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As Reported by House Children and Family Services Committee
123rd General Assembly
Regular Session
1999-2000 | Sub. S. B. No. 171 |
SENATORS SPADA-GARDNER-KEARNS-DRAKE-PRENTISS-JOHNSON-FINGERHUT-
ARMBRUSTER-BRADY-DiDONATO-HOTTINGER-LATELL-MUMPER-SCHAFRATH-
WACHTMANN-WATTS-LATTA-CUPP-NEIN-WHITE-ESPY-McLIN-HERINGTON
REPRESENTATIVES WINKLER-WILLAMOWSKI-O'BRIEN-SMITH-METZGER-
GRENDELL-A. CORE-PRINGLE-CALVERT-FLANNERY-CLANCY
A BILL
To amend sections 5123.61, 5126.28, 5126.30, 5126.31, and 5126.33 and
to enact sections 5123.50 to 5123.54 of the Revised Code to establish a
registry of persons found by the Department of Mental Retardation
and Developmental Disabilities to have abused or neglected an
individual with mental retardation or a developmental disability,
to prohibit employment of such persons in certain positions, to limit the
types of abuse and
neglect reports that are referred to law enforcement agencies, and to
authorize the Director of Mental Retardation and Developmental Disabilities to
adopt rules regarding mandatory reporting of certain incidents.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 5123.61, 5126.28, 5126.30, 5126.31, and
5126.33 be amended and sections 5123.50, 5123.51, 5123.52, 5123.53, and
5123.54 of the Revised
Code be enacted to read as follows:
Sec. 5123.50. AS USED IN THIS SECTION AND SECTIONS 5123.51 AND
5123.52 OF THE REVISED CODE:
(A) "ABUSE" MEANS ALL OF THE FOLLOWING:
(1) THE USE OF PHYSICAL FORCE THAT CAN REASONABLY BE EXPECTED TO RESULT IN
PHYSICAL HARM OR SERIOUS PHYSICAL HARM;
(2) SEXUAL ABUSE;
(3) VERBAL ABUSE.
(B) "MISAPPROPRIATION" MEANS DEPRIVING, DEFRAUDING, OR OTHERWISE
OBTAINING THE REAL OR PERSONAL PROPERTY OF AN INDIVIDUAL BY ANY MEANS
PROHIBITED BY THE REVISED CODE, INCLUDING VIOLATIONS OF
CHAPTER 2911. OR 2913. of the Revised Code.
(C) "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.
(D) "NEGLECT" MEANS, WHEN THERE IS A DUTY TO DO SO, FAILING TO
PROVIDE AN INDIVIDUAL WITH ANY
TREATMENT, CARE, GOODS, OR SERVICES THAT ARE NECESSARY TO MAINTAIN THE
HEALTH AND SAFETY OF THE INDIVIDUAL.
(E) "PHYSICAL HARM" AND "SERIOUS PHYSICAL HARM" HAVE THE SAME
MEANINGS AS IN SECTION 2901.01 OF THE REVISED CODE.
(F) "SEXUAL ABUSE" MEANS UNLAWFUL SEXUAL CONDUCT OR SEXUAL
CONTACT, AS THOSE TERMS ARE DEFINED IN SECTION 2907.01 of the Revised Code.
(G) "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. A PROGRAM OR SERVICE AVAILABLE TO THE
GENERAL PUBLIC IS NOT A SPECIALIZED SERVICE.
(H) "VERBAL ABUSE" MEANS PURPOSELY USING WORDS TO THREATEN,
COERCE, INTIMIDATE, HARASS, OR HUMILIATE AN INDIVIDUAL.
Sec. 5123.51. (A) IN ADDITION TO ANY OTHER ACTION REQUIRED BY
SECTIONS 5123.61 AND 5126.31 OF THE REVISED CODE, THE
DEPARTMENT OF MENTAL RETARDATION AND DEVELOPMENTAL DISABILITIES SHALL REVIEW
EACH REPORT THE DEPARTMENT RECEIVES OF ABUSE OR NEGLECT OF AN INDIVIDUAL
WITH MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY
OR MISAPPROPRIATION OF AN INDIVIDUAL'S PROPERTY THAT INCLUDES AN
ALLEGATION THAT AN MR/DD EMPLOYEE COMMITTED OR WAS RESPONSIBLE FOR
THE ABUSE, NEGLECT, OR MISAPPROPRIATION. THE DEPARTMENT SHALL REVIEW A REPORT
IT RECEIVES FROM A PUBLIC CHILDREN SERVICES AGENCY ONLY AFTER THE AGENCY
COMPLETES ITS INVESTIGATION PURSUANT TO SECTION 2151.421 OF THE
REVISED CODE.
(B) THE DEPARTMENT SHALL DO BOTH OF THE
FOLLOWING:
(1) INVESTIGATE THE ALLEGATION
OR ADOPT THE FINDINGS OF AN INVESTIGATION
OR REVIEW OF THE ALLEGATION CONDUCTED BY ANOTHER PERSON OR GOVERNMENT ENTITY
AND DETERMINE WHETHER THERE IS A REASONABLE BASIS FOR THE ALLEGATION;
(2) IF THE DEPARTMENT DETERMINES THAT THERE IS A REASONABLE BASIS FOR THE
ALLEGATION, CONDUCT AN ADJUDICATION PURSUANT TO CHAPTER 119.
of the Revised Code.
(C)(1) THE DEPARTMENT SHALL APPOINT AN
INDEPENDENT HEARING OFFICER TO CONDUCT ANY HEARING CONDUCTED PURSUANT TO
DIVISION (B)(2) OF THIS SECTION, EXCEPT THAT, IF THE HEARING
IS REGARDING AN EMPLOYEE OF THE DEPARTMENT WHO IS REPRESENTED BY A
UNION, THE DEPARTMENT AND A REPRESENTATIVE OF THE UNION SHALL JOINTLY
SELECT THE HEARING OFFICER.
(2) NO HEARING SHALL BE CONDUCTED
UNDER DIVISION (B)(2) OF THIS SECTION UNTIL ANY CRIMINAL PROCEEDING
OR COLLECTIVE BARGAINING ARBITRATION CONCERNING THE SAME ALLEGATION HAS
CONCLUDED.
(3) IN CONDUCTING A HEARING PURSUANT TO DIVISION (B)(2) OF THIS
SECTION, THE HEARING OFFICER SHALL DO BOTH OF THE FOLLOWING:
(a) DETERMINE WHETHER THERE IS CLEAR AND CONVINCING EVIDENCE THAT
THE MR/DD EMPLOYEE HAS DONE ANY OF THE FOLLOWING:
(i) MISAPPROPRIATED THE PROPERTY OF AN INDIVIDUAL WITH MENTAL
RETARDATION OR A DEVELOPMENTAL DISABILITY;
(ii) KNOWINGLY ABUSED OR NEGLECTED SUCH AN INDIVIDUAL;
(iii) RECKLESSLY ABUSED OR NEGLECTED SUCH AN INDIVIDUAL, WITH
RESULTING PHYSICAL HARM;
(iv) NEGLIGENTLY ABUSED OR NEGLECTED SUCH AN INDIVIDUAL, WITH
RESULTING SERIOUS PHYSICAL HARM.
(b) GIVE WEIGHT TO THE DECISION IN ANY COLLECTIVE BARGAINING
ARBITRATION REGARDING THE SAME ALLEGATION.
(D)(1) UNLESS THE DIRECTOR OF MENTAL RETARDATION AND
DEVELOPMENTAL
DISABILITIES DETERMINES THAT THERE ARE EXTENUATING CIRCUMSTANCES AND EXCEPT AS
PROVIDED IN DIVISIONS (D)(4) AND (E) OF THIS SECTION, THE
DIRECTOR SHALL
INCLUDE IN THE REGISTRY ESTABLISHED UNDER SECTION
5123.52 OF THE REVISED CODE THE NAME OF AN MR/DD
EMPLOYEE IF THE DIRECTOR FINDS THAT THERE IS CLEAR AND CONVINCING EVIDENCE
THAT THE
EMPLOYEE HAS DONE ONE OR MORE OF THE THINGS DESCRIBED IN DIVISION
(C)(3)(a) OF THIS SECTION.
(2) EXTENUATING CIRCUMSTANCES THE DIRECTOR MUST CONSIDER INCLUDE THE USE
OF PHYSICAL FORCE BY AN MR/DD EMPLOYEE THAT WAS NECESSARY AS
SELF-DEFENSE.
(3) IF THE DIRECTOR INCLUDES AN MR/DD EMPLOYEE IN
THE REGISTRY ESTABLISHED UNDER SECTION 5123.52 of the Revised Code, THE DIRECTOR SHALL NOTIFY
THE EMPLOYEE, THE PERSON OR GOVERNMENT ENTITY THAT EMPLOYS OR CONTRACTS WITH
THE EMPLOYEE,
THE INDIVIDUAL WITH MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY WHO WAS
THE SUBJECT OF
THE REPORT AND THAT INDIVIDUAL'S LEGAL GUARDIAN, IF ANY, THE ATTORNEY GENERAL,
AND THE PROSECUTING ATTORNEY OR OTHER
LAW ENFORCEMENT AGENCY. IF THE MR/DD EMPLOYEE HOLDS A
LICENSE,
CERTIFICATE, REGISTRATION, OR OTHER AUTHORIZATION TO ENGAGE IN A PROFESSION
ISSUED PURSUANT TO TITLE XLVII OF THE REVISED
CODE,
THE DIRECTOR SHALL NOTIFY THE APPROPRIATE AGENCY, BOARD, DEPARTMENT, OR
OTHER ENTITY
RESPONSIBLE FOR REGULATING THE EMPLOYEE'S PROFESSIONAL PRACTICE.
(4) THE DIRECTOR SHALL NOT INCLUDE IN THE REGISTRY AN INDIVIDUAL WHO
HAS BEEN FOUND NOT GUILTY BY A COURT OR JURY OF AN OFFENSE ARISING FROM THE
SAME FACTS.
(E) IN THE CASE OF AN ALLEGATION
CONCERNING AN EMPLOYEE OF THE DEPARTMENT, AFTER THE HEARING CONDUCTED
PURSUANT TO DIVISION (B)(2) OF THIS SECTION, THE DIRECTOR
OF HEALTH OR THAT DIRECTOR'S DESIGNEE SHALL REVIEW THE DECISION OF THE
HEARING OFFICER TO DETERMINE WHETHER THE STANDARD DESCRIBED
IN DIVISION (C)(2) OF THIS SECTION HAS BEEN MET. IF THE
DIRECTOR
OR DESIGNEE DETERMINES THAT THE STANDARD HAS BEEN MET AND THAT NO EXTENUATING
CIRCUMSTANCES EXIST, THE DIRECTOR
OR DESIGNEE SHALL NOTIFY THE DIRECTOR OF MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES THAT THE MR/DD EMPLOYEE IS TO BE
INCLUDED IN THE REGISTRY ESTABLISHED UNDER SECTION 5123.52 OF THE
REVISED CODE. IF THE DIRECTOR OF MENTAL
RETARDATION AND DEVELOPMENTAL DISABILITIES RECEIVES SUCH NOTIFICATION,
THE DIRECTOR SHALL INCLUDE THE MR/DD EMPLOYEE IN THE
REGISTRY, UNLESS DIVISION (D)(4) OF THIS SECTION APPLIES, AND
SHALL PROVIDE THE NOTIFICATION DESCRIBED IN DIVISION (D)(3) OF
THIS SECTION.
(F) FILES AND RECORDS OF INVESTIGATIONS CONDUCTED PURSUANT TO
THIS
SECTION ARE NOT PUBLIC RECORDS AS DEFINED IN SECTION 149.43 OF THE
REVISED CODE, BUT, ON REQUEST, THE DEPARTMENT SHALL PROVIDE
COPIES OF THOSE FILES AND RECORDS TO THE ATTORNEY GENERAL, A PROSECUTING
ATTORNEY, OR A LAW ENFORCEMENT AGENCY.
Sec. 5123.52. (A) THE DEPARTMENT OF MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES SHALL ESTABLISH A REGISTRY OF MR/DD
EMPLOYEES CONSISTING OF THE NAMES OF MR/DD EMPLOYEES INCLUDED IN
THE
REGISTRY PURSUANT TO SECTION 5123.51 of the Revised Code.
(B) BEFORE A PERSON OR GOVERNMENT ENTITY HIRES,
CONTRACTS WITH, OR EMPLOYS AN INDIVIDUAL AS AN MR/DD EMPLOYEE, THE
PERSON OR GOVERNMENT ENTITY SHALL INQUIRE WHETHER THE INDIVIDUAL IS INCLUDED
IN THE
REGISTRY.
(C) WHEN IT RECEIVES AN INQUIRY REGARDING WHETHER AN INDIVIDUAL
IS INCLUDED IN THE REGISTRY, THE DEPARTMENT SHALL INFORM THE
PERSON MAKING THE INQUIRY WHETHER THE INDIVIDUAL IS INCLUDED IN THE
REGISTRY.
(D)(1) EXCEPT AS OTHERWISE PROVIDED IN A COLLECTIVE BARGAINING
AGREEMENT ENTERED INTO UNDER CHAPTER 4117. OF THE REVISED
CODE
THAT IS IN EFFECT ON THE EFFECTIVE DATE OF THIS SECTION, NO PERSON OR
GOVERNMENT ENTITY SHALL HIRE, CONTRACT WITH, OR EMPLOY AS AN MR/DD
EMPLOYEE AN INDIVIDUAL WHO
IS INCLUDED IN THE REGISTRY. NOTWITHSTANDING SECTIONS 4117.08 AND
4117.10 OF THE REVISED CODE, NO AGREEMENT ENTERED INTO
UNDER CHAPTER 4117. OF THE REVISED CODE AFTER THE
EFFECTIVE DATE
OF THIS SECTION MAY CONTAIN ANY PROVISION THAT IN ANY WAY LIMITS THE
EFFECT OR OPERATION OF THIS SECTION.
(2) NEITHER THE DEPARTMENT NOR ANY COUNTY BOARD OF MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES MAY ENTER INTO A NEW CONTRACT OR RENEW A CONTRACT
WITH A PERSON OR GOVERNMENT ENTITY THAT FAILS TO COMPLY WITH DIVISION
(D)(1) OF THIS SECTION UNTIL THE DEPARTMENT OR
BOARD IS SATISFIED THAT THE PERSON OR GOVERNMENT ENTITY WILL COMPLY.
(3) A PERSON OR GOVERNMENT ENTITY THAT
FAILS TO HIRE OR RETAIN AS AN MR/DD EMPLOYEE A
PERSON BECAUSE THE PERSON IS INCLUDED IN THE REGISTRY SHALL NOT BE LIABLE
IN DAMAGES IN A CIVIL ACTION BROUGHT BY THE EMPLOYEE OR APPLICANT FOR
EMPLOYMENT. TERMINATION OF EMPLOYMENT PURSUANT TO
DIVISION (D)(1) OF THIS SECTION CONSTITUTES A DISCHARGE FOR JUST
CAUSE FOR THE PURPOSES OF SECTION 4141.29 OF THE REVISED
CODE.
(E) INFORMATION CONTAINED IN THE REGISTRY IS A PUBLIC RECORD FOR
THE PURPOSES OF SECTION 149.43 OF THE REVISED CODE AND IS
SUBJECT TO INSPECTION AND COPYING UNDER SECTION 1347.08 OF THE
REVISED
CODE.
Sec. 5123.53. AN INDIVIDUAL WHO IS INCLUDED
IN THE REGISTRY
MAY PETITION THE DIRECTOR OF MENTAL RETARDATION AND DEVELOPMENTAL
DISABILITIES FOR REMOVAL FROM THE REGISTRY. IF THE
DIRECTOR DETERMINES THAT GOOD CAUSE EXISTS, THE DIRECTOR SHALL
REMOVE THE INDIVIDUAL FROM THE REGISTRY AND MAY PROPERLY REPLY TO
AN INQUIRY THAT THE INDIVIDUAL IS NOT INCLUDED IN THE REGISTRY. GOOD CAUSE
INCLUDES MEETING
REHABILITATION STANDARDS ESTABLISHED IN RULES ADOPTED UNDER SECTION 5123.54 OF
THE REVISED CODE.
Sec. 5123.54. THE DIRECTOR OF MENTAL RETARDATION AND
DEVELOPMENTAL DISABILITIES SHALL ADOPT RULES UNDER CHAPTER
119. OF THE REVISED CODE TO IMPLEMENT SECTIONS 5123.51,
5123.52, AND 5123.53 OF THE REVISED CODE. THE RULES SHALL
ESTABLISH REHABILITATION STANDARDS FOR THE PURPOSES OF SECTION 5123.53 of the Revised Code
AND SPECIFY CIRCUMSTANCES, OTHER THAN MEETING THE STANDARDS, THAT CONSTITUTE
GOOD CAUSE FOR THE PURPOSES OF THAT SECTION.
Sec. 5123.61. (A) As used in this section:
(1) "Mentally retarded or developmentally disabled adult"
means a person who is eighteen years of age or older and is a
mentally retarded or developmentally disabled person.
(2) "Law enforcement agency" means the state highway
patrol, the police department of a municipal corporation, or a
county sheriff.
(2) "ABUSE" HAS THE SAME MEANING AS IN SECTION 5123.50 of the Revised Code,
EXCEPT THAT IT INCLUDES A MISAPPROPRIATION, AS DEFINED IN THAT SECTION.
(3) "NEGLECT" HAS THE SAME MEANING AS IN SECTION 5123.50 of the Revised Code.
(B) The department of mental retardation and developmental
disabilities shall establish a registry office for the purpose of
maintaining reports of abuse and, neglect, AND OTHER
MAJOR UNUSUAL INCIDENTS made to the department
under this section and reports received from county boards of
mental retardation and developmental disabilities under section
5126.31 of the Revised Code. THE DEPARTMENT SHALL ESTABLISH COMMITTEES TO
REVIEW REPORTS OF ABUSE, NEGLECT, AND OTHER MAJOR UNUSUAL INCIDENTS.
(C)(1) Any person listed in division (C)(2) of this
section, having reason to believe that a mentally retarded or
developmentally disabled adult PERSON WITH MENTAL RETARDATION OR
A DEVELOPMENTAL DISABILITY has suffered any wound, injury,
disability, or condition of such a nature as to reasonably
indicate abuse or neglect of that adult PERSON, shall
immediately report
or cause reports to be made of such information to a law
enforcement agency or to the county board of mental retardation
and developmental disabilities, except that if the report
concerns a resident of a facility operated by the department of
mental retardation and developmental disabilities the report
shall be made either to a law enforcement agency or to the
department.
(2) All of the following persons are required to make a
report under division (C)(1) of this section:
(a) Any physician, including a hospital intern or
resident, any dentist, podiatrist, chiropractor, practitioner of
a limited branch of medicine as
specified in section
4731.15 of the Revised Code, hospital administrator or employee
of a hospital, nurse licensed under Chapter 4723. of the Revised
Code, employee of an ambulatory health facility as defined in
section 5101.61 of the Revised Code, employee of a home health
agency, employee of an adult care facility licensed under Chapter
3722. of the Revised Code, or employee of a community mental health
facility;
(b) Any school teacher or school authority, social worker,
psychologist, attorney, peace officer, coroner, clergyman, or
residents' rights advocate as defined in section 3721.10 of the
Revised Code;
(c) A superintendent, board member, or employee of a
county board of mental retardation and developmental
disabilities; an administrator, board member, or employee of a
residential facility licensed under section 5123.19 of the
Revised Code; or an administrator, board member, or employee of
any other public or private provider of services to a mentally
retarded or developmentally disabled adult PERSON WITH MENTAL
RETARDATION OR A DEVELOPMENTAL DISABILITY, OR ANY MR/DD
EMPLOYEE, AS DEFINED IN SECTION 5123.50 OF THE REVISED
CODE;
(d) A member of a citizen's advisory council established at
an institution or branch institution of the department of mental
retardation and developmental disabilities under section 5123.092
of the Revised Code;
(e) A person who, while acting in an official or professional
capacity, renders spiritual treatment through
prayer in accordance with the tenets of an organized religion.
(3) The reporting requirements of this division do not
apply to members of the legal rights service commission or to
employees of the legal rights service.
(D) The reports required under division (C) of this
section shall be made forthwith by telephone or in person and
shall be followed by a written report. The reports shall contain
the following:
(1) The names and addresses of the mentally retarded or
developmentally disabled adult PERSON WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY and the adult's PERSON'S custodian,
if known;
(2) The mentally retarded or developmentally disabled
adult's age and the nature and extent of the adult's injuries or
physical neglect, including any evidence of previous injuries or physical
neglect OF THE PERSON WITH MENTAL RETARDATION OR A DEVELOPMENTAL
DISABILITY;
(3) Any other information which might be helpful in
establishing the cause of the injury, abuse, or physical neglect THAT
WOULD ASSIST IN THE INVESTIGATION OF THE REPORT.
(E) When a physician performing services as a member of
the staff of a hospital or similar institution has reason to
believe that a mentally retarded or developmentally disabled adult
PERSON WITH MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY has
suffered injury, abuse, or physical neglect, the physician
shall notify the person in charge of the institution or that person's
designated delegate, who shall make the necessary reports.
(F) Any person having reasonable cause to believe that a
mentally retarded or developmentally disabled adult PERSON WITH
MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY has suffered
abuse or neglect may report the belief, or cause a report to be
made, to a law enforcement agency or the county board of mental
retardation and developmental disabilities, or, if the adult
PERSON is a resident of a facility operated by the department of mental
retardation and developmental disabilities, to a law enforcement
agency or to the department.
(G)(1) Upon the receipt of a report concerning the
possible nonaccidental infliction of a physical injury upon a
mentally retarded or developmentally disabled adult ABUSE OR NEGLECT OF
A PERSON WITH MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY, the
law enforcement agency shall inform the county board of mental
retardation and developmental disabilities or, if the adult
PERSON is a resident of a facility operated by the department of mental
retardation and developmental disabilities, the director of the
department or the director's designee.
(2) On receipt of a
report under this section THAT INCLUDES AN ALLEGATION
OF ACTION OR INACTION THAT MAY CONSTITUTE A CRIME UNDER FEDERAL LAW OR THE LAW
OF THIS STATE, the
department of mental retardation and developmental disabilities
shall notify the law enforcement agency.
(3) When a county board of mental retardation and
developmental disabilities receives a report under this section THAT
INCLUDES AN ALLEGATION OF ACTION OR INACTION THAT MAY CONSTITUTE A CRIME UNDER
FEDERAL LAW OR THE LAW OF THIS STATE,
the superintendent of the board or an individual the superintendent
designates
under division (H) of this section shall notify the law
enforcement agency and. THE SUPERINTENDENT OR INDIVIDUAL
SHALL NOTIFY the department of mental retardation and
developmental disabilities WHEN IT RECEIVES ANY REPORT UNDER THIS
SECTION.
(H) The superintendent of the board may designate an
individual to be responsible for notifying the law enforcement
agency and the department when the county board receives a report
under this section.
(I) A mentally retarded or developmentally disabled AN adult
WITH MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY
about whom a report is made may be removed from the adult's place
of residence only by law enforcement officers who consider that the adult's
immediate removal is essential to protect the adult from further injury or
abuse or in accordance with the order of a court made pursuant to section
5126.33 of the Revised Code.
(J) A law enforcement agency shall investigate each report
of abuse or neglect made IT RECEIVES under this section. In
addition, the
department, in cooperation with law enforcement officials, shall
investigate each report regarding a resident of a facility
operated by the department to determine the circumstances
surrounding the injury, the cause of the injury, and the person
responsible. The department shall determine, with the registry
office which shall be maintained by the department, whether prior
reports have been made concerning the mentally retarded or
developmentally disabled AND adult WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY or other principals in the case.
The IF THE department FINDS THAT THE REPORT INVOLVES ACTION
OR INACTION THAT MAY CONSTITUTE A CRIME UNDER FEDERAL LAW OR THE LAW OF THIS
STATE, IT shall submit a report of its investigation, in
writing, to the law enforcement agency. IF THE PERSON WITH MENTAL
RETARDATION OR A DEVELOPMENTAL DISABILITY IS AN ADULT, and with the
consent of the adult, THE DEPARTMENT shall provide such protective
services as are
necessary to protect the adult. The law enforcement agency shall
make a written report of its findings to the department.
If the PERSON IS AN adult AND is not a resident of a facility
operated by
the department, the county board of mental retardation and
developmental disabilities shall review the report of abuse or
neglect in accordance with sections 5126.30 to 5126.33 of the
Revised Code and the law enforcement agency shall make the
written report of its findings to the county board.
(K) Any person or any hospital, institution, school,
health department, or agency participating in the making of
reports pursuant to this section, any person participating as a
witness in an administrative or judicial proceeding resulting
from the reports, or any person or governmental entity that
discharges responsibilities under sections 5126.31 to 5126.33 of
the Revised Code shall be immune from any civil or criminal
liability that might otherwise be incurred or imposed as a result
of such actions except liability for perjury, unless the person
or governmental entity has acted in bad faith or with malicious
purpose.
(L) No employer or any person with the authority to do so
shall discharge, demote, transfer, prepare a negative work
performance evaluation, reduce pay or benefits, terminate work
privileges, or take any other action detrimental to an employee
or retaliate against an employee as a result of the employee's
having made a report under this section. This division does not
preclude an employer or person with authority from taking action
with regard to an employee who has made a report under this
section if there is another reasonable basis for the action.
(M) Reports made under this section are not public records
as defined in section 149.43 of the Revised Code. Information
contained in the reports on request shall be made available to
the adult PERSON who is the subject of the report, to the
adult's PERSON'S legal counsel, and to agencies authorized to
receive information in the report
by the department or by a county board of mental retardation and
developmental disabilities.
(N) Notwithstanding section 4731.22 of the Revised Code,
the physician-patient privilege shall not be a ground for
excluding evidence regarding a mentally retarded or
developmentally disabled adult's THE injuries or physical neglect
OF A PERSON WITH MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY or
the cause thereof in any judicial proceeding resulting from a
report submitted pursuant to this section.
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.
(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) 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) A violation of an existing or former law of this
state, any other state, or the United States, if the offense is
substantially equivalent to any of the offenses described in
division (E)(1) or (2) 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 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 if while
employed by the board the person is ever formally charged for 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 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) 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
entities to which the copies are to be sent. On receiving the
request, the county board shall send copies of the reports to the
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 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 superintendent also shall provide
the department of mental retardation and developmental
disabilities with a copy of each 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 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 an offense listed or described in division (E) of
this section but who meets standards in regard to rehabilitation set
by the department. THE RULES MAY NOT AUTHORIZE A COUNTY BOARD OR
CONTRACTING ENTITY TO HIRE AN INDIVIDUAL WHO IS INCLUDED IN THE REGISTRY
ESTABLISHED UNDER SECTION 5123.52 of the Revised Code.
Sec. 5126.30. As used in sections 5126.30 to 5126.33 of
the Revised Code:
(A) "Mentally retarded or developmentally disabled adult"
and "adult ADULT" mean MEANS a person eighteen
years of age or older who is
developmentally disabled or mentally retarded WITH MENTAL RETARDATION
OR A DEVELOPMENTAL DISABILITY.
(B) "Caretaker" means a person who is responsible for the
care of an adult by order of a court, including an order of
guardianship, or who assumes the responsibility for the care of
an adult as a volunteer, as a family member, by contract, or by
the acceptance of payment for care.
(C) "Abuse" means any of the following:
(1) An act, or a failure to act, that results or could
result in emotional or physical injury to an adult, unless the
act is done in self-defense or by accident;
(2) An act that constitutes "sexual activity" as defined
in section 2907.01 HAS THE SAME MEANING AS IN SECTION
5123.50
of the Revised Code and would constitute an
offense under Chapter 2907. of the Revised Code;
(3) Insulting or coarse language or gestures directed
toward an adult that subject him to humiliation or
degradation;
(4) An act that deprives an adult of real or personal
property by fraudulent or illegal means, EXCEPT THAT IT INCLUDES
A MISAPPROPRIATION, AS DEFINED IN THAT SECTION.
(D) "Neglect" means the failure of an adult or a caretaker
to provide goods and services necessary for the adult to avoid
physical harm HAS THE SAME MEANING AS IN SECTION 5123.50 OF THE
REVISED CODE.
(E) "Working day" means Monday, Tuesday, Wednesday,
Thursday, or Friday, except when that day is a holiday as defined
in section 1.14 of the Revised Code.
(F) "Incapacitated" means lacking understanding or
capacity, with or without the assistance of a caretaker, to make
and carry out decisions regarding food, clothing, shelter, health
care, or other necessities, but does not include mere refusal to
consent to the provision of services.
Sec. 5126.31. (A) A county board of mental retardation
and developmental disabilities shall review reports of abuse and
neglect made under section 5123.61 of the Revised Code and
reports referred to it under section 5101.611 of the Revised Code
to determine whether the person who is the subject of the report
is a mentally retarded or developmentally disabled AN adult
WITH MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY in need
of services to deal with the abuse or neglect. The board shall
give notice of each report to the registry office of the
department of mental retardation and developmental disabilities
established pursuant to section 5123.61 of the Revised Code on
the first working day after receipt of the report. If the report
alleges that there is a substantial risk to the adult of
immediate physical harm or death, the board shall initiate review
within twenty-four hours of its receipt of the report. If the
board determines that the person is sixty years of age or older
but is DOES not mentally retarded or developmentally
disabled HAVE MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY, it
shall refer the case to the county department of job and
family services. If the board determines that the person is a mentally
retarded or
developmentally disabled AN adult WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY, it shall continue its review of
the case.
(B) For each review over which the board retains
responsibility under division (A) of this section, it shall do
all of the following:
(1) Give both written and oral notice of the purpose of
the review to the adult and, if any, to the
adult's legal counsel or
caretaker, in simple and clear language;
(2) Visit the adult, in the adult's
residence if possible, and
explain the notice given under division (B)(1) of this section;
(3) Request from the registry office any prior reports
concerning the adult or other principals in the case;
(4) Consult, if feasible, with the person who made the
report under section 5101.61 or 5123.61 of the Revised Code and
with any agencies or persons who have information about the
alleged abuse or neglect;
(5) Cooperate fully with the law enforcement agency
responsible for investigating the report and for filing any
resulting criminal charges and, on request, turn over evidence to
the agency;
(6) Determine whether the
adult needs services, and
prepare a written report stating reasons for the determination.
No adult shall be determined to be abused, neglected, or in need
of services for the sole reason that, in lieu of medical
treatment, the adult relies on or is being furnished
spiritual treatment
through prayer alone in accordance with the tenets and practices
of a church or religious denomination of which the adult is a
member or
adherent.
(C) The board shall arrange for the provision of services
for the prevention, correction or discontinuance of abuse or
neglect or of a condition resulting from abuse or neglect for any
adult who has been determined to need the services and consents
to receive them. These services may include, but are not limited
to, case management, fiscal management, medical, mental health,
home health care, homemaker, legal, and residential services and
the provision of temporary accommodations and necessities such as
food and clothing. The services do not include acting as a
guardian, trustee, or protector as defined in section 5123.55 of
the Revised Code. If the provision of residential services would
require expenditures by the department of mental retardation and
developmental disabilities, the board shall obtain the approval
of the department prior to arranging the residential services.
To arrange services, the board shall:
(1) Develop an individualized service plan
identifying the types of services required for the adult, the
goals for the services, and the persons or agencies that will
provide them;
(2) In accordance with rules established by the director
of mental retardation and developmental disabilities, obtain the
consent of the adult or the adult's guardian to the
provision of any of
these services and obtain the signature of the adult or guardian
on the individual service plan. An adult who has been found
incompetent under Chapter 2111. of the Revised Code may consent
to services. If the board is unable to obtain consent, it may
seek, if the adult is incapacitated, a court order pursuant to
section 5126.33 of the Revised Code authorizing the board to
arrange these services.
(D) The board shall ensure that the adult receives the
services arranged by the board from the provider and shall have
the services terminated if the adult withdraws consent.
(E) On completion of a review, the board shall submit a
written report to the law enforcement agency responsible for
investigating the report and to the registry office ESTABLISHED UNDER
SECTION 5123.61 of the Revised Code. IF THE REPORT INCLUDES A FINDING THAT A PERSON WITH
MENTAL RETARDATION OR A DEVELOPMENTAL DISABILITY IS A VICTIM OF ACTION OR
INACTION THAT MAY CONSTITUTE A CRIME UNDER FEDERAL LAW OR THE LAW OF THIS
STATE, THE BOARD SHALL SUBMIT THE REPORT TO THE LAW ENFORCEMENT AGENCY
RESPONSIBLE FOR INVESTIGATING THE REPORT. Reports
prepared under this section are not public records as defined in
section 149.43 of the Revised Code.
(F) The board shall provide comprehensive formal training
for employees and other persons authorized to implement the
requirements of this section.
Sec. 5126.33. (A) A county board of mental retardation
and developmental disabilities may file a complaint with the
probate court of the county in which a mentally retarded or
developmentally disabled AN adult WITH MENTAL RETARDATION OR A
DEVELOPMENTAL DISABILITY resides for an order authorizing
the board to arrange services described in division (C) of
section 5126.31 of the Revised Code for that adult if the board
has been unable to secure consent. The complaint shall include:
(1) The name, age, and address of the adult;
(2) Facts describing the nature of the abuse or neglect
and supporting the board's belief that services are needed;
(3) The types of services proposed by the board, as set
forth in the individualized service plan prepared pursuant to
section 5126.31 of the Revised Code and filed with the complaint;
(4) Facts showing the board's attempts to obtain the
consent of the adult or his THE ADULT'S guardian to the
services.
(B)(1) The board shall give the adult notice of the filing
of the complaint and in simple and clear language shall inform
him THE ADULT of his THE ADULT'S rights in the
hearing under division (C) of this
section and explain the consequences of a court order. This
notice shall be personally served upon the adult and also shall
be given to the adult's caretaker, his THE ADULT'S legal
counsel, if any, and
the legal rights service. The notice shall be given at least
twenty-four hours prior to the hearing, although the court may
waive this requirement upon a showing that there is a substantial
risk that the adult will suffer immediate physical harm in the
twenty-four hour period and that the board has made reasonable
attempts to give the notice required by this division.
(C) Upon the filing of a complaint for an order under this
section, the court shall hold a hearing at least twenty-four
hours and no later than seventy-two hours after the notice under
division (B)(1) of this section has been given unless the court
has waived the notice. The adult shall have the right to be
present at the hearing, present evidence, and examine and
cross-examine witnesses. The adult shall be represented by
counsel unless the court finds that the adult has made a
voluntary, informed, and knowing waiver of the right to counsel.
If the adult is indigent, the court shall appoint counsel to
represent him THE ADULT. The board shall be represented by the
county
prosecutor or an attorney designated by the board.
(D)(1) The court shall issue an order authorizing the
board to arrange the services if it finds, on the basis of clear
and convincing evidence, all of the following:
(a) The adult has been abused or neglected;
(b) The adult is incapacitated;
(c) There is a substantial risk to the adult of immediate
physical harm or death;
(d) The adult is in need of the services;
(e) No person authorized by law or court order to give
consent for the adult is available or willing to consent to the
services.
(2) In formulating the order, the court shall consider the
individual service plan and shall specifically designate the
services that are necessary to deal with the abuse or neglect or
condition resulting from abuse or neglect and that are available
locally, and authorize the board to arrange for these services
only. The court shall limit the provision of these services to a
period not exceeding fourteen days, renewable for an additional
fourteen-day period on a showing by the board that continuation
of the order is necessary.
(E) If the court finds that all other options for meeting
the adult's needs have been exhausted, it may order that the
adult be removed from his THE ADULT'S place of residence and
placed in
another residential setting. Before issuing that order, the
court shall consider the adult's choice of residence and shall
determine that the new residential setting is the least
restrictive alternative available for meeting his THE ADULT'S
needs and is a
place where the adult can obtain the necessary requirements for
daily living in safety. The court shall not order an adult to a
hospital or public hospital as defined in section 5122.01 or a
state institution as defined in section 5123.01 of the Revised
Code.
(F) The court shall not authorize a change in an adult's
placement ordered under division (E) of this section unless it
finds compelling reasons to justify a change. The parties to
whom notice was given in division (B) of this section shall be
given notice of a proposed change at least five working days
prior to the change.
(G) The adult, the board, or any other person who received
notice of the petition may file a motion for modification of the
court order at any time.
(H) The county board shall pay court costs incurred in
proceedings brought pursuant to this section. The adult shall
not be required to pay for court-ordered services.
Section 2. That existing sections 5123.61, 5126.28, 5126.30, 5126.31,
and 5126.33 of the Revised Code are hereby repealed.
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