facilities that are ICFs/IID may differ from those	262
for other residential facilities. The rules shall establish and	263
specify the following:	264

(1) Procedures and criteria for issuing and renewing	265
licenses, including procedures and criteria for determining the	266
length of the licensing period that the director must specify for	267
each license when it is issued or renewed;	268

(2) Procedures and criteria for denying, refusing to renew,	269
terminating, and revoking licenses and for ordering the suspension	270
of admissions to a facility, placement of a monitor at a facility,	271
and the immediate removal of residents from a facility;	272

(3) Fees for issuing and renewing licenses, which shall be	273
deposited into the program fee fund created under section 5123.033	274
of the Revised Code;	275

(4) Procedures for surveying residential facilities;

276

(5) Requirements for the training of residential facility	277
personnel;	278

(6) Classifications for the various types of residential	279
facilities;	280

(7) Certification procedures for licensees and management	281
contractors that the director determines are necessary to ensure	282
that they have the skills and qualifications to properly operate	283
or manage residential facilities;	284

(8) The maximum number of persons who may be served in a	285
particular type of residential facility;	286

(9) Uniform procedures for admission of persons to and	287
transfers and discharges of persons from residential facilities;	288

(10) Other standards for the operation of residential	289
facilities and the services provided at residential facilities;	290

(11) Procedures for waiving any provision of any rule adopted	291
under this section.	292

(I)(1) Before issuing a license, the director of the	293
department or the director's designee shall conduct a survey of	294
the residential facility for which application is made. The	295
director or the director's designee shall conduct a survey of each	296
licensed residential facility at least once during the period the	297
license is valid and may conduct additional inspections as needed.	298
A survey includes but is not limited to an on-site examination and	299
evaluation of the residential facility, its personnel, and the	300
services provided there.	301

(2) In conducting surveys, the director or the director's	302
designee shall be given access to the residential facility; all	303
records, accounts, and any other documents related to the	304
operation of the facility; the licensee; the residents of the	305
facility; and all persons acting on behalf of, under the control	306
of, or in connection with the licensee. The licensee and all	307
persons on behalf of, under the control of, or in connection with	308
the licensee shall cooperate with the director or the director's	309
designee in conducting the survey.	310

(3) Following each survey, unless the director initiates a	311
license revocation proceeding, the director or the director's	312
designee shall provide the licensee with a report listing the date	313
of the survey and any deficiencies, specifyingcitations issued as	314
a result of the survey. Except when the director initiates a	315
proceeding to revoke a license, the director shall do all of the	316
following:	317

(a) Specify a date by which the licensee may appeal any of	318
the citations;	319

(b) Specify a timetable within which the licensee shallmust	320
submit a plan of correction describing how the deficiencies	321
problems specified in the citations will be corrected, and, when;	322

(c) When appropriate, specifyingspecify a timetable within	323
which the licensee must correct the deficienciesproblems	324
specified in the citations. After	325

(4) If the director initiates a proceeding to revoke a	326
license, the director shall include the report required by	327
division (I)(3) of this section with the notice of the proposed	328
revocation the director sends the licensee. In this circumstance,	329
the licensee may not appeal the citations or submit a plan of	330
correction.	331

(5) After a plan of correction is submitted, the director or	332
the director's designee shall approve or disapprove the plan. AIf	333
the plan of correction is approved, a copy of the report and any	334
approved plan of correction shall be provided, not later than five	335
business days after it is approved, to any person or government	336
entity who requests it and made available on the internet web site	337
maintained by the department of developmental disabilities. If the	338
plan of correction is not approved and the director initiates a	339
proceeding to revoke the license, a copy of the survey report	340
shall be provided to any person or government entity that requests	341
it and made available on the internet web site maintained by the	342
department.	343

(6) The director shall initiate disciplinary action against	344
any department employee who notifies or causes the notification to	345
any unauthorized person of an unannounced survey of a residential	346
facility by an authorized representative of the department.	347

(J) In addition to any other information which may be	348
required of applicants for a license pursuant to this section, the	349
director shall require each applicant to provide a copy of an	350
approved plan for a proposed residential facility pursuant to	351
section 5123.042 of the Revised Code. This division does not apply	352
to renewal of a license or to an applicant for an initial or	353
modified license who meets the requirements of section 5123.197 of	354
the Revised Code.	355

(K) A licensee shall notify the owner of the building in	356
which the licensee's residential facility is located of any	357
significant change in the identity of the licensee or management	358
contractor before the effective date of the change if the licensee	359
is not the owner of the building.	360

Pursuant to rules which shall be adopted in accordance with	361
Chapter 119. of the Revised Code, the director may require	362
notification to the department of any significant change in the	363
ownership of a residential facility or in the identity of the	364
licensee or management contractor. If the director determines that	365
a significant change of ownership is proposed, the director shall	366
consider the proposed change to be an application for development	367
by a new operator pursuant to section 5123.042 of the Revised Code	368
and shall advise the applicant within sixty days of the	369
notification that the current license shall continue in effect or	370
a new license will be required pursuant to this section. If the	371
director requires a new license, the director shall permit the	372
facility to continue to operate under the current license until	373
the new license is issued, unless the current license is revoked,	374
refused to be renewed, or terminated in accordance with Chapter	375
119. of the Revised Code.	376

(L) A county board of developmental disabilities and any	377
interested person may file complaints alleging violations of	378
statute or department rule relating to residential facilities with	379
the department. All complaints shall be in writing and shall state	380
the facts constituting the basis of the allegation. The department	381
shall not reveal the source of any complaint unless the	382
complainant agrees in writing to waive the right to	383
confidentiality or until so ordered by a court of competent	384
jurisdiction.	385

The department shall adopt rules in accordance with Chapter	386
119. of the Revised Code establishing procedures for the receipt,	387
referral, investigation, and disposition of complaints filed with	388
the department under this division.	389

(M) The department shall establish procedures for the	390
notification of interested parties of the transfer or interim care	391
of residents from residential facilities that are closing or are	392
losing their license.	393

(N) Before issuing a license under this section to a	394
residential facility that will accommodate at any time more than	395
one mentally retarded or developmentally disabled individual, the	396
director shall, by first class mail, notify the following:	397

(1) If the facility will be located in a municipal	398
corporation, the clerk of the legislative authority of the	399
municipal corporation;	400

(2) If the facility will be located in unincorporated	401
territory, the clerk of the appropriate board of county	402
commissioners and the fiscal officer of the appropriate board of	403
township trustees.	404

The director shall not issue the license for ten days after	405
mailing the notice, excluding Saturdays, Sundays, and legal	406
holidays, in order to give the notified local officials time in	407
which to comment on the proposed issuance.	408

Any legislative authority of a municipal corporation, board	409
of county commissioners, or board of township trustees that	410
receives notice under this division of the proposed issuance of a	411
license for a residential facility may comment on it in writing to	412
the director within ten days after the director mailed the notice,	413
excluding Saturdays, Sundays, and legal holidays. If the director	414
receives written comments from any notified officials within the	415
specified time, the director shall make written findings	416
concerning the comments and the director's decision on the	417
issuance of the license. If the director does not receive written	418
comments from any notified local officials within the specified	419
time, the director shall continue the process for issuance of the	420
license.	421

(O) Any person may operate a licensed residential facility	422
that provides room and board, personal care, habilitation	423
services, and supervision in a family setting for at least six but	424
not more than eight persons with mental retardation or a	425
developmental disability as a permitted use in any residential	426
district or zone, including any single-family residential district	427
or zone, of any political subdivision. These residential	428
facilities may be required to comply with area, height, yard, and	429
architectural compatibility requirements that are uniformly	430
imposed upon all single-family residences within the district or	431
zone.	432

(P) Any person may operate a licensed residential facility	433
that provides room and board, personal care, habilitation	434
services, and supervision in a family setting for at least nine	435
but not more than sixteen persons with mental retardation or a	436
developmental disability as a permitted use in any multiple-family	437
residential district or zone of any political subdivision, except	438
that a political subdivision that has enacted a zoning ordinance	439
or resolution establishing planned unit development districts may	440
exclude these residential facilities from those districts, and a	441
political subdivision that has enacted a zoning ordinance or	442
resolution may regulate these residential facilities in	443
multiple-family residential districts or zones as a conditionally	444
permitted use or special exception, in either case, under	445
reasonable and specific standards and conditions set out in the	446
zoning ordinance or resolution to:	447

(1) Require the architectural design and site layout of the	448
residential facility and the location, nature, and height of any	449
walls, screens, and fences to be compatible with adjoining land	450
uses and the residential character of the neighborhood;	451

(2) Require compliance with yard, parking, and sign	452
regulation;	453

(3) Limit excessive concentration of these residential	454
facilities.	455

(Q) This section does not prohibit a political subdivision	456
from applying to residential facilities nondiscriminatory	457
regulations requiring compliance with health, fire, and safety	458
regulations and building standards and regulations.	459

(R) Divisions (O) and (P) of this section are not applicable	460
to municipal corporations that had in effect on June 15, 1977, an	461
ordinance specifically permitting in residential zones licensed	462
residential facilities by means of permitted uses, conditional	463
uses, or special exception, so long as such ordinance remains in	464
effect without any substantive modification.	465

(S)(1) The director may issue an interim license to operate a	466
residential facility to an applicant for a license under this	467
section if either of the following is the case:	468

(a) The director determines that an emergency exists	469
requiring immediate placement of persons in a residential	470
facility, that insufficient licensed beds are available, and that	471
the residential facility is likely to receive a permanent license	472
under this section within thirty days after issuance of the	473
interim license.	474

(b) The director determines that the issuance of an interim	475
license is necessary to meet a temporary need for a residential	476
facility.	477

(2) To be eligible to receive an interim license, an	478
applicant must meet the same criteria that must be met to receive	479
a permanent license under this section, except for any differing	480
procedures and time frames that may apply to issuance of a	481
permanent license.	482

(3) An interim license shall be valid for thirty days and may	483
be renewed by the director for a period not to exceed one hundred	484
fifty days.	485

(4) The director shall adopt rules in accordance with Chapter	486
119. of the Revised Code as the director considers necessary to	487
administer the issuance of interim licenses.	488

(T) Notwithstanding rules adopted pursuant to this section	489
establishing the maximum number of persons who may be served in a	490
particular type of residential facility, a residential facility	491
shall be permitted to serve the same number of persons being	492
served by the facility on the effective date of the rules or the	493
number of persons for which the facility is authorized pursuant to	494
a current application for a certificate of need with a letter of	495
support from the department of developmental disabilities and	496
which is in the review process prior to April 4, 1986.	497

(U) The director or the director's designee may enter at any	498
time, for purposes of investigation, any home, facility, or other	499
structure that has been reported to the director or that the	500
director has reasonable cause to believe is being operated as a	501
residential facility without a license issued under this section.	502

The director may petition the court of common pleas of the	503
county in which an unlicensed residential facility is located for	504
an order enjoining the person or governmental agency operating the	505
facility from continuing to operate without a license. The court	506
may grant the injunction on a showing that the person or	507
governmental agency named in the petition is operating a	508
residential facility without a license. The court may grant the	509
injunction, regardless of whether the residential facility meets	510
the requirements for receiving a license under this section.	511

Sec. 5123.191.  (A) The court of common pleas or a judge	512
thereof in the judge's county, or the probate court, may appoint a	513
receiver to take possession of and operate a residential facility	514
licensed by the department of developmental disabilities, in	515
causes pending in such courts respectively, when conditions	516
existing at the facility present a substantial risk of physical or	517
mental harm to residents and no other remedies at law are adequate	518
to protect the health, safety, and welfare of the residents.	519
Conditions at the facility that may present such risk of harm	520
include, but are not limited to, instances when any of the	521
following occur:	522

(1) The residential facility is in violation of state or	523
federal law or regulations.	524

(2) The facility has had its license revoked or procedures	525
for revocation have been initiated, or the facility is closing or	526
intends to cease operations.	527

(3) Arrangements for relocating residents need to be made.

528

(4) Insolvency of the operator, licensee, or landowner	529
threatens the operation of the facility.	530

(5) The facility or operator has demonstrated a pattern and	531
practice of repeated violations of state or federal laws or	532
regulations.	533

(B) A court in which a petition is filed pursuant to this	534
section shall notify the person holding the license for the	535
facility and the department of developmental disabilities of the	536
filing. The court shall order the department to notify the	537
facility owner, facility operator, county board of developmental	538
disabilities, facility residents, and residents' parents and	539
guardians of the filing of the petition.	540

The court shall provide a hearing on the petition within five	541
court days of the time it was filed, except that the court may	542
appoint a receiver prior to that time if it determines that the	543
circumstances necessitate such action. Following a hearing on the	544
petition, and upon a determination that the appointment of a	545
receiver is warranted, the court shall appoint a receiver and	546
notify the department of developmental disabilities and	547
appropriate persons of this action.	548

(C) A residential facility for which a receiver has been	549
named is deemed to be in compliance with section 5123.19 and	550
Chapter 3721. of the Revised Code for the duration of the	551
receivership.	552

(D) When the operating revenue of a residential facility in	553
receivership is insufficient to meet its operating expenses,	554
including the cost of bringing the facility into compliance with	555
state or federal laws or regulations, the court may order the	556
state to provide necessary funding, except as provided in division	557
(K) of this section. The state shall provide such funding, subject	558
to the approval of the controlling board. The court may also order	559
the appropriate authorities to expedite all inspections necessary	560
for the issuance of licenses or the certification of a facility,	561
and order a facility to be closed if it determines that reasonable	562
efforts cannot bring the facility into substantial compliance with	563
the law.	564

(E) In establishing a receivership, the court shall set forth	565
the powers and duties of the receiver. The court may generally	566
authorize the receiver to do all that is prudent and necessary to	567
safely and efficiently operate the residential facility within the	568
requirements of state and federal law, but shall require the	569
receiver to obtain court approval prior to making any single	570
expenditure of more than five thousand dollars to correct	571
deficiencies in the structure or furnishings of a facility. The	572
court shall closely review the conduct of the receiver it has	573
appointed and shall require regular and detailed reports. The	574
receivership shall be reviewed at least every sixty days.	575

(F) A receivership established pursuant to this section shall	576
be terminated, following notification of the appropriate parties	577
and a hearing, if the court determines either of the following:	578

(1) The residential facility has been closed and the former	579
residents have been relocated to an appropriate facility.	580

(2) Circumstances no longer exist at the facility that	581
present a substantial risk of physical or mental harm to	582
residents, and there is no deficiency in the facility that is	583
likely to create a future risk of harm.	584

Notwithstanding division (F)(2) of this section, the court	585
shall not terminate a receivership for a residential facility that	586
has previously operated under another receivership unless the	587
responsibility for the operation of the facility is transferred to	588
an operator approved by the court and the department of	589
developmental disabilities.	590

(G) The department of developmental disabilities may, upon	591
its own initiative or at the request of an owner, operator, or	592
resident of a residential facility, or at the request of a	593
resident's guardian or relative or a county board of developmental	594
disabilities, petition the court to appoint a receiver to take	595
possession of and operate a residential facility. When the	596
department has been requested to file a petition by any of the	597
parties listed above, it shall, within forty-eight hours of such	598
request, either file such a petition or notify the requesting	599
party of its decision not to file. If the department refuses to	600
file, the requesting party may file a petition with the court	601
requesting the appointment of a receiver to take possession of and	602
operate a residential facility.	603

Petitions filed pursuant to this division shall include the	604
following:	605

(1) A description of the specific conditions existing at the	606
facility which present a substantial risk of physical or mental	607
harm to residents;	608

(2) A statement of the absence of other adequate remedies at	609
law;	610

(3) The number of individuals residing at the facility;

611

(4) A statement that the facts have been brought to the	612
attention of the owner or licensee and that conditions have not	613
been remedied within a reasonable period of time or that the	614
conditions, though remedied periodically, habitually exist at the	615
facility as a pattern or practice;	616

(5) The name and address of the person holding the license	617
for the facility and the address of the department of	618
developmental disabilities.	619

The court may award to an operator appropriate costs and	620
expenses, including reasonable attorney's fees, if it determines	621
that a petitioner has initiated a proceeding in bad faith or	622
merely for the purpose of harassing or embarrassing the operator.	623

(H) Except for the department of developmental disabilities	624
or a county board of developmental disabilities, no party or	625
person interested in an action shall be appointed a receiver	626
pursuant to this section.	627

To assist the court in identifying persons qualified to be	628
named as receivers, the director of developmental disabilities or	629
the director's designee shall maintain a list of the names of such	630
persons. The director shall, in accordance with Chapter 119. of	631
the Revised Code, establish standards for evaluating persons	632
desiring to be included on such a list.	633

(I) Before a receiver enters upon the duties of that person,	634
the receiver must be sworn to perform the duties of receiver	635
faithfully, and, with surety approved by the court, judge, or	636
clerk, execute a bond to such person, and in such sum as the court	637
or judge directs, to the effect that such receiver will faithfully	638
discharge the duties of receiver in the action, and obey the	639
orders of the court therein.	640

(J) Under the control of the appointing court, a receiver may	641
bring and defend actions in the receiver's own name as receiver	642
and take and keep possession of property.	643

The court shall authorize the receiver to do the following:

644

(1) Collect payment for all goods and services provided to	645
the residents or others during the period of the receivership at	646
the same rate as was charged by the licensee at the time the	647
petition for receivership was filed, unless a different rate is	648
set by the court;	649

(2) Honor all leases, mortgages, and secured transactions	650
governing all buildings, goods, and fixtures of which the receiver	651
has taken possession and continues to use, subject to the	652
following conditions:	653

(a) In the case of a rental agreement, only to the extent of	654
payments that are for the use of the property during the period of	655
the receivership;	656

(b) In the case of a purchase agreement only to the extent of	657
payments that come due during the period of the receivership.	658

(3) If transfer of residents is necessary, provide for the	659
orderly transfer of residents by doing the following:	660

(a) Cooperating with all appropriate state and local agencies	661
in carrying out the transfer of residents to alternative community	662
placements;	663

(b) Providing for the transportation of residents' belongings	664
and records;	665

(c) Helping to locate alternative placements and develop	666
discharge plans;	667

(d) Preparing residents for the trauma of discharge;

668

(e) Permitting residents or guardians to participate in	669
transfer or discharge planning except when an emergency exists and	670
immediate transfer is necessary.	671

(4) Make periodic reports on the status of the residential	672
program to the appropriate state agency, county board of	673
developmental disabilities, parents, guardians, and residents;	674

(5) Compromise demands or claims;

675

(6) Generally do such acts respecting the residential	676
facility as the court authorizes.	677

(K) Neither the receiver nor the department of developmental	678
disabilities is liable for debts incurred by the owner or operator	679
of a residential facility for which a receiver has been appointed.	680

(L) The department of developmental disabilities may contract	681
for the operation of a residential facility in receivership. The	682
department shall establish the conditions of a contract.	683
Notwithstanding any other provision of law, contracts that are	684
necessary to carry out the powers and duties of the receiver need	685
not be competitively bid.	686

(M) The department of developmental disabilities, the	687
department of job and family services, and the department of	688
health shall provide technical assistance to any receiver	689
appointed pursuant to this section.	690

Sec. 5123.21.  The director of developmental disabilities or	691
the director's designee may transfer or authorize the transfer of	692
an involuntary resident or a consenting voluntary resident from	693
one public institution to another or to an institution other than	694
a public institution or other facility, if the director determines	695
that it would be consistent with the habilitation needs of the	696
resident to do so.	697

Before an involuntary resident may be transferred to a more	698
restrictive setting, the managing officer of the institution shall	699
file a motion with the court requesting the court to amend its	700
order of placement issued under section 5123.76 of the Revised	701
Code. At the resident's request, the court shall hold a hearing on	702
the motion at which the resident has the same rights as at a full	703
hearing under section 5123.76 of the Revised Code.	704

Whenever a resident is transferred, the director shall give	705
written notice of the transfer to the resident's legal guardian,	706
parents, spouse, and counsel, or, if none is known, to the	707
resident's nearest known relative or friend. If the resident is a	708
minor, the departmentdirector before making such a transfer shall	709
make a minute of the order for the transfer and the reason for it	710
upon its record and shall send a certified copy at least seven	711
days prior to the transfer to the person shown by its record to	712
have had the care or custody of the minor immediately prior to the	713
minor's commitment. Whenever a consenting voluntary resident is	714
transferred, the notification shall be given only at the	715
resident's request. The managing officer shall advise a voluntary	716
resident who is being transferred that the patient may decide if	717
such a notification shall be given. In all such transfers, due	718
consideration shall be given to the relationship of the resident	719
to the resident's family, legal guardian, or friends, so as to	720
maintain relationships and encourage visits beneficial to the	721
resident.	722

Sec. 5123.61.  (A) As used in this section:

723

(1) "Law enforcement agency" means the state highway patrol,	724
the police department of a municipal corporation, or a county	725
sheriff.	726

(2) "Abuse" has the same meaning as in section 5123.50 of the	727
Revised Code, except that it includes a misappropriation, as	728
defined in that section.	729

(3) "Neglect" has the same meaning as in section 5123.50 of	730
the Revised Code.	731

(B) The department of developmental disabilities shall	732
establish a registry office for the purpose of maintaining reports	733
of abuse, neglect, and other major unusual incidents made to the	734
department under this section and reports received from county	735
boards of developmental disabilities under section 5126.31 of the	736
Revised Code. The department shall establish committees to review	737
reports of abuse, neglect, and other major unusual incidents.	738

(C)(1) Any person listed in division (C)(2) of this section,	739
having reason to believe that a person with mental retardation or	740
a developmental disability has suffered or faces a substantial	741
risk of suffering any wound, injury, disability, or condition of	742
such a nature as to reasonably indicate abuse or neglect of that	743
person, shall immediately report or cause reports to be made of	744
such information to the entity specified in this division. Except	745
as provided in section 5120.173 of the Revised Code or as	746
otherwise provided in this division, the person making the report	747
shall make it to a law enforcement agency or to the county board	748
of developmental disabilities. If the report concerns a resident	749
of a facility operated by the department of developmental	750
disabilities the report shall be made either to a law enforcement	751
agency or to the department. If the report concerns any act or	752
omission of an employee of a county board of developmental	753
disabilities, the report immediately shall be made to the	754
department and to the county board.	755

(2) All of the following persons are required to make a	756
report under division (C)(1) of this section:	757

(a) Any physician, including a hospital intern or resident,	758
any dentist, podiatrist, chiropractor, practitioner of a limited	759
branch of medicine as specified in section 4731.15 of the Revised	760
Code, hospital administrator or employee of a hospital, nurse	761
licensed under Chapter 4723. of the Revised Code, employee of an	762
ambulatory health facility as defined in section 5101.61 of the	763
Revised Code, employee of a home health agency, employee of a	764
residential facility licensed under section 5119.34 of the Revised	765
Code that provides accommodations, supervision, and person care	766
services for three to sixteen unrelated adults, or employee of a	767
community mental health facility;	768

(b) Any school teacher or school authority, social worker,	769
psychologist, attorney, peace officer, coroner, or residents'	770
rights advocate as defined in section 3721.10 of the Revised Code;	771

(c) A superintendent, board member, or employee of a county	772
board of developmental disabilities; an administrator, board	773
member, or employee of a residential facility licensed under	774
section 5123.19 of the Revised Code; an administrator, board	775
member, or employee of any other public or private provider of	776
services to a person with mental retardation or a developmental	777
disability, or any MR/DD employee, as defined in section 5123.50	778
of the Revised Code;	779

(d) A member of a citizen's advisory council established at	780
an institution or branch institution of the department of	781
developmental disabilities under section 5123.092 of the Revised	782
Code;	783

(e) A member of the clergy who is employed in a position that	784
includes providing specialized services to an individual with	785
mental retardation or another developmental disability, while	786
acting in an official or professional capacity in that position,	787
or a person who is employed in a position that includes providing	788
specialized services to an individual with mental retardation or	789
another developmental disability and who, while acting in an	790
official or professional capacity, renders spiritual treatment	791
through prayer in accordance with the tenets of an organized	792
religion.	793

(3)(a) The reporting requirements of this division do not	794
apply to employees of the Ohio protection and advocacy system.	795

(b) An attorney or physician is not required to make a report	796
pursuant to division (C)(1) of this section concerning any	797
communication the attorney or physician receives from a client or	798
patient in an attorney-client or physician-patient relationship,	799
if, in accordance with division (A) or (B) of section 2317.02 of	800
the Revised Code, the attorney or physician could not testify with	801
respect to that communication in a civil or criminal proceeding,	802
except that the client or patient is deemed to have waived any	803
testimonial privilege under division (A) or (B) of section 2317.02	804
of the Revised Code with respect to that communication and the	805
attorney or physician shall make a report pursuant to division	806
(C)(1) of this section, if both of the following apply:	807

(i) The client or patient, at the time of the communication,	808
is a person with mental retardation or a developmental disability.	809

(ii) The attorney or physician knows or suspects, as a result	810
of the communication or any observations made during that	811
communication, that the client or patient has suffered or faces a	812
substantial risk of suffering any wound, injury, disability, or	813
condition of a nature that reasonably indicates abuse or neglect	814
of the client or patient.	815

(4) Any person who fails to make a report required under	816
division (C) of this section and who is an MR/DD employee, as	817
defined in section 5123.50 of the Revised Code, shall be eligible	818
to be included in the registry regarding misappropriation, abuse,	819
neglect, or other specified misconduct by MR/DD employees	820
established under section 5123.52 of the Revised Code.	821

(D) The reports required under division (C) of this section	822
shall be made forthwith by telephone or in person and shall be	823
followed by a written report. The reports shall contain the	824
following:	825

(1) The names and addresses of the person with mental	826
retardation or a developmental disability and the person's	827
custodian, if known;	828

(2) The age of the person with mental retardation or a	829
developmental disability;	830

(3) Any other information that would assist in the	831
investigation of the report.	832

(E) When a physician performing services as a member of the	833
staff of a hospital or similar institution has reason to believe	834
that a person with mental retardation or a developmental	835
disability has suffered injury, abuse, or physical neglect, the	836
physician shall notify the person in charge of the institution or	837
that person's designated delegate, who shall make the necessary	838
reports.	839

(F) Any person having reasonable cause to believe that a	840
person with mental retardation or a developmental disability has	841
suffered or faces a substantial risk of suffering abuse or neglect	842
may report or cause a report to be made of that belief to the	843
entity specified in this division. Except as provided in section	844
5120.173 of the Revised Code or as otherwise provided in this	845
division, the person making the report shall make it to a law	846
enforcement agency or the county board of developmental	847
disabilities. If the person is a resident of a facility operated	848
by the department of developmental disabilities, the report shall	849
be made to a law enforcement agency or to the department. If the	850
report concerns any act or omission of an employee of a county	851
board of developmental disabilities, the report immediately shall	852
be made to the department and to the county board.	853

(G)(1) Upon the receipt of a report concerning the possible	854
abuse or neglect of a person with mental retardation or a	855
developmental disability, the law enforcement agency shall inform	856
the county board of developmental disabilities or, if the person	857
is a resident of a facility operated by the department of	858
developmental disabilities, the director of the department or the	859
director's designee.	860

(2) On receipt of a report under this section that includes	861
an allegation of action or inaction that may constitute a crime	862
under federal law or the law of this state, the department of	863
developmental disabilities shall notify the law enforcement	864
agency.	865

(3) When a county board of developmental disabilities	866
receives a report under this section that includes an allegation	867
of action or inaction that may constitute a crime under federal	868
law or the law of this state, the superintendent of the board or	869
an individual the superintendent designates under division (H) of	870
this section shall notify the law enforcement agency. The	871
superintendent or individual shall notify the department of	872
developmental disabilities when it receives any report under this	873
section.	874

(4) When a county board of developmental disabilities	875
receives a report under this section and believes that the degree	876
of risk to the person is such that the report is an emergency, the	877
superintendent of the board or an employee of the board the	878
superintendent designates shall attempt a face-to-face contact	879
with the person with mental retardation or a developmental	880
disability who allegedly is the victim within one hour of the	881
board's receipt of the report.	882

(H) The superintendent of the board may designate an	883
individual to be responsible for notifying the law enforcement	884
agency and the department when the county board receives a report	885
under this section.	886

(I) An adult with mental retardation or a developmental	887
disability about whom a report is made may be removed from the	888
adult's place of residence only by law enforcement officers who	889
consider that the adult's immediate removal is essential to	890
protect the adult from further injury or abuse or in accordance	891
with the order of a court made pursuant to section 5126.33 of the	892
Revised Code.	893

(J) A law enforcement agency shall investigate each report of	894
abuse or neglect it receives under this section. In addition, the	895
department, in cooperation with law enforcement officials, shall	896
investigate each report regarding a resident of a facility	897
operated by the department to determine the circumstances	898
surrounding the injury, the cause of the injury, and the person	899
responsible. The investigation shall be in accordance with the	900
memorandum of understanding prepared under section 5126.058 of the	901
Revised Code. The department shall determine, with the registry	902
office which shall be maintained by the department, whether prior	903
reports have been made concerning an adult with mental retardation	904
or a developmental disability or other principals in the case. If	905
the department finds that the report involves action or inaction	906
that may constitute a crime under federal law or the law of this	907
state, it shall submit a report of its investigation, in writing,	908
to the law enforcement agency. If the person with mental	909
retardation or a developmental disability is an adult, with the	910
consent of the adult, the department shall provide such protective	911
services as are necessary to protect the adult. The law	912
enforcement agency shall make a written report of its findings to	913
the department.	914

If the person is an adult and is not a resident of a facility	915
operated by the department, the county board of developmental	916
disabilities shall review the report of abuse or neglect in	917
accordance with sections 5126.30 to 5126.33 of the Revised Code	918
and the law enforcement agency shall make the written report of	919
its findings to the county board.	920

(K) Any person or any hospital, institution, school, health	921
department, or agency participating in the making of reports	922
pursuant to this section, any person participating as a witness in	923
an administrative or judicial proceeding resulting from the	924
reports, or any person or governmental entity that discharges	925
responsibilities under sections 5126.31 to 5126.33 of the Revised	926
Code shall be immune from any civil or criminal liability that	927
might otherwise be incurred or imposed as a result of such actions	928
except liability for perjury, unless the person or governmental	929
entity has acted in bad faith or with malicious purpose.	930

(L) No employer or any person with the authority to do so	931
shall discharge, demote, transfer, prepare a negative work	932
performance evaluation, reduce pay or benefits, terminate work	933
privileges, or take any other action detrimental to an employee or	934
retaliate against an employee as a result of the employee's having	935
made a report under this section. This division does not preclude	936
an employer or person with authority from taking action with	937
regard to an employee who has made a report under this section if	938
there is another reasonable basis for the action.	939

(M) Reports made under this section are not public records as	940
defined in section 149.43 of the Revised Code. Information	941
contained in the reports on request shall be made available to the	942
person who is the subject of the report, to the person's legal	943
counsel, and to agencies authorized to receive information in the	944
report by the department or by a county board of developmental	945
disabilities.	946

(N) Notwithstanding section 4731.22 of the Revised Code, the	947
physician-patient privilege shall not be a ground for excluding	948
evidence regarding the injuries or physical neglect of a person	949
with mental retardation or a developmental disability or the cause	950
thereof in any judicial proceeding resulting from a report	951
submitted pursuant to this section.	952

Sec. 5123.75.  A respondent who is involuntarily placed in an	953
institution or other place as designated in section 5123.77 of the	954
Revised Code or with respect to whom proceedings have been	955
instituted under section 5123.71 of the Revised Code shall, on	956
request of the respondent, the respondent's guardian, or the	957
respondent's counsel, or upon the court's own motion, be afforded	958
a hearing to determine whether there is probable cause to believe	959
that the respondent is a mentally retarded person subject to	960
institutionalization by court order.	961

(A) The probable cause hearing shall be conducted within two	962
court days from the day on which the request is made. Failure to	963
conduct the probable cause hearing within this time shall effect	964
an immediate discharge of the respondent. If the proceedings are	965
not reinstituted within thirty days, records of the proceedings	966
shall be expunged.	967

(B) The respondent shall be informed that the respondent may	968
retain counsel and have independent expert evaluation and, if the	969
respondent is an indigent person, be represented by court	970
appointed counsel and have independent expert evaluation at court	971
expense.	972

(C) The probable cause hearing shall be conducted in a manner	973
consistent with the procedures set forth in division (A) of	974
section 5123.76 of the Revised Code, except divisions (A)(10) and	975
(14) of that section, and the designee of the director of	976
developmental disabilities under section 5123.72 of the Revised	977
Code shall present evidence for the state.	978

(D) If the court does not find probable cause to believe that	979
the respondent is a mentally retarded person subject to	980
institutionalization by court order, it shall order immediate	981
release of the respondent and dismiss and expunge all record of	982
the proceedings under this chapter.	983

(E) On motion of the respondent or the respondent's counsel	984
and for good cause shown, the court may order a continuance of the	985
hearing.	986

(F) If the court finds probable cause to believe that the	987
respondent is a mentally retarded person subject to	988
institutionalization by court order, the court may issue an	989
interim order of placement and, where proceedings under section	990
5123.71 of the Revised Code have been instituted, shall order a	991
full hearing as provided in section 5123.76 of the Revised Code to	992
be held on the question of whether the respondent is a mentally	993
retarded person subject to institutionalization by court order.	994
Unless specifically waived by the respondent or the respondent's	995
counsel, the court shall schedule said hearing to be held as soon	996
as possible within ten days from the probable cause hearing. A	997
waiver of such full hearing at this point shall not preclude the	998
respondent from asserting the respondent's right to such hearing	999
under section 5123.76 of the Revised Code at any time prior to the	1000
mandatory hearing provided in division (H) of section 5123.76 of	1001
the Revised Code. In any case, if the respondent has waived the	1002
right to the full hearing, a mandatory hearing shall be held under	1003
division (H) of section 5123.76 of the Revised Code between the	1004
ninetieth and the one hundredth day after the original involuntary	1005
detention of the person unless the respondent has been discharged.	1006

(G) Whenever possible, the probable cause hearing shall be	1007
held before the respondent is taken into custody.	1008

Sec. 5123.76.  (A) The full hearing shall be conducted in a	1009
manner consistent with the procedures outlined in this chapter and	1010
with due process of law. The hearing shall be held by a judge of	1011
the probate division or, upon transfer by the judge of the probate	1012
division, by another judge of the court of common pleas, or a	1013
referee designated by the judge of the probate division. Any	1014
referee designated by the judge of the probate division must be an	1015
attorney.	1016

(1) The following shall be made available to counsel for the	1017
respondent:	1018

(a) All relevant documents, information, and evidence in the	1019
custody or control of the state or prosecutor;	1020

(b) All relevant documents, information, and evidence in the	1021
custody or control of the institution, facility, or program in	1022
which the respondent currently is held or in which the respondent	1023
has been held pursuant to these proceedings;	1024

(c) With the consent of the respondent, all relevant	1025
documents, information, and evidence in the custody or control of	1026
any institution or person other than the state.	1027

(2) The respondent has the right to be represented by counsel	1028
of the respondent's choice and has the right to attend the hearing	1029
except if unusual circumstances of compelling medical necessity	1030
exist that render the respondent unable to attend and the	1031
respondent has not expressed a desire to attend.	1032

(3) If the respondent is not represented by counsel and the	1033
court determines that the conditions specified in division (A)(2)	1034
of this section justify the respondent's absence and the right to	1035
counsel has not been validly waived, the court shall appoint	1036
counsel forthwith to represent the respondent at the hearing,	1037
reserving the right to tax costs of appointed counsel to the	1038
respondent unless it is shown that the respondent is indigent. If	1039
the court appoints counsel, or if the court determines that the	1040
evidence relevant to the respondent's absence does not justify the	1041
absence, the court shall continue the case.	1042

(4) The respondent shall be informed of the right to retain	1043
counsel, to have independent expert evaluation, and, if an	1044
indigent person, to be represented by court appointed counsel and	1045
have expert independent evaluation at court expense.	1046

(5) The hearing may be closed to the public unless counsel	1047
for the respondent requests that the hearing be open to the	1048
public.	1049

(6) Unless objected to by the respondent, the respondent's	1050
counsel, or the designee of the director of developmental	1051
disabilities under section 5123.72 of the Revised Code, the court,	1052
for good cause shown, may admit persons having a legitimate	1053
interest in the proceedings.	1054

(7) The affiant under section 5123.71 of the Revised Code	1055
shall be subject to subpoena by either party.	1056

(8) The court shall examine the sufficiency of all documents	1057
filed and shall inform the respondent, if present, and the	1058
respondent's counsel of the nature of the content of the documents	1059
and the reason for which the respondent is being held or for which	1060
the respondent's placement is being sought.	1061

(9) The court shall receive only relevant, competent, and	1062
material evidence.	1063

(10) TheIn accordance with section 5123.72 of the Revised	1064
Code, the designee of the director shall present the evidence for	1065
the state. In proceedings under this chapter, the attorney general	1066
shall present the comprehensive evaluation, assessment, diagnosis,	1067
prognosis, record of habilitation and care, if any, and less	1068
restrictive habilitation plans, if any. The attorney general does	1069
not have a similar presentation responsibility in connection with	1070
a person who has been found not guilty by reason of insanity and	1071
who is the subject of a hearing under section 2945.40 of the	1072
Revised Code to determine whether the person is a mentally	1073
retarded person subject to institutionalization by court order.	1074

(11) The respondent has the right to testify and the	1075
respondent or the respondent's counsel has the right to subpoena	1076
witnesses and documents and to present and cross-examine	1077
witnesses.	1078

(12) The respondent shall not be compelled to testify and	1079
shall be so advised by the court.	1080

(13) On motion of the respondent or the respondent's counsel	1081
for good cause shown, or upon the court's own motion, the court	1082
may order a continuance of the hearing.	1083

(14) To an extent not inconsistent with this chapter, the	1084
Rules of Civil Procedure shall be applicable.	1085

(B) Unless, upon completion of the hearing, the court finds	1086
by clear and convincing evidence that the respondent named in the	1087
affidavit is a mentally retarded person subject to	1088
institutionalization by court order, it shall order the	1089
respondent's discharge forthwith.	1090

(C) If, upon completion of the hearing, the court finds by	1091
clear and convincing evidence that the respondent is a mentally	1092
retarded person subject to institutionalization by court order,	1093
the court may order the respondent's discharge or order the	1094
respondent, for a period not to exceed ninety days, to any of the	1095
following:	1096

(1) A public institution, provided that commitment of the	1097
respondent to the institution will not cause the institution to	1098
exceed its licensed capacity determined in accordance with section	1099
5123.19 of the Revised Code and provided that such a placement is	1100
indicated by the comprehensive evaluation report filed pursuant to	1101
section 5123.71 of the Revised Code;	1102

(2) A private institution;

1103

(3) A county mental retardation program;

1104

(4) Receive private habilitation and care;

1105

(5) Any other suitable facility, program, or the care of any	1106
person consistent with the comprehensive evaluation, assessment,	1107
diagnosis, prognosis, and habilitation needs of the respondent.	1108

(D) Any order made pursuant to division (C)(2), (4), or (5)	1109
of this section shall be conditional upon the receipt by the court	1110
of consent by the facility, program, or person to accept the	1111
respondent.	1112

(E) In determining the place to which, or the person with	1113
whom, the respondent is to be committed, the court shall consider	1114
the comprehensive evaluation, assessment, diagnosis, and projected	1115
habilitation plan for the respondent, and shall order the	1116
implementation of the least restrictive alternative available and	1117
consistent with habilitation goals.	1118

(F) If, at any time it is determined by the director of the	1119
facility or program to which, or the person to whom, the	1120
respondent is committed that the respondent could be equally well	1121
habilitated in a less restrictive environment that is available,	1122
the following shall occur:	1123

(1) The respondent shall be released by the director of the	1124
facility or program or by the person forthwith and referred to the	1125
court together with a report of the findings and recommendations	1126
of the facility, program, or person.	1127

(2) The director of the facility or program or the person	1128
shall notify the respondent's counsel and the designee of the	1129
director of developmental disabilities.	1130

(3) The court shall dismiss the case or order placement in	1131
the less restrictive environment.	1132

(G)(1) Except as provided in divisions (G)(2) and (3) of this	1133
section, any person who has been committed under this section may	1134
apply at any time during the ninety-day period for voluntary	1135
admission to an institution under section 5123.69 of the Revised	1136
Code. Upon admission of a voluntary resident, the managing officer	1137
immediately shall notify the court, the respondent's counsel, and	1138
the designee of the director in writing of that fact by mail or	1139
otherwise, and, upon receipt of the notice, the court shall	1140
dismiss the case.	1141

(2) A person who is found incompetent to stand trial or not	1142
guilty by reason of insanity and who is committed pursuant to	1143
section 2945.39, 2945.40, 2945.401, or 2945.402 of the Revised	1144
Code shall not be voluntarily admitted to an institution pursuant	1145
to division (G)(1) of this section until after the termination of	1146
the commitment, as described in division (J) of section 2945.401	1147
of the Revised Code.	1148

(H) If, at the end of any commitment period, the respondent	1149
has not already been discharged or has not requested voluntary	1150
admission status, the director of the facility or program, or the	1151
person to whose care the respondent has been committed, shall	1152
discharge the respondent forthwith, unless at least ten days	1153
before the expiration of that period the designee of the director	1154
of developmental disabilities or the prosecutor files an	1155
application with the court requesting continued commitment.	1156

(1) An application for continued commitment shall include a	1157
written report containing a current comprehensive evaluation and	1158
assessment, a diagnosis, a prognosis, an account of progress and	1159
past habilitation, and a description of alternative habilitation	1160
settings and plans, including a habilitation setting that is the	1161
least restrictive setting consistent with the need for	1162
habilitation. A copy of the application shall be provided to	1163
respondent's counsel. The requirements for notice under section	1164
5123.73 of the Revised Code and the provisions of divisions (A) to	1165
(E) of this section apply to all hearings on such applications.	1166

(2) A hearing on the first application for continued	1167
commitment shall be held at the expiration of the first ninety-day	1168
period. The hearing shall be mandatory and may not be waived.	1169

(3) Subsequent periods of commitment not to exceed one	1170
hundred eighty days each may be ordered by the court if the	1171
designee of the director of developmental disabilities files an	1172
application for continued commitment, after a hearing is held on	1173
the application or without a hearing if no hearing is requested	1174
and no hearing required under division (H)(4) of this section is	1175
waived. Upon the application of a person involuntarily committed	1176
under this section, supported by an affidavit of a licensed	1177
physician alleging that the person is no longer a mentally	1178
retarded person subject to institutionalization by court order,	1179
the court for good cause shown may hold a full hearing on the	1180
person's continued commitment prior to the expiration of any	1181
subsequent period of commitment set by the court.	1182

(4) A mandatory hearing shall be held at least every two	1183
years after the initial commitment.	1184

(5) If the court, after a hearing upon a request to continue	1185
commitment, finds that the respondent is a mentally retarded	1186
person subject to institutionalization by court order, the court	1187
may make an order pursuant to divisions (C), (D), and (E) of this	1188
section.	1189

(I) Notwithstanding the provisions of division (H) of this	1190
section, no person who is found to be a mentally retarded person	1191
subject to institutionalization by court order pursuant to	1192
division (O)(2) of section 5123.01 of the Revised Code shall be	1193
held under involuntary commitment for more than five years.	1194

(J) The managing officer admitting a person pursuant to a	1195
judicial proceeding, within ten working days of the admission,	1196
shall make a report of the admission to the department.	1197

Section 2.  That existing sections 5123.162, 5123.19,	1198
5123.191, 5123.21, 5123.61, 5123.75, and 5123.76 of the Revised	1199
Code are hereby repealed.	1200