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Am. Sub. H. B. No. 412As Passed by the SenateAs Passed by the Senate
124th General Assembly | Regular Session | 2001-2002 |
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REPRESENTATIVES Seitz, Schmidt, Kearns, Webster, Raga, Brinkman, DeWine, Setzer, Husted, Faber, Gilb, Fessler, Hoops, Schaffer, Lendrum, Flowers, Olman, Sullivan, Ogg, G. Smith, Trakas, Peterson, Clancy, Callender, Roman, Wolpert, Latta, Womer Benjamin, Calvert, Carey, Kilbane, Reidelbach, Aslanides, Widowfield, Niehaus, Williams, Blasdel, Buehrer, Stapleton, Manning, Damschroder, Evans, Cates, Hughes, Grendell, Young
SENATORS Jacobson, Carnes, Mumper, Nein, Wachtmann, Amstutz, Randy Gardner, Jordan, Harris, White
A BILL
To amend sections 2305.10, 2315.21, 3721.02,
and
3721.17 and to enact section
5111.411
of the Revised Code relative
to the
results of a
home inspection or nursing
facility
survey,
liability
of a
residential
care facility or a home
for
punitive
damages, and
to the statute of limitations for home or residential facility care.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2305.10, 2315.21,
3721.02,
and
3721.17 be amended and section 5111.411
of the
Revised Code be
enacted to read as follows:
Sec. 2305.10. An action for bodily injury or injuring
personal property shall be
brought within two years after the
cause thereof arose.
An action upon a claim that is asserted in any civil action
against a home or residential facility or against any employee or
agent of a home or residential facility, shall be commenced within
two years after the cause of action arose, including, but not
limited to: claims resulting from acts or omissions in providing
health care or from the hiring, training, supervision, retention,
or termination of health caregivers; or claims brought under
section 3721.17 of the Revised Code. For purposes of this section, a
cause of
action for bodily
injury caused by exposure to asbestos or to
chromium in any of
its
chemical forms arises upon the date
on which the plaintiff
is
informed by competent medical authority
that
the plaintiff has
been injured
by such exposure, or upon the date
on which, by the
exercise of
reasonable diligence,
the plaintiff should have
become aware
that
the plaintiff had
been injured by the
exposure,
whichever
date occurs
first. For purposes of this section, a
cause of
action for bodily
injury incurred by a veteran through exposure to
chemical
defoliants or herbicides or other causative agents,
including
agent orange, arises upon the date on which the
plaintiff is
informed by competent medical authority that
the plaintiff has
been injured
by such exposure. As used in this section,
"agent: (A) "Agent orange,"
"causative agent,"
and
"veteran" have
the same meanings as in section 5903.21 of the
Revised Code.
(B) "Home" has the same meaning as in section 3721.10 of the
Revised Code. (C) "Residential facility" means a facility licensed under
section 5123.19 of the Revised Code. For purposes of this section, a
cause of
action for bodily
injury which may be caused by exposure to
diethylstilbestrol or
other nonsteroidal synthetic estrogens,
including exposure before
birth, upon the date on
which the plaintiff learns
from a
licensed
physician that
the plaintiff has an injury
which may be
related
to
such exposure, or upon the
date on which by the exercise of
reasonable diligence
the
plaintiff should have become aware
that
the plaintiff
has
an
injury which may be related to such
exposure,
whichever date
occurs first.
Sec. 2315.21. (A) As used in this section: (1)
"Tort action" means a civil action for damages for
injury
or loss to
person or property.
"Tort
action"
includes a
product
liability
claim for damages for injury or loss
to person
or
property that is
subject to sections 2307.71 to
2307.80
of the
Revised Code, but
does not include a civil
action
for damages for
a breach of
contract or another agreement between
persons. (2)
"Trier of fact" means the jury or, in a
nonjury
action,
the court. (3) "Home" has the same meaning as in section 3721.10 of the
Revised Code. (B) Subject to division (D) of this
section,
punitive or
exemplary damages are not recoverable from a defendant in
question
in a tort action unless both of the following apply: (1) The actions or omissions of that defendant demonstrate
malice, aggravated or egregious fraud, oppression, or insult, or
that defendant as principal or master authorized, participated
in,
or ratified actions or omissions of an agent or servant that
so
demonstrate;. (2) The
plaintiff in
question has adduced proof of actual
damages that resulted from
actions or omissions as described in
division (B)(1) of this
section. (C)(1) In a tort action, the trier of fact shall
determine
the liability of any defendant for punitive or
exemplary damages
and the amount of those damages. (2)
In a tort action, the burden of proof
shall be upon a
plaintiff
in question, by clear and
convincing
evidence,
to
establish that
the plaintiff is entitled to
recover punitive or
exemplary damages. (D) This section does not apply to tort actions against
the
state in the court of claims or to
the extent that another
section
of the Revised Code
expressly provides any of the
following: (1) Punitive or exemplary damages are recoverable from a
defendant in question in a tort action on a basis other than that
the actions or omissions of that defendant demonstrate malice,
aggravated or egregious fraud, oppression, or insult, or on a
basis other than that the defendant in question as principal or
master authorized, participated in, or ratified actions or
omissions of an agent or servant that so demonstrate;. (2) Punitive or exemplary damages are recoverable from a
defendant in question in a tort action irrespective of whether
the
plaintiff in question has adduced proof of actual damages;. (3) The burden of proof upon a plaintiff in question to
recover punitive or exemplary damages from a defendant in
question
in a tort action is one other than clear and convincing
evidence;. (4) Punitive or exemplary damages are not recoverable from
a
defendant in question in a tort action.
(E) When determining the amount of an award of punitive or
exemplary damages against either a home or a residential facility
licensed under section 5123.19 of the Revised Code, the trier of
fact shall consider all of the following:
(1) The ability of the home or residential facility to pay
the award of punitive or exemplary damages based on the home's or
residential facility's assets, income, and net worth;
(2) Whether the amount of punitive or exemplary damages is
sufficient to deter future tortious conduct;
(3) The financial ability of the home or residential
facility, both currently and in the future, to provide
accommodations, personal care services, and skilled nursing care.
Sec. 3721.02. (A) The director of health shall license homes
and establish procedures to be followed in inspecting and
licensing homes. The director may inspect a home at any time.
Each home shall be inspected by the director at least once prior
to the issuance of a license and at least once every fifteen
months thereafter. The state fire marshal or a township,
municipal, or other legally constituted fire department approved
by the marshal shall also inspect a home prior to issuance of a
license, at least once every fifteen months thereafter, and at
any
other time requested by the director. A home does not have
to be
inspected prior to issuance of a license by the director,
state
fire marshal, or a fire department if ownership of the home
is
assigned or transferred to a different person and the home was
licensed under this chapter immediately prior to the assignment
or
transfer. The director may enter at any time, for the
purposes of
investigation, any institution, residence, facility,
or other
structure
which
that has been reported to the director or
that the
director has reasonable cause to believe is operating as
a nursing
home, residential care facility, or
home for the aging without a
valid
license required by section 3721.05 of the Revised Code
or,
in the case of a county home or district home, is operating
despite the
revocation of its residential care facility license.
The director may
delegate the director's
authority
and duties
under this chapter to any division, bureau, agency, or official
of
the department of health. (B) A single facility may be licensed both as a nursing home
pursuant to this chapter and as an adult care facility pursuant
to
Chapter 3722. of the Revised Code if the director determines
that
the part or unit to be licensed as a nursing home can be
maintained separate and discrete from the part or unit to be
licensed as an adult care facility. (C) In determining the number of residents in a home for the
purpose of licensing, the director shall consider all the
individuals for whom the home provides accommodations as one
group
unless one of the following is the case: (A)(1) The home is a home for the aging, in which case all
the individuals in the part or unit licensed as a nursing home
shall be considered as one group, and all the individuals in the
part or unit licensed as a rest home shall be considered as
another group;.
(B)(2) The home is both a nursing home and an adult care
facility. In that case, all the individuals in the part or unit
licensed as a nursing home shall be considered as one group, and
all the individuals in the part or unit licensed as an adult care
facility shall be considered as another group.
(C)(3) The home maintains, in addition to a nursing home or
residential care facility, a separate and discrete part
or unit
that provides accommodations to individuals who do not require or
receive skilled nursing care and do not receive personal care
services
from the home, in which case the individuals in the
separate and
discrete part or unit shall not be considered in
determining the
number of residents in the home if the separate
and discrete part
or unit is in compliance with the Ohio basic
building code
established by the board of building standards under
Chapters
3781. and 3791. of the Revised Code and the home permits
the
director, on request, to inspect the separate and discrete
part
or unit and speak with the individuals residing there, if
they
consent, to determine whether the separate and discrete part
or
unit meets the requirements of this division.
(D) The director of health shall charge an application fee
and
an annual renewal licensing and inspection fee of one hundred
dollars for each fifty persons or part thereof of a home's
licensed capacity. All fees collected by the director for the
issuance or renewal of licenses shall be deposited into the state
treasury to the credit of the general operations fund created in
section 3701.83 of the Revised Code for use only in administering
and enforcing this chapter and rules adopted under it.
(E) (1) Except as otherwise provided in this section, the
results of an inspection or investigation of a home
that is
conducted under this section, including any statement of
deficiencies and all findings and deficiencies cited in the
statement on the basis of the inspection or investigation, shall
be used solely to determine the home's compliance with this
chapter or another chapter of the Revised Code in any action or
proceeding other than an action commenced
under division (I) of
section 3721.17 of the Revised Code. Those
results of an
inspection or investigation, that
statement of
deficiencies, and
the findings and deficiencies cited
in that
statement shall not be
used in any court or in any action
or
proceeding that is pending
in any court and are not admissible
in
evidence in any action or
proceeding unless that action or
proceeding is an appeal of an
action by the department of health
under this chapter or is an
action by any department or agency of
the state to enforce this
chapter or another chapter of the Revised Code. (2) Nothing in division (E)(1) of this section prohibits the
results of an inspection or investigation conducted under this
section from being used in a criminal investigation or
prosecution.
Sec. 3721.17. (A) Any resident who believes that the
resident's
rights under sections 3721.10 to 3721.17 of the Revised
Code have
been violated may file a grievance under procedures
adopted
pursuant to division (A)(2) of section 3721.12 of the
Revised
Code. When the grievance committee determines a violation of
sections 3721.10 to 3721.17 of the Revised Code has occurred, it
shall notify the administrator of the home. If the violation
cannot be corrected within ten days, or if ten days have elapsed
without correction of the violation, the grievance committee
shall
refer the matter to the department of health. (B) Any person who believes that a resident's rights under
sections 3721.10 to 3721.17 of the Revised Code have been
violated
may report or cause reports to be made of the
information directly
to the department of health. No person who
files a report is
liable for civil damages resulting from the
report. (C)(1) Within thirty days of receiving a complaint under
this section, the department of health shall investigate any
complaint referred to it by a home's grievance committee and any
complaint from any source that alleges that the home provided
substantially less than adequate care or treatment, or
substantially unsafe conditions, or, within seven days of
receiving a complaint, refer it to the attorney general, if the
attorney general
agrees to investigate within thirty days. (2) Within thirty days of receiving a complaint under this
section, the department of health may investigate any alleged
violation of sections 3721.10 to 3721.17 of the Revised Code, or
of rules, policies, or procedures adopted pursuant to those
sections, not covered by division (C)(1) of this section, or it
may, within seven days of receiving a complaint, refer the
complaint to the grievance committee at the home where the
alleged
violation occurred, or to the attorney general if the
attorney
general
agrees to investigate within thirty days. (D) If, after an investigation, the department of health
finds probable cause to believe that a violation of sections
3721.10 to 3721.17 of the Revised Code, or of rules, policies, or
procedures adopted pursuant to those sections, has occurred at a
home that is certified under
the medicare or medicaid program,
it
shall cite one or more
findings or deficiencies under sections
5111.35 to 5111.62 of the
Revised Code. If the home is not so
certified, the department
shall hold an adjudicative hearing
within thirty days under
Chapter 119. of the Revised Code. (E) Upon a finding at an adjudicative hearing under
division
(D) of this section that a violation of sections 3721.10
to
3721.17 of the Revised Code, or of rules, policies, or
procedures
adopted pursuant thereto, has occurred, the department
of health
shall make an order for compliance, set a reasonable
time for
compliance, and assess a fine pursuant to division (F)
of this
section. The fine shall be paid to the general revenue
fund only
if compliance with the order is not shown to have been
made within
the reasonable time set in the order. The department
of health
may issue an order prohibiting the continuation of any
violation
of sections 3721.10 to 3721.17 of the Revised Code. Findings at the hearings conducted under this section may
be
appealed pursuant to Chapter 119. of the Revised Code, except
that
an appeal may be made to the court of common pleas of the
county
in which the home is located. The department of health shall initiate proceedings in
court
to collect any fine assessed under this section
which
that is
unpaid
thirty days after the violator's final appeal is
exhausted. (F) Any home found, pursuant to an adjudication hearing
under division (D) of this section, to have violated sections
3721.10 to 3721.17 of the Revised Code, or rules, policies, or
procedures adopted pursuant to those sections may be fined not
less than one hundred nor more than five hundred dollars for a
first offense. For each subsequent offense, the home may be
fined
not less than two hundred nor more than one thousand
dollars. A violation of sections 3721.10 to 3721.17 of the Revised
Code is a separate offense for each day of the violation and for
each resident who claims the violation. (G) No home or employee of a home shall retaliate against
any person who: (1) Exercises any right set forth in sections 3721.10 to
3721.17 of the Revised Code, including, but not limited to,
filing
a complaint with the home's grievance committee or
reporting an
alleged violation to the department of health; (2) Appears as a witness in any hearing conducted under
this
section
or section
3721.162 of the Revised Code; (3) Files a civil action alleging a violation of sections
3721.10 to 3721.17 of the Revised Code, or notifies a county
prosecuting attorney or the attorney general of a possible
violation of sections 3721.10 to 3721.17 of the Revised Code. If, under the procedures outlined in this section, a home
or
its employee is found to have retaliated, the violator may be
fined up to one thousand dollars. (H) When legal action is indicated, any evidence of
criminal
activity found in an investigation under division (C) of
this
section shall be given to the prosecuting attorney in the
county
in which the home is located for investigation. (I)(1)(a) Any resident whose rights under sections 3721.10
to
3721.17 of the Revised Code are violated has a cause of action
against any person or home committing the violation.
The action
may be commenced by the resident or by the resident's
sponsor on
behalf of the resident.
(b) An action under division (I)(1)(a) of this section may
be commenced by the resident or by the resident's legal guardian
or other legally authorized representative on behalf of the
resident or the resident's estate. If the resident or the
resident's legal guardian or other legally authorized
representative is unable to commence an action under that division
on behalf of the resident, the following persons in the following
order of priority have the right to and may commence an action
under that division on behalf of the resident or the resident's
estate: (i) The resident's spouse; (ii) The resident's parent or adult child; (iii) The resident's guardian if the resident is a minor
child; (iv) The resident's brother or sister; (v) The resident's niece, nephew, aunt, or uncle. (c) Notwithstanding any law as to priority of persons
entitled to commence an action, if more than one eligible person
within the same level of priority seeks to commence an action on
behalf of a resident or the resident's estate, the court shall
determine, in the best interest of the resident or the resident's
estate, the individual to commence the action. A court's
determination under this division as to the person to commence an
action on behalf of a resident or the resident's estate shall bar
another person from commencing the action on behalf of the
resident or the resident's estate. (d) The result of an action commenced pursuant to division
(I)(1)(a) of this section by a person authorized under division
(I)(1)(b) of this section shall bind the resident or the
resident's estate that is the subject of the action. (2)(a)
The plaintiff in an action filed under division (I)(1)
of this section may obtain injunctive relief against the violation
of the resident's rights. The plaintiff also may recover
compensatory damages based upon a showing, by a preponderance of
the evidence, that the violation of the resident's rights resulted
from a negligent act or omission of the person or home and that
the violation was the proximate cause of the resident's injury,
death, or loss to person or property.
(b) If compensatory damages are
awarded for a violation
of
the
resident's rights, section 2315.21
of the Revised Code,
except
divisions (E)(1) and
(2) of that
section, shall apply to an
award
of punitive or exemplary damages
for the violation. (b)
(c) The court, in a case in which only injunctive relief
is
granted, may award to the prevailing party
reasonable
attorney's
fees limited to the work reasonably
performed.
(3) Division (I)(2)(a)
(b) of this section
shall be
considered
to be purely remedial in operation and shall be applied
in
a
remedial manner in any civil action in which this section is
relevant,
whether the action is pending in court or commenced on
or after
July 9, 1998.
(4) Within thirty days after the filing of a complaint in an
action for damages brought against a home under division (I)(1)(a)
of
this section by or on behalf of a resident or former resident
of
the home, the plaintiff or plaintiff's counsel shall send
written
notice of the filing of the complaint to the department of
job and
family services if the department has a right of recovery
under
section 5101.58 of the Revised Code against the liability of
the
home for the cost of medical services and care arising out of
injury, disease, or disability of the resident or former resident.
Sec. 5111.411. The results of a survey of a nursing facility
that is conducted under section 5111.39 of the Revised Code,
including any statement of deficiencies and all findings and
deficiencies cited in the statement on the basis of the survey,
shall be used solely to determine the nursing facility's
compliance with certification requirements or with this chapter or
another chapter of the Revised Code. Those results of a
survey,
that statement of deficiencies, and the findings and
deficiencies
cited in that statement shall not be used in any
court or in any
action or proceeding that is pending in any court
and are not
admissible in evidence in any action or proceeding
unless that
action or proceeding is an appeal of an administrative
action by
the department of job and family services or contracting
agency
under this chapter or is an action by any department or
agency of
the state to enforce this chapter or another chapter of the
Revised Code. Nothing in this section prohibits the results of a survey, a
statement of deficiencies, or the findings and deficiencies cited
in that statement on the basis of the survey under this section
from being used in a criminal investigation or prosecution.
Section 2. That existing sections 2305.10, 2315.21,
3721.02,
and 3721.17 of the Revised Code are hereby
repealed.
Section 3. Nothing in this act applies to proceedings or
appeals involving workers' compensation claims under Chapter 4121.
or 4123. of the Revised Code.
Section 4. If any provision of section 2305.10, 2315.21,
3721.02, or 3721.17 of the Revised Code, as
amended by this act, any provision of section 5111.411 of the
Revised Code, as enacted by this act, or the application of any
provision of those sections to any person or circumstance is held
invalid, the invalidity does not affect other provisions or
applications of the particular section or related sections that
can be given effect without the invalid provision or application,
and to this end the provisions of the particular section are
severable.
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