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As Passed by the Senate
123rd General Assembly
Regular Session
1999-2000 | Sub. H. B. No. 538 |
REPRESENTATIVES CALVERT-CLANCY-TIBERI-BUEHRER-AMSTUTZ-ASLANIDES-
FORD-VERICH-HARTNETT-JONES-O'BRIEN-ROMAN-BOYD-AUSTRIA-SALERNO-
KRUPINSKI-PATTON-A. CORE-WIDENER-OLMAN-WINKLER-JERSE-HOOPS-
TERWILLEGER-BRITTON-BARRETT-
SENATORS SPADA-KEARNS-DRAKE-
GARDNER
A BILL
To amend sections 109.57, 109.572, 2108.50, 2111.13, 5123.01,
5123.02, 5123.041, 5123.042, 5123.05, 5123.082, 5123.09, 5123.092, 5123.11,
5123.17, 5123.18, 5123.181, 5123.183, 5123.19, 5123.21, 5123.27, 5123.34,
5123.351, 5123.353, 5123.55, 5123.62, 5123.63, 5123.64, 5123.67, 5123.801,
5123.85, 5123.89, 5123.93, 5126.02, 5126.023, 5126.042, 5126.044, 5126.081,
5126.082, 5126.12, 5126.13, 5126.28, 5126.281, and 5126.357; to amend, for the
purpose of adopting new section numbers as indicated in
parentheses, sections 5123.05 (5123.06) and 5123.183 (5123.051);
to enact new sections 5123.05, 5123.081, and 5126.252 and sections 5123.611,
5123.612, 5123.613, 5126.311, and 5126.312; and to
repeal sections 5123.081, 5123.16, 5123.231, and 5126.252 of the Revised Code
to revise the law governing the Department of Mental Retardation and
Developmental Disabilities and county boards of mental retardation
and developmental disabilities and the law governing criminal records checks
conducted by the Bureau of Criminal Identification and Investigation.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 109.57, 109.572, 2108.50, 2111.13, 5123.01, 5123.02,
5123.041, 5123.042, 5123.05, 5123.082, 5123.09, 5123.092, 5123.11,
5123.17, 5123.18, 5123.181, 5123.183, 5123.19, 5123.21, 5123.27, 5123.34,
5123.351, 5123.353, 5123.55, 5123.62,
5123.63, 5123.64, 5123.67, 5123.801, 5123.85, 5123.89, 5123.93, 5126.02,
5126.023,
5126.042,
5126.044, 5126.081, 5126.082, 5126.12, 5126.13, 5126.28, 5126.281, and
5126.357 be amended;
sections 5123.05 (5123.06) and 5123.183 (5123.051) be amended for the purpose
of adopting new section numbers as indicated in parentheses;
and new sections 5123.05, 5123.081, and 5126.252 and sections 5123.611,
5123.612, 5123.613, 5126.311, and 5126.312 of the Revised Code be enacted to
read as follows:
Sec. 109.57. (A)(1) The superintendent of the bureau of
criminal identification and investigation shall procure from wherever
procurable and file
for record photographs, pictures, descriptions, fingerprints,
measurements, and other information that may be pertinent of
all persons who have been convicted of committing within this state a
felony, any crime
constituting a misdemeanor on the first offense and a felony on subsequent
offenses, or any misdemeanor described in division
(A)(1)(a) of section 109.572 of the Revised Code, of all
children under eighteen years of age who have been adjudicated
delinquent children for committing within this state an act that would
be a felony or
an offense of violence if committed by an adult or who have been
convicted of
or pleaded guilty to committing within this state a felony or an offense
of violence, and of all
well-known and habitual criminals. The person
in charge of any
county, multicounty, municipal, municipal-county, or
multicounty-municipal jail or workhouse, community-based correctional
facility, halfway house, alternative residential facility, or
state correctional institution and the person in
charge of any state institution having custody of a person
suspected of having committed a felony, any crime constituting
a misdemeanor on the first offense and a felony on subsequent offenses,
or any misdemeanor described in division (A)(1)(a)
of section 109.572 of the Revised Code or having custody of a child
under eighteen years of age with respect to whom there is
probable
cause to believe that the child may have committed an act that would
be a felony or
an offense of violence if committed by an adult shall furnish such
material
to the superintendent of
the bureau. Fingerprints, photographs, or other
descriptive information of a child who is under eighteen years of age,
has not been arrested or otherwise taken into custody for committing an act
that would be a felony or an offense of
violence if committed by an adult, has not
been adjudicated a delinquent child for committing an act
that would be a felony or an offense of violence
if committed by an adult, has not been convicted of
or pleaded guilty to committing a
felony or an
offense of violence, and is not a child with respect to whom there is
probable cause to
believe that the child may have committed an act
that would be a felony or
an offense of violence if committed by an adult
shall not be procured by the superintendent or furnished by any
person in charge of any
county, multicounty, municipal, municipal-county, or
multicounty-municipal jail or workhouse, community-based correctional
facility, halfway house, alternative residential facility, or
state correctional institution, except as
authorized in section 2151.313 of the Revised Code.
(2) Every clerk of a
court of record in this state, other than the
supreme court or a court of appeals, shall send to the
superintendent of
the bureau a weekly report containing a summary of each case
involving a felony, involving any crime constituting a
misdemeanor on the
first offense and a felony on subsequent offenses, involving a misdemeanor
described in division (A)(1)(a) of section 109.572
of the Revised Code, or involving an
adjudication in a case in which a child under eighteen years of age was
alleged to be a delinquent child
for committing an act that would be a
felony or an offense of violence if committed by
an adult. The clerk
of the court of common pleas shall include in the report and summary the clerk
sends under this division all information described in divisions
(A)(2)(a) to (f) of this section
regarding a case before the court of appeals that is served by that
clerk. The summary shall be written on the standard forms
furnished by the
superintendent pursuant to division (B) of this section and shall
include the following information:
(a) The incident tracking number contained on the standard forms
furnished by the superintendent pursuant to division (B) of this
section;
(b) The style and number of the case;
(c) The date of arrest;
(d) The date that the person was convicted of or pleaded guilty
to the offense, adjudicated a delinquent child for committing the act that
would be
a felony or an
offense of violence if committed by an adult, found not guilty of the
offense, or found not to be a delinquent child for committing an act that
would be a
felony or an
offense of violence if committed by an adult, the date of an entry
dismissing
the charge, an entry declaring a mistrial of the offense in which the person
is discharged, an entry finding that the person or child is not competent to
stand trial, or an entry of a nolle prosequi, or the date of any other
determination that constitutes final resolution of the case;
(e) A statement of the original charge with the section of the Revised Code
that was alleged to be violated;
(f) If the person or child was convicted, pleaded guilty, or was
adjudicated a delinquent child, the sentence or
terms of probation imposed or any other disposition of the
offender or the delinquent child.
If the offense involved the disarming of a law enforcement officer or an
attempt to disarm a law enforcement officer, the clerk shall
clearly state that fact in the summary, and the superintendent shall ensure
that a clear statement of that fact is placed in the bureau's records.
(3) The superintendent shall cooperate with and assist
sheriffs,
chiefs of police, and other law enforcement officers in the establishment of
a complete system of criminal identification and in obtaining
fingerprints and other means of identification of all persons
arrested on a charge of a felony, any crime constituting a
misdemeanor on the first offense and a felony on subsequent
offenses, or a misdemeanor described in division
(A)(1)(a) of section 109.572 of the Revised Code and of all children
under
eighteen years of age arrested or otherwise taken into custody for committing
an act that would
be a felony or an offense of violence if committed by an adult.
The
superintendent also shall file for record the
fingerprint impressions of all persons confined in a county, multicounty,
municipal, municipal-county, or multicounty-municipal jail or workhouse,
community-based correctional facility, halfway house,
alternative residential facility, or state correctional institution for
the violation of state
laws and of all children under
eighteen years of age who
are confined in a county, multicounty, municipal, municipal-county, or
multicounty-municipal jail or workhouse, community-based
correctional facility, halfway house, alternative residential facility, or
state correctional
institution or in any
facility for delinquent children for committing an act
that would be a felony or
an offense of violence if committed by an adult, and any other
information
that the superintendent may receive from law enforcement
officials of the state and its political subdivisions.
(4) The superintendent shall carry out Chapter 2950. of
the
Revised Code with respect to the registration of
persons who are convicted of or plead guilty
to a sexually oriented offense and with respect to all other duties imposed on
the bureau under that chapter.
(B) The superintendent shall prepare and furnish to every
county, multicounty, municipal, municipal-county, or
multicounty-municipal jail or workhouse, community-based correctional
facility, halfway house, alternative residential facility, or
state correctional institution and to every clerk of a court in this
state specified in division (A)(2) of this
section standard forms for reporting the information required
under division (A) of this
section. The standard forms that the superintendent prepares pursuant to
this division may be in a tangible format, in an electronic format, or in both
tangible formats and electronic formats.
(C) The superintendent may operate a center for
electronic, automated, or other data processing for the storage
and retrieval of information, data, and statistics pertaining to
criminals and to children under eighteen years of age who are adjudicated
delinquent children for committing an
act that would be a felony or an offense of
violence if committed by an adult, criminal activity, crime prevention,
law
enforcement,
and criminal justice, and may establish and operate a statewide
communications network to gather and disseminate information,
data, and statistics for the use of law enforcement agencies. The
superintendent may gather, store, retrieve, and
disseminate information, data, and statistics that pertain to children who are
under eighteen years of age and that are gathered pursuant to sections 109.57
to 109.61 of the Revised Code together with information, data, and
statistics that pertain to adults and that are gathered pursuant to those
sections.
(D) The information and materials furnished to the
superintendent pursuant to division (A) of this section and
information and materials furnished to any board or person under
division (F) or (G) of this section are not public records under section
149.43 of the Revised Code.
(E) The attorney general shall adopt rules, in accordance
with Chapter 119. of the Revised Code, setting forth the
procedure by which a person may receive or release information
gathered by the superintendent pursuant to
division (A) of this
section. A reasonable fee may be charged for this service. If a
temporary employment service submits a request for a determination
of whether a person the service plans to refer to an employment
position has been convicted of or pleaded guilty to an offense
listed in division (A)(1), (3), (4), or (5) of section 109.572
of the Revised Code, the request shall be treated as a single
request and only one fee shall be charged.
(F)(1) As used in division (F)(2) of this section, "head
start agency" means an entity in this state that has been
approved to be an agency for purposes of subchapter II of the
"Community Economic Development Act," 95 Stat. 489 (1981), 42
U.S.C.A. 9831, as amended.
(2)(a) In addition to or in conjunction with any request that
is required to be made under section 109.572, 2151.86, 3301.32,
3301.541, 3319.39, 3701.881, 5104.012, 5104.013, 5123.081, 5126.28,
5126.281, or 5153.111 of the Revised Code, the board of education
of any school district; THE DIRECTOR OF MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES; any county board of mental retardation
and developmental disabilities; any entity under contract with a
county board of mental retardation and developmental
disabilities; the chief administrator of any chartered nonpublic
school; the chief administrator of any home health agency;
the chief administrator of or person operating any child
day-care center, type A family day-care home, or type B family
day-care home licensed or certified under Chapter 5104. of the
Revised Code; the administrator of any type C family day-care
home certified pursuant to Section 1 of Sub. H.B. 62 of the 121st
general assembly or Section 5 of Am. Sub. S.B. 160 of the 121st
general assembly; the chief administrator of any head start agency;
or the executive director of a public children services agency
may request that the superintendent of the bureau investigate and
determine, with respect to any individual who has applied for
employment in any position after October 2, 1989, or any individual
wishing to apply for employment with a board of education may
request, with regard to the
individual, whether the bureau has any
information gathered under division (A) of this section that
pertains to that individual. On receipt of the request, the
superintendent shall determine whether that information
exists
and, upon request of the person, board, or entity requesting
information, also shall request from the federal bureau of
investigation any criminal records it has pertaining
to that
individual. Within thirty days of the date that the superintendent
receives a
request, the superintendent shall send to the board, entity, or
person a report of any information that the superintendent
determines exists,
including information contained in records that have been sealed
under section 2953.32 of the Revised Code, and, within thirty
days of its receipt, shall send the board, entity, or person a
report of any information received from the federal
bureau of investigation, other than information the dissemination
of which is prohibited by federal law.
(b) When a board of education is required to receive information
under this section as a prerequisite to employment of an
individual pursuant to section 3319.39 of the Revised Code, it may accept a
certified copy of records that were issued
by the bureau of criminal identification and investigation and that are
presented by an individual applying for employment with the
district in lieu of requesting that information itself. In such a case, the
board shall accept the certified copy issued by the bureau in order to make a
photocopy of it for that individual's employment application documents and
shall return the certified copy to the individual. In a case of that nature,
a district only shall
accept a certified copy of records of that nature within one year
after the date of their issuance by the
bureau.
(3) The state board of education may request, with respect
to any individual who has applied for employment after October 2,
1989, in any position with the state board or the department of
education, any information that a school district board of
education is authorized to request under division (F)(2)
of this section, and the
superintendent of the bureau shall proceed as if the request has
been received from a school district board of education under
division (F)(2) of this section.
(4) When the superintendent of the bureau receives a
request for information that is authorized under section 3319.291
of the Revised Code, the superintendent shall proceed as if the
request has been received from a school district board of
education under division (F)(2) of this section.
(5) When a recipient of an OhioReads classroom
or
community reading
grant paid under section 3301.86 or 3301.87 of the Revised
Code
or an entity approved by the OhioReads council
requests, with respect to any individual who applies to participate in
providing any program or service
through an entity approved by the OhioReads council
or
funded in whole or in
part by the grant, the information that a school district board of
education is authorized to request under division
(F)(2)(a) of
this section, the superintendent of the bureau shall proceed as if the
request has been
received from a school district board of education under division
(F)(2)(a) of this section.
(G) In addition to or in conjunction with
any request that is required to be made under section 173.41, 3701.881,
3712.09,
3721.121, or 3722.151 of the Revised
Code with respect to an individual who has applied for employment in
a position that involves providing direct care to an older adult, the chief
administrator of a PASSPORT agency that provides services through the
PASSPORT program created under section 173.40 of the Revised
Code, home health agency,
hospice care program, home licensed under Chapter 3721.
of the Revised Code, adult day-care program
operated pursuant to rules adopted under section 3721.04 of the
Revised Code, or adult care facility
may request that the superintendent of the bureau
investigate and determine, with respect to any individual who has
applied after
January 27, 1997, for employment in a position that
does not involve providing
direct care to an older adult, whether the bureau has any information
gathered under division (A) of this section that pertains
to that individual. On receipt of the request, the
superintendent shall determine whether that information
exists
and, on request of the administrator requesting information,
shall also request from the federal bureau of investigation any
criminal records it has pertaining to that
individual. Within
thirty days of the date a request is received, the superintendent
shall send to the administrator a report of any
information determined to exist, including information contained
in records that have been sealed under section 2953.32 of the
Revised Code, and, within thirty days of its
receipt, shall send the administrator a report of any
information received from the federal bureau of
investigation,
other than information the dissemination of which is prohibited
by federal law.
(H) Information obtained by a board,
administrator, or other person under this section is confidential
and shall not be released or disseminated.
(I) The superintendent may charge a reasonable fee for
providing information or criminal records under division (F)(2)
or (G) of this section.
Sec. 109.572. (A)(1) Upon receipt of a request pursuant
to section 2151.86, 3301.32, 3301.541, 3319.39, 5104.012, 5104.013, or
5153.111 of the Revised Code, a
completed form prescribed pursuant to division (C)(1) of this
section, and a set of fingerprint impressions obtained in the
manner described in division (C)(2) of this section, the
superintendent of the bureau of criminal identification and
investigation shall conduct a criminal records check in the
manner described in division (B) of this section to determine
whether any information exists that indicates that the person who
is the subject of the request previously has been convicted of or
pleaded guilty to any of the following:
(a) A violation of section 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34,
2905.01, 2905.02, 2905.05, 2907.02, 2907.03, 2907.04,
2907.05, 2907.06, 2907.07, 2907.08, 2907.09, 2907.21,
2907.22, 2907.23, 2907.25, 2907.31, 2907.32, 2907.321, 2907.322,
2907.323, 2911.01, 2911.02, 2911.11, 2911.12, 2919.12, 2919.22,
2919.24, 2919.25, 2923.12, 2923.13, 2923.161, 2925.02, 2925.03,
2925.04, 2925.05, 2925.06, or 3716.11 of the Revised Code, felonious sexual
penetration in violation of former section 2907.12 of the Revised Code, a
violation of section 2905.04 of the Revised Code as it existed prior to July
1, 1996, a violation of section 2919.23 of the Revised Code that would have
been a violation of
section 2905.04 of the Revised Code as it existed prior to July 1, 1996, had
the violation been committed prior to that date, or a violation of
section 2925.11 of the Revised Code that is not a minor drug possession
offense;
(b) A violation of an existing or former law of this state, any other
state, or the United States that is substantially equivalent to
any of the offenses listed in division (A)(1)(a) of this section.
(2) On receipt of a request PURSUANT TO SECTION 5123.081 of the Revised Code WITH RESPECT
TO AN APPLICANT FOR EMPLOYMENT IN ANY POSITION WITH THE DEPARTMENT OF MENTAL
RETARDATION AND DEVELOPMENTAL DISABILITIES, pursuant to section
5126.28 of the Revised
Code with respect to an
applicant for employment in any position with a county board of
mental retardation and developmental disabilities, or pursuant to
section 5126.281 of the Revised
Code with respect to an
applicant for employment in a DIRECT SERVICES position with an entity
contracting with a county board for employment in a position
that involves providing service directly to individuals with
mental retardation and developmental disabilities, a completed
form prescribed pursuant to division
(C)(1) of this section, and a
set of fingerprint impressions obtained in the manner described
in division (C)(2) of this
section, the superintendent of the bureau of criminal
identification and investigation shall conduct a criminal
records check. The superintendent shall conduct the criminal
records check in the manner described in division
(B) of this section to
determine whether any information exists that indicates that the
person who is the subject of the request has been convicted of
or pleaded guilty to any of the following:
(a) A violation of section 2903.01,
2903.02, 2903.03, 2903.04, 2903.11, 2903.12, 2903.13, 2903.16,
2903.21, 2903.34, 2905.01, 2905.02, 2905.04, 2905.05, 2907.02,
2907.03, 2907.04, 2907.05, 2907.06, 2907.07, 2907.08, 2907.09,
2907.12, 2907.21, 2907.22, 2907.23, 2907.25, 2907.31, 2907.32,
2907.321, 2907.322, 2907.323, 2911.01, 2911.02, 2911.11,
2911.12, 2919.12, 2919.22, 2919.24, 2919.25, 2923.12, 2923.13,
2923.161, 2925.02, 2925.03, or 3716.11 of the
Revised Code;
(b) An existing or former MUNICIPAL ORDINANCE OR law of this
state, any other state, or the United States that is substantially
equivalent to any of the offenses listed in division
(A)(2)(a) of this section.
(3) On receipt of a request pursuant to section 173.41,
3712.09, 3721.121, or 3722.151 of the
Revised Code, a completed form prescribed
pursuant to division (C)(1) of this section, and a set of
fingerprint impressions obtained in the manner described in
division (C)(2) of this section, the superintendent of
the bureau of criminal identification and investigation shall
conduct a criminal records check with respect to any person who
has applied for employment in
a position that involves providing
direct care to an older adult. The superintendent shall conduct
the criminal records check in the manner described in division
(B) of this section to determine whether any information
exists that indicates that the person who is the subject of the
request previously has been convicted of or pleaded guilty to any
of the following:
(a) A violation of section 2903.01, 2903.02,
2903.03, 2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21,
2903.34, 2905.01, 2905.02, 2905.11, 2905.12, 2907.02, 2907.03, 2907.05,
2907.06, 2907.07, 2907.08, 2907.09, 2907.12, 2907.25, 2907.31, 2907.32,
2907.321, 2907.322, 2907.323, 2911.01, 2911.02,
2911.11, 2911.12, 2911.13, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21,
2913.31, 2913.40, 2913.43, 2913.47, 2913.51, 2919.25, 2921.36, 2923.12,
2923.13, 2923.161, 2925.02,
2925.03, 2925.11, 2925.13, 2925.22, 2925.23, or 3716.11 of the
Revised Code;
(b) An existing or former law of this state, any
other state, or the United States that is
substantially equivalent to any of the offenses listed in
division (A)(3)(a) of this section.
(4) On receipt of a request pursuant to section 3701.881 of the
Revised Code
with respect to an applicant for employment with a home health agency as a
person responsible for the care, custody, or control of a child, a completed
form prescribed pursuant to division (C)(1) of
this section, and a set of fingerprint impressions obtained in the manner
described in division (C)(2) of this section,
the superintendent of the bureau of criminal identification and investigation
shall conduct a criminal records check. The superintendent shall conduct the
criminal records check in the manner described in division
(B) of this section to determine whether any
information exists that indicates that the person who is the subject of the
request previously has been convicted of or pleaded guilty to any of the
following:
(a) A violation of section 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34,
2905.01, 2905.02, 2905.04, 2905.05, 2907.02, 2907.03, 2907.04,
2907.05, 2907.06, 2907.07, 2907.08, 2907.09, 2907.12, 2907.21,
2907.22, 2907.23, 2907.25, 2907.31, 2907.32, 2907.321, 2907.322,
2907.323, 2911.01, 2911.02, 2911.11, 2911.12, 2919.12, 2919.22,
2919.24, 2919.25, 2923.12, 2923.13, 2923.161, 2925.02, 2925.03,
2925.04, 2925.05, 2925.06, or 3716.11 of the Revised Code or
a violation of
section 2925.11 of the Revised Code that is not a minor drug
possession offense;
(b) An existing or former law of this state, any other state, or
the United States that is substantially equivalent to any of
the offenses listed in division (A)(4)(a) of this section.
(5) On receipt of a request pursuant to section 3701.881 of the
Revised Code with respect to an applicant for employment with a home health
agency in a
position that involves providing direct care to an older adult, a completed
form prescribed pursuant to division (C)(1) of
this section, and a set of fingerprint impressions obtained in the manner
described in division (C)(2) of this section,
the superintendent of the bureau of criminal identification and investigation
shall conduct a criminal records check. The superintendent shall conduct the
criminal records check in the manner described in division
(B) of this section to determine whether any
information exists that indicates that the person who is the subject of the
request previously has been convicted of or pleaded guilty to any of the
following:
(a) A violation of section 2903.01, 2903.02,
2903.03, 2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21,
2903.34, 2905.01, 2905.02, 2905.11, 2905.12, 2907.02, 2907.03, 2907.05,
2907.06, 2907.07, 2907.08, 2907.09, 2907.12, 2907.25, 2907.31, 2907.32,
2907.321, 2907.322, 2907.323, 2911.01, 2911.02,
2911.11, 2911.12, 2911.13, 2913.02, 2913.03, 2913.04, 2913.11, 2913.21,
2913.31, 2913.40, 2913.43, 2913.47, 2913.51, 2919.25, 2921.36, 2923.12,
2923.13, 2923.161, 2925.02,
2925.03, 2925.11, 2925.13, 2925.22, 2925.23, or 3716.11 of the
Revised Code;
(b) An existing or former law of this state, any other state, or
the United States that is substantially equivalent to any of
the offenses listed in division (A)(5)(a) of this section.
(6) When conducting a criminal records check upon a
request pursuant to section 3319.39 of the Revised Code for an
applicant who is a teacher, the superintendent shall determine
whether any information exists that indicates that the person who
is the subject of the request previously has been convicted of or
pleaded guilty to any offense specified in section 3319.31 of the
Revised Code.
(7) Not later than thirty days after the date the
superintendent receives the
request, completed form, and fingerprint impressions, the
superintendent shall send the person who, BOARD, OR ENTITY
THAT made the request any
information, other than information the dissemination of which is
prohibited by federal law, the superintendent determines exists with respect
to the person who is the subject of the request that indicates that the
person
previously has been convicted of or pleaded guilty to
any offense listed or described in division (A)(1), (2), (3), (4), or
(5) of this section. The superintendent
shall send the person who, BOARD, OR ENTITY THAT made the
request a copy of the
list of offenses
specified in division (A)(1), (2), (3), (4), or (5) of this section. If
the request was made under section 3701.881 of the Revised Code with regard to
an applicant who may be both responsible for the care, custody, or control of
a child and involved in providing direct care to an older adult, the
superintendent shall provide
a list of the offenses specified in divisions (A)(4)
and (5) of this section.
(B) The superintendent shall conduct any criminal records
check requested under section 173.41, 2151.86, 3301.32, 3301.541,
3319.39, 3701.881, 3712.09, 3721.121, 3722.151, 5104.012, 5104.013,
5123.081, 5126.28, 5126.281, or 5153.111 of the Revised Code as
follows:
(1) The superintendent shall review or cause to be reviewed any relevant
information gathered and compiled by the bureau under division
(A) of section 109.57 of the Revised Code that relates to the
person who is the subject of the request, including any relevant
information contained in records that have been sealed under
section 2953.32 of the Revised Code;
(2) If the request received by the superintendent asks for
information from
the federal bureau of investigation,
the superintendent shall request from the federal bureau of
investigation any information it has with respect to
the person
who is the subject of the request and shall review or cause to be
reviewed any information the superintendent receives from that bureau.
(C)(1) The superintendent shall prescribe a form to obtain
the information necessary to conduct a criminal records check
from any person for whom a criminal records check is required by
section 173.41, 2151.86, 3301.32, 3301.541, 3319.39, 3701.881, 3712.09,
3721.121, 3722.151, 5104.012, 5104.013, 5123.081, 5126.28, 5126.281,
or 5153.111 of the Revised Code. THE FORM THAT THE SUPERINTENDENT
PRESCRIBES PURSUANT TO THIS DIVISION MAY BE IN A TANGIBLE FORMAT, IN AN
ELECTRONIC
FORMAT, OR IN BOTH TANGIBLE AND ELECTRONIC FORMATS.
(2) The superintendent shall prescribe standard impression
sheets to obtain the fingerprint impressions of any
person for
whom a criminal records check is required by section 173.41, 2151.86,
3301.32, 3301.541, 3319.39, 3701.881, 3712.09, 3721.121, 3722.151, 5104.012,
5104.013, 5123.081, 5126.28, 5126.281, or 5153.111 of the Revised
Code.
Any person for
whom a records check is required by any of those sections shall obtain
the fingerprint impressions at a county sheriff's office,
municipal police department, or any other entity with the ability
to make fingerprint impressions on the standard impression sheets
prescribed by the superintendent. The office, department, or
entity may charge the person a reasonable fee for making the
impressions. THE STANDARD IMPRESSION SHEETS THE
SUPERINTENDENT PRESCRIBES PURSUANT TO THIS DIVISION MAY BE IN A TANGIBLE
FORMAT, IN AN ELECTRONIC FORMAT, OR IN BOTH
TANGIBLE AND ELECTRONIC FORMATS.
(3) Subject to division (D) of this section, the
superintendent shall prescribe and charge a reasonable fee for
providing a criminal records check requested under section
173.41, 2151.86, 3301.32, 3301.541, 3319.39, 3701.881, 3712.09, 3721.121,
3722.151, 5104.012, 5104.013, 5123.081, 5126.28, 5126.281, or
5153.111 of the Revised
Code. The person making a criminal records request under section
173.41, 2151.86, 3301.32, 3301.541, 3319.39, 3701.881,
3712.09, 3721.121, 3722.151, 5104.012, 5104.013, 5123.081,
5126.28, 5126.281, or
5153.111 of the Revised Code shall pay the fee prescribed pursuant to this
division. A person making a request under section 3701.881 of the Revised
Code for a criminal records check for an applicant who may be both responsible
for the care, custody, or control of a child and involved in providing direct
care to an older adult shall pay one fee for the request.
(4) THE SUPERINTENDENT OF THE BUREAU OF CRIMINAL IDENTIFICATION
AND INVESTIGATION MAY PRESCRIBE METHODS OF FORWARDING FINGERPRINT IMPRESSIONS
AND INFORMATION
NECESSARY TO CONDUCT A CRIMINAL RECORDS CHECK, WHICH METHODS SHALL
INCLUDE, BUT NOT BE LIMITED TO, AN ELECTRONIC METHOD.
(D) A determination whether any information exists that
indicates that a person previously has been convicted of or
pleaded guilty to any offense listed or described in division (A)(1)(a)
or (b), (A)(2)(a) or (b), (A)(3)(a) or (b), (A)(4)(a) or (b), or (A)(5)(a) or
(b) of this section that is made by the superintendent with
respect to information considered in a criminal records check in
accordance with this section is valid for the person who
is the subject of the criminal records check for a period of one year
from the date upon which the superintendent makes the
determination. During the period in which the
determination in
regard to a person is valid, if another request under this
section is made for a criminal records check for that person, the
superintendent shall provide the information that is the basis
for the superintendent's initial
determination at a lower fee than
the fee
prescribed for the initial criminal records check.
(E) As used in this section:
(1) "Criminal records check" means any criminal records check conducted by
the superintendent
of the bureau of criminal identification and investigation in
accordance with division (B) of this section.
(2) "Minor drug possession offense" has the same meaning as in section
2925.01 of the Revised Code.
(3) "Older adult" means a person age sixty or older.
Sec. 2108.50. (A) An autopsy or post-mortem examination may be
performed upon the body of a deceased person by a licensed
physician or surgeon if consent has been given in the order named
by one of the following persons of sound mind and eighteen years
of age or older in a written instrument executed by him THE
PERSON or on his THE PERSON'S
behalf at his THE PERSON'S express direction:
(A)(1) The deceased person during his THE DECEASED
PERSON'S lifetime;
(B)(2) The decedent's spouse;
(C)(3) If there is no surviving spouse, if the address of the
surviving spouse is unknown or outside the United States, if the
surviving spouse is physically or mentally unable or incapable of
giving consent, or if the deceased person was separated and
living apart from such surviving spouse, then a person having the
first named degree of relationship in the following list in which
a relative of the deceased PERSON survives and is physically and
mentally able and capable of giving consent may execute consent:
(1)(a) Children;
(2)(b) Parents;
(3)(c) Brothers or sisters.
(D)(4) If there are no surviving persons of any degree of
relationship listed in division (C)(A)(3) of this section, any
other
relative or person who assumes custody of the body for burial;.
(E)(5) A person authorized by written instrument executed by
the deceased person to make arrangements for burial.
(6) A PERSON WHO, AT THE TIME OF DEATH OF THE DECEASED PERSON,
WAS SERVING AS GUARDIAN OF THE PERSON FOR THE DECEASED PERSON.
(B) Consent TO AN AUTOPSY OR POST-MORTEM EXAMINATION
may be revoked only by the person executing the
consent and in the same manner as required for execution of
consent under this section.
(C) As used in this section, "written instrument" includes a
telegram or cablegram.
Sec. 2111.13. (A) When a guardian is appointed to have
the custody and maintenance of a ward, and to have charge of the
education of the ward if he THE WARD is a minor, the guardian's
duties are
as follows:
(1) To protect and control the person of his THE ward;
(2) To provide suitable maintenance for his THE ward when
necessary, which shall be paid out of the estate of such ward
upon the order of the guardian of the person;
(3) To provide such maintenance and education for such
ward as the amount of his THE WARD'S estate justifies when the
ward is a
minor and has no father or mother, or has a father or mother who
fails to maintain or educate him THE WARD, which shall be paid
out of such
ward's estate upon the order of the guardian of the person;
(4) To obey all the orders and judgments of the probate
court touching the guardianship.
(B) Except as provided in section 2111.131 of the Revised
Code, no part of the ward's estate shall be used for the support,
maintenance, or education of such ward unless ordered and
approved by the court.
(C) A guardian of the person may authorize or approve the
provision to his THE ward of medical, health, or other
professional
care, counsel, treatment, or services unless the ward or an
interested party files objections with the probate court, or the
court, by rule or order, provides otherwise.
(D) A GUARDIAN OF THE PERSON OF A WARD WHO HAS DIED MAY CONSENT
TO AN AUTOPSY OR POST-MORTEM EXAMINATION UPON THE BODY OF THE DECEASED WARD
UNDER SECTION 2108.50 of the Revised Code AND, IF THE DECEASED WARD DID NOT HAVE A GUARDIAN
OF THE ESTATE AND THE ESTATE IS NOT REQUIRED TO BE ADMINISTERED BY A PROBATE
COURT, MAY AUTHORIZE THE BURIAL OR CREMATION OF THE DECEASED WARD. A GUARDIAN
WHO GIVES CONSENT OR AUTHORIZATION AS DESCRIBED IN THIS DIVISION SHALL NOTIFY
THE PROBATE COURT AS SOON AS POSSIBLE AFTER GIVING THE CONSENT OR
AUTHORIZATION.
Sec. 5123.01. As used in this chapter:
(A) "Chief medical officer" means the licensed physician
appointed by the managing officer of an institution for the
mentally retarded with the approval of the director of mental
retardation and developmental disabilities to provide medical
treatment for residents of the institution.
(B) "Chief program director" means a person with special
training and experience in the diagnosis and management of the
mentally retarded, certified according to division (C) of this
section in at least one of the designated fields, and appointed
by the managing officer of an institution for the mentally
retarded with the approval of the director to provide
habilitation and care for residents of the institution.
(C) "Comprehensive evaluation" means a study, including a
sequence of observations and examinations, of a person leading to
conclusions and recommendations formulated jointly, with
dissenting opinions if any, by a group of persons with special
training and experience in the diagnosis and management of
mentally retarded or developmentally disabled persons WITH MENTAL
RETARDATION OR A DEVELOPMENTAL DISABILITY, which
group shall include individuals who are professionally qualified
in the fields of medicine, education, psychology, and social
work, together with such other specialists as the individual case
may require.
(D) "Education" means the process of formal training and
instruction to facilitate the intellectual and emotional
development of residents.
(E) "Habilitation" means the process by which the staff of
the institution assists the resident in acquiring and maintaining
those life skills that enable the resident to cope more
effectively with
the demands of the resident's own person and of
the resident's environment and in
raising the level of the resident's physical, mental,
social, and vocational
efficiency. Habilitation includes but is not limited to programs
of formal, structured education and training.
(F) "Health officer" means any public health physician,
public health nurse, or other person authorized or designated by
a city or general health district.
(G) "Indigent person" means a person who is unable, without
substantial financial hardship, to provide for the payment of an
attorney and for other necessary expenses of legal
representation, including expert testimony.
(H) "Institution" means a public or private facility, or a
part of a public or private facility, that is
licensed by the appropriate state
department and is equipped to provide residential habilitation,
care, and treatment for the mentally retarded.
(I) "Licensed physician" means a person who holds a valid
certificate issued under Chapter 4731. of the Revised Code
authorizing the person to practice medicine and surgery or
osteopathic medicine and surgery, or a medical officer of the government of
the United States while in the performance of the officer's official duties.
(J) "Managing officer" means a person who is appointed by
the director of mental retardation and developmental disabilities
to be in executive control of an institution for the mentally
retarded under the jurisdiction of the department.
(K) "Mentally retarded person" means a person having
significantly subaverage general intellectual functioning
existing concurrently with deficiencies in adaptive behavior,
manifested during the developmental period.
(L) "Mentally retarded person subject to
institutionalization by court order" means a person eighteen
years of age or older who is at least moderately mentally retarded and in
relation to whom, because of the person's retardation, either of the following
conditions exist:
(1) The person represents a very substantial risk of
physical impairment or injury to self as manifested by
evidence that the person is unable to provide for and is not
providing
for the person's most basic physical needs and that
provision for those
needs is not available in the community;
(2) The person needs and is susceptible to significant
habilitation in an institution.
(M) "A person who is at least moderately mentally
retarded" means a person who is found, following a comprehensive
evaluation, to be impaired in adaptive behavior to a moderate
degree and to be functioning at the moderate level of
intellectual functioning in accordance with standard measurements
as recorded in the most current revision of the manual of
terminology and classification in mental retardation published by
the American association on mental retardation.
(N) As used in this division, "substantial functional limitation,"
"developmental delay," and "established risk" have the meanings
established pursuant to section 5123.011 of the Revised Code.
"Developmental disability" means a severe, chronic
disability that is characterized by all of the following:
(1) It is attributable to a mental or physical impairment
or a combination of mental and physical impairments, other than a
mental or physical impairment solely caused by mental illness as
defined in division (A) of section 5122.01 of the Revised Code.
(2) It is manifested before age twenty-two.
(3) It is likely to continue indefinitely.
(4) It results in one of the following:
(a) In the case of a person under three years of age, at
least one
developmental delay or an established risk;
(b) In the case of a person at least three years of age but
under six years of age, at least two developmental delays or an
established risk;
(c) In the case of a person six years of age or older, a
substantial functional limitation in at least three of the
following areas of major life activity, as appropriate for the
person's age: self-care, receptive and expressive language, learning,
mobility, self-direction, capacity for independent living, and,
if the person is at least sixteen years of age, capacity
for economic self-sufficiency.
(5) It causes the person to need a combination and
sequence of special, interdisciplinary, or other type of care,
treatment, or provision of services for an extended period of
time that is individually planned and coordinated for the person.
(O) "Developmentally disabled person" means a person with
a developmental disability.
(P) "State institution" means an institution that is
tax-supported and under the jurisdiction of the department.
(Q) "Residence" and "legal residence" have the same
meaning as "legal settlement," which is acquired by residing in
Ohio for a period of one year without receiving general
assistance prior to July
17, 1995, under former Chapter 5113. of the Revised Code, disability
assistance under Chapter 5115. of the Revised Code, or assistance from a
private agency that maintains records of assistance given. A person having a
legal settlement in the state shall be considered as having legal settlement
in the assistance area in which the person resides. No adult
person coming into this
state and having a spouse or minor children residing in another state shall
obtain a legal settlement in this state as long as
the spouse or minor
children are receiving public assistance, care, or support at the expense of
the other state or its subdivisions. For the purpose of determining the legal
settlement of a person who is living in a public or private institution or in
a home subject to licensing by the department of job and family services,
the
department of mental health, or the department of mental retardation and
developmental disabilities, the residence of the person
shall be considered as though the person were residing in the county in which
the person was living prior to the person's entrance into the institution or
home. Settlement once acquired shall continue until a person has been
continuously absent from Ohio for a period of
one year or has acquired a legal residence in another state. A woman who
marries a man with legal settlement in any county immediately acquires
the settlement of her husband. The legal settlement of a minor
is that of the parents, surviving parent, sole parent, parent who
is designated the residential parent and legal custodian by a
court, other adult having permanent custody awarded by a court,
or guardian of the person of the minor, provided that:
(1) A minor female who marries shall be considered to have
the legal settlement of her husband and, in the case of death of
her husband or divorce, she shall not thereby lose her
legal
settlement obtained by the marriage.
(2) A minor male who marries, establishes a home, and who
has resided in this state for one year without receiving general
assistance prior to July
17, 1995, under former Chapter 5113. of the Revised Code, disability
assistance under Chapter 5115. of the Revised Code, or assistance from a
private agency that maintains records of assistance given
shall be considered
to have obtained a legal settlement in this state.
(3) The legal settlement of a child under
eighteen years of age who is in the care or custody of a public or
private child caring agency shall not change if the legal settlement of
the parent changes until after the child has been in the home of
the parent for a period of one year.
No person, adult or minor, may establish a legal settlement
in this state for the purpose of gaining admission to any state
institution.
(R)(1) "Resident" means, subject to division (R)(2) of this section, a person
who is admitted either voluntarily
or involuntarily to an institution or other facility pursuant to
section 2945.39, 2945.40, 2945.401, or
2945.402 of the Revised Code subsequent to a finding of not guilty
by reason of insanity or incompetence to stand trial or under this
chapter who is under
observation or receiving habilitation and care in an institution.
(2) "Resident" does not include a person admitted to an
institution or other facility under section 2945.39, 2945.40, 2945.401, or
2945.402 of the Revised Code to the extent that the reference in this
chapter to
resident, or the context in which the reference occurs, is in conflict with
any provision of sections 2945.37 to 2945.402 of the Revised Code.
(S) "Respondent" means the person whose detention,
commitment, or continued commitment is being sought in any
proceeding under this chapter.
(T) "Working day" and "court day" mean Monday, Tuesday,
Wednesday, Thursday, and Friday, except when such day is a legal
holiday.
(U) "Prosecutor" means the prosecuting attorney, village
solicitor, city director of law, or similar chief legal officer
who prosecuted a criminal case in which a person was found not
guilty by reason of insanity, who would have had the authority to
prosecute a criminal case against a person if the person had not
been found incompetent to stand trial, or who prosecuted a case
in which a person was found guilty.
(V) "Court" means the probate division of the court of
common pleas.
Sec. 5123.02. (A) The department of mental retardation and
developmental disabilities shall DO THE FOLLOWING:
(1)(A) Promote comprehensive statewide programs and services
for mentally retarded or developmentally disabled persons WITH
MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY and
their families wherever they reside in the state. These programs
shall include public education, prevention, diagnosis, treatment,
training, and care.
(2)(B) Provide administrative leadership for statewide
services which include residential facilities, evaluation
centers, and community classes which are wholly or in part
financed by the department of mental retardation and
developmental disabilities as provided by section 5123.26 of the
Revised Code;
(3)(C) Develop and maintain, to the extent feasible, data on
all services and programs for mentally retarded or
developmentally disabled persons WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY, THAT ARE provided by governmental and
private agencies;
(4)(D) Make periodic determinations of the number of
mentally
retarded or developmentally disabled persons WITH MENTAL RETARDATION OR
A DEVELOPMENTAL DISABILITY requiring services
in the state;
(5)(E) Provide leadership to local authorities in planning
and developing community-wide services for mentally retarded or
developmentally disabled persons WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY and their families;
(6)(F) Promote programs of professional training and research
in cooperation with other state departments, agencies, and
institutions of higher learning.
(B) The department may conduct audits of the services and
programs that either receive funds through the department or are subject to
regulation by the department. Audits shall be conducted in accordance with
procedures prescribed by the department. Records created or received by the
department in connection with an audit are not public records under section
149.43 of the Revised Code until a report of the audit is released by the
department.
Sec. 5123.041. (A) As used in this section, "habilitation
center" means a center certified under division (C) of this
section for the provision of habilitation services.
(B) The director of mental retardation and developmental
disabilities shall adopt rules in accordance with Chapter 119. of
the Revised Code that do all of the following:
(1) Specify standards and procedures for certification of
habilitation centers;
(2) Define habilitation services and programs, other than
services provided by the department of education;
(3) Establish the fee that may be assessed under division
(D) of this section;
(4) Specify how the department of mental retardation and
developmental disabilities will implement and administer the
habilitation services program.
(C) The director shall certify habilitation centers that
meet the standards specified by rules adopted under this section.
(D) The department of mental retardation and developmental
disabilities may assess the fee established under division (B)(3)
of this section for providing services related to the
habilitation services program. The fee may be retained from any
funds the department receives for a habilitation center under
Title XIX of the "Social Security Act," 49 Stat. 620 (1935), 42
U.S.C.A. 301, as amended.
Sec. 5123.042. (A) The director of mental retardation and
developmental disabilities shall adopt rules in accordance with
Chapter 119. of the Revised Code establishing the following:
(1) Uniform standards and procedures under which:
(a) A person or agency shall submit plans to the county
board of mental retardation and developmental disabilities for
the development of residential services for mentally retarded and
developmentally disabled individuals WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY within the county;
(b) The county board must review the plans and recommend
providers for the services.
(2) The eligibility criteria for selecting persons and
agencies to provide residential services, which shall take into
consideration the recommendations of the county board.
(B) The county board, in accordance with its comprehensive
service plan as approved by the director, shall review all
proposals for the development of residential services that are
submitted to it and shall, if the proposals are acceptable to the
county board, recommend providers for the development of
residential services within the county. The department shall
approve proposals for the development of residential services
within counties based upon the availability of funds and in
accordance with rules adopted under division (A)(2) of this
section.
No county board shall recommend providers for the
development of residential services if the county board is an
applicant to provide services. In cases of possible conflict of
interest, the director shall appoint a committee that shall, in
accordance with the approved county comprehensive service plan,
review and recommend to him THE DIRECTOR providers for the
services.
If a county board fails to establish an approved
comprehensive service plan, the director may establish
residential services development goals for the county board based
on documented need as determined by the department. If a county
board fails to develop or implement such a plan in accordance
with the rules adopted under this section, the department may,
without the involvement of the county board, review and select
providers for the development of residential services in the
county.
Sec. 5123.05. THE DEPARTMENT OF MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES MAY CONDUCT AUDITS OF THE SERVICES AND
PROGRAMS THAT EITHER RECEIVE FUNDS THROUGH THE DEPARTMENT OR ARE
SUBJECT TO REGULATION BY THE DEPARTMENT. AUDITS SHALL BE
CONDUCTED IN ACCORDANCE WITH PROCEDURES PRESCRIBED BY THE
DEPARTMENT. RECORDS CREATED OR RECEIVED BY THE DEPARTMENT IN
CONNECTION WITH AN AUDIT ARE NOT PUBLIC RECORDS UNDER SECTION
149.43 OF THE REVISED CODE UNTIL A REPORT OF THE AUDIT IS
RELEASED BY THE DEPARTMENT.
Sec. 5123.183 5123.051. (A) As used in this section,
"contractor" means a person or
government agency that has entered into a contract with the department of
mental retardation and developmental disabilities under section 5123.18 or
5111.252 of the Revised Code.
(B) If the department of mental retardation and
developmental disabilities determines pursuant to an audit CONDUCTED UNDER
SECTION 5123.05 of the Revised Code or A reconciliation
conducted under section 5123.18 or 5111.252 of the Revised
Code that money is owed the state by a contractor PROVIDER OF A
SERVICE OR PROGRAM, the office of
support within the department may enter into a payment agreement
with the contractor PROVIDER. The agreement
shall include the following:
(1) A schedule of installment payments whereby the money
owed the state is to be paid in full within a period not to
exceed one year;
(2) A provision that the contractor PROVIDER
may pay the entire balance owed at any
time during the
term of the agreement;
(3) A provision that if any installment is not paid in
full within forty-five days after it is due, the entire balance
owed is immediately due and payable;
(4) Such ANY other terms and conditions as THAT
are agreed to by
the office DEPARTMENT and the contractor PROVIDER.
(B) The office DEPARTMENT may include a provision in a
payment agreement
that requires the contractor PROVIDER to pay
interest on the money owed the state. The office DEPARTMENT, in
its
discretion, shall determine whether to require the payment of
interest and, if it so requires, the rate of interest. Neither
the obligation to pay interest nor the rate of interest is
subject to negotiation between the office DEPARTMENT and the
contractor
PROVIDER.
(C) If the contractor PROVIDER fails to pay
any installment in full within forty-five days after its due
date, the office DEPARTMENT shall certify the entire balance
owed to the
attorney general for collection under section 131.02 of the
Revised Code. The department may withhold funds from payments made to a
contractor PROVIDER under section 5123.18 or 5111.252 of the
Revised Code to satisfy a
judgment secured by the attorney general.
(D) All money collected under this section shall be deposited in the state
treasury to the credit of the THE purchase of service fund,
which is hereby
created. Money credited to the fund shall be used solely for purposes of
sections 5123.18 and 5111.252 SECTION 5123.05 of the
Revised Code.
Sec. 5123.05 5123.06. The director of mental retardation and
developmental
disabilities may establish divisions in the department of
mental retardation and developmental disabilities and prescribe their
powers and duties.
Each division shall consist of a chief DEPUTY DIRECTOR and the
officers
and
employees, including those in institutions, necessary for the
performance of the functions assigned to it. The director shall
supervise the work of each division and be responsible for the
determination of general policies in the exercise of powers
vested in the department and powers assigned to each division.
The chief DEPUTY DIRECTOR of each division shall be responsible
to the
director
for the organization, direction, and supervision of the work of
the division and the exercise of the powers and the performance
of the duties of the department assigned to such THE division,
and,
with the approval of the director, may establish bureaus or other
administrative units in the division.
Appointment to the position of chief DEPUTY DIRECTOR of a
division may
be
made from persons holding positions in the classified service in
the department.
The chief DEPUTY DIRECTOR of each division shall be a person who
has had
special training and experience in the type of work with the
performance of which the division is charged.
Each chief DEPUTY DIRECTOR of a division, under the director,
shall have
entire executive charge of the division to which the chief DEPUTY
DIRECTOR
is appointed. Subject to sections 124.01 to 124.64 of the Revised Code,
and civil service rules, the chief DEPUTY DIRECTOR of a division
shall, with the
approval of the director, select and appoint the necessary
employees in the chief's DEPUTY DIRECTOR'S division and may
remove such THOSE
employees for cause.
Sec. 5123.081. (A) AS USED IN THIS SECTION:
(1) "APPLICANT" MEANS A PERSON WHO IS UNDER FINAL CONSIDERATION
FOR APPOINTMENT TO OR EMPLOYMENT WITH THE DEPARTMENT OF MENTAL
RETARDATION AND DEVELOPMENTAL DISABILITIES, INCLUDING, BUT NOT LIMITED TO, A
PERSON WHO IS BEING TRANSFERRED TO THE DEPARTMENT AND AN EMPLOYEE WHO IS BEING
RECALLED OR REEMPLOYED AFTER A LAYOFF.
(2) "CRIMINAL RECORDS CHECK" HAS THE SAME MEANING AS IN SECTION
109.572 OF THE REVISED CODE.
(3) "MINOR DRUG POSSESSION OFFENSE" HAS THE SAME MEANING AS IN
SECTION 2925.01 OF THE REVISED CODE.
(B) THE DIRECTOR OF MENTAL RETARDATION AND DEVELOPMENTAL
DISABILITIES SHALL REQUEST THE SUPERINTENDENT OF THE BUREAU OF CRIMINAL
IDENTIFICATION AND INVESTIGATION TO CONDUCT A CRIMINAL
RECORDS CHECK WITH RESPECT TO EACH APPLICANT, EXCEPT THAT THE
DIRECTOR IS NOT REQUIRED TO REQUEST A CRIMINAL RECORDS CHECK FOR
AN EMPLOYEE OF THE DEPARTMENT WHO IS BEING CONSIDERED FOR A
DIFFERENT POSITION OR IS RETURNING AFTER A LEAVE OF ABSENCE OR
SEASONAL BREAK IN EMPLOYMENT, AS LONG AS THE DIRECTOR HAS NO
REASON TO BELIEVE THAT THE EMPLOYEE HAS COMMITTED ANY OF THE OFFENSES
LISTED OR DESCRIBED IN DIVISION (E) OF THIS SECTION.
IF THE APPLICANT DOES NOT PRESENT PROOF THAT THE APPLICANT HAS
BEEN A RESIDENT OF THIS STATE FOR THE FIVE-YEAR PERIOD IMMEDIATELY
PRIOR TO THE DATE UPON WHICH THE CRIMINAL RECORDS CHECK IS
REQUESTED, THE DIRECTOR SHALL REQUEST THAT THE SUPERINTENDENT OF
THE BUREAU OBTAIN INFORMATION FROM THE FEDERAL BUREAU
OF
INVESTIGATION AS A PART OF THE CRIMINAL RECORDS CHECK FOR THE
APPLICANT. IF THE APPLICANT PRESENTS PROOF THAT THE APPLICANT HAS
BEEN A RESIDENT OF THIS STATE FOR THAT FIVE-YEAR PERIOD, THE
DIRECTOR MAY REQUEST THAT THE SUPERINTENDENT OF THE BUREAU INCLUDE
INFORMATION FROM THE FEDERAL BUREAU OF INVESTIGATION
IN THE
CRIMINAL RECORDS CHECK. FOR PURPOSES OF THIS DIVISION, AN
APPLICANT MAY PROVIDE PROOF OF RESIDENCY IN THIS STATE BY
PRESENTING, WITH A NOTARIZED STATEMENT ASSERTING THAT THE
APPLICANT HAS BEEN A RESIDENT OF THIS STATE FOR THAT FIVE-YEAR
PERIOD, A VALID DRIVER'S LICENSE, NOTIFICATION OF REGISTRATION AS
AN ELECTOR, A COPY OF AN OFFICIALLY FILED FEDERAL OR STATE TAX
FORM IDENTIFYING THE APPLICANT'S PERMANENT RESIDENCE, OR ANY OTHER
DOCUMENT THE DIRECTOR CONSIDERS ACCEPTABLE.
(C) THE DIRECTOR SHALL PROVIDE TO EACH APPLICANT A COPY OF THE
FORM PRESCRIBED PURSUANT TO DIVISION (C)(1) OF SECTION 109.572 OF
THE REVISED CODE, PROVIDE TO EACH APPLICANT A STANDARD
IMPRESSION SHEET TO
OBTAIN FINGERPRINT IMPRESSIONS PRESCRIBED PURSUANT TO DIVISION (C)(2)
OF
SECTION 109.572 OF THE REVISED CODE, OBTAIN THE
COMPLETED FORM AND
IMPRESSION SHEET FROM EACH APPLICANT, AND FORWARD THE
COMPLETED FORM AND
IMPRESSION SHEET TO
THE SUPERINTENDENT OF THE BUREAU OF CRIMINAL
IDENTIFICATION AND INVESTIGATION AT THE TIME THE CRIMINAL RECORDS CHECK
IS REQUESTED.
ANY APPLICANT WHO RECEIVES PURSUANT TO THIS DIVISION A COPY OF THE
FORM PRESCRIBED PURSUANT TO DIVISION (C)(1) OF SECTION 109.572 OF
THE REVISED CODE AND A COPY OF AN IMPRESSION SHEET
PRESCRIBED
PURSUANT TO DIVISION (C)(2) OF THAT SECTION AND WHO IS
REQUESTED TO COMPLETE THE FORM AND PROVIDE A SET OF FINGERPRINT IMPRESSIONS
SHALL COMPLETE THE FORM
OR PROVIDE ALL THE INFORMATION NECESSARY TO COMPLETE THE FORM AND SHALL
PROVIDE THE MATERIAL WITH
THE IMPRESSIONS OF THE APPLICANT'S FINGERPRINTS. IF AN APPLICANT,
UPON REQUEST, FAILS TO PROVIDE THE INFORMATION NECESSARY TO
COMPLETE THE FORM OR FAILS TO PROVIDE IMPRESSIONS OF THE
APPLICANT'S FINGERPRINTS, THE DIRECTOR SHALL NOT EMPLOY THE
APPLICANT.
(D) THE DIRECTOR MAY REQUEST ANY OTHER STATE OR FEDERAL AGENCY TO
SUPPLY THE DIRECTOR WITH A WRITTEN REPORT REGARDING THE CRIMINAL RECORD OF EACH APPLICANT. WITH REGARD TO AN APPLICANT WHO
BECOMES A DEPARTMENT EMPLOYEE, IF THE EMPLOYEE HOLDS AN
OCCUPATIONAL OR PROFESSIONAL LICENSE OR OTHER CREDENTIALS, THE
DIRECTOR MAY REQUEST THAT THE STATE OR FEDERAL AGENCY THAT
REGULATES THE EMPLOYEE'S OCCUPATION OR PROFESSION SUPPLY THE
DIRECTOR WITH A WRITTEN REPORT OF ANY INFORMATION PERTAINING TO
THE EMPLOYEE'S CRIMINAL RECORD THAT THE AGENCY OBTAINS IN THE
COURSE OF CONDUCTING AN INVESTIGATION OR IN THE PROCESS OF
RENEWING THE EMPLOYEE'S LICENSE OR OTHER CREDENTIALS.
(E) EXCEPT AS PROVIDED IN DIVISION (K)(2) OF THIS SECTION AND IN
RULES ADOPTED BY THE DIRECTOR IN ACCORDANCE WITH DIVISION (M) OF
THIS SECTION, THE DIRECTOR SHALL NOT EMPLOY A PERSON TO FILL A
POSITION WITH THE DEPARTMENT WHO HAS BEEN CONVICTED OF OR PLEADED
GUILTY TO ANY OF THE FOLLOWING:
(1) A VIOLATION OF SECTION 2903.01, 2903.02, 2903.03, 2903.04,
2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34, 2905.01, 2905.02,
2905.05, 2907.02, 2907.03, 2907.04, 2907.05, 2907.06, 2907.07, 2907.08,
2907.09, 2907.21, 2907.22, 2907.23, 2907.25, 2907.31, 2907.32,
2907.321, 2907.322, 2907.323, 2911.01, 2911.02, 2911.11, 2911.12,
2919.12, 2919.22, 2919.24, 2919.25, 2923.12, 2923.13, 2923.161,
2925.02, 2925.03, 2925.04, 2925.05, 2925.06, OR 3716.11 OF THE
REVISED
CODE, A VIOLATION OF SECTION 2905.04 OF
THE REVISED CODE AS IT EXISTED PRIOR TO JULY 1,
1996, A VIOLATION OF SECTION 2919.23 OF THE REVISED CODE
THAT WOULD HAVE BEEN A VIOLATION OF SECTION 2905.04 OF THE REVISED
CODE AS IT
EXISTED PRIOR TO JULY 1, 1996, HAD THE VIOLATION OCCURRED PRIOR TO
THAT DATE, A VIOLATION OF SECTION 2925.11 OF THE REVISED
CODE THAT
IS NOT A MINOR DRUG POSSESSION OFFENSE, OR FELONIOUS SEXUAL PENETRATION
IN VIOLATION OF FORMER SECTION 2907.12 OF THE REVISED
CODE;
(2) A FELONY CONTAINED IN THE REVISED CODE THAT IS NOT
LISTED IN
THIS DIVISION, IF THE FELONY BEARS A DIRECT AND SUBSTANTIAL RELATIONSHIP
TO THE DUTIES AND RESPONSIBILITIES OF THE POSITION BEING FILLED;
(3) ANY OFFENSE CONTAINED IN THE
REVISED CODE CONSTITUTING A MISDEMEANOR OF THE FIRST DEGREE
ON THE FIRST OFFENSE AND A FELONY ON A SUBSEQUENT OFFENSE, IF THE OFFENSE
BEARS A DIRECT AND SUBSTANTIAL RELATIONSHIP TO THE POSITION BEING FILLED AND
THE NATURE OF THE SERVICES BEING PROVIDED BY THE DEPARTMENT;
(4) A VIOLATION OF AN EXISTING OR FORMER MUNICIPAL ORDINANCE OR
LAW OF THIS STATE, ANY OTHER STATE, OR THE UNITED STATES, IF
THE OFFENSE IS SUBSTANTIALLY EQUIVALENT TO ANY OF THE OFFENSES LISTED OR
DESCRIBED IN
DIVISION (E)(1), (2), OR (3) OF THIS SECTION.
(F) PRIOR TO EMPLOYING AN APPLICANT, THE DIRECTOR SHALL REQUIRE
THE APPLICANT TO SUBMIT A STATEMENT WITH THE APPLICANT'S SIGNATURE ATTESTING
THAT THE APPLICANT HAS NOT BEEN CONVICTED OF OR
PLEADED GUILTY TO ANY OF THE OFFENSES LISTED OR DESCRIBED IN DIVISION
(E) OF
THIS SECTION. THE DIRECTOR ALSO SHALL REQUIRE THE APPLICANT TO SIGN AN
AGREEMENT UNDER WHICH THE
APPLICANT AGREES TO NOTIFY THE DIRECTOR WITHIN FOURTEEN CALENDAR DAYS IF,
WHILE EMPLOYED WITH THE DEPARTMENT,
THE APPLICANT IS EVER
FORMALLY CHARGED WITH, CONVICTED OF, OR PLEADS GUILTY TO ANY OF THE OFFENSES
LISTED OR DESCRIBED IN
DIVISION (E) OF THIS SECTION. THE AGREEMENT SHALL INFORM THE
APPLICANT THAT FAILURE TO REPORT FORMAL CHARGES, A CONVICTION, OR A GUILTY
PLEA MAY RESULT IN
BEING DISMISSED FROM EMPLOYMENT.
(G) THE DIRECTOR SHALL PAY TO THE BUREAU OF CRIMINAL
IDENTIFICATION AND INVESTIGATION THE FEE PRESCRIBED PURSUANT TO DIVISION
(C)(3) OF SECTION 109.572 OF THE REVISED CODE FOR EACH
CRIMINAL RECORDS CHECK REQUESTED AND CONDUCTED PURSUANT TO THIS
SECTION.
(H)(1) ANY REPORT OBTAINED PURSUANT TO THIS SECTION IS NOT A
PUBLIC RECORD FOR PURPOSES OF SECTION 149.43 OF THE REVISED CODE
AND SHALL NOT BE MADE AVAILABLE TO ANY PERSON, OTHER THAN THE APPLICANT WHO IS THE SUBJECT OF THE RECORDS CHECK OR CRIMINAL RECORDS
CHECK OR THE APPLICANT'S REPRESENTATIVE, THE DEPARTMENT OR ITS
REPRESENTATIVE, A COUNTY BOARD OF MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES, AND ANY COURT, HEARING OFFICER, OR
OTHER NECESSARY INDIVIDUAL INVOLVED IN A CASE DEALING WITH THE
DENIAL OF EMPLOYMENT TO THE APPLICANT OR THE DENIAL, SUSPENSION,
OR REVOCATION OF A CERTIFICATE OR EVIDENCE OF REGISTRATION
UNDER SECTION 5123.082 OF THE REVISED CODE.
(2) AN INDIVIDUAL FOR WHOM THE DIRECTOR HAS OBTAINED REPORTS
UNDER THIS SECTION MAY SUBMIT A WRITTEN REQUEST TO THE DIRECTOR TO HAVE
COPIES OF THE REPORTS SENT TO ANY STATE AGENCY, ENTITY OF LOCAL
GOVERNMENT, OR PRIVATE ENTITY. THE INDIVIDUAL SHALL SPECIFY IN
THE REQUEST THE AGENCIES OR ENTITIES TO WHICH THE COPIES ARE TO BE SENT. ON
RECEIVING THE REQUEST, THE DIRECTOR SHALL SEND COPIES OF THE
REPORTS TO THE AGENCIES OR ENTITIES SPECIFIED.
THE DIRECTOR MAY REQUEST THAT A STATE AGENCY, ENTITY OF LOCAL
GOVERNMENT, OR PRIVATE ENTITY SEND COPIES TO THE DIRECTOR OF ANY REPORT
REGARDING A RECORDS CHECK OR CRIMINAL RECORDS CHECK THAT THE AGENCY OR ENTITY
POSSESSES, IF THE DIRECTOR OBTAINS THE WRITTEN CONSENT OF THE
INDIVIDUAL WHO IS THE SUBJECT OF THE REPORT.
(I) THE DIRECTOR SHALL REQUEST THE REGISTRAR OF MOTOR VEHICLES TO
SUPPLY THE DIRECTOR WITH A CERTIFIED ABSTRACT REGARDING THE RECORD OF
CONVICTIONS FOR VIOLATIONS OF MOTOR VEHICLE LAWS OF EACH
APPLICANT WHO WILL BE REQUIRED BY THE APPLICANT'S EMPLOYMENT TO
TRANSPORT INDIVIDUALS WITH MENTAL RETARDATION OR A DEVELOPMENTAL
DISABILITY OR
TO OPERATE THE DEPARTMENT'S VEHICLES FOR ANY OTHER PURPOSE. FOR EACH ABSTRACT
PROVIDED UNDER THIS SECTION, THE DIRECTOR SHALL PAY THE AMOUNT
SPECIFIED IN SECTION 4509.05 OF THE REVISED CODE.
(J) THE DIRECTOR SHALL PROVIDE EACH APPLICANT WITH A COPY OF ANY
REPORT OR ABSTRACT OBTAINED ABOUT THE APPLICANT UNDER THIS
SECTION.
(K)(1) THE DIRECTOR SHALL INFORM EACH PERSON, AT THE TIME OF THE
PERSON'S INITIAL APPLICATION FOR EMPLOYMENT, THAT THE PERSON IS REQUIRED TO
PROVIDE A SET OF IMPRESSIONS OF THE PERSON'S
FINGERPRINTS AND THAT A CRIMINAL RECORDS CHECK IS REQUIRED TO BE
CONDUCTED AND SATISFACTORILY COMPLETED IN ACCORDANCE WITH SECTION
109.572 OF THE REVISED CODE IF THE PERSON COMES UNDER FINAL
CONSIDERATION FOR EMPLOYMENT AS A PRECONDITION TO EMPLOYMENT IN A
POSITION.
(2) THE DIRECTOR MAY EMPLOY AN APPLICANT PENDING RECEIPT OF
REPORTS REQUESTED UNDER THIS SECTION. THE DIRECTOR SHALL
TERMINATE EMPLOYMENT OF ANY SUCH APPLICANT IF IT IS DETERMINED
FROM THE REPORTS THAT THE APPLICANT FAILED TO INFORM THE DIRECTOR
THAT THE APPLICANT HAD BEEN CONVICTED OF OR PLEADED GUILTY TO ANY
OF THE OFFENSES LISTED OR DESCRIBED IN DIVISION (E) OF THIS
SECTION.
(L) THE DIRECTOR MAY CHARGE AN APPLICANT A FEE FOR COSTS THE
DIRECTOR INCURS IN OBTAINING REPORTS, ABSTRACTS, OR FINGERPRINT
IMPRESSIONS UNDER THIS SECTION. A FEE CHARGED UNDER THIS
DIVISION SHALL NOT EXCEED THE AMOUNT OF THE FEES THE DIRECTOR PAYS UNDER
DIVISIONS (G) AND (I) OF THIS SECTION. IF A FEE IS CHARGED UNDER
THIS DIVISION, THE DIRECTOR SHALL NOTIFY THE APPLICANT OF THE AMOUNT OF THE
FEE AT THE TIME OF THE APPLICANT'S INITIAL APPLICATION
FOR EMPLOYMENT AND THAT, UNLESS THE FEE IS PAID, THE DIRECTOR WILL
NOT CONSIDER THE APPLICANT FOR EMPLOYMENT.
(M) THE DIRECTOR SHALL ADOPT RULES IN ACCORDANCE WITH
CHAPTER 119. OF THE REVISED CODE TO IMPLEMENT THIS
SECTION, INCLUDING RULES SPECIFYING CIRCUMSTANCES UNDER WHICH THE DIRECTOR MAY
EMPLOY A PERSON WHO HAS BEEN CONVICTED OF OR PLEADED GUILTY TO AN OFFENSE
LISTED OR DESCRIBED
IN DIVISION (E) OF THIS SECTION BUT WHO MEETS STANDARDS IN REGARD
TO REHABILITATION SET BY THE DIRECTOR.
Sec. 5123.082. (A) The director of mental retardation and
developmental disabilities shall adopt rules in accordance with
Chapter 119. of the Revised Code:
(1) Designating positions of employment for which the director
determines that certification or evidence of registration is required as a
condition of employment in the department
of mental retardation and developmental disabilities, entities that
contract with the department or county boards of mental retardation and
developmental disabilities to operate programs or provide services to
individuals PERSONS with mental retardation and developmental
disabilities,
or other positions of employment in programs that serve such
individuals THOSE PERSONS;
(2) Establishing levels of certification or registration for each
position for which certification or registration is required;
(3) Establishing for each level of each position the requirements
that must be met to obtain certification or registration, including standards
regarding education, specialized training, and experience. The standards
shall take into account the nature and needs of
mentally retarded and developmentally disabled persons WITH MENTAL
RETARDATION OR A DEVELOPMENTAL DISABILITY and the
specialized techniques needed to serve them.
(4) Establishing renewal schedules and renewal
requirements for certification and registration, including standards
regarding education, specialized
training, and experience;
(5) Establishing procedures for denial, suspension, and
revocation of a certificate or evidence of registration,
including appeal procedures;
(6) Establishing other requirements needed to carry out
this section.
(B) The director shall issue, renew, deny, suspend, or
revoke a certificate or evidence of registration in
accordance with rules adopted under this
section. The director shall deny, suspend, or revoke a
certificate or evidence of registration if the
director finds, pursuant to an adjudication conducted in
accordance with Chapter 119. of the Revised Code, that an
applicant for or holder of a certificate or evidence of registration is
guilty of intemperate, immoral, or other conduct unbecoming to the applicant's
or holder's position, or is guilty of incompetence or negligence within the
scope of the applicant's or holder's duties. The director shall deny or
revoke a certificate or evidence of registration after the director finds,
pursuant to an adjudication conducted in accordance with Chapter 119. of the
Revised Code, that the applicant for or holder of the certificate or evidence
of registration has been convicted of or pleaded guilty to any of the offenses
LISTED OR described in division (E) of section 5126.28 of the Revised
Code, unless the
individual meets standards for rehabilitation that the director establishes in
the rules adopted under that section. Evidence supporting such allegations
must be presented to the director in writing, and the director shall
provide
prompt notice of the allegations to the person who is the subject of the
allegations. A denial, suspension, or revocation may
be appealed in accordance with the procedures established in
rules adopted under this section.
(C) A person holding a valid certificate or evidence of registration
under this section on the effective date of any rules adopted under this
section that increase the certification or registration standards shall have
such THE period as THAT the rules prescribe, but
not less than one year after the
effective date of the rules, to meet the new standards.
(D) No person shall be employed in a position for which
certification or registration is required under rules adopted under
this section, unless the person holds a valid certificate or evidence of
registration for the position.
Sec. 5123.09. Subject to the rules of the department of
mental retardation and developmental disabilities, each
institution under the jurisdiction of the department shall be
under the control of a managing officer to be known as a
superintendent or by other appropriate title. Such THE managing
officer shall be appointed by the director of mental retardation
and developmental disabilities, and shall be in the unclassified
service and serve at the pleasure of the director. Each managing
officer shall be of good moral character and have skill, ability,
and experience in his THE MANAGING OFFICER'S profession.
Appointment to the position of
managing officer of an institution may be made from persons
holding positions in the classified service in the department.
The managing officer, under the director, shall have entire
executive charge of the institution for which such THE managing
officer is appointed, execpt EXCEPT as provided in section
5119.16 of the Revised Code. Subject to civil service rules and
rules adopted by the department, the managing officer shall
appoint the necessary employees, and he THE MANAGING
OFFICER or
the director may remove
such THOSE employees for cause. If required by the director
of mental
retardation and developmental disabilities, the managing officers
shall reside in the institution in which they are employed and
devote their entire time to the interests of their particular
institution. A report of all appointments, resignations, and
discharges shall be filed with the appropriate division at the
close of each month.
After conference with the managing officer of each
institution, the director shall determine the number of employees
to be appointed to the various institutions and clinics.
Sec. 5123.092. (A) There is hereby established at each
institution and branch institution under the control of the
department of mental retardation and developmental disabilities a
citizen's advisory council consisting of thirteen members.
At
least seven of the members shall be persons who are not
providers
of mental retardation services. Each council shall
include parents
or other relatives of residents of institutions under the control
of the department, community leaders, professional persons in
relevant fields, and persons who have an interest in or knowledge
of mental retardation. The managing officer of the institution
shall be a nonvoting member of the council.
(B) Except as otherwise provided in this division, the THE
director of mental retardation and developmental disabilities
shall be the appointing authority for the voting members of each
citizen's advisory council. Each time the term of a voting member expires,
the remaining members of the council shall recommend to the director one or
more persons to serve on the council. The director may accept a nominee of
the council or reject the nominee or nominees. If the director rejects the
nominee or nominees, the joint council on mental retardation and
developmental
disabilities created by section 101.37 of the Revised Code shall either
appoint a person recommended by the advisory council or reject the nominee or
nominees. If the joint council rejects the nominee or nominees, the
remaining
members of the advisory council shall FURTHER recommend to the director
one or more
other persons to serve on the advisory council. This procedure shall continue
until a member is appointed to the advisory council. The joint
council on mental retardation and developmental disabilities shall appoint the
original voting members of any citizen's advisory council created after
November 15, 1981. Thereafter, the director of mental retardation and
developmental disabilities shall appoint members of the
advisory council in accordance with this division. Each
EACH advisory council
shall elect from its twelve appointed members a chairperson,
vice-chairperson,
and a secretary to serve for terms of one year. Advisory council officers
shall not serve for more than two consecutive terms in the same office. A
majority of the advisory council members constitutes a quorum.
(C) Terms of office of the original twelve appointees
shall be as follows:
(1) Four members, at least three of whom shall be persons
who are not providers of mental retardation services, shall be
appointed for a period of one year;
(2) Four members, at least two of whom shall be persons
who are not providers of mental retardation services, shall be
appointed for a period of two years;
(3) Four members, at least two of whom shall be persons
who are not providers of mental retardation services, shall be
appointed for a period of three years.
Thereafter, terms of office shall be for three years, each
term ending on the same day of the same month of the year as did
the term which it succeeds. No member shall serve more than two
consecutive terms, except that any former member may be appointed
if one year or longer has elapsed since the member served two consecutive
terms. Each member shall hold office from the date of appointment
until the end of the term for which the member was appointed. Any vacancy
shall be filled in the same manner in which the
original appointment was made, and the appointee to a vacancy in
an unexpired term shall serve the balance of the term of the
original appointee. Any member shall continue in office
subsequent to the expiration date of the member's term until
the member's successor takes office, or until a period of
sixty days has elapsed, whichever occurs first.
(D) Members shall be expected to attend all meetings of the advisory
council. Unexcused absence from two successive regularly
scheduled meetings shall be considered prima-facie evidence of
intent not to continue as a member. The chairperson of
the board shall, after a member has been absent for two successive
regularly scheduled meetings, direct a letter to the member
asking if the member wishes to remain in membership. If an
affirmative reply is received, the member shall be retained
as a member except that, if, after having expressed a desire to remain a
member, the member then misses a third successive regularly scheduled meeting
without being excused, the chairperson shall terminate
the member's membership.
(E) The A citizen's advisory councils COUNCIL
shall meet six times annually, or more
frequently if three council members request the chairperson to call a
meeting. The council shall keep
minutes of each meeting and shall submit them to the managing officer of the
institution with which the council is associated, the department of mental
retardation and developmental disabilities, and the legal rights service.
(F) Members of citizen's advisory councils shall receive no
compensation for their services, except that they shall be
reimbursed for their actual and necessary expenses incurred in
the performance of their official duties by the institution with
which they are associated from funds allocated to it, provided
that reimbursement for such THOSE expenses shall not exceed
limits
imposed upon the department of mental retardation and
developmental disabilities by administrative rules regulating
travel within this state.
(G) The councils shall have reasonable access to all patient
treatment and living areas and records of the institution, except
those records of a strictly personal or confidential nature. The
councils shall have access to a patient's personal records with the
consent of the patient or the patient's legal guardian or, if
the patient is a minor, with the consent of the parent or legal guardian of
the patient.
(H) As used in this section, "branch institution" means a
facility that is located apart from an institution and is under
the control of the managing officer of the institution.
Sec. 5123.11. (A) The director of mental retardation and
developmental disabilities shall MAY enter into an agreement
with the
boards of trustees or boards of directors of two or more
universities in which there is a college of medicine or college
of osteopathic medicine, or of two or more colleges of medicine
or colleges of osteopathic medicine, or any combination thereof OF
THOSE UNIVERSITIES AND COLLEGES,
to establish, manage, and conduct residency medical training
programs. The agreement may also provide for clinical clerkships
for medical students. The director shall also enter into an
agreement with the boards of trustees or boards of directors of
one or more universities in which there is a school of
professional psychology to establish, manage, and conduct
residency psychological training programs.
(B) The department shall pay all costs incurred by a
university or college that relate directly to the training of
resident physicians or psychologists in programs developed under
this section. The director of mental retardation and
developmental disabilities shall ensure that
any procedures and limitations imposed for the purpose of
reimbursing universities or colleges, or for direct payment of
residents' salaries, are incorporated into agreements
between the department and the universities or colleges. Any
agreement shall provide that residency training for a physician
shall not exceed four calendar years.
Sec. 5123.17. The department of mental retardation and developmental
disabilities may provide for the custody, supervision, control, treatment, and
training of mentally retarded or developmentally disabled persons
WITH MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY elsewhere
than within the enclosure of an institution under its jurisdiction, if the
department so determines with respect to any individual or group of
individuals. In all such cases, the department shall ensure adequate
and proper supervision for the protection of such THOSE persons
and of the public.
Sec. 5123.18. (A) As used in this section:
(1) "Contractor" means a person or government agency that
enters into a contract with the department of mental retardation
and developmental disabilities under this section.
(2) "Government agency" means a state agency as defined in
section 117.01 of the Revised Code or a similar agency of a
political subdivision of the state.
(3) "Residential services" means the services necessary
for an individual with mental retardation or a developmental
disability to live in the community, including room and board,
clothing, transportation, personal care, habilitation,
supervision, and any other services the department considers
necessary for the individual to live in the community.
(B)(1) The department of mental retardation and
developmental disabilities may enter into a contract with a
person or government agency to provide residential services to
individuals with mental retardation or developmental disabilities
in need of residential services. Contracts for residential
services shall be of the following types:
(a) Companion home contracts - contracts under which the
contractor is an individual, the individual is the primary
caregiver, and the individual owns or leases and resides in the
home in which the services are provided.
(b) Agency-operated companion home contracts - contracts
under which the contractor subcontracts, for purposes of
coordinating the provision of residential services, with one or
more individuals who are primary caregivers and own or lease and
reside in the homes in which the services are provided.
(c) Community home contracts - contracts for residential
services under which the contractor owns or operates a home that
is used solely to provide residential services.
(d) Combined agency-operated companion home and community
home contracts.
(2) A companion home contract shall cover not more than
one home. An agency-operated companion home contract or a
community home contract may cover more than one home.
(C) Contracts shall be in writing and shall provide for
payment to be made to the contractor at the times agreed to by
the department and the contractor. Each contract shall specify
the period during which it is valid, the amount to be paid for
residential services, and the number of individuals for whom
payment will be made. Contracts may be renewed.
(D) To be eligible to enter into a contract with the department under
this section, the person or government agency and the home in which
the residential services are provided must meet all applicable
standards for licensing or certification by the appropriate
government agency. In addition, if the residential facility is
operated as a nonprofit entity, the members of the board of
trustees or board of directors of the facility must not have a
financial interest in or receive financial benefit from the
facility, other than reimbursement for actual expenses incurred
in attending board meetings.
A home with a companion home contract or an agency operated
companion home contract that has five or fewer residents with
mental retardation or a developmental disability is a foster
family home as defined in section 5123.19 of the Revised Code.
(E)(1) The department shall determine the payment amount
assigned to an initial contract. To the extent that the
department determines sufficient funds are available, the payment
amount assigned to an initial contract shall be equal to the
average amount assigned to contracts for other homes that are of
the same type and size and serve individuals with similar needs,
except that if an initial contract is the result of a change of
contractor or ownership, the payment amount assigned to the
contract shall be the lesser of the amount assigned to the
previous contract or the contract's total adjusted predicted
funding need calculated under division (I) of this section.
(2) A renewed contract shall be assigned a payment amount
in accordance with division (K) of this section.
(3) When a contractor relocates a home to another site at
which residential services are provided to the same individuals,
the payment amount assigned to the contract for the new home
shall be the payment amount assigned to the contract at the
previous location.
(F)(1) Annually, a contractor shall complete an assessment
of each individual to whom the contractor provides residential
services to predict the individual's need for routine direct
services staff. The department shall establish by rule adopted
in accordance with Chapter 119. of the Revised Code the
assessment instrument to be used by contractors to make
assessments. Assessments shall be submitted to the department
not later than the thirty-first day of January of each year.
A contractor shall submit a revised assessment for an
individual if there is a substantial, long-term change in the
nature of the individual's needs. A contractor shall submit
revised assessments for all individuals receiving residential
services if there is a change in the composition of the home's
residents.
(2) Annually, a contractor shall submit a cost report to
the department specifying the costs incurred in providing
residential services during the immediately preceding calendar
year. Only costs actually incurred by a contractor shall be
reported on a cost report. Cost reports shall be prepared
according to a uniform chart of accounts approved by the
department and shall be submitted on forms prescribed by the
department.
(3) The department shall not renew the contract held by a
contractor who fails to submit the assessments or cost reports
required under this division.
(4) The department shall adopt rules as necessary
regarding the submission of assessments and cost reports under
this division. The rules shall be adopted in accordance with
Chapter 119. of the Revised Code.
(G) Prior to renewing a contract entered into under this
section, the department shall compute the contract's total
predicted funding need and total adjusted predicted funding need.
The department shall also compute the contract's unmet funding
need if the payment amount assigned to the contract is less than
the total adjusted predicted funding need. The results of these
calculations shall be used to determine the payment amount
assigned to the renewed contract.
(H)(1) A contract's total predicted funding need is an
amount equal to the sum of the predicted funding needs for the
following cost categories:
(a) Routine direct services staff;
(b) Dietary, program supplies, and specialized staff;
(c) Facility and general services;
(d) Administration.
(2) Based on the assessments submitted by the contractor,
the department shall compute the contract's predicted funding
need for the routine direct services staff cost category by
multiplying the number of direct services staff predicted to be
necessary for the home by the sum of the following:
(a) Entry level wages paid during the immediately
preceding cost reporting period to comparable staff employed by
the county board of mental retardation and developmental
disabilities of the county in which the home is located;
(b) Fringe benefits and payroll taxes as determined by the
department using state civil service statistics from the same
period as the cost reporting period.
(3) The department shall establish by rule adopted in
accordance with Chapter 119. of the Revised Code the method to be
used to compute the predicted funding need for the dietary,
program supplies, and specialized staff cost category; the
facility and general services cost category; and the
administration cost category. The rules shall not establish a
maximum amount that may be attributed to the dietary, program
supplies, and specialized staff cost category. The rules shall
establish a process for determining the combined maximum amount
that may be attributed to the facility and general services cost
category and the administration cost category.
(I)(1) A contract's total adjusted predicted funding need
is the contract's total predicted funding need with adjustments
made for the following:
(a) Inflation, as provided under division (I)(2) of this
section;
(b) The predicted cost of complying with new requirements
established under federal or state law that were not taken into
consideration when the total predicted funding need was computed;
(c) Changes in needs based on revised assessments
submitted by the contractor.
(2) In adjusting the total predicted funding need for
inflation, the department shall use either the consumer price
index compound annual inflation rate calculated by the United
States department of labor for all items or another index or
measurement of inflation designated in rules that the department
shall adopt in accordance with Chapter 119. of the Revised Code.
When a contract is being renewed for the first time, and
the contract is to begin on the first day of July, the inflation
adjustment applied to the contract's total predicted funding need
shall be the estimated rate of inflation for the calendar year in
which the contract is renewed. If the consumer price index is
being used, the department shall base its estimate on the rate of
inflation calculated for the three-month period ending the
thirty-first day of March of that calendar year. If another
index or measurement is being used, the department shall base its
estimate on the most recent calculations of the rate of inflation
available under the index or measurement. Each year thereafter,
the inflation adjustment shall be estimated in the same manner,
except that if the estimated rate of inflation for a year is
different from the actual rate of inflation for that year, the
difference shall be added to or subtracted from the rate of
inflation estimated for the next succeeding year.
If a contract begins at any time other than July first, the
inflation adjustment applied to the contract's total predicted
funding need shall be determined by a method comparable to that
used for contracts beginning July first. The department shall
adopt rules in accordance with Chapter 119. of the Revised Code
establishing the method to be used.
(J) A contract's unmet funding need is the difference
between the payment amount assigned to the contract and the total
adjusted predicted funding need, if the payment amount assigned
is less than the total adjusted predicted funding need.
(K) The payment amount to be assigned to a contract being
renewed shall be determined by comparing the total adjusted
predicted funding need with the payment amount assigned to the
current contract.
(1) If the payment amount assigned to the current contract
equals or exceeds the total adjusted predicted funding need, the
payment amount assigned to the renewed contract shall be the same
as that assigned to the current contract, unless a reduction is
made pursuant to division (L) of this section.
(2) If the payment amount assigned to the current contract
is less than the total adjusted predicted funding need, the
payment amount assigned to the renewed contract shall be
increased if the department determines that funds are available
for such increases. The amount of a contract's increase shall be
the same percentage of the available funds that the contract's
unmet funding need is of the total of the unmet funding need for
all contracts.
(L) When renewing a contract provided for in division (B)
of this section other than a companion home contract, the
department may reduce the payment amount assigned to a renewed
contract if the sum of the contractor's allowable reported costs
and the maximum efficiency incentive is less than ninety-one and
one-half per cent of the amount received pursuant to this section
during the immediately preceding contract year.
The department shall adopt rules in accordance with Chapter
119. of the Revised Code establishing a formula to be used in
computing the maximum efficiency incentive, which shall be at
least four per cent of the weighted average payment amount to be
made to all contractors during the contract year. The maximum
efficiency incentive shall be computed annually.
(M) The department may increase the payment amount
assigned to a contract based on the contract's unmet funding need
at times other than when the contract is renewed. The department
may develop policies for determining priorities in making such
increases.
(N)(1) In addition to the contracts provided for in
division (B) of this section, the department may enter into the
following contracts:
(a) A contract to pay the cost of beginning operation of a
new home that is to be funded under a companion home contract,
agency-operated companion home contract, community home contract,
or combined agency-operated companion home and community home
contract.
(b) A contract to pay the cost associated with increasing
the number of individuals served by a home funded under a
companion home contract, agency-operated companion home contract,
community home contract, or combined agency-operated companion
home and community home contract.
(2) The department shall adopt rules as necessary
regarding contracts entered into under this division. The rules
shall be adopted in accordance with Chapter 119. of the Revised
Code.
(O) Except for companion home contracts, the department
shall conduct a reconciliation of the amount earned under a
contract and the actual costs incurred by the contractor. An
amount is considered to have been earned for delivering a service
at the time the service is delivered. The department shall adopt
rules in accordance with Chapter 119. of the Revised Code
establishing procedures for conducting reconciliations.
A reconciliation shall be based on the annual cost report
submitted by the contractor. If a reconciliation reveals that a
contractor owes money to the state, the amount owed shall be
collected in accordance with section 5123.183 5123.051 of the
Revised Code.
When conducting reconciliations, the department shall
review all reported costs that may be affected by transactions
required to be reported under division (B)(3) of section 5123.172
of the Revised Code. If the department determines that such
transactions have increased the cost reported by a contractor,
the department may disallow or adjust the cost allowable for
payment. The department shall adopt rules in accordance with
Chapter 119. of the Revised Code establishing standards for
disallowances or adjustments.
(P) The department may audit the contracts it
enters into under
this section. Audits may be conducted by the department or an
entity with which the department contracts to perform the audits.
The department shall adopt rules in accordance with Chapter 119.
of the Revised Code establishing procedures for conducting
audits.
An audit may include the examination of a contractor's
financial books and records, the costs incurred by a contractor
in providing residential services, and any other relevant
information specified by the department. An audit shall not be
commenced more than four years after the expiration of the
contract to be audited, except in cases where the department has
reasonable cause to believe that a contractor has committed
fraud.
If an audit reveals that a contractor owes money to the
state, the amount owed, subject to an adjudication hearing under
this division, shall be collected in accordance with section
5123.183 5123.051 of the Revised Code. If an audit reveals
that a reconciliation conducted under this section resulted in the
contractor erroneously paying money to the state, the department
shall refund the money to the contractor, or, in lieu of making a
refund, the department may offset the erroneous payment against
any money determined as a result of the audit to be owed by the
contractor to the state. The department is not required to pay
interest on any money refunded under this division.
In conducting audits or making determinations of amounts
owed by a contractor and amounts to be refunded or offset, the
department shall not be bound by the results of reconciliations
conducted under this section, except with regard to cases
involving claims that have been certified pursuant to section
5123.183 5123.051 of the Revised Code to the attorney general
for collection for which a full and final settlement has been reached
or a final judgment has been made from which all rights of appeal
have expired or been exhausted.
Not later than ninety days after an audit's completion, the
department shall provide the contractor a copy of a report of the
audit. The report shall state the findings of the audit,
including the amount of any money the contractor is determined to
owe the state.
Until November 9, 1996, a
contractor may request that the department conduct an
adjudication hearing concerning an audit report that states the
contractor owes the state money. The contractor shall specify in
the request the audit findings the
contractor contests. At the contractor's
request, the department shall conduct an adjudication hearing in
accordance with Chapter 119. of the Revised Code. If a hearing
officer rules in the department's favor on each audit finding
that the contractor contests, the department may request the
hearing officer to determine whether the request for the
adjudication hearing was frivolous. If the hearing officer
determines the request was frivolous, the contractor shall,
notwithstanding section 119.09 of the Revised Code, pay the fees
and expenses charged or incurred by the hearing officer and court
reporter in conducting the adjudication hearing.
No contractor may request an adjudication hearing
after November 9, 1996. An adjudication
hearing requested before November 9, 1996, may proceed
after November 9, 1996.
(Q) The department shall adopt rules specifying the amount
that will be allowed under a reconciliation or audit for the cost
incurred by a contractor for compensation of owners,
administrators, and other personnel. The rules shall be adopted
in accordance with Chapter 119. of the Revised Code.
(R) Each contractor shall, for at least seven years,
maintain fiscal records related to payments received pursuant to
this section.
(S) The department may enter into shared funding
agreements with other government agencies to fund contracts
entered into under this section. The amount of each agency's
share of the cost shall be determined through negotiations with
the department. The department's share shall not exceed the
amount it would have paid without entering into the shared
funding agreement, nor shall it be reduced by any amounts
contributed by the other parties to the agreement.
(T) Except as provided in section 5123.194 of the Revised Code, an
individual who receives residential services
pursuant to divisions (A) through (U) of this section
and the individual's liable
relatives or guardians
shall pay support charges in accordance with Chapter 5121. of the
Revised Code.
(U) The department may make reimbursements or payments for
any of the following pursuant to rules adopted under this
division:
(1) Unanticipated, nonrecurring costs associated with the
health or habilitation of a person who resides in a home funded
under a contract provided for in division (B) of this section;
(2) The cost of staff development training for contractors
if the director of mental retardation and developmental
disabilities has given prior approval for the training;
(3) Fixed costs that the department, pursuant to the
rules, determines relate to the continued operation of a home
funded under a contract provided for in division (B) of this
section when a short term vacancy occurs and the contractor has
diligently attempted to fill the vacancy.
The department shall adopt rules in accordance with Chapter
119. of the Revised Code establishing standards for use in
determining which costs it may make payment or reimbursements for
under this division.
(V) In addition to the rules required or authorized to be
adopted under this section, the department may adopt any other
rules necessary to implement divisions (A) through (U)
of this section. The rules shall be
adopted in accordance with Chapter 119. of the Revised Code.
(W) The department may delegate to county boards of
mental retardation and developmental disabilities its authority under this
section to negotiate and enter into
contracts or subcontracts for residential services.
In the
event that it elects to
delegate its authority, the department shall adopt
rules in accordance with Chapter 119. of the
Revised Code
for the boards' administration of the contracts or subcontracts. In
administering the contracts or subcontracts, the boards shall be subject to
all applicable
provisions of Chapter 5126. of the
Revised Code
and shall not be subject to the provisions of divisions
(A) to (V) of
this section.
Subject to the department's rules, a board may require
the following to contribute to the cost of the residential
services an individual receives pursuant to this division: the
individual or the individual's estate, the individual's spouse,
the individual's guardian, and, if the individual is under age
eighteen, either or both of the individual's parents. Chapter
5121. of the Revised Code shall not apply to
individuals or entities that are subject to making contributions
under this division. In calculating contributions to be made
under this division, a board, subject to the department's rules,
may allow an amount to be kept for meeting the personal needs of
the individual who receives residential services.
Sec. 5123.181. The director of mental retardation and
developmental disabilities and the director of job and
family services
shall, in concert with each other, eliminate all double billings
and double payments for services on behalf of mentally retarded
and developmentally disabled persons WITH MENTAL RETARDATION OR ANOTHER
DEVELOPMENTAL DISABILITY in intermediate care
facilities. The department of mental retardation and
developmental disabilities may enter into contracts with
providers of services for the purpose of making payments to such
THE
providers for services rendered to eligible clients who are
mentally retarded or developmentally disabled persons WITH MENTAL
RETARDATION OR A DEVELOPMENTAL DISABILITY over and
above the services authorized and paid under Chapter 5111. of the
Revised Code. Payments authorized under this section and section
5123.18 of the Revised Code shall not be subject to audit
findings pursuant to Chapter 5111. of the Revised Code, unless
such AN audit determines that payment was made to the provider
for
services that were not rendered in accordance with the provisions
of the provider agreement entered into with the department of job and
family services or the department of mental retardation and
developmental disabilities pursuant to this section.
Sec. 5123.19. (A) As used in this section and in
sections 5123.191, 5123.194, and 5123.20 of the
Revised Code:
(1) "Residential facility" means a home or facility in
which a mentally retarded or developmentally disabled person
resides, except the home of a relative or legal guardian in which
a mentally retarded or developmentally disabled person resides, a
respite care home certified under section 5126.05 of the Revised
Code, a county home or district home operated pursuant to Chapter
5155. of the Revised Code, or a dwelling in which the only mentally
retarded or developmentally disabled residents are in an
independent living arrangement or are being provided supported
living.
(2) "Family home" means a residential facility that
provides room and board, personal care, habilitation services,
and supervision in a family setting for at least six but not more
than eight mentally retarded or developmentally disabled persons.
(3) "Group home" means a residential facility that
provides room and board, personal care, habilitation services,
and supervision in a family setting for at least nine but not
more than sixteen mentally retarded or developmentally disabled
persons.
(4) "Political subdivision" means a municipal corporation,
county, or township.
(5) "Foster family home" means a residential facility that
provides room and board, personal care, habilitation services,
and supervision in a family setting for not more than five
mentally retarded or developmentally disabled persons.
(6) "Semi-independent living home" means a residential
facility for a mentally retarded or developmentally disabled
person where, according to the person's individual
habilitation plan, the person demonstrates skills that would
enable the person to function for
specified periods of time without supervision. Such skills
include, but are not limited to, home management, community
mobility, personal hygiene, interpersonal relationship skills,
and self-preservation.
(7)(3) "Independent living arrangement" means an arrangement
in which a mentally retarded or developmentally disabled person
resides in an individualized setting chosen by the person or
the person's
guardian, which is not dedicated principally to the provision of
residential services for mentally retarded or developmentally
disabled persons, and for which no financial support is received
for rendering such service from any governmental agency by a
provider of residential services.
(8)(4) "Supported living" has the same meaning as in section
5126.01 of the Revised Code.
(9)(5) "Licensee" means the person or government agency that
has applied for a license to operate a residential facility and
to which the license was issued under this section.
(B) Every person or government agency desiring to operate
a residential facility shall apply for licensure of the facility
to the director of mental retardation and developmental
disabilities unless the residential facility is subject to
section 3721.02, 3722.04, 5103.03, or 5119.20 of the Revised
Code. Notwithstanding Chapter 3721. of the Revised Code, a
nursing home that is certified as an intermediate care facility
for the mentally retarded under Title XIX of the "Social Security
Act," 49 Stat. 620 (1935), 42 U.S.C.A. 301, as amended, shall
apply for licensure of the portion of the home that is certified
as an intermediate care facility for the mentally retarded.
(C) The director of mental retardation and developmental
disabilities shall license and inspect the operation of
residential facilities. The director may deny or revoke such
licenses.
Except as provided in divisions (G) and (O) of this
section, a license is valid until it is revoked or voluntarily
surrendered. Appeals from proceedings initiated to deny
applications for licenses or to revoke licenses shall be
conducted in accordance with Chapter 119. of the Revised Code.
In accordance with Chapter 119. of the Revised Code, the
director shall adopt and may amend and rescind rules for
licensing and regulating the operation of residential facilities.
The rules shall establish the following:
(1) Procedures for issuing, denying, and revoking
licenses;
(2) Fees for issuing licenses;
(3) Procedures for the inspection of residential
facilities;
(4) Requirements for the training of residential facility
personnel;
(5) Classifications for the various types of residential
facilities;
(6) Certification procedures for licensees and management
contractors that the director determines are necessary to ensure
that they have the skills and qualifications to properly operate
or manage residential facilities;
(7) The maximum number of persons who may be served in a
particular type of residential facility;
(8) Uniform procedures for admission of persons to and
transfers and discharges of persons from residential facilities;
(9) Other standards for the operation of residential
facilities and the services provided at residential facilities;
(10) Procedures for waiving any provision of any rule
adopted under this section.
(D) Before issuing a license, the director of the
department or the director's designee shall conduct an
inspection of the
residential facility for which application is made. The director
or the director's designee shall conduct an inspection of
each licensed
residential facility at least once each year and may conduct
additional inspections as needed. An inspection includes but is
not limited to an on-site examination and evaluation of the
residential facility, its personnel, and the services provided
there.
In conducting inspections, the director or the director's
designee
shall be given access to the residential facility; all records,
accounts, and any other documents related to the operation of the
facility; the licensee; the residents of the facility; and all
persons acting on behalf of, under the control of, or in
connection with the licensee. The licensee and all persons on
behalf of, under the control of, or in connection with the
licensee shall cooperate with the director or the director's
designee in
conducting the inspection.
Following each inspection, unless the director initiates a
license revocation proceeding, the director or the
director's designee shall
provide the licensee with a report listing any deficiencies,
specifying a timetable within which the licensee shall submit a
plan of correction describing how the deficiencies will be
corrected, and, when appropriate, specifying a timetable within
which the licensee must correct the deficiencies. After a plan
of correction is submitted, the director or the director's
designee shall
approve or disapprove the plan. A copy of the report and any
approved plan of correction shall be provided to any person who
requests it.
If it is determined that a residential facility is not
being operated in compliance with this chapter or the rules
adopted under it, the director may take such steps as are
necessary, including, but not limited to, suspension of
admissions to the residential facility, placement of a monitor at
the residential facility, and the initiation of license
revocation proceedings.
When the director initiates license revocation proceedings,
no opportunity for submitting a plan of correction shall be
given. The director shall notify the licensee by letter of the
initiation of such proceedings. The letter shall list the
deficiencies of the residential facility and inform the licensee
that no plan of correction will be accepted. The director shall
also notify each affected resident, the resident's guardian if
the resident is an adult for whom a guardian has been appointed,
the resident's parent or guardian if the resident is a minor, and
the county board of mental retardation and developmental
disabilities.
Pursuant to rules which shall be adopted in
accordance with
Chapter 119. of the Revised Code, the director may order the
immediate removal of residents from a residential facility
whenever conditions at the facility present an immediate danger
of physical or psychological harm to the residents.
In determining whether a residential facility is being
operated in compliance with this chapter or the rules adopted
under it, or whether conditions at a residential facility present
an immediate danger of physical or psychological harm to the
residents, the director may rely on information obtained by a
county board of mental retardation and developmental disabilities
or other governmental agencies in the course of investigating
major unusual incidents. The director shall adopt rules in
accordance with Chapter 119. of the Revised Code that specify
what constitute "major unusual incidents."
The director shall suspend without pay for a period of at
least three days any department employee who notifies or causes
the notification to any unauthorized person of an unannounced
inspection of a residential facility by an authorized
representative of the department.
(E) In proceedings initiated to deny or revoke licenses
under this section, the director may deny or revoke a license
regardless of whether some or all of the deficiencies that
prompted the proceedings have been corrected at the time of the
hearing.
(F) In addition to any other information which may be
required of applicants for a license pursuant to this section,
the director shall require each applicant to provide a copy of an
approved plan for a proposed residential facility pursuant to
section 5123.042 of the Revised Code.
(G) Pursuant to rules which shall be adopted in
accordance
with Chapter 119. of the Revised Code, the director may require
notification to the department of any significant change in the
ownership of a residential facility or in the identity of the
licensee or management contractor. When such notification is not
given, the director may cancel the residential facility's
license. If the director determines that a significant change of
ownership is proposed, the director shall consider the
proposed change to
be an application for development by a new operator pursuant to
section 5123.042 of the Revised Code and shall
advise the applicant within sixty days of such notification that
the current license shall continue in effect or a new license
will be required pursuant to this section.
(H) A county board of mental retardation and developmental
disabilities, the legal rights service, and any interested person
may file complaints alleging violations of statute or department
rule relating to residential facilities with the department. All
complaints shall be in writing and shall state the facts
constituting the basis of the allegation. The department shall
not reveal the source of any complaint unless the complainant
agrees in writing to waive the right to confidentiality or until
so ordered by a court of competent jurisdiction.
The department shall acknowledge receipt of the complaint
and notify the complainant of the action that will be taken with
respect to it within five working days of receiving it.
The substance of a complaint shall not be provided to a
licensee until the commencement of an inspection or
investigation.
(I) The department shall establish procedures for the
notification of interested parties of the transfer or interim
care of residents from residential facilities that are closing or
are losing their license.
(J) Before issuing a license under this section to a
residential facility that will accommodate at any time more than
one mentally retarded or developmentally disabled individual, the
director shall, by first class mail, notify the following:
(1) If the facility will be located in a municipal
corporation, the clerk of the legislative authority of the
municipal corporation;
(2) If the facility will be located in unincorporated
territory, the clerk of the appropriate board of county
commissioners and the clerk of the appropriate board of township
trustees.
The director shall not issue the license for ten days after
mailing the notice, excluding Saturdays, Sundays, and legal
holidays, in order to give the notified local officials time in
which to comment on the proposed issuance.
Any legislative authority of a municipal corporation, board
of county commissioners, or board of township trustees that
receives notice under this division of the proposed issuance of a
license for a residential facility may comment on it in writing
to the director within ten days after the director mailed the
notice, excluding Saturdays, Sundays, and legal holidays. If the
director receives written comments from any notified officials
within the specified time, the director shall make written
findings
concerning the comments and the director's decision on the
issuance of the
license. If the director does not receive written comments from
any notified local officials within the specified time, the
director shall
continue the process for issuance of the license.
(K) Any person may operate a licensed family home RESIDENTIAL
FACILITY THAT PROVIDES ROOM AND BOARD, PERSONAL CARE, HABILITATION SERVICES,
AND SUPERVISION IN A FAMILY SETTING FOR AT LEAST SIX BUT NOT MORE THAN EIGHT
PERSONS WITH MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY as a
permitted use in any residential district or zone, including any
single-family residential district or zone, of any political
subdivision. Family homes THESE RESIDENTIAL FACILITIES may be
required to comply with area,
height, yard, and architectural compatibility requirements that
are uniformly imposed upon all single-family residences within
the district or zone.
(L) Any person may operate a licensed group home RESIDENTIAL
FACILITY THAT PROVIDES ROOM AND BOARD, PERSONAL CARE, HABILITATION SERVICES,
AND SUPERVISION IN A FAMILY SETTING FOR AT LEAST NINE BUT NOT MORE THAN
SIXTEEN PERSONS WITH MENTAL RETARDATION OR A DEVELOPMENTAL
DISABILITY as a
permitted use in any multiple-family residential district or zone
of any political subdivision, except that a political subdivision
that has enacted a zoning ordinance or resolution establishing
planned unit development districts may exclude group homes THESE
RESIDENTIAL FACILITIES from
such districts, and a political subdivision that has enacted a
zoning ordinance or resolution may regulate group homes THESE
RESIDENTIAL FACILITIES in
multiple-family residential districts or zones as a conditionally
permitted use or special exception, in either case, under
reasonable and specific standards and conditions set out in the
zoning ordinance or resolution to:
(1) Require the architectural design and site layout of
the home RESIDENTIAL FACILITY and the location, nature, and
height of any walls,
screens, and fences to be compatible with adjoining land uses and
the residential character of the neighborhood;
(2) Require compliance with yard, parking, and sign
regulation;
(3) Limit excessive concentration of homes THESE RESIDENTIAL
FACILITIES.
(M) This section does not prohibit a political subdivision
from applying to residential facilities nondiscriminatory
regulations requiring compliance with health, fire, and safety
regulations and building standards and regulations.
(N) Divisions (K) and (L) of this section are not
applicable to municipal corporations that had in effect on June
15, 1977, an ordinance specifically permitting in residential
zones licensed residential facilities by means of permitted uses,
conditional uses, or special exception, so long as such ordinance
remains in effect without any substantive modification.
(O) The director may issue an interim license to operate a
residential facility to an applicant for a license under this
section if all of the following conditions are met:
(1) The director determines that an emergency exists that
requires immediate placement of persons in a residential
facility, and insufficient licensed beds are available.
(2) The residential facility meets standards in rules for
interim licenses that the director shall adopt in accordance with
Chapter 119. of the Revised Code.
(3) The director determines that the residential facility
is likely to receive a license under this section within thirty
days after issuance of the interim license.
An interim license shall be valid for thirty days and may
be renewed by the director no more than twice.
(P) Notwithstanding rules adopted pursuant to this section
establishing the maximum number of persons who may be served in a
particular type of residential facility, a residential facility
shall be permitted to serve the same number of persons being
served by the facility on the effective date of such rules or the
number of persons for which the facility is authorized pursuant
to a current application for a certificate of need with a letter
of support from the department of mental retardation and
developmental disabilities and which is in the review process
prior to April 4, 1986.
(Q) The director or the director's designee may enter at
any time,
for purposes of investigation, any home, facility, or other
structure that has been reported to the director or that the
director has reasonable cause to believe is being operated as a
residential facility without a license issued under this section.
The director may petition the court of common pleas of the
county in which an unlicensed residential facility is located for
an order enjoining the person or governmental agency operating
the facility from continuing to operate without a license. The
court may grant the injunction on a showing that the person or
governmental agency named in the petition is operating a
residential facility without a license. The court may grant the
injunction, regardless of whether the residential facility meets
the requirements for receiving a license under this section.
Sec. 5123.21. The director of the department of mental
retardation and developmental disabilities or the director's
designee may
transfer or authorize the transfer of an involuntary resident or
a consenting voluntary resident from one public institution to
another or to an institution other than a public institution or
other facility, if the director determines that it would be
consistent with the habilitation needs of the resident to do so.
Before an involuntary resident may be transferred to a more
restrictive setting, the head MANAGING OFFICER of the
hospital INSTITUTION shall file a motion
with the court requesting the court to amend its order of
placement issued under section 5123.76 of the Revised Code. At
the resident's request, the court shall hold a hearing on the
motion at which the resident has the same rights as at a full
hearing under section 5123.76 of the Revised Code.
Whenever a resident is transferred, the director shall give
written notice of the transfer to the
resident's legal guardian,
parents, spouse,
and counsel, or, if none is known, to the resident's nearest
known relative
or friend. If the resident is a minor, the department before
making such a transfer shall make a minute of the order for
the
transfer and the reason for it upon its record
and shall send
a certified copy at least seven days prior to the
transfer to
the person shown by its record to have had the care or custody of
the minor immediately prior to the
minor's commitment.
Whenever a
consenting voluntary resident is transferred, the
notification
shall be given only at the resident's request. The managing
officer shall advise a voluntary resident who is being
transferred that the patient may decide if such
a
notification shall be
given. In all such transfers, due consideration shall be given
to the relationship of the resident to the resident's
family, legal
guardian, or friends, so as to maintain relationships and
encourage visits beneficial to the resident.
Sec. 5123.27. The director of mental retardation and
developmental disabilities may accept, hold, and administer in
trust on behalf of the state, if it is for the public interest,
any grant, devise, gift, or bequest of money or property made to
the state for the use or benefit of any institution under the
jurisdiction of the department of mental retardation and
developmental disabilities or for the use and benefit of mentally
retarded or developmentally disabled persons WITH MENTAL RETARDATION OR
A DEVELOPMENTAL DISABILITY under the control of
the department. If the trust so provides, the money or property
may be used for any work which the department is authorized to
undertake.
The department shall keep such gift, grant, devise, or
bequest as a distinct property or fund and, if it is in money,
shall invest it in the manner provided by law. The department
may deposit in a proper trust company or savings bank any money
left in trust during a specified life or lives and shall adopt
rules governing the deposit, transfer, withdrawal, or investment
of such THE money and the income thereof FROM IT.
The department shall, in the manner prescribed by the
director of budget and management pursuant to section 126.21 of
the Revised Code, account for all money or property received or
expended under this section. The records, together with a
statement certified by the depository showing the money deposited
there to the credit of the trust, shall be open to public
inspection. The director of budget and management may require
the department to file a report with him THE DIRECTOR on any
particular
portion, or the whole, of any trust property received or expended
by it.
The department shall, upon the expiration of any trust
according to its terms, dispose of the money or property held
thereunder UNDER THE TRUST in the manner provided in the
instrument creating the
trust. If the instrument creating the trust failed to make any
terms of disposition, or if no trust was in evidence, then the
decedent resident's money, saving or commercial deposits,
dividends or distributions, bonds, or any other interest-bearing
debt certificate or stamp issued by the United States government
shall escheat to the state. All such unclaimed intangible
personal property of a former resident shall be retained by the
managing officer in such institution for the period of one year,
during which time every possible effort shall be made to find
such THE former resident or his THE FORMER
RESIDENT'S legal
representative.
If after a period of one year from the time the resident
has left the institution or has died, the managing officer has
been unable to locate such THE person or his THE
PERSON'S legal
representative,
then, upon proper notice of such THAT fact, the
director shall at that
time formulate in writing a method of disposition on the minutes
of the department authorizing the managing officer to convert
such intangible personal property to cash to be paid into the
state treasury to the credit of the general revenue fund.
The department shall include in its annual report a
statement of all such money and property and the terms and
conditions relating thereto TO THEM.
Sec. 5123.34. This chapter attempts to do all of the following:
(A) Provide humane and scientific treatment and care
and the highest attainable degree of individual development for
mentally retarded or developmentally disabled persons WITH MENTAL
RETARDATION OR A DEVELOPMENTAL DISABILITY;
(B) Promote the study of the causes of mental
retardation and developmental disabilities, with a view to
ultimate prevention;
(C) Secure by uniform and systematic management the
highest attainable degree of economy in the administration of the
institutions under the control of the department of mental
retardation and developmental disabilities.
Sections 5123.02 to 5123.04, 5123.041 to 5123.043,
5123.10, 5123.21, 5123.221, 5123.25, and 5123.31 of the Revised Code shall be
liberally construed to attain such THESE purposes.
Sec. 5123.351. The director of mental retardation and
developmental disabilities, with respect to the eligibility for
state reimbursement of expenses incurred by facilities and
programs established and operated under Chapter 5126. of the
Revised Code for mentally retarded and developmentally disabled
persons WITH MENTAL RETARDATION OR A DEVELOPMENTAL
DISABILITY, shall do all of the following:
(A) Make rules that may be necessary to carry
out the
purposes of Chapter 5126. and sections 5123.35, 5123.351, and
5123.36 of the Revised Code;
(B) Define minimum standards for qualifications of
personnel, professional services, and in-service training and
educational leave programs;
(C) Review and evaluate community programs and make
recommendations for needed improvements to county boards of
mental retardation and developmental disabilities and to program
directors;
(D) Withhold state reimbursement, in whole or in part,
from any county or combination of counties for failure to comply
with Chapter 5126. or section 5123.35 or 5123.351 of the Revised
Code or rules of the department of mental retardation and
developmental disabilities;
(E) Withhold state funds from an agency, corporation, or
association denying or rendering service on the basis of race,
color, sex, religion, ancestry, national origin, disability
as defined in section 4112.01 of the Revised Code, or
inability to pay;
(F) Provide consultative staff service to communities to
assist in ascertaining needs and in planning and establishing
programs.
Sec. 5123.353. (A) There is hereby established the
community mental retardation and developmental disabilities trust
fund advisory council, which shall consist of the director of
mental retardation and developmental disabilities and the
following members appointed by the director:
(1) Two representatives of the Ohio association of county
boards of mental retardation and developmental disabilities;
(2) Two representatives of the department of mental
retardation and developmental disabilities who have expertise in
community services and programs for mentally retarded or
developmentally disabled persons WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY;
(3) One representative of private providers of residential
services for mentally retarded or developmentally disabled
persons WITH MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY;
(4) Three consumers or representatives of consumers of
community services and programs for mentally retarded or
developmentally disabled persons WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY.
(B) The director shall make initial appointments not later
than sixty days after October 29, 1993. All terms shall be two years. Each
member shall serve until the member's
successor is appointed, and any vacancy shall be filled within
thirty days for the remainder of the unexpired term in the same
manner as the original appointment. Members may be reappointed.
A member is subject to removal by the director for any of the
causes specified in section 3.07 of the Revised Code.
(C) Members appointed by the director who are not
employees of the department shall serve without compensation from
the department, but shall be reimbursed from the community mental
retardation and developmental disabilities trust fund for the
actual and necessary expenses they incur in the performance of
their official duties.
(D) The director shall serve as chairperson of the council and,
in consultation with the members, establish the method of
operation of the council, including scheduling of consultations
with the department and at least quarterly meetings of the
council. The department shall provide to the council
such THE administrative support and technical assistance
as THAT the council requests.
(E) The council shall advise the department on the operation
of the trust fund and the distribution of moneys from the trust
fund.
Sec. 5123.55. As used in sections 5123.55 to 5123.59 of
the Revised Code:
(A) "Guardian" means a guardian of the person, limited
guardian, interim guardian, or emergency guardian pursuant to
appointment by the probate court under Chapter 2111. of the
Revised Code.
(B) "Trustee" means a trustee appointed by and accountable
to the probate court, in lieu of a guardian and without a
judicial determination of incompetency, with respect to an estate
of seven TEN thousand dollars or less.
(C) "Protector" means an agency under contract with the
department of mental retardation and developmental disabilities
acting with or without court appointment to provide guidance,
service, and encouragement in the development of maximum
self-reliance to a mentally retarded or developmentally
disabled person WITH MENTAL RETARDATION OR A DEVELOPMENTAL
DISABILITY, independent of any determination of
incompetency.
(D) "Protective service" means performance of the duties
of a guardian, trustee, or conservator, or acting as a protector,
with respect to a mentally retarded or developmentally disabled
person WITH MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY.
(E) "Conservator" means a conservator of the person
pursuant to an appointment by a probate court under Chapter 2111.
of the Revised Code.
Sec. 5123.611. (A) AS USED IN THIS SECTION, MR/DD
EMPLOYEE
MEANS ALL OF THE FOLLOWING:
(1) AN EMPLOYEE OF THE DEPARTMENT OF MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES;
(2) AN EMPLOYEE OF A COUNTY BOARD OF MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES;
(3) AN "ICF/MR WORKER," AS DEFINED IN SECTION 5123.193 OF THE
REVISED CODE;
(4) AN INDIVIDUAL WHO IS EMPLOYED IN A POSITION THAT INCLUDES
PROVIDING SPECIALIZED SERVICES TO AN INDIVIDUAL WITH MENTAL RETARDATION
OR A DEVELOPMENTAL DISABILITY.
(B) AT THE CONCLUSION OF A REVIEW OF A REPORT OF ABUSE, NEGLECT,
OR A MAJOR UNUSUAL INCIDENT THAT IS CONDUCTED BY A REVIEW COMMITTEE ESTABLISHED PURSUANT TO SECTION
5123.61 OF THE REVISED CODE, THE COMMITTEE SHALL ISSUE
RECOMMENDATIONS TO THE DEPARTMENT. THE DEPARTMENT SHALL REVIEW THE COMMITTEE'S RECOMMENDATIONS AND ISSUE A REPORT OF ITS FINDINGS.
THE DEPARTMENT SHALL MAKE THE REPORT AVAILABLE TO ALL OF THE
FOLLOWING:
(1) THE PERSON WHO IS THE SUBJECT OF THE REPORT;
(2) THAT PERSON'S GUARDIAN OR LEGAL COUNSEL;
(3) THE LICENSEE, AS DEFINED IN SECTION 5123.19 OF THE REVISED
CODE, OF A RESIDENTIAL FACILITY IN WHICH
THE PERSON RESIDES;
(4) THE EMPLOYER OF ANY MR/DD EMPLOYEE WHO ALLEGEDLY COMMITTED OR
WAS RESPONSIBLE FOR THE ABUSE, NEGLECT, OR MAJOR UNUSUAL INCIDENT.
(C) EXCEPT AS PROVIDED IN THIS SECTION, THE DEPARTMENT SHALL NOT
DISCLOSE ITS REPORT TO ANY PERSON OR GOVERNMENT ENTITY THAT IS NOT AUTHORIZED TO INVESTIGATE REPORTS
OF ABUSE, NEGLECT, OR OTHER MAJOR UNUSUAL INCIDENTS, UNLESS THE
PERSON WHO IS THE SUBJECT OF THE REPORT OR THE PERSON'S GUARDIAN
GIVES THE DEPARTMENT WRITTEN CONSENT.
Sec. 5123.612. THE DIRECTOR OF MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES SHALL ADOPT RULES IN ACCORDANCE WITH
CHAPTER 119. OF
THE REVISED CODE REGARDING THE REPORTING OF MAJOR UNUSUAL
INCIDENTS AND UNUSUAL INCIDENTS CONCERNING PERSONS WITH MENTAL RETARDATION OR
A DEVELOPMENTAL DISABILITY. THE RULES SHALL
SPECIFY WHAT CONSTITUTES A MAJOR UNUSUAL INCIDENT OR AN UNUSUAL
INCIDENT.
Sec. 5123.613. (A) WHEN A PERSON WHO IS THE SUBJECT OF A REPORT
UNDER SECTION 5123.61 OF THE REVISED CODE DIES, THE
DEPARTMENT OF
MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES OR THE COUNTY BOARD OF
MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, WHICHEVER IS
APPLICABLE, SHALL, ON WRITTEN REQUEST, PROVIDE TO BOTH OF THE
FOLLOWING PERSONS THE REPORT AND ANY RECORDS RELATING TO THE
REPORT:
(1) IF THE REPORT OR RECORDS ARE NECESSARY TO ADMINISTER THE
ESTATE OF THE PERSON WHO IS THE SUBJECT OF THE REPORT, TO THE EXECUTOR
OR ADMINISTRATOR OF THE PERSON'S ESTATE;
(2) TO THE GUARDIAN OF THE PERSON WHO IS THE SUBJECT OF THE
REPORT OR, IF THE INDIVIDUAL HAD NO GUARDIAN AT THE TIME OF DEATH, TO A
PERSON IN THE FIRST APPLICABLE OF THE FOLLOWING CATEGORIES:
(a) THE PERSON'S SPOUSE;
(b) THE PERSON'S CHILDREN;
(c) THE PERSON'S PARENTS;
(d) THE PERSON'S BROTHERS OR SISTERS;
(e) THE PERSON'S UNCLES OR AUNTS;
(f) THE PERSON'S CLOSEST RELATIVE BY BLOOD OR ADOPTION;
(g) THE PERSON'S CLOSEST RELATIVE BY MARRIAGE.
(B) THE DEPARTMENT OR COUNTY BOARD SHALL PROVIDE THE REPORT AND
RELATED RECORDS AS REQUIRED BY THIS SECTION NOT LATER THAN THIRTY DAYS
AFTER RECEIPT OF THE REQUEST."
Sec. 5123.62. The rights of mentally retarded persons and
of developmentally disabled persons WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY include, but are not limited
to, the following:
(A) The right to be treated at all times with courtesy and
respect and with full recognition of their dignity and
individuality;
(B) The right to an appropriate, safe, and sanitary living
environment that complies with local, state, and federal
standards and recognizes the persons' need for privacy and
independence;
(C) The right to food adequate to meet accepted standards
of nutrition;
(D) The right to practice the religion of their choice or
to abstain from the practice of religion;
(E) The right of timely access to appropriate medical or
dental treatment;
(F) The right of access to necessary ancillary services,
including, but not limited to, occupational therapy, physical
therapy, speech therapy, and behavior modification and other
psychological services;
(G) The right to receive appropriate care and treatment in
the least intrusive manner;
(H) The right to privacy, including both periods of
privacy and places of privacy;
(I) The right to communicate freely with persons of their
choice in any reasonable manner they choose;
(J) The right to ownership and use of personal possessions
so as to maintain individuality and personal dignity;
(K) The right to social interaction with members of either
sex;
(L) The right of access to opportunities that enable
individuals to develop their full human potential;
(M) The right to pursue vocational opportunities that will
promote and enhance economic independence;
(N) The right to be treated equally as citizens under the law;
(O) The right to be free from emotional, psychological,
and physical abuse;
(P) The right to participate in appropriate programs of
education, training, social development, and habilitation and in
programs of reasonable recreation;
(Q) The right to participate in decisions that affect their lives;
(R) The right to select a parent or advocate to act on their behalf;
(S) The right to manage their personal financial affairs,
based on individual ability to do so;
(T) The right to confidential treatment of all information
in their personal and medical records, except to the extent that
disclosure or release of records is permitted under sections
5123.89 and 5126.044 of the Revised Code;
(U) The right to voice grievances and recommend changes in
policies and services without restraint, interference, coercion,
discrimination, or reprisal;
(V) The right to be free from unnecessary chemical or
physical restraints;
(W) The right to participate in the political process;
(X) The right to refuse to participate in medical,
psychological, or other research or experiments.
Sec. 5123.63. Every state agency, county board of mental
retardation and developmental disabilities, or political
subdivision that provides services, either directly or through a
contract, to mentally retarded and developmentally disabled
persons WITH MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY
shall give each provider a copy of the list of rights
contained in section 5123.62 of the Revised Code. Each public
and private provider of services shall carry out the requirements
of this section in addition to any other posting or notification
requirements imposed by local, state, or federal law or rules.
The provider shall make copies of the list of rights and
shall be responsible for an initial distribution of the list to
each individual receiving services from the provider. If the
individual is unable to read the list, the provider shall
communicate the contents of the list to the individual to the
extent practicable in a manner that the individual understands.
The individual receiving services or the parent, guardian, or
advocate of the individual shall sign an acknowledgement of
receipt of a copy of the list of rights, and a copy of the signed
acknowledgement shall be placed in the individual's file. The
provider shall also be responsible for answering any questions
and giving any explanations necessary to assist the individual to
understand the rights enumerated. Instruction in these rights
shall be a part of all individual habilitation plans DOCUMENTED.
Each provider shall post in a place accessible MAKE AVAILABLE to
all
persons receiving services and all employees and visitors a copy
of the list of rights and the addresses and telephone numbers of
the legal rights service, the department of mental retardation
and developmental disabilities, and the county board of mental
retardation and developmental disabilities of the county in which
the provider provides services.
Sec. 5123.64. (A) Every provider of services to persons
with mental retardation and OR A developmental
disabilities DISABILITY shall
establish policies and programs to ensure that all staff members
are familiar with the rights enumerated in section 5123.62 of the
Revised Code and observe those rights in their contacts with
persons receiving services. Any policy, procedure, or rule of
the provider that conflicts with any of the rights enumerated
shall be null and void. Every provider shall establish written
procedures for resolving complaints of violations of those
rights. A copy of the procedures shall be posted at all times in
a place accessible to persons receiving services, and a copy
shall be provided on request to any person receiving services or
to any parent, guardian, or advocate of a person receiving
services.
(B) Any mentally retarded or developmentally disabled
person WITH MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY who
believes that his or her THE PERSON'S rights as
enumerated in
section 5123.62 of the Revised Code have been violated may:
(1) Bring the violation to the attention of the provider
for resolution;
(2) Report the violation to the department of mental
retardation and developmental disabilities, the ombudsman
OMBUDSPERSON section
of the legal rights service, or the appropriate county board of
mental retardation and developmental disabilities;
(3) Take any other appropriate action to ensure compliance
with sections 5123.60 to 5123.64 of the Revised Code, including
the filing of a legal action to enforce rights or to recover
damages for violation of rights.
Sec. 5123.67. This chapter shall be liberally interpreted
to accomplish the following purposes:
(A) To promote the human dignity and to protect the
constitutional rights of mentally retarded persons and
developmentally disabled persons WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY in the state;
(B) To encourage the development of the ability and
potential of each mentally retarded person and each
developmentally disabled person WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY in the state to the fullest
possible extent, no matter how severe his THE degree of
disability;
(C) To promote the economic security, standard of living,
and meaningful employment of mentally retarded persons and
developmentally disabled persons WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY;
(D) To maximize the assimilation of mentally retarded or
developmentally disabled persons WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY into the ordinary life of the
communities in which they live;
(E) To recognize the need of mentally retarded or
developmentally disabled PROMOTE OPPORTUNITIES FOR persons,
whenever care in a residential facility is absolutely necessary, to live in
surroundings and circumstances as close to normal as possible WITH
MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY TO LIVE IN SURROUNDINGS
OR CIRCUMSTANCES THAT ARE TYPICAL FOR OTHER COMMUNITY MEMBERS;
(F) TO PROMOTE THE RIGHT OF PERSONS WITH MENTAL RETARDATION OR
A DEVELOPMENTAL DISABILITY TO SPEAK AND BE HEARD ABOUT THE DESIRED
DIRECTION OF THEIR LIVES AND TO USE AVAILABLE RESOURCES IN WAYS THAT FURTHER
THAT DIRECTION.
Sec. 5123.801. If neither a discharged resident, NOR a
resident granted trial visit, nor the persons requesting his THE
RESIDENT'S trial visit or discharge are financially able to bear the
expense
of his removal THE RESIDENT'S TRIAL VISIT OR DISCHARGE, the
managing officer of an
institution under the
control of the department of mental retardation and developmental
disabilities may then provide actual traveling and escort
expenses to the township of which the resident resided at the
time of institutionalization. The amount payable, which sum in
no case shall exceed twenty dollars, shall be charged to the
current expense fund of the hospital INSTITUTION.
The expense of the return of a resident on trial visit from
an institution, if it cannot be paid by the responsible
relatives, shall be borne by the county of institutionalization.
The managing officer of the institution shall take all
proper measures for the apprehension of an escaped resident. The
expense of the return of an escaped resident shall be borne by
the institution where the resident is institutionalized.
The managing officer of the institution shall provide
sufficient and proper clothing for traveling if neither the
resident nor the persons requesting his THE RESIDENT'S trial
visit or discharge are financially able to provide such THAT
clothing.
Sec. 5123.85. (A) All residents institutionalized
pursuant to Chapter 5123. of the Revised Code THIS CHAPTER shall
receive,
within twenty THIRTY days of their admission, a comprehensive
evaluation, A diagnosis, A prognosis, and a description of
habilitation goals consistent therewith.
(B) All such residents shall have a written habilitation
plan consistent with the comprehensive evaluation, diagnosis,
prognosis, and goals which shall be provided, upon request of
resident or resident's counsel, to resident's counsel and to any
private physician designated by the resident or his THE
RESIDENT'S counsel.
(C) All such residents shall receive habilitation and care
consistent with the habilitation plan. The department of mental
retardation and developmental disabilities shall set standards
for habilitation and care provided to such residents, consistent
wherever possible with standards set by the joint commission on
accreditation of facilities for the mentally retarded.
(D) All such residents shall receive periodic
comprehensive re-evaluations of the habilitation plan by the
professional staff of the institution at intervals not to exceed
ninety days.
(E) All such residents shall be provided with prompt and
adequate medical treatment for any physical or mental disease or
injury.
Sec. 5123.89. (A) All certificates, applications,
records, and reports made for the purpose of this chapter, other
than court journal entries or court docket entries, which
directly or indirectly identify a resident or former resident of
an institution for the mentally retarded or person whose
institutionalization has been sought under this chapter shall be
kept confidential and shall not be disclosed by any person except
insofar as IN THE FOLLOWING SITUATIONS:
(1) It is the judgment of the court for judicial records,
and the managing officer for institution records, that disclosure
is in the best interest of the person identified, and such
THAT person
or his THAT PERSON'S guardian or, if he THAT
PERSON is a minor,
his THAT PERSON'S parent or guardian
consents;.
(2) Disclosure may be IS provided for in other sections of
this chapter of the Revised Code;.
(3) It is the judgment of the managing officer for
institution records that disclosure to a mental health facility
is in the best interest of the person identified.
(B) The department of mental retardation and developmental
disabilities shall adopt and promulgate rules with respect to the
systematic and periodic destruction of residents' records.
(C)(1) AS USED IN THIS DIVISION, "FAMILY" MEANS A PARENT,
BROTHER, SISTER, SPOUSE, SON, DAUGHTER, GRANDPARENT, AUNT, UNCLE, OR COUSIN.
(2) UPON THE DEATH OF A RESIDENT OR FORMER RESIDENT OF AN INSTITUTION FOR
THE MENTALLY RETARDED OR A PERSON WHOSE INSTITUTIONALIZATION WAS SOUGHT UNDER
THIS CHAPTER, THE MANAGING OFFICER OF AN INSTITUTION SHALL PROVIDE ACCESS TO
THE CERTIFICATES, APPLICATIONS, RECORDS, AND REPORTS MADE FOR THE PURPOSES OF
THIS CHAPTER TO THE RESIDENT'S, FORMER RESIDENT'S, OR PERSON'S GUARDIAN IF THE
GUARDIAN MAKES A WRITTEN REQUEST. IF A DECEASED RESIDENT, FORMER RESIDENT, OR
PERSON WHOSE INSTITUTIONALIZATION WAS SOUGHT UNDER THIS CHAPTER DID NOT HAVE A
GUARDIAN AT THE TIME OF DEATH, THE MANAGING OFFICER SHALL PROVIDE ACCESS TO
THE CERTIFICATES, APPLICATIONS, RECORDS, AND REPORTS MADE FOR PURPOSES OF THIS
CHAPTER TO A MEMBER OF THE PERSON'S FAMILY, UPON THAT FAMILY MEMBER'S WRITTEN
REQUEST.
(D) No person shall reveal the contents of a record of a
resident except as authorized by this chapter.
Sec. 5123.93. Mentally retarded minors MINORS WITH MENTAL
RETARDATION shall remain under
the guardianship of their parents or of a guardian appointed
pursuant to Chapter 2111. of the Revised Code, notwithstanding
institutionalization pursuant to any section of this chapter,
unless parental rights have been terminated pursuant to a court
finding that the child is neglected, abused, or dependent
pursuant to Chapter 2151. of the Revised Code. If a mentally
retarded minor WITH MENTAL RETARDATION has been found to be
dependent, abused, or
neglected, the public children services
agency to whom permanent custody has been assigned
pursuant to Chapter 2151. of the Revised Code shall have the same authority
and responsibility it
would have if the child were not mentally retarded and were not
institutionalized. In no case shall the guardianship of a
mentally retarded person WITH MENTAL RETARDATION be assigned to
the managing officer or
any other employee of an institution in which the person is
institutionalized, OR BE ASSIGNED, UNLESS THERE IS A RELATIONSHIP BY
BLOOD OR MARRIAGE OR UNLESS THE SERVICE IS A PROTECTIVE SERVICE AS DEFINED IN
SECTION 5123.55 of the Revised Code, TO A PERSON OR AGENCY WHO PROVIDES SERVICES TO THE
PERSON
WITH MENTAL RETARDATION.
Sec. 5126.02. (A)(1) There is hereby created in each county a
county board of mental retardation and developmental disabilities
consisting of seven members, five of whom shall be appointed by
the board of county commissioners of the county, and two of whom
shall be appointed by the probate judge of the county. Each
member shall be a resident of the county. The membership of the board shall,
as nearly as possible, reflect the composition of the population of the
county.
All persons appointed to the board MEMBERS shall be persons
interested and
knowledgeable in the field of mental retardation and other allied fields.
ALL BOARD MEMBERS SHALL BE CITIZENS OF THE UNITED
STATES. Of the members appointed by the board of county
commissioners, at least two shall be relatives by blood or
marriage of persons eligible
for and currently receiving services provided by the county board
of mental retardation and developmental disabilities, and,
whenever possible, one shall be a relative of a person eligible
for and currently receiving adult services, and the other shall
be a relative of a person eligible for and currently receiving
services for pre-school or school-age children. Of the two
members appointed by the probate judge, at least one shall be a
relative by blood or marriage of a person eligible for or currently
receiving services in a public or private residential facility
subject to regulation or licensure by the director of mental
retardation and developmental disabilities under sections 5123.19
and 5123.20 of the Revised Code.
BOTH THE BOARD OF COUNTY COMMISSIONERS AND THE PROBATE JUDGE SHALL APPOINT
UNDER THIS SECTION, TO THE MAXIMUM EXTENT POSSIBLE, MEMBERS WHO FULFILL ANY
APPLICABLE REQUIREMENTS OF THIS SECTION FOR APPOINTMENT AND WHO ALSO HAVE
PROFESSIONAL TRAINING AND EXPERIENCE IN BUSINESS MANAGEMENT, FINANCE, LAW,
HEALTH CARE PRACTICE, PERSONNEL ADMINISTRATION, OR GOVERNMENT SERVICE.
(2) All appointments shall be for terms of
four years. The membership of a person appointed as a
relative of a recipient of services
shall not be terminated because the services are no longer received.
Members may be reappointed, except as provided in division (A)(3) of this
section and section 5126.022 of the Revised Code. Prior to making a
reappointment, the appointing authority shall ascertain, through written
communication with the board, that the member being considered for
reappointment meets the requirements of this section and section 5126.022 of
the Revised Code.
(3) A member who has served during each of two
consecutive terms shall not be reappointed for a subsequent term
until one year after ceasing to be a member of the board,
except that a member who has served for six years or less within
two consecutive terms may be reappointed for a subsequent term
before becoming ineligible for reappointment for one year.
(4) Within sixty days after a vacancy occurs, it
shall be filled by the appointing authority for the unexpired
term. Any member appointed to fill a vacancy occurring prior to
the expiration of the term for which the member's predecessor was
appointed shall hold office for the remainder of that term. Appointment other
than appointment to fill a vacancy shall be
made no later than the last day of November of each year, and the
term of office shall commence on the date of the stated annual
organizational meeting.
(5) Board members shall serve without
compensation, but shall be reimbursed for necessary expenses
incurred in the conduct of board business, including those
incurred within the county of residence.
(B) Each year each board member shall attend at least one
in-service training session provided by or approved by the
department of mental retardation and developmental disabilities. Such
THESE training sessions shall not be considered regularly
scheduled meetings of the board.
(C) A county board of mental retardation and developmental
disabilities shall be operated as a separate administrative and
service entity. The board's functions shall not be combined with
the functions of any other entity of county government.
Sec. 5126.023. (A) Each county board
of mental retardation and developmental disabilities shall either employ a
superintendent or obtain the services of the superintendent of another county
board of mental retardation and developmental disabilities. The board shall
provide for a superintendent who is qualified, as
specified in rules adopted by the department of mental retardation and
developmental disabilities in accordance with
Chapter 119. of the Revised Code. The
superintendent shall have no voting privileges on the board.
The board shall prescribe the duties of its superintendent and review the
superintendent's performance. The superintendent may be removed, suspended,
or demoted for cause pursuant to section 5126.23 of the
Revised Code. The board shall fix the superintendent's
compensation and reimburse the superintendent for actual and necessary
expenses.
Each county board that employs its own superintendent shall employ the
superintendent under a contract. To enter into a contract, the board shall
adopt a resolution agreeing to the contract. Each contract for employment or
re-employment of a superintendent shall be for a term of not less than one and
not more than five years. At the expiration of a superintendent's current
term of employment, the superintendent shall be re-employed for a term of one
year at the same salary, plus any increments that may be authorized by the
board, unless the board gives the superintendent written notification of its
intention not to re-employ the superintendent. With regard to an initial
contract, if the contract is for one year, the notice shall be provided not
less than sixty days prior to the contract's expiration; if the contract is
for more than one year, the notice shall be provided not less than ninety days
prior to the contract's expiration. With regard to contracts for
re-employment, the notice shall be given not less than ninety days prior to
the contract's expiration, regardless of its duration.
(B) Two or more county boards may enter into an arrangement under which the
superintendent of one county board acts as the superintendent of another
county board. To enter into such an arrangement, each board shall adopt a
resolution agreeing to the arrangement. The resolutions shall specify the
duration of the arrangement and the contribution each board is to make to the
superintendent's compensation and reimbursement for expenses.
(C) IF A VACANCY OCCURS IN THE POSITION OF SUPERINTENDENT, A
COUNTY BOARD MAY APPOINT A PERSON WHO HOLDS A VALID SUPERINTENDENT'S
CERTIFICATE ISSUED UNDER THE RULES OF THE DEPARTMENT TO WORK UNDER A CONTRACT
FOR AN INTERIM PERIOD NOT TO EXCEED ONE HUNDRED EIGHTY DAYS UNTIL A PERMANENT
SUPERINTENDENT CAN BE EMPLOYED OR ARRANGED FOR UNDER DIVISION (A) OR
(B) OF THIS SECTION. THE DIRECTOR OF THE DEPARTMENT MAY APPROVE
ADDITIONAL PERIODS OF TIME FOR THESE TYPES OF INTERIM APPOINTMENTS WHEN SO
REQUESTED BY A RESOLUTION ADOPTED BY A COUNTY BOARD, IF THE DIRECTOR
DETERMINES THAT THE ADDITIONAL PERIODS ARE WARRANTED AND THE SERVICES OF A
PERMANENT SUPERINTENDENT ARE NOT AVAILABLE.
Sec. 5126.042. (A) As used in this section:
(1) "Emergency" means any situation that creates for an
individual with mental retardation or developmental disabilities a risk of
substantial self-harm or substantial harm to others if action is not taken
within thirty days. An "emergency" may include one or more of the following
situations:
(a) Loss of present residence for any reason, including legal
action;
(b) Loss of present caretaker for any reason, including serious
illness of the caretaker, change in the caretaker's status, or inability of
the caretaker to perform effectively for the individual;
(c) Abuse, neglect, or exploitation of the individual;
(d) Health and safety conditions that pose a serious risk to the
individual or others of immediate harm or death;
(e) Change in the emotional or physical condition of the
individual that necessitates substantial accommodation that cannot be
reasonably provided by the individual's existing caretaker.
(2) "MEDICAID" HAS THE SAME MEANING AS IN SECTION 5111.01 of the Revised Code.
(3) "Priority" means any situation that would constitute an
emergency
except that action to resolve the situation may be taken in more than thirty
but less than ninety days without creating a risk of substantial harm to self
or others.
(B) If a county board of mental
retardation and developmental disabilities determines that
available resources are not sufficient to meet the needs of all
individuals who request programs and services and may be offered
the programs and services, it shall establish waiting lists for
services. The board may establish priorities for making placements on its
waiting lists according to an individual's emergency or priority status.
The individuals who may be placed on a waiting list include individuals
with a need for services on an emergency or priority basis and individuals who
have requested services for which resources are not available.
An individual who currently receives a service but would like to change
to another service shall not be placed on a waiting list but shall be placed
on a service substitution list. The board shall work with the individual,
service providers, and all appropriate entities to facilitate the change in
service as expeditiously as possible. The board may establish priorities for
making placements on its service substitution lists according to an
individual's emergency or priority status.
In addition to maintaining waiting lists and service substitution lists,
a board shall maintain a long-term service planning registry for individuals
who wish to record their intention
to request in the future a service they are not currently receiving. The
purpose of the registry is to enable
the board to document requests and to plan appropriately. The board may not
place an individual on the registry who meets the conditions for receipt of
services on an emergency or priority basis.
(C) A county board shall establish a separate waiting list
for each of the following categories of services, and may
establish separate waiting lists within the waiting lists:
(1) Early childhood services;
(2) Educational programs for preschool and school age children;
(3) Adult services;
(4) Case management services;
(5) Residential services and supported living;
(6) Transportation services;
(7) Other services determined necessary and appropriate
for mentally retarded or developmentally disabled persons WITH
MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY according to their
individual habilitation or service plans;
(8) Family support services provided under section 5126.11 of the Revised
Code.
(D) Prior to establishing any waiting list under this
section, a county board shall develop and implement a policy for
waiting lists that complies with rules that the department of
mental retardation and developmental disabilities shall adopt in
accordance with Chapter 119. of the Revised Code. The
department's rules shall include procedures to be followed to
ensure that the due process rights of individuals placed on
waiting lists are not violated.
Prior to placing an individual on a waiting list, the county board
shall assess the service needs of the individual in accordance
with all applicable state and federal laws. The county board
shall place the individual on the appropriate waiting list and
may place the individual on more than one waiting list.
At least annually, the county board shall reassess the
service needs of each individual on a waiting list. If it
determines that an individual no longer needs a program or
service, the county board shall remove the individual from
the waiting list. If it determines that an individual needs a program or
service other than the one for which the individual is on the waiting list,
the county board shall provide the program or service to the
individual or place the individual on a waiting list for the
program or service in accordance with the board's policy for waiting lists.
When a program or service for which there is a waiting list
becomes available, the county board shall reassess the service
needs of the individual next scheduled on the waiting list to
receive that program or service. If the reassessment
demonstrates that the individual continues to need the program or
service, the board shall offer the program or service to the
individual. If it determines that an individual no longer needs a program or
service, the county board shall remove the individual from the waiting list.
If it determines that an individual needs a program or service other than the
one for which the individual is on the waiting list, the
county board shall provide the program or service to the
individual or place the individual on a waiting list for the program or
service in accordance with the board's policy for waiting lists.
(E) A child subject to a determination made pursuant to section
121.38 of the Revised Code who requires the home and
community-based services provided through the medical assistance waiver
programs operated under sections 5111.87 and 5111.88 of the Revised Code shall
receive services through the waiver programs adopted under Chapters 5111.,
5123., and 5126. of the Revised Code. For all other services, a child subject
to a determination made pursuant to section 121.38 of the Revised Code shall
be treated as an emergency by the county boards and shall not be subject to a
waiting list.
(F) Not later than the fifteenth day of
March of each even-numbered year, each county board
shall prepare and submit to the director of mental
retardation and developmental disabilities its recommendations for the funding
of services for individuals with mental retardation and developmental
disabilities and its proposals for reducing the waiting lists for services.
(G) THE FOLLOWING SHALL TAKE PRECEDENCE OVER THE APPLICABLE
PROVISIONS OF THIS SECTION:
(1) MEDICAID RULES AND REGULATIONS;
(2) ANY SPECIFIC REQUIREMENTS THAT MAY BE CONTAINED WITHIN A MEDICAID
STATE PLAN AMENDMENT OR WAIVER PROGRAM THAT A COUNTY BOARD HAS AUTHORITY TO
ADMINISTER OR WITH RESPECT TO WHICH IT HAS AUTHORITY TO PROVIDE SERVICES,
PROGRAMS, OR SUPPORTS.
Sec. 5126.044. (A) As used in this section,
"eligible person" has the same meaning as
in section 5126.03 of the Revised Code.
(B) Except as provided in division (D) of this section, no
person shall disclose the identity of an individual who requests
programs or services under this chapter or release a record or
report regarding an eligible person that is maintained by a
county board of mental retardation and developmental disabilities
or an entity under contract with a county board unless one of the
following circumstances exists:
(1) The individual, eligible person, or the individual's
guardian, or, if the individual is a minor, the
individual's parent or guardian, makes a written request
to the county board or entity for or approves in writing
disclosure of the individual's identity or release of the record
or report regarding the eligible person.
(2) Disclosure of the identity of an individual is needed
for approval of a direct services contract under section 5126.032
or 5126.033 of the Revised Code. The county board shall release
only the individual's name and the general nature of the services
to be provided.
(3) Disclosure of the identity of the individual is needed
to ascertain that the county board's waiting lists for programs
or services are being maintained in accordance with section
5126.042 of the Revised Code and the rules adopted under that
section. The county board shall release only the individual's
name, the general nature of the programs or services to be
provided the individual, the individual's rank on each
waiting list that
includes the individual, and any circumstances under which the
individual was given priority when placed on a waiting list.
(C) A board or entity that discloses an individual's
identity or releases a record or report regarding an eligible
person shall maintain a record of when and to whom the disclosure
or release was made.
(D)(1) At the request of an eligible person or the person's
guardian or, if the eligible person is a minor,
the person's parent or guardian, a county
board or entity under contract with a county board shall provide
the person who made the request access to records and reports
regarding the eligible person. On written request, the county
board or entity shall provide copies of the records and reports
to the eligible person, guardian, or parent. The county board or
entity may charge a reasonable fee to cover the costs of copying. The county
board or entity may waive the fee in cases of hardship.
(2) A county board shall provide access to any waiting
list or record or report regarding an eligible person maintained by the board
to any state agency responsible for monitoring and reviewing programs
and services provided or arranged by the county board, any state
agency involved in the coordination of services for an eligible
person, and any agency under contract with the department of
mental retardation and developmental disabilities for the
provision of protective service pursuant to section 5123.56 of
the Revised Code.
(3) WHEN AN ELIGIBLE PERSON WHO REQUESTS PROGRAMS OR SERVICES
UNDER THIS CHAPTER DIES, THE COUNTY BOARD OR ENTITY UNDER CONTRACT
WITH THE COUNTY BOARD, SHALL, ON WRITTEN REQUEST, PROVIDE TO BOTH OF THE
FOLLOWING PERSONS ANY REPORTS AND RECORDS
IN THE BOARD OR ENTITY'S POSSESSION CONCERNING THE ELIGIBLE
PERSON:
(a) IF THE REPORT OR RECORDS ARE NECESSARY TO ADMINISTER THE
ESTATE OF THE PERSON WHO IS THE SUBJECT OF THE REPORTS OR RECORDS,
TO THE EXECUTOR OR ADMINISTRATOR OF
THE PERSON'S ESTATE;
(b) TO THE GUARDIAN OF THE PERSON WHO IS THE SUBJECT OF THE
REPORTS OR RECORDS OR, IF THE INDIVIDUAL HAD NO GUARDIAN AT THE TIME
OF DEATH, TO A PERSON IN THE
FIRST APPLICABLE OF THE FOLLOWING CATEGORIES:
(i) THE PERSON'S SPOUSE;
(ii) THE PERSON'S CHILDREN;
(iii) THE PERSON'S PARENTS;
(iv) THE PERSON'S BROTHERS OR SISTERS;
(v) THE PERSON'S UNCLES OR AUNTS;
(vi) THE PERSON'S CLOSEST RELATIVE BY BLOOD OR ADOPTION;
(vii) THE PERSON'S CLOSEST RELATIVE BY MARRIAGE.
THE COUNTY BOARD OR ENTITY SHALL PROVIDE THE REPORTS AND RECORDS
AS REQUIRED BY DIVISION (D)(3) OF THIS SECTION NOT LATER THAN
THIRTY DAYS AFTER RECEIPT OF THE REQUEST.
(E) A county board shall notify an eligible person, the
person's
guardian, or, if the eligible person is a minor, the person's parent or
guardian, prior to destroying any record or report regarding the eligible
person.
Sec. 5126.081. (A) In
addition to the rules adopted under division
(A)(2) of section 5126.08 of the Revised
Code establishing standards for
the administration, provision, arrangement, and operation of
programs and services by county boards of mental retardation and
developmental disabilities, the department of mental retardation
and developmental disabilities shall establish a system of
accreditation for county boards of mental retardation and
developmental disabilities to ensure that the boards are in
compliance with federal and state statutes and rules. The
department shall establish uniform standards for the
accreditation system in ADOPT rules that shall be adopted in
accordance with Chapter 119. of
the Revised Code GOVERNING THE SYSTEM OF ACCREDITATION. The rules
shall include
appropriate timelines for compliance when a board is found to be
not in compliance and appropriate actions to be taken by boards
in complying with the accreditation standards REQUIREMENTS.
(B) Prior to accrediting
a board, the department shall conduct a comprehensive, on-site
review of the board. During the review, the department shall
document the board's compliance with the department's
accreditation standards REQUIREMENTS. After completing the
review, the
department shall conduct an exit conference with the president
of the board, the superintendent of the board, and any other
officials the board asks to have present. The department shall
discuss its findings from the review with the board's
representatives and provide a written report of its findings not
later than thirty days following the exit conference. If the
department finds that the board is in compliance with the
standards REQUIREMENTS for accreditation, the department shall
issue evidence
of accreditation to the board.
Accreditation may be granted for periods of up to five
years and may be renewed. Not less than once prior to the date
a board's accreditation is scheduled to expire, the department
shall conduct a comprehensive, on-site review of the
board.
Each board shall conduct an annual audit of itself to
evaluate its compliance with the standards REQUIREMENTS for
accreditation. The department may conduct an interim review of any new
program
or service initiated by a board after its last comprehensive
review. The department may conduct other reviews and
investigations as necessary to enforce this section.
(C) If the department
determines through its review of a board that the board is not
in compliance with the standards REQUIREMENTS for accreditation,
the department shall, except as provided in division
(F) of this section, grant the
board an opportunity to correct the matters in which it is not
in compliance. The department shall grant the board an
appropriate length of time to comply with the standards
REQUIREMENTS prior to taking any action to deny accreditation to the
board. To avoid
denial of accreditation, the board superintendent shall prepare
a plan of correction to remediate the matters specified in the
department's written report as not being in compliance with the
standards REQUIREMENTS for accreditation. The superintendent
shall submit the plan to the board for review, and the board shall
review the
plan. If the board believes that the plan is sufficient to
correct the matters, the board shall approve the plan by
resolution and submit the plan to the department for its
review. The department shall review the plan of correction. If the
department approves the plan, the board shall commence action to
implement the plan. The department shall, as necessary, conduct
follow-up reviews of the board to determine whether it has met
the standards REQUIREMENTS for accreditation. If the plan of
correction submitted by a board is disapproved, the department shall inform
the board of the reasons for disapproval and may grant the board
an opportunity to submit a revised plan of correction.
A board may request technical assistance from the
department, other boards, or professional organizations in
preparing plans of correction and in implementing plans of
correction.
(D) If, after being
given the opportunity to implement a plan of correction, a board
continues to fail to meet the standards REQUIREMENTS for
accreditation, the
department shall issue an order denying accreditation to the
board. The department may deny accreditation to the board for
all or part of the programs or services offered by the
board.
The department shall simultaneously notify all of the
following officials in the county: the members of the board of
county commissioners, the probate judge, the county auditor, and
the president and superintendent of the county board of mental
retardation and developmental disabilities. The notice shall
identify the programs and services that have been denied
accreditation, the matters in REQUIREMENTS FOR ACCREDITATION
WITH
which the board is not in
compliance with the standards for accreditation, and the
responsibilities of the county officials to contract under
division (E)(1) of this section
to have the BOARD'S programs and services administered by another party
or become subject to administrative receivership under division
(E)(2) of this section.
A board that has been denied accreditation is not eligible
to receive, for the programs and services that are the subject
of the denied accreditation, any state or federal funds in an
amount that exceeds the amount the board received for the
programs and services immediately prior to the date on which the
department determined that the board does not meet the standards
for accreditation.
(E)(1) When a board
is denied accreditation, the department shall first give the
board the option of contracting to have the BOARD'S programs and
services that were denied accreditation administered by an
accredited county board of mental retardation and developmental
disabilities or another qualified entity subject to the approval
of the department. The board may contract with more than one
board that has been accredited. When a board enters into a
contract, the board shall, by resolution, give the contractor
full administrative authority over the programs and services
that were denied accreditation THE CONTRACTOR WILL ADMINISTER.
(2) If a board fails to exercise its option of
entering into a contract under division
(E)(1) of this section sooner
than thirty days after the department denies accreditation, the
department shall appoint an administrative receiver of the
BOARD'S programs and services that were denied accreditation.
The
department may appoint employees of the department, management
personnel from county boards of mental retardation and
developmental disabilities, or individuals from other entities
as necessary to meet its needs for appointing an administrative
receiver, except that individuals from other entities may be
appointed only when qualified department employees or board
management personnel are unavailable. The department may not
appoint an individual who is employed by or affiliated with an
entity that is under contract with the board. The
administrative receiver shall assume full administrative
responsibility for the BOARD'S programs and services that were
denied accreditation.
(3) The board or entity that contracts with a board
under division (E)(1) of this
section, or the administrative receiver appointed under division
(E)(2) of this section, shall
develop and implement a plan of correction to remediate the
matters that caused the department to deny accreditation. The
contractor or administrative receiver shall submit the plan to
the department, and the department shall review the plan. If the
plan is approved by the department, the contractor or
administrative receiver shall commence action to implement the
plan. The contractor or administrative receiver shall report to
the department any findings it can make pertaining to issues or
circumstances that are beyond the control of the board and
result in the unlikelihood that compliance with the standards
REQUIREMENTS for accreditation can be achieved unless the issues or
circumstances are remediated.
(4) For purposes of divisions
(E)(1) and (2) of this section,
the department shall require the board that has been denied
accreditation to transfer control of state and federal funds it
is eligible to receive for the BOARD'S programs and services that
have been denied accreditation in an amount necessary for the
contractor or administrative receiver to fulfill its duties in
administering the programs and services for the board. The
transfer of control of funds does not cause any programs and
services of the board that are accredited to lose their
accreditation. If the board refuses to transfer control of
funds, the department may withhold state and federal funds from
the board in an amount necessary for the contractor or
administrative receiver to fulfill its duties. The amount
transferred or withheld from a board shall include
reimbursements for the personnel of the contractor or
administrative receiver, including amounts for time worked,
travel, and related expenses.
A contractor or administrative receiver that has
assumed the administration of a board's programs and services
has the right to authorize the payment of bills in the same
manner that a board may authorize payment of bills under this
chapter and section 319.16 of the Revised Code.
(F) When the
department's review of a board reveals serious health and safety
issues within the programs and services offered by the board,
the department shall order the board to correct the violations
immediately or appoint an administrative receiver.
(G) At any time a board
can demonstrate that it is capable of assuming its duties in
compliance with the department's standards REQUIREMENTS for
accreditation,
the department shall reverse its order denying accreditation and
issue evidence of accreditation to the board.
A board may appeal the department's denial of accreditation or
refusal to reverse a denial of accreditation only by filing a
complaint under section 5123.043 of the Revised
Code. If in its appeal the board can demonstrate that it
is capable of assuming its duties in compliance with the
department's standards REQUIREMENTS for accreditation, the
department shall
reverse its order denying accreditation and shall issue evidence
of accreditation to the board.
(H) All notices issued
to a board by the department under this section shall be
delivered to the board's president and superintendent.
(I) A board's
president may designate another member of the board as the individual to be
responsible for fulfilling all or part of
the president's responsibilities established under this
section.
Sec. 5126.082. (A) In
addition to the rules adopted under division
(A)(2) of section 5126.08 of
the Revised Code establishing standards to
be followed by county boards of mental retardation and
developmental disabilities in administering, providing,
arranging, and operating programs and services and in addition
to the board accreditation system established under section
5126.081 of the Revised
Code, the director of mental
retardation and developmental disabilities shall adopt rules in
accordance with Chapter 119. of
the Revised Code establishing standards for
promoting and advancing the quality of life of individuals with
mental retardation and developmental disabilities receiving any
of the following:
(1) Early childhood services pursuant to section 5126.05
of the Revised
Code for children under age
three;
(2) Adult services pursuant to section 5126.05 and
division (B) of section
5126.051 of the Revised
Code for individuals age
sixteen or older;
(3) Family support services pursuant to section 5126.11
of the Revised
Code.
(B) The rules adopted
under this section shall specify the actions county boards of
mental retardation and developmental disabilities and the
agencies with which they contract should take to do the
following:
(1) Offer individuals with mental retardation and
developmental disabilities, and their families when appropriate,
choices in programs and services that are centered on the needs
and desires of those individuals;
(2) Maintain infants with their families whenever
possible by collaborating with other agencies that provide
services to infants and their families and taking other
appropriate actions;
(3) Provide families that have children with mental
retardation and developmental disabilities under age eighteen
residing in their homes the resources necessary to allow the
children to remain in their homes;
(4) Create and implement community employment services
based on the needs and desires of adults with mental retardation
and developmental disabilities;
(5) Create, in collaboration with other agencies,
transportation systems that provide safe and accessible
transportation within the county to individuals with
disabilities;
(6) Provide services that allow individuals with
disabilities to be integrated into the community by engaging in
educational, vocational, and recreational activities with
individuals who are DO not handicapped HAVE
DISABILITIES;
(7) Provide age-appropriate retirement services for
individuals age sixty-five and older with mental retardation and
developmental disabilities;
(8) Establish residential services and supported
living for individuals with mental retardation and developmental
disabilities in accordance with their needs.
(C) To assist in funding
programs and services that meet the standards established under
this section, each county board of mental retardation and
developmental disabilities shall make a good faith effort to
acquire available federal funds, including reimbursements under
Title XIX of the "Social Security
Act," 49 79 Stat. 620 (1935) 286 (1965), 42
U.S.C.A. 301 1396, as amended.
(D) Each county board of
mental retardation and developmental disabilities shall work
toward full compliance with the standards established under this
section, based on its available resources. Funds received under
this chapter shall be used to comply with the standards.
Annually, each board shall submit a report to the department of
mental retardation and developmental disabilities regarding CONDUCT A
SELF AUDIT TO EVALUATE the
board's progress in complying fully with the standards.
(E) The department
shall complete a program quality review of each county board of
mental retardation and developmental disabilities to determine
the extent to which the board has complied with the standards.
The review shall be conducted in conjunction with the
comprehensive accreditation review of the board that is
conducted under section 5126.081 of the
Revised Code.
Notwithstanding any provision of this chapter or
Chapter 5123. of the
Revised Code requiring the department
to distribute funds to county boards of mental retardation and
developmental disabilities, the department may withhold funds
from a board if it finds that the board is not in substantial
compliance with the standards established under this
section.
(F) When the standards
for accreditation from the commission on accreditation of
rehabilitation facilities, or another accrediting agency, meet
or exceed the standards established under this section, the
director may accept accreditation from the commission or other
agency as evidence that the board is in compliance with all or
part of the standards established under this section. Programs
and services accredited by the commission or agency are exempt
from the program quality reviews required by division
(E) of this section.
Sec. 5126.12. (A) As used in this section:
(1) "Approved school age unit" means a class or unit operated by a
county board of
mental
retardation and developmental disabilities and approved by the
state board of education under division (D) of section 3317.05
of the Revised Code.
(2) "Approved preschool unit" means a class or unit operated by a
county board of mental retardation and developmental disabilities and approved
by the state board of education under division (B) of section 3317.05
of the Revised Code.
(3) "Active treatment" means a continuous treatment
program, which includes aggressive, consistent implementation of
a program of specialized and generic training, treatment, health
services, and related services, that is directed toward the
acquisition of behaviors necessary for an individual with mental retardation
or other developmental disability to function with
as much self-determination and independence as possible and
toward the prevention of deceleration, regression, or loss of
current optimal functional status.
(4) "Eligible for active treatment" means that an
individual with
mental retardation or other developmental disability resides in an
intermediate care facility for the mentally retarded certified
under Title XIX of the "Social Security Act," 49 Stat. 620
(1935), 42 U.S.C. 301, as amended; resides in a state institution
operated by the department of mental retardation and
developmental disabilities; or is enrolled in a home and
community-based services waiver program administered by
the department of mental retardation and developmental
disabilities as part of the medical assistance
program established under section 5111.01 of the Revised Code.
(5) "Community alternative funding system" means the
program under which habilitation services are reimbursed under
the medical assistance program pursuant to section 5111.041 of
the Revised Code and rules adopted under that section.
(6) "Community employment program" means community
employment services provided outside of a sheltered workshop
setting under which the person earns competitive wages for the
performance of work.
(7) "Traditional adult services" means vocational and
nonvocational activities conducted within a sheltered workshop or
adult activity center or supportive home services.
(B) Each county board of mental retardation and
developmental disabilities shall certify to the director of
mental retardation and developmental disabilities all of the following:
(1) On or before the fifteenth day of October, the average daily
membership for the first full week of programs and services
during October receiving:
(a) Early childhood services provided pursuant to section
5126.05 of the Revised Code for children who are less than three
years of age on the thirtieth day of September of the academic
year;
(b) Special education for handicapped children in approved school age
units;
(c) Adult services for persons sixteen years of age and
older operated pursuant to section 5126.05 and division (B) of
section 5126.051 of the Revised Code. Separate counts shall be made for
the following:
(i) Persons enrolled in traditional adult services who are
eligible for but not enrolled in active treatment under the
community alternative funding system;
(ii) Persons enrolled in traditional adult services who
are eligible for and enrolled in active treatment under the
community alternative funding system;
(iii) Persons enrolled in traditional adult services but
who are not eligible for active treatment under the community
alternative funding system;
(iv) Persons participating in community employment
services. To be counted as participating in community employment
services, a person must have spent an average of no less than
twenty TEN hours per week in such THAT employment
during the preceding six
months.
(d) Other programs in the county for individuals with mental
retardation and developmental disabilities that have been approved for
payment of subsidy by the department of mental retardation and
developmental disabilities.
The membership in each such program and service in the
county shall be reported on forms prescribed by the department of
mental retardation and developmental disabilities.
The department of mental retardation and developmental
disabilities shall adopt rules defining full-time equivalent
enrollees and for determining the
average daily membership therefrom, except that
certification
of average daily membership in approved school age
units shall be
in accordance with
rules adopted by the state board of education. The average daily
membership figure shall be determined by dividing the amount
representing the sum of the number of enrollees in each program or
service in the week for which the certification
is made by the number of days the program or
service was
offered
in that week. No enrollee may be counted in average daily
membership for more than one program or service.
(2) By the fifteenth day of December, the number of children
enrolled in approved preschool units on the first day of December;
(3) By ON OR BEFORE the fifteenth THIRTIETH day
of February MARCH, an itemized report
of ALL INCOME AND OPERATING expenditures for the IMMEDIATELY
preceding calendar year which have been approved for reimbursement by the
director, IN THE FORMAT SPECIFIED BY THE DEPARTMENT OF MENTAL
RETARDATION AND DEVELOPMENTAL DISABILITIES;
(4) By the fifteenth day of February, a report of the
total annual cost per enrollee for operation of
programs and services in the preceding calendar year. The report
shall include a grand total of all programs operated, the cost of
the individual programs, and the sources of funds applied to each
program.
(5) That each required certification and report is in
accordance with rules established by the department of mental
retardation and developmental disabilities and the state board of
education for the operation and subsidization of the programs and
services.
(C) To compute payments under this section to the board
for the fiscal year, the department of mental retardation and
developmental disabilities shall use the
certification of
average daily membership required by division (B)(1) of this
section exclusive of the average daily membership in any approved
school age unit and the number in any approved preschool unit.
(D) The department shall pay each county board for each fiscal
year an amount equal to nine hundred fifty dollars
times the
certified number of persons who on the
first day of December
of the academic year are under three
years of age and are not in an approved preschool
unit. For persons who are
at least age sixteen and are not in an approved school age
unit, the department shall pay
each county board for each fiscal year the following amounts:
(1) One thousand dollars times the certified average daily
membership of persons enrolled in traditional adult services who
are eligible for but not enrolled in active treatment under the
community alternative funding system;
(2) One thousand two hundred dollars times the certified
average daily membership of persons enrolled in traditional adult
services who are eligible for and enrolled in active treatment
under the community alternative funding system;
(3) No less than one thousand five hundred dollars times
the certified average daily membership of persons enrolled in
traditional adult services but who are not eligible for active
treatment under the community alternative funding system;
(4) No less than one thousand five hundred dollars times
the certified average daily membership of persons participating
in community employment services.
(E) The department shall distribute this subsidy to county
boards in semiannual installments of equal amounts. The
installments shall be made not later
than the thirty-first day of August and the thirty-first day of
January.
(F) The director of mental retardation and developmental
disabilities shall make efforts to obtain increases in the
subsidies for early childhood services and adult services so that
the amount of the subsidies is equal to at least fifty per cent
of the statewide average cost of those services minus any
applicable federal reimbursements for those services. The
director shall advise the director of budget and management of
the need for any such increases when submitting the biennial
appropriations request for the department.
(G) In determining the reimbursement of a county board for
the provision of case management and family support
services and
other services required or approved by the director for which
children three through twenty-one years of age are eligible, the
department shall include the average daily membership in approved
school age or preschool units. The department, in accordance with this
section and upon receipt and approval of the certification required
by this section and any other information it requires to enable it to
determine a board's payments, shall pay the agency providing the
specialized training the amounts payable under this section.
Sec. 5126.13. (A) A county board of mental retardation and
developmental disabilities may enter into an agreement with one
or more other county boards of mental retardation and
developmental disabilities to establish a regional council in
accordance with Chapter 167. of the Revised Code. The agreement
shall specify the duties and functions to be performed by the
council, which may include any duty or function a county board is
required or authorized to perform under this chapter. If
directed to do so by a resolution adopted by a county board that
is a member of a regional council, the department of mental
retardation and developmental disabilities shall make any
distributions of money for that county for the duties or
functions performed by the council pursuant to its agreement that
are otherwise required to be made to the county board under this
chapter to the fiscal officer of the council designated under
section 167.04 of the Revised Code.
A county board may also enter into an agreement with one or
more school districts or other political subdivisions to
establish a regional council in accordance with Chapter 167. of
the Revised Code.
(B) ON OR BEFORE THE THIRTIETH DAY OF MARCH, THE FISCAL
OFFICER OF A REGIONAL COUNCIL DESCRIBED IN THIS SECTION SHALL REPORT TO THE
DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, IN THE FORMAT
SPECIFIED BY THE DEPARTMENT, ALL INCOME AND OPERATING EXPENDITURES OF THE
COUNCIL FOR THE IMMEDIATELY PRECEDING CALENDAR YEAR.
Sec. 5126.252. NOTWITHSTANDING SECTIONS 5123.082, 5126.25, AND 5126.26
of the Revised Code, THE DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES MAY
AUTHORIZE COUNTY BOARDS OF MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES TO ESTABLISH AND ADMINISTER IN THEIR COUNTIES
PROGRAMS FOR THE CERTIFICATION AND REGISTRATION OF PERSONS FOR EMPLOYMENT BY
THE BOARDS. A CERTIFICATE OR
EVIDENCE OF REGISTRATION ISSUED BY A BOARD PARTICIPATING IN PROGRAMS
UNDER THIS SECTION SHALL HAVE THE SAME FORCE AND EFFECT AS A
CERTIFICATE OR EVIDENCE OF REGISTRATION ISSUED BY THE DEPARTMENT UNDER SECTION
5123.082 OR 5126.25 of the Revised Code.
Sec. 5126.28. (A) As used in this section:
(1) "Applicant" means a person who is under final
consideration for appointment or employment in a position with a
county board of mental retardation and developmental
disabilities, INCLUDING, BUT NOT LIMITED TO, A PERSON WHO IS BEING
TRANSFERRED TO THE COUNTY BOARD AND AN EMPLOYEE WHO IS BEING RECALLED OR
REEMPLOYED AFTER A LAYOFF.
(2) "Criminal records check" has the same meaning as in
section 109.572 of the Revised Code.
(3) "Minor drug possession offense" has the same meaning as in section
2925.01 of the Revised Code.
(B) The superintendent of a county board of mental
retardation and developmental disabilities shall request the
superintendent of the bureau of criminal identification and
investigation to conduct a criminal records check with respect to
any applicant who has applied to the board for employment in any
position, except that a county board superintendent is not required
to request a criminal records check for an employee of the board who is
being considered for a different position or is returning after
a leave of absence or seasonal break in employment, as long as the
superintendent has no reason to believe that the employee has committed any of
the offenses listed or described in division (E) of this
section.
If the applicant does not present proof that the
applicant has been a resident of this state for the five-year
period immediately prior to the date upon which the criminal
records check is requested, the county board superintendent shall
request that the superintendent of the bureau obtain
information
from the federal bureau of investigation as a part of the
criminal records check for the applicant. If the applicant
presents proof that the applicant has been a resident of this
state for that five-year period, the county board superintendent
may request that the superintendent of the bureau include
information from the federal bureau of investigation
in the
criminal records check. For purposes of this division, an
applicant may provide proof of residency in this state by
presenting, with a notarized statement asserting that the
applicant has been a resident of this state for that five-year
period, a valid driver's license, notification of registration as
an elector, a copy of an officially filed federal or state tax
form identifying the applicant's permanent residence, or any
other document the superintendent considers acceptable.
(C) The county board superintendent shall provide to each
applicant a copy of the form prescribed pursuant to division
(C)(2)(1) of section 109.572 of the Revised Code, provide to
each applicant a standard impression sheet
to obtain fingerprint
impressions prescribed pursuant to division (C)(2) of section
109.572 of the Revised Code, obtain the completed form and
impression sheet from each applicant, and forward the completed
form and impression sheet to the superintendent of the
bureau of
criminal identification and investigation at the time the
criminal records check is requested.
Any applicant who receives pursuant to this division a copy
of the form prescribed pursuant to division (C)(1) of section
109.572 of the Revised Code and a copy of an impression sheet
prescribed pursuant to division (C)(2) of that section and who is
requested to complete the form and provide a set of fingerprint
impressions shall complete the form or provide all the
information necessary to complete the form and shall provide the
impression sheet with the impressions of the
applicant's fingerprints. If an
applicant, upon request, fails to provide the information
necessary to complete the form or fails to provide impressions of
the applicant's fingerprints, the county board superintendent shall not
employ that applicant.
(D) A county board superintendent may request any other
state or federal agency to supply the board with a written
report regarding the criminal record of each applicant. With regard to an
applicant who becomes a board employee, if the employee
holds an occupational or professional license or other credentials, the
superintendent may request that the state or federal agency that regulates the
employee's occupation or profession supply the board with a written report of
any information pertaining to the employee's criminal record that the agency
obtains in the course of conducting an investigation or in the process of
renewing the employee's license or other credentials.
(E) Except as provided in division (K)(2) of this section
and in rules adopted by the department of mental retardation and
developmental disabilities in accordance with division (M) of
this section, no county board of mental retardation and
developmental disabilities shall employ a person to fill a
position with the board who has been convicted of or pleaded
guilty to any of the following:
(1) A violation of section 2903.01, 2903.02, 2903.03,
2903.04, 2903.11, 2903.12, 2903.13, 2903.16, 2903.21, 2903.34,
2905.01, 2905.02, 2905.05, 2907.02, 2907.03, 2907.04,
2907.05, 2907.06, 2907.07, 2907.08, 2907.09, 2907.21,
2907.22, 2907.23, 2907.25, 2907.31, 2907.32, 2907.321, 2907.322,
2907.323, 2911.01, 2911.02, 2911.11, 2911.12, 2919.12, 2919.22,
2919.24, 2919.25, 2923.12, 2923.13, 2923.161, 2925.02, 2925.03,
2925.04, 2925.05, 2925.06, or 3716.11 of the Revised Code, a violation of
section 2905.04 of the Revised Code as it existed prior to July 1, 1996, a
violation of section 2919.23 of the Revised Code that would have been a
violation of section 2905.04 of the Revised Code as it existed prior to July
1, 1996, had the violation occurred prior to that date, a violation of
section 2925.11 of the Revised Code that is not a minor drug possession
offense, or felonious sexual penetration in violation of former
section 2907.12 of the Revised Code;
(2) A felony contained in the Revised Code that is not
listed in this division, if the felony bears a direct and
substantial relationship to the duties and responsibilities of
the position being filled;
(3) ANY OFFENSE CONTAINED IN THE
REVISED CODE CONSTITUTING A MISDEMEANOR OF THE FIRST DEGREE
ON THE FIRST OFFENSE AND A FELONY ON A SUBSEQUENT OFFENSE, IF THE OFFENSE
BEARS A DIRECT AND SUBSTANTIAL RELATIONSHIP TO THE POSITION BEING FILLED AND
THE NATURE OF THE SERVICES BEING PROVIDED BY THE COUNTY BOARD;
(4) A violation of an existing or former MUNICIPAL ORDINANCE
OR
law of
this state, any other state, or the United States, if the offense is
substantially equivalent to any of the offenses LISTED OR described in
division (E)(1) or, (2), OR (3) of this
section.
(F) Prior to employing an applicant, the county board
superintendent shall require the applicant to submit a statement
with the applicant's signature attesting that the applicant has not been
convicted of or pleaded guilty to any of the offenses LISTED OR
described in division
(E) of this section. The superintendent also shall require the applicant
to sign an agreement
under which the applicant agrees to notify the superintendent WITHIN
FOURTEEN CALENDAR DAYS if, while
employed by the board, the person APPLICANT is ever
formally
charged for WITH, CONVICTED OF, OR PLEADS GUILTY TO any of the
offenses listed or described in division
(E) of this section. The agreement shall
inform the applicant that failure to report formal charges, A
CONVICTION, OR A GUILTY PLEA may result in being
dismissed from employment.
(G) A county board of mental retardation and
developmental disabilities shall pay to the bureau of criminal
identification and investigation the fee prescribed pursuant to
division (C)(2)(3) of section 109.572 of the Revised Code for
each criminal records check requested and conducted pursuant to this
section.
(H)(1) Any report obtained pursuant to this section is not
a public record for purposes of section 149.43 of the Revised
Code and shall not be made available to any person, other than
the applicant who is the subject of the records check or criminal
records check or the applicant's representative, the board requesting
the records check or criminal records check or its
representative, the department of mental
retardation and developmental disabilities,
and any court, hearing officer, or other
necessary individual involved in a case dealing with the denial
of employment to the applicant or the denial, suspension, or
revocation of a certificate or evidence of registration under
section 5126.25 of the Revised Code.
(2) An individual for whom a county board superintendent
has obtained reports under this section may submit a written request to the
county board to have copies of the
reports sent to any state agency, entity of local government, or
private entity. The individual shall specify in the request the
AGENCIES OR entities to which the copies are to be sent. On receiving
the
request, the county board shall send copies of the reports to the
AGENCIES OR entities specified.
A county board may request that a state agency, entity of
local government, or private entity send copies to the board of
any report regarding a records check or criminal records check
that the AGENCY OR entity possesses, if the county board obtains the
written consent of the individual who is the subject of the
report.
(I) Each county board superintendent shall request the
registrar of motor vehicles to supply the superintendent with a certified
abstract regarding the record of convictions for violations of
motor vehicle laws of each applicant who will be required by the applicant's
employment to transport individuals with mental retardation or
developmental disabilities or to operate the board's vehicles for
any other purpose. For each abstract provided under this
section, the board shall pay the amount specified in section
4509.05 of the Revised Code.
(J) The county board superintendent shall provide each
applicant with a copy of any report or abstract obtained about
the applicant under this section. The AT THE REQUEST OF THE
DIRECTOR OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES, THE
superintendent also shall provide
the department of mental retardation and developmental
disabilities DIRECTOR with a copy of each A report or
abstract obtained
under this section.
(K)(1) The county board superintendent shall inform each
person, at the time of the person's initial application for employment,
that the person is required to provide a set of impressions of the person's
fingerprints and that a criminal records check is required to be
conducted and satisfactorily completed in accordance with section
109.572 of the Revised Code if the person comes under final consideration
for appointment or employment as a precondition to employment for
that IN A position.
(2) A board may employ an applicant
pending receipt of reports requested under this section. The
board shall terminate employment of any such applicant if it is
determined from the reports that the applicant failed to inform the county
board that the applicant had been convicted of or pleaded guilty to any of
the offenses listed or described in division (E) of this section.
(L) The board may charge an applicant a fee for costs it
incurs in obtaining reports, abstracts, or fingerprint
impressions under this section. A fee charged under this
division shall not exceed the amount of the fees the board pays
under divisions (G) and (I) of this section. If a fee is charged
under this division, the board shall notify the applicant of the
amount of the fee at the time of the applicant's initial application for
employment and that, unless the fee is paid, the board will
not consider the applicant for employment.
(M) The department of mental retardation and developmental
disabilities shall adopt rules pursuant to Chapter 119. of the
Revised Code to implement this section and section 5126.281 of
the Revised Code, including rules specifying circumstances under
which a county board or contracting entity may hire a person who
has been convicted of OR PLEADED GUILTY TO an offense listed or
described in division (E) of
this section but who meets standards in regard to rehabilitation set
by the department.
Sec. 5126.281. (A) As used in this section, "contracting:
(1) "CONTRACTING
entity" means an entity under contract with a county board of
mental retardation and developmental disabilities for the
provision of direct SPECIALIZED services to individuals with
mental
retardation or a developmental disability.
(2) "DIRECT SERVICES POSITION" MEANS AN EMPLOYMENT POSITION IN
WHICH THE EMPLOYEE HAS PHYSICAL CONTACT WITH, THE OPPORTUNITY TO BE ALONE
WITH, OR EXERCISES SUPERVISION OR CONTROL
OVER ONE OR MORE INDIVIDUALS WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY.
(3) "SPECIALIZED SERVICES" MEANS ANY PROGRAM OR SERVICE DESIGNED
AND OPERATED TO SERVE PRIMARILY INDIVIDUALS WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY, INCLUDING A PROGRAM OR SERVICE PROVIDED
BY AN ENTITY LICENSED OR CERTIFIED BY THE DEPARTMENT OF MENTAL
RETARDATION AND DEVELOPMENTAL DISABILITIES. IF THERE IS A
QUESTION AS TO WHETHER A CONTRACTING ENTITY IS PROVIDING SPECIALIZED
SERVICES, THE CONTRACTING ENTITY MAY REQUEST THAT THE DIRECTOR OF
MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES MAKE A
DETERMINATION. THE DIRECTOR'S DETERMINATION IS FINAL.
(B) Each (1) EXCEPT AS PROVIDED IN DIVISION
(B)(2) OF
THIS SECTION, EACH contracting entity shall conduct background
investigations in the same manner county boards conduct
investigations under section 5126.28 of the Revised Code of all
persons under final consideration for employment with the
contracting entity in a DIRECT SERVICES position that involves
providing services
directly to individuals with mental retardation or a
developmental disability, except that a contracting entity is not
required to request a criminal records check for a direct services employee of
the entity who is being considered for a different direct services position or
is returning after a leave of absence or seasonal break in employment, as long
as the contracting entity has no reason to believe that the employee has
committed any of the offenses listed or described in division (E) of
section 5126.28 of the Revised Code. On request, the county board shall
assist a contracting entity in obtaining reports from the bureau
of criminal identification and investigation or any other state
or federal agency and in obtaining abstracts from the registrar
of motor vehicles.
(2) A CONTRACTING ENTITY IS NOT REQUIRED TO REQUEST A CRIMINAL
RECORDS CHECK FOR EITHER OF THE FOLLOWING:
(a) AN EMPLOYEE OF THE ENTITY WHO IS IN A DIRECT SERVICES
POSITION AND BEING CONSIDERED FOR A DIFFERENT DIRECT SERVICES POSITION OR IS
RETURNING AFTER A LEAVE
OF ABSENCE OR SEASONAL BREAK IN EMPLOYMENT, AS LONG AS THE
CONTRACTING ENTITY HAS NO REASON TO BELIEVE THAT THE EMPLOYEE HAS
COMMITTED ANY OF THE OFFENSES LISTED OR DESCRIBED IN DIVISION (E)
OF SECTION 5126.28 OF THE REVISED CODE;
(b)A PERSON WHO WILL PROVIDE ONLY RESPITE CARE UNDER A FAMILY
SUPPORT SERVICES PROGRAM ESTABLISHED UNDER SECTION 5126.11 OF THE
REVISED CODE, IF THE PERSON IS SELECTED BY A
FAMILY MEMBER OF THE INDIVIDUAL WITH MENTAL RETARDATION OR A DEVELOPMENTAL
DISABILITY WHO IS TO RECEIVE THE RESPITE
CARE.
(C) No contracting entity shall place a person in a
DIRECT SERVICES position that involves providing services directly
to individuals
with mental retardation or a developmental disability if the
person has been convicted of or pleaded guilty to any offense
listed or described in division (E) of section 5126.28 of the
Revised Code, unless the person meets the standards for
rehabilitation established by rules adopted under section 5126.28
of the Revised Code.
(D) A contracting entity may place a person in a DIRECT SERVICES
position that involves providing services directly to an individual with
mental retardation or a developmental disability pending receipt of
information concerning the
person's background investigation from the bureau of criminal
identification and investigation, the registrar of motor
vehicles, or any other state or federal agency if the person
submits to the contracting entity a statement with the
person's signature
that the person has not been convicted of or pleaded guilty
to any of the
offenses listed or described in division (E) of section 5126.28
of the Revised Code. No contracting entity shall fail to
terminate the placement of such person if the contracting entity
is informed that the person has been convicted of or pleaded
guilty to any of the offenses listed or described in division (E) of section
5126.28 of the Revised Code.
(E) Prior to employing a person in a direct services position, the
contracting entity shall require the person to submit a statement with the
applicant's signature attesting that the applicant has not been convicted of
or pleaded guilty to any of the offenses listed or described in division
(E) of section 5126.28 of the Revised Code. The contracting entity also shall
require the person to sign an agreement to notify the contracting entity
WITHIN FOURTEEN CALENDAR DAYS if,
while employed by the entity, the person is ever formally charged
for WITH, CONVICTED OF, OR PLEADS GUILTY TO any of
the offenses listed or described in division (E) of section 5126.28 of the
Revised Code. The agreement shall inform the person that failure to report
formal charges, A CONVICTION, OR A GUILTY PLEA may result in
being dismissed from employment.
(F) A county board may take appropriate action against a
contracting entity that violates this
section, including terminating the contracting entity's contract
with the board.
Sec. 5126.311. NOTWITHSTANDING THE REQUIREMENT OF SECTION
5126.31 OF THE REVISED CODE THAT A COUNTY BOARD OF MENTAL
RETARDATION AND DEVELOPMENTAL DISABILITIES REVIEW REPORTS OF ABUSE AND
NEGLECT, IF THE DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL
DISABILITIES OR A
COUNTY BOARD OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES
DETERMINES THAT IT WOULD BE INAPPROPRIATE FOR THE COUNTY BOARD TO
INVESTIGATE A REPORT OF ABUSE OR NEGLECT MADE UNDER SECTION
5123.61 OF THE REVISED CODE, AT THE REQUEST OF
THE DEPARTMENT OR
COUNTY BOARD, ONE OF THE FOLLOWING GOVERNMENT ENTITIES MAY REVIEW THE
REPORT INSTEAD OF THE COUNTY BOARD:
(A) ANOTHER COUNTY BOARD OF MENTAL RETARDATION AND DEVELOPMENTAL
DISABILITIES;
(B) THE DEPARTMENT;
(C) A REGIONAL COUNCIL OF GOVERNMENT ESTABLISHED PURSUANT TO
CHAPTER 167. OF THE REVISED CODE;
(D) ANY OTHER GOVERNMENT ENTITY AUTHORIZED TO INVESTIGATE REPORTS
OF ABUSE AND NEGLECT.
Sec. 5126.312. THE DEPARTMENT OF MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES SHALL ADOPT RULES ESTABLISHING MINIMUM
STANDARDS FOR THE TRAINING PROVIDED BY COUNTY BOARDS OF MENTAL
RETARDATION AND DEVELOPMENTAL DISABILITIES PURSUANT TO DIVISION
(F) OF SECTION 5126.31 OF THE
REVISED CODE. THE TRAINING
PROVIDED BY THE COUNTY BOARDS SHALL MEET THE MINIMUM STANDARDS PRESCRIBED
BY THE RULES.
Sec. 5126.357. (A) As used in this section:
(1) "In-home care" means the supportive services provided
within
the home of an individual who receives funding for the services as a county
board client, including any client who receives
residential services funded through
the medical assistance program's home and community-based services waivers
administered
by the department of mental retardation and developmental disabilities,
family support services provided under section 5126.11 of the
Revised
Code, or supported living provided in accordance with sections
5126.41 to 5126.47 of the Revised Code.
"In-home care" includes care that is provided outside a client's
home in places incidental to the home, and while traveling to places
incidental to the
home, except that "in-home care" does not include care provided
in the
facilities of a county board of mental retardation and
developmental disabilities or care provided in schools.
(2) "Parent" means either parent of a child, including an
adoptive
parent but not a foster parent.
(3) "Unlicensed in-home care worker" means an individual who
provides
in-home
care but is not a health care professional. A county board worker may be an
unlicensed in-home care worker.
(4) "FAMILY MEMBER" MEANS A PARENT, SIBLING, SPOUSE, SON,
DAUGHTER, GRANDPARENT, AUNT, UNCLE, COUSIN, OR GUARDIAN OF THE INDIVIDUAL WITH
MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY IF THE INDIVIDUAL WITH MENTAL
RETARDATION OR DEVELOPMENTAL DISABILITIES LIVES WITH THE PERSON AND IS
DEPENDENT ON THE PERSON TO THE EXTENT THAT, IF THE SUPPORTS WERE WITHDRAWN,
ANOTHER LIVING ARRANGEMENT WOULD HAVE TO BE FOUND.
(B) Except as provided in division (D) of this section,
the
parent or guardian A FAMILY MEMBER of an individual with mental
retardation or a developmental
disability who is not more than twenty-one years of age or the guardian of
an
individual with mental retardation or a developmental disability who is age
twenty-one or older may authorize an unlicensed in-home care worker to
give or
apply prescribed medication or perform other health care tasks as
part of the in-home care provided to the individual, if the parent or
guardian FAMILY MEMBER is the
primary supervisor of the care and the unlicensed in-home care worker has been
selected by the parent or guardian FAMILY MEMBER and is under
the direct
supervision of the
parent or guardian FAMILY MEMBER. Sections 4723.62 and 5126.351
to 5126.356
of the Revised Code do not apply to the in-home care
authorized by a parent or guardian FAMILY MEMBER under this
section. Instead, a parent or
guardian FAMILY MEMBER shall obtain a prescription, if
applicable, and written instructions from a health care
professional for the care to be provided to the individual. The parent
or guardian FAMILY MEMBER shall authorize the unlicensed in-home
care worker to provide the
care by preparing a written document granting the authority.
The parent or guardian FAMILY MEMBER shall provide the
unlicensed in-home care worker with
appropriate training and written instructions in accordance with
the instructions obtained from the health care professional.
(C) A parent or guardian FAMILY MEMBER who authorizes an
unlicensed in-home
care worker to
give or apply prescribed medication or perform other health care tasks retains
full responsibility for the health and safety of
the individual receiving the care and for ensuring that the worker
provides the care appropriately and safely. No
entity that funds or monitors the provision of in-home care
may be held liable for the results of the
care provided under this section by an unlicensed in-home care worker,
including
such entities as the county board of mental retardation and
developmental disabilities, any other entity that employs an unlicensed
in-home care worker, and the department of mental retardation and
developmental
disabilities.
An unlicensed in-home care worker who is authorized under this section by a
parent or guardian FAMILY MEMBER to provide care to an
individual may not be held liable for
any
injury caused in providing the care, unless the worker provides the care
in a manner that is not in accordance with the training and
instructions received or the worker acts in a manner that
constitutes wanton or reckless misconduct.
(D) A county board of mental retardation and developmental
disabilities may evaluate the authority granted by a parent or guardian
FAMILY MEMBER under
this section to an unlicensed in-home care worker at any time it considers
necessary and shall evaluate the authority on receipt of a complaint. If the
board determines that the parent or guardian A FAMILY MEMBER has
acted in a manner
that is inappropriate for the health and safety of the individual receiving
the services, the
authorization granted by the parent or guardian FAMILY MEMBER to
an unlicensed
in-home care worker is void, and the parent or guardian
FAMILY MEMBER may not authorize other
unlicensed in-home care workers to provide the care. In making such a
determination, the board shall use appropriately licensed health
care professionals and shall provide the parent or guardian FAMILY
MEMBER an
opportunity to file a complaint under section 5126.06 of the Revised Code.
Section 2. That existing sections 109.57, 109.572, 2108.50, 2111.13, 5123.01,
5123.02, 5123.041, 5123.042, 5123.05, 5123.082, 5123.09, 5123.092, 5123.11,
5123.17, 5123.18, 5123.181, 5123.183, 5123.19, 5123.21, 5123.27, 5123.34,
5123.351, 5123.353, 5123.55, 5123.62,
5123.63, 5123.64, 5123.67, 5123.801, 5123.85, 5123.89, 5123.93, 5126.02,
5126.023, 5126.042, 5126.044, 5126.081, 5126.082, 5126.12, 5126.13, 5126.28,
5126.281, and 5126.357
and sections 5123.081, 5123.16, 5123.231, and 5126.252 of the Revised Code
are hereby repealed.
Section 3. Section 5123.081 of the Revised Code, as repealed and reenacted by
this act, applies only to persons who apply for appointment to or
employment with the Department of Mental Retardation and
Developmental Disabilities on or after the effective date of this
act.
Section 4. The Joint Council on Mental Retardation and
Developmental Disabilities is retained pursuant to division (D) of
section 101.84 of the Revised Code and, pursuant to that section,
expires on December 31, 2004.
Section 5. As used in this section, "contractor" means a person
or government agency that has entered into a contract with the
Department of Mental Retardation and Developmental Disabilities
under section 5123.18 of the Revised Code to provide residential
services to individuals with mental retardation or developmental
disabilities.
A contractor is not required to repay the Department of Mental
Retardation and Developmental Disabilities the amount the
contractor received from the Department pursuant to a retroactive
rate increase the Department issued in April 1997. If, prior to
the effective date of this act, a contractor repaid the Department
the amount it received pursuant to that retroactive rate
increase, the Department shall return the payment to the
contractor. The payment shall be made from the purchase of service fund
established under section 5123.051 of the Revised Code. Neither that
retroactive rate increase nor a payment
the Department returns to a contractor under this section is an
amount payable to the state for the purpose of section 131.02 of
the Revised Code or subject to a reconciliation under division (O)
of section 5123.18 of the Revised Code.
Section 6. The repeal and reenactment of section 5126.252 of the
Revised Code by this act revives that section, except that this act makes that
section permanent, does not limit the programs established under that
section to pilot projects, and does not apply to employees of entities
contracting with a county board of mental retardation and developmental
disabilities.
Section 7. Section 109.57 of the Revised Code is presented in this act
as a composite of the section as amended by both
Am. Sub. H.B. 3 and Am. Sub. H.B. 282 of the 123rd General Assembly,
with the new language of neither of the acts shown in capital letters.
This is in recognition of the principle stated in division (B) of section
1.52 of the Revised Code that such amendments are to be
harmonized where not substantively irreconcilable and constitutes
a legislative finding that such are the resulting versions of those sections
in
effect prior to the effective date of this act.
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