Chapter 5123: DEPARTMENT OF DEVELOPMENTAL DISABILITIES

5123.01 Department of developmental disabilities definitions.

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 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 persons with mental retardation or a developmental disability, which group shall include individuals who are professionally qualified in the fields of medicine, 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) "Home and community-based services" means medicaid-funded home and community-based services specified in division (A)(1) of section 5166.20 of the Revised Code provided under the medicaid waiver components the department of developmental disabilities administers pursuant to section 5166.21 of the Revised Code. Except as provided in section 5123.0412 of the Revised Code, home and community-based services provided under the medicaid waiver component known as the transitions developmental disabilities waiver are to be considered to be home and community-based services for the purposes of this chapter, and Chapters 5124. and 5126. of the Revised Code, only to the extent, if any, provided by the contract required by section 5166.21 of the Revised Code regarding the waiver.

(H) "ICF/IID" has the same meaning as in section 5124.01 of the Revised Code.

(I) "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.

(J) "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.

(K) "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.

(L) "Managing officer" means a person who is appointed by the director of developmental disabilities to be in executive control of an institution for the mentally retarded under the jurisdiction of the department.

(M) "Medicaid case management services" means case management services provided to an individual with mental retardation or other developmental disability that the state medicaid plan requires.

(N) "Mentally retarded person" means a person having significantly subaverage general intellectual functioning existing concurrently with deficiencies in adaptive behavior, manifested during the developmental period.

(O) "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.

(P) "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.

(Q) As used in this division, "developmental delay" has the meaning 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 a diagnosed physical or mental condition that has a high probability of resulting in a developmental delay;

(b) In the case of a person at least three years of age but under six years of age, at least two developmental delays ;

(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.

(R) "Developmentally disabled person" means a person with a developmental disability.

(S) "State institution" means an institution that is tax-supported and under the jurisdiction of the department.

(T) "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, financial 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 and addiction services, or the department of 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, financial 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.

(U)

(1) "Resident" means, subject to division (U)(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.

(V) "Respondent" means the person whose detention, commitment, or continued commitment is being sought in any proceeding under this chapter.

(W) "Working day" and "court day" mean Monday, Tuesday, Wednesday, Thursday, and Friday, except when such day is a legal holiday.

(X) "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.

(Y) "Court" means the probate division of the court of common pleas.

(Z) "Supported living" and "residential services" have the same meanings as in section 5126.01 of the Revised Code.

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-26-2003; 07-01-2005; 2007 HB119 06-30-2007

5123.011 Adoption of rules.

The director of developmental disabilities shall adopt rules in accordance with Chapter 119. of the Revised Code to do both of the following:

(A) Define "developmental delay";

(B) For the purpose of division (Q)(4)(c) of section 5123.01 and division (F)(4)(c) of section 5126.01 of the Revised Code, specify how to determine whether a person six years of age or older has a substantial functional limitation in a major life activity as appropriate for the person's age.

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1997; Effective Date: 01-10-1992

5123.012 Eligibility determinations.

(A) As used in this section

, "preschool child with a disability" has the same meaning as in section 3323.01 of the Revised Code.

(B) Except as provided in division (C) of this section, the department of developmental disabilities shall make eligibility determinations in accordance with the definition of "developmental disability" in section 5123.01 of the Revised Code. The department may adopt rules in accordance with Chapter 119. of the Revised Code establishing eligibility for programs and services for

any preschool child with a disability eligible for services under section 3323.02 of the Revised Code whose disability is not attributable solely to mental illness as defined in section 5122.01 of the Revised Code.

(C)

(1) The department shall make determinations of eligibility for protective services in accordance with sections 5123.55 to 5123.59 of the Revised Code.

(2) Determinations of whether a mentally retarded person is subject to institutionalization by court order shall be made in accordance with sections 5123.71 to 5123.76 of the Revised Code and shall be based on the definition of "mentally retarded person subject to institutionalization by court order" in section 5123.01 of the Revised Code.

(3) All persons who were eligible for services and enrolled in programs offered by the department of developmental disabilities pursuant to this chapter on July 1, 1991, shall continue to be eligible for those services and to be enrolled in those programs as long as they are in need of services.

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 11-11-1994; 2007 HB119 09-29-2007

5123.013 Application of chapter.

The provisions of this chapter regarding institutionalization apply to a person who is found incompetent to stand trial or not guilty by reason of insanity and is committed pursuant to section 2945.39 , 2945.40 , 2945.401 , or 2945.402 of the Revised Code to the extent that the provisions are not in conflict with any provision of sections 2945.37 to 2945.402 of the Revised Code. If a provision of this chapter is in conflict with a provision in sections 2945.37 to 2945.402 of the Revised Code regarding a person who has been so committed, the provision in sections 2945.37 to 2945.402 of the Revised Code shall control regarding that person.

Renumbered from § 5123.011 and amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

5123.014 Reference to department or director.

Whenever the department or director of mental retardation and developmental disabilities is referred to or designated in any statute, rule, contract, grant, or other document, the reference or designation shall be deemed to refer to the department or director of developmental disabilities, as the case may be.

Added by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

5123.02 Duties of department.

The department of developmental disabilities shall do the following:

(A) Promote comprehensive statewide programs and services for 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.

(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 developmental disabilities as provided by section 5123.26 of the Revised Code;

(C) Develop and maintain, to the extent feasible, data on all services and programs for persons with mental retardation or a developmental disability, that are provided by governmental and private agencies;

(D) Make periodic determinations of the number of persons with mental retardation or a developmental disability requiring services in the state;

(E) Provide leadership to local authorities in planning and developing community-wide services for persons with mental retardation or a developmental disability and their families;

(F) Promote programs of professional training and research in cooperation with other state departments, agencies, and institutions of higher learning.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.021 Determining need for nursing facility care.

(A) As used in this section, "mentally retarded individual" and "specialized services" have the same meanings as in section 5165.03 of the Revised Code.

(B)

(1) Except as provided in division (B)(2) of this section and rules adopted under division (E)(3) of this section, for purposes of section 5165.03 of the Revised Code, the department of developmental disabilities shall determine in accordance with section 1919(e)(7) of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C.A. 301, as amended, and regulations adopted under section 1919(f)(8)(A) of that act whether, because of the individual's physical and mental condition, a mentally retarded individual seeking admission to a nursing facility requires the level of services provided by a nursing facility and, if the individual requires that level of services, whether the individual requires specialized services for mental retardation.

(2) A determination under this division is not required for any of the following:

(a) An individual seeking readmission to a nursing facility after having been transferred from a nursing facility to a hospital for care;

(b) An individual who meets all of the following conditions:

(i) The individual is admitted to the nursing facility directly from a hospital after receiving inpatient care at the hospital;

(ii) The individual requires nursing facility services for the condition for which the individual received care in the hospital;

(iii) The individual's attending physician has certified, before admission to the nursing facility, that the individual is likely to require less than thirty days of nursing facility services.

(c) An individual transferred from one nursing facility to another nursing facility, with or without an intervening hospital stay.

(C) Except as provided in rules adopted under division (F)(3) of this section, the department of developmental disabilities shall review and determine, for each resident of a nursing facility who is mentally retarded, whether the resident, because of the resident's physical and mental condition, requires the level of services provided by a nursing facility and whether the resident requires specialized services for mental retardation. The review and determination shall be conducted in accordance with section 1919(e)(7) of the "Social Security Act" and the regulations adopted under section 1919(f)(8)(A) of the act. The review and determination shall be completed promptly after a nursing facility has notified the department that there has been a significant change in the resident's mental or physical condition.

(D)

(1) In the case of a nursing facility resident who has continuously resided in a nursing facility for at least thirty months before the date of a review and determination under division (C) of this section, if the resident is determined not to require the level of services provided by a nursing facility, but is determined to require specialized services for mental retardation, the department, in consultation with the resident's family or legal representative and care givers, shall do all of the following:

(a) Inform the resident of the institutional and noninstitutional alternatives covered under the state plan for medical assistance;

(b) Offer the resident the choice of remaining in the nursing facility or receiving covered services in an alternative institutional or noninstitutional setting;

(c) Clarify the effect on eligibility for services under the state plan for medical assistance if the resident chooses to leave the facility, including its effect on readmission to the facility;

(d) Provide for or arrange for the provision of specialized services for the resident's mental retardation in the setting chosen by the resident.

(2) In the case of a nursing facility resident who has continuously resided in a nursing facility for less than thirty months before the date of the review and determination under division (C) of this section, if the resident is determined not to require the level of services provided by a nursing facility, but is determined to require specialized services for mental retardation, or if the resident is determined to require neither the level of services provided by a nursing facility nor specialized services for mental retardation, the department shall act in accordance with its alternative disposition plan approved by the United States department of health and human services under section 1919(e)(7)(E) of the "Social Security Act."

(3) In the case of an individual who is determined under division (B) or (C) of this section to require both the level of services provided by a nursing facility and specialized services for mental retardation, the department of developmental disabilities shall provide or arrange for the provision of the specialized services needed by the individual or resident while residing in a nursing facility.

(E) The department of developmental disabilities shall adopt rules in accordance with Chapter 119. of the Revised Code that do all of the following:

(1) Establish criteria to be used in making the determinations required by divisions (B) and (C) of this section. The criteria shall not exceed the criteria established by regulations adopted by the United States department of health and human services under section 1919(f)(8)(A) of the "Social Security Act."

(2) Specify information to be provided by the individual or nursing facility resident being assessed;

(3) Specify any circumstances, in addition to circumstances listed in division (B) of this section, under which determinations under divisions (B) and (C) of this section are not required to be made.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-13-1997

5123.022 State policy regarding community employment for individuals with developmental disabilities.

(A) As used in this section:

(1) "Community employment" means competitive employment that takes place in an integrated setting.

(2) "Competitive employment" means full-time or part-time work in the competitive labor market in which payment is at or above the minimum wage but not less than the customary wage and level of benefits paid by the employer for the same or similar work performed by persons who are not disabled.

(3) "Integrated setting" means a setting typically found in the community where individuals with developmental disabilities interact with individuals who do not have disabilities to the same extent that individuals in comparable positions who are not disabled interact with other individuals, including in employment settings in which employees interact with the community through technology.

(B) It is hereby declared to be the policy of this state that employment services for individuals with developmental disabilities be directed at community employment. Every individual with a developmental disability is presumed capable of community employment.

The departments of developmental disabilities, education, medicaid, job and family services, and mental health and addiction services; the opportunities for Ohioans with disabilities agency; and each other state agency that provides employment services to individuals with developmental disabilities shall implement the policy of this state and ensure that it is followed whenever employment services are provided to individuals with developmental disabilities.

The department of developmental disabilities shall coordinate the actions taken by state agencies to comply with the state's policy. Agencies shall collaborate within their divisions and with each other to ensure that state programs, policies, procedures, and funding support competitive and integrated employment of individuals with developmental disabilities. State agencies shall share information with the department, and the department shall track progress toward full implementation of the policy. The department, in coordination with any task force established by the governor, shall compile data and annually submit to the governor a report on implementation of the policy.

The department and state agencies may adopt rules to implement the state's policy.

(C) The state's policy articulated in this section is intended to promote the right of each individual with a developmental disability to informed choice; however, nothing in this section requires any employer to give preference in hiring to an individual because the individual has a disability.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 129th General AssemblyFile No.128, SB 316, §101.01, eff. 9/24/2012.

5123.023 Employment first task force.

(A) The director of developmental disabilities may establish an employment first task force consisting of the departments of developmental disabilities, education, medicaid, job and family services, and mental health and addiction services; and the opportunities for Ohioans with disabilities agency. The purpose of the task force shall be to improve the coordination of the state's efforts to address the needs of individuals with developmental disabilities who seek community employment as defined in section 5123.022 of the Revised Code.

(B) The department of developmental disabilities may enter into interagency agreements with any of the government entities on the task force. The interagency agreements may specify either or both of the following:

(1) The roles and responsibilities of the government entities that are members of the task force, including any money to be contributed by those entities;

(2) The projects and activities of the task force.

(C) There is hereby created in the state treasury the employment first taskforce fund. Any money received by the task force from its members shall be credited to the fund. The department of developmental disabilities shall use the fund to support the work of the task force.

(D) The task force shall cease to exist on January 1, 2020. Any money, assets, or employees of the department of developmental disabilities that on that date are dedicated to the work of the task force shall be reallocated by the department for employment services for individuals with developmental disabilities.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5123.03 Management of institutions and facilities.

(A) The department of developmental disabilities shall do all of the following:

(1) Maintain, operate, manage, and govern all state institutions for the care, treatment, and training of the mentally retarded;

(2) Designate all such institutions by appropriate names;

(3) Provide and designate facilities for the custody, care, and special treatment of persons of the following classes:

(a) Dangerous persons in state institutions for the mentally retarded who represent a serious threat to the safety of the other patients of the institution;

(b) Persons charged with crimes who are found incompetent to stand trial or not guilty by reason of insanity and who are also mentally retarded persons subject to institutionalization by court order.

(4) Have control of all institutions maintained in part by the state for the care, treatment, and training of the mentally retarded;

(5) Administer the laws relative to persons in such institutions in an efficient, economical, and humane manner;

(6) Ascertain by actual examinations and inquiry whether institutionalizations are made according to law.

(B) The department may do any of the following:

(1) Subject to section 5139.08 of the Revised Code, receive from the department of youth services for observation, diagnosis, care, habilitation, or placement any children in the custody of the department of youth services;

(2) Receive for observation any minor from a public institution other than an institution under the jurisdiction of the department of developmental disabilities, from a private charitable institution, or from a person having legal custody of such a minor, upon such terms as are proper;

(3) Receive from the department of mental health and addiction services any patient in the custody of the department who is transferred to the department of developmental disabilities upon such terms and conditions as may be agreed upon by the two departments.

(C) In addition to the powers and duties expressly conferred by this section, the department may take any other action necessary for the full and efficient executive, administrative, and fiscal supervision of the state institutions described in this section.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 128th General Assemblych.128, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-20-1996

5123.031 Nonpartisan management.

The director of developmental disabilities may require the performance of duties by the officers of the institutions under the jurisdiction of the department of developmental disabilities so as fully to meet the requirements, intents, and purposes of this chapter. In case of an apparent conflict between the powers conferred upon any managing officer and those conferred by this chapter upon the department, the presumption shall be conclusive in favor of the department.

The director shall adopt rules for the nonpartisan management of the institutions under the jurisdiction of the department. An officer or employee of the department or any officer or employee of any institution under its control who, by solicitation or otherwise, exerts the officer's or employee's influence directly or indirectly to induce any other officer or employee of the department or any of its institutions to adopt the officer's or employee's political views or to favor any particular person, issue, or candidate for office shall be removed from the officer's or employee's office or position, by the department in case of an officer or employee, and by the governor in case of the director.

The managing officer of any institution under the jurisdiction of the department shall submit reports to the director relating to the admission, examination, comprehensive evaluation, diagnosis, release, or discharge of any resident.

The director, or a person designated by the director, shall visit each institution regularly to review the admission procedures of all new residents and to investigate complaints made by any resident or by any person on behalf of a resident.

The director shall prescribe the forms of affidavits, applications, comprehensive evaluations, orders of institutionalization and release, and all other forms that are required in the institutionalization, admission, and release of all persons with respect to institutions under the jurisdiction of the department, and of reports and records provided for under this chapter.

Amended by 128th General Assemblych.128, SB 79, §1, eff. 10/6/2009.

Effective Date: 11-11-1994

5123.032 Closure of a developmental center.

(A) As used in this section, "developmental center" means any institution or facility of the department of developmental disabilities that, on or after January 30, 2004, is named, designated, or referred to as a developmental center.

(B) Notwithstanding any other provision of law, any closure of a developmental center shall be subject to, and in accordance with, this section.

(C) Notwithstanding any other provision of law, at least ten days prior to making any official, public announcement that the governor intends to close one or more developmental centers, the governor shall notify the general assembly in writing that the governor intends to close one or more developmental centers. The governor shall notify the general assembly in writing of the prior announcement and that the governor intends to close the center identified in the prior announcement, and the notification to the general assembly shall constitute, for purposes of this section, the governor's official, public announcement that the governor intends to close that center.

The notice required by this division shall identify by name each developmental center that the governor intends to close or, if the governor has not determined any specific developmental center to close, shall state the governor's general intent to close one or more developmental centers. When the governor notifies the general assembly as required by this division, the legislative service commission promptly shall conduct an independent study of the developmental centers of the department of developmental disabilities and of the department's operation of the centers, and the study shall address relevant criteria and factors, including, but not limited to, all of the following:

(1) The manner in which the closure of developmental centers in general would affect the safety, health, well-being, and lifestyle of the centers' residents and their family members and would affect public safety and, if the governor's notice identifies by name one or more developmental centers that the governor intends to close, the manner in which the closure of each center so identified would affect the safety, health, well-being, and lifestyle of the center's residents and their family members and would affect public safety;

(2) The availability of alternate facilities;

(3) The cost effectiveness of the facilities identified for closure;

(4) A comparison of the cost of residing at a facility identified for closure and the cost of new living arrangements;

(5) The geographic factors associated with each facility and its proximity to other similar facilities;

(6) The impact of collective bargaining on facility operations;

(7) The utilization and maximization of resources;

(8) Continuity of the staff and ability to serve the facility population;

(9) Continuing costs following closure of a facility;

(10) The impact of the closure on the local economy;

(11) Alternatives and opportunities for consolidation with other facilities;

(12) How the closing of a facility identified for closure relates to the department's plans for the future of developmental centers in this state;

(13) The effect of the closure of developmental centers in general upon the state's fiscal resources and fiscal status and, if the governor's notice identifies by name one or more developmental centers that the governor intends to close, the effect of the closure of each center so identified upon the state's fiscal resources and fiscal status.

(D) The legislative service commission shall complete the study required by division (C) of this section, and prepare a report that contains its findings, not later than sixty days after the governor makes the official, public announcement that the governor intends to close one or more developmental centers as described in division (C) of this section. The commission shall provide a copy of the report to each member of the general assembly who requests a copy of the report.

Amended by 129th General AssemblyFile No.39, SB 171, §1, eff. 6/30/2011.

Amended by 128th General Assemblych.39, SB 79, §1, eff. 10/6/2009.

Effective Date: 01-30-2004

5123.033 Department program fee fund.

The program fee fund is hereby created in the state treasury. All fees collected pursuant to sections 5123.161 , 5123.164 , and 5123.19 of the Revised Code shall be credited to the fund. Money credited to the fund shall be used solely for the department of developmental disabilities' duties under sections 5123.16 to 5123.1610 [See Note], and 5123.19 of the Revised Code and to provide continuing education and professional training to providers of services to individuals with mental retardation or a developmental disability. If the money credited to the fund is inadequate to pay all of the department's costs in performing those duties and providing the continuing education and professional training, the department may use other available funds appropriated to the department to pay the remaining costs of performing those duties and providing the continuing education and professional training.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012 and 1/1/2013.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 2007 HB119 06-30-2007

5123.04 Director of department - powers and duties.

(A) The director of developmental disabilities is the executive head of the department of developmental disabilities. All duties conferred on the department and its institutions by law or by order of the director shall be performed under such rules as the director prescribes, and shall be under the director's control. The director shall establish bylaws for the government of all institutions under the jurisdiction of the department. Except as otherwise is provided as to appointments by chiefs of divisions, the director shall appoint such employees as are necessary for the efficient conduct of the department, and shall prescribe their titles and duties. If the director is not a licensed physician, decisions relating to medical diagnosis and treatment shall be the responsibility of a licensed physician appointed by the director.

(B) The director shall adopt rules for the proper execution of the powers and duties of the department.

(C) The director shall adopt rules establishing standards that mental retardation programs and facilities shall follow when performing evaluations of the mental condition of defendants ordered by the court under section 2919.271 or 2945.371 of the Revised Code, and for the treatment of defendants who have been found incompetent to stand trial under section 2945.38 of the Revised Code, and certify the compliance of such programs and facilities with the standards.

(D) On behalf of the department, the director has the authority to, and responsibility for, entering into contracts and other agreements.

(E) The director shall adopt rules in accordance with Chapter 119. of the Revised Code that do all of the following:

(1) Specify the supplemental services that may be provided through a trust authorized by section 5815.28 of the Revised Code;

(2) Establish standards for the maintenance and distribution to a beneficiary of assets of a trust authorized by section 5815.28 of the Revised Code.

(F) The director shall provide monitoring of county boards of developmental disabilities.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1997; 01-01-2007

5123.041 [Repealed].

Effective Date: 06-05-2002; 07-01-2005

5123.042 Plans for development or modification of residential services; rules.

Except as provided in section 5123.197 of the Revised Code, each person or government entity seeking to develop new or modify existing residential services shall submit to the department of developmental disabilities a plan for the development or modification. The department shall approve a plan that is submitted in accordance with rules adopted under this section and meets the uniform standards for plans established in those rules.

The director of developmental disabilities shall adopt rules in accordance with Chapter 119. of the Revised Code establishing the following:

(A) Procedures for submitting plans under this section;

(B) Uniform standards for the plans.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.0420 Training and certification program for individuals who provide evidence-based interventions to individuals with an autism spectrum disorder.

As used in this section, "evidence-based intervention" means a prevention or treatment service that has been demonstrated through scientific evaluation to produce a positive outcome.

The department of developmental disabilities shall establish a voluntary training and certification program for individuals who provide evidence-based interventions to individuals with an autism spectrum disorder. The department shall administer the program or contract with a person or other government entity to administer the program. The program shall not conflict with or duplicate any other certification or licensure process administered by the state.

The director of developmental disabilities may adopt rules as necessary to implement this section. If the director adopts rules, the rules shall be adopted in accordance with Chapter 119. of the Revised Code.

Added by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

5123.043 Complaint resolution.

(A) The director of developmental disabilities shall adopt rules establishing procedures for administrative resolution of complaints filed under division (B) of this section and section 5126.06 of the Revised Code. The rules shall be adopted in accordance with Chapter 119. of the Revised Code.

(B) Except as provided in division (C) of this section, any person or county board of developmental disabilities that has a complaint involving any of the programs, services, policies, or administrative practices of the department of developmental disabilities or any of the entities under contract with the department, may file a complaint with the department. Prior to commencing a civil action regarding the complaint, a person or county board shall attempt to have the complaint resolved through the administrative resolution process established in the rules adopted under this section. After exhausting the administrative resolution process, the person or county board may commence a civil action if the complaint is not settled to the person's or county board's satisfaction.

(C) An employee of the department may not file under this section a complaint related to the terms and conditions of employment for the employee.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 12-13-2001; 2007 HB119 09-29-2007

5123.044 Determination of violation of rights; assistance to individuals.

The department of developmental disabilities shall determine whether county boards of developmental disabilities violate the rights that individuals with mental retardation or other developmental disabilities have under section 5126.046 of the Revised Code to obtain home and community-based services, nonmedicaid residential services, or nonmedicaid supported living from qualified and willing providers. The department shall provide assistance to an individual with mental retardation or other developmental disability who requests assistance with the individual's rights under that section if the department is notified of a county board's alleged violation of the individual's rights under that section.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-06-2001

5123.045 Certification and licensing of providers.

No person or government entity shall receive payment for providing home and community-based services unless the person or government entity is one of the following:

(A) Certified under section 5123.161 of the Revised Code;

(B) Licensed as a residential facility under section 5123.19 of the Revised Code.

Effective Date: 06-06-2001; 07-01-2005; 2007 HB119 06-30-2007

5123.046 Approving county board plans.

The department of developmental disabilities shall review each component of the three-calendar-year plan it receives from a county board of developmental disabilities under section 5126.054 of the Revised Code and, in consultation with the department of job and family services and office of budget and management, approve each component that includes all the information and conditions specified in that section. The third component of the plan shall be approved or disapproved not later than forty-five days after the third component is submitted to the department. If the department approves all three components of the plan, the plan is approved. Otherwise, the plan is disapproved. If the plan is disapproved, the department shall take action against the county board under division (B) of section 5126.056 of the Revised Code.

In approving plans under this section, the department shall ensure that the aggregate of all plans provide for the increased enrollment into home and community-based services during each state fiscal year of at least five hundred individuals who did not receive residential services, supported living, or home and community-based services the prior state fiscal year if the department has enough additional enrollment available for this purpose.

The department shall establish protocols that the department shall use to determine whether a county board is complying with the programmatic and financial accountability mechanisms and achieving outcomes specified in its approved plan. If the department determines that a county board is not in compliance with the mechanisms or achieving the outcomes specified in its approved plan, the department may take action under division (F) of section 5126.055 of the Revised Code.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 12-13-2001; 07-01-2005; 2007 HB119 07-01-2007

5123.047 Department payment of nonfederal share of certain expenditures.

The department of developmental disabilities shall pay the nonfederal share of medicaid expenditures for medicaid case management services and home and community-based services for which no county board of developmental disabilities is required by section 5126.059 or 5126.0510 of the Revised Code to pay.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-06-2001; 07-01-2005; 2007 HB119 07-01-2007

5123.048 Payment of nonfederal share of county medicaid expenditures.

The director of developmental disabilities may enter into an agreement with a county board of developmental disabilities under which the department of developmental disabilities is to pay the nonfederal share of medicaid expenditures for one or more of the home and community-based services that the county board would, if not for the agreement, be required by section 5126.0510 of the Revised Code to pay. The agreement shall specify which home and community-based services the agreement covers. The department shall pay the nonfederal share of medicaid expenditures for the home and community-based services that the agreement covers as long as the agreement is in effect.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-2005; 2007 HB119 07-01-2007

5123.049 Rules governing the authorization and payment of home and community-based services, medicaid case management services, and habilitation center services.

The director of developmental disabilities shall adopt rules in accordance with Chapter 119. of the Revised Code governing the authorization and payment of home and community-based services and medicaid case management services. The rules shall provide for private providers of the services to receive one hundred per cent of the medicaid allowable payment amount and for government providers of the services to receive the federal share of the medicaid allowable payment, less the amount withheld as a fee under section 5123.0412 of the Revised Code . The rules shall establish the process by which county boards of developmental disabilities shall certify and provide the nonfederal share of medicaid expenditures that the county board is required by sections 5126.059 and 5126.0510 of the Revised Code to pay. The process shall require a county board to certify that the county board has funding available at one time for two months costs for those expenditures. The process may permit a county board to certify that the county board has funding available at one time for more than two months costs for those expenditures.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 10/16/2009.

Amended by 128th General Assemblych.9, SB 79, §1, eff. 10/6/2009.

Effective Date: 12-13-2001; 07-01-2005; 2007 HB119 07-01-2007

5123.0410 Individual receiving services moving to new county.

An individual with mental retardation or other developmental disability who moves from one county in this state to another county in this state shall receive home and community-based services in the new county that are comparable in scope to the home and community-based services the individual receives in the prior county at the time the individual moves. If the county board serving the county to which the individual moves determines under section 5126.041 of the Revised Code that the individual is eligible for county board services, the county board shall ensure that the individual receives the comparable services. If the county board determines that the individual is not eligible for county board services, the department of developmental disabilities shall ensure that the individual receives the comparable services.

If the home and community-based services that the individual receives at the time the individual moves include supported living or residential services, the department shall reduce the amount the department allocates to the county board serving the county the individual left for those supported living or residential services by an amount that equals the payment the department authorizes or projects, or both, for those supported living or residential services from the last day the individual resides in the county to the last day of the state fiscal year in which the individual moves. The department shall increase the amount the department allocates to the county board serving the county the individual moves to by the same amount. The department shall make the reduction and increase effective the day the department determines the individual has residence in the new county. The department shall determine the amount that is to be reduced and increased in accordance with the department's rules for authorizing payments for home and community-based services established adopted under section 5123.049 of the Revised Code. The department shall annualize the reduction and increase for the subsequent state fiscal year as necessary.

Amended by 128th General Assemblych.9, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-06-2001

5123.0411 Mandamus.

The department of developmental disabilities may bring a mandamus action against a county board of developmental disabilities that fails to pay the nonfederal share of medicaid expenditures that the county board is required by sections 5126.059 and 5126.0510 of the Revised Code to pay. The department may bring the mandamus action in the court of common pleas of the county served by the county board or in the Franklin county court of common pleas.

Amended by 128th General Assemblych.9, SB 79, §1, eff. 10/6/2009.

Effective Date: 12-13-2001; 2007 HB119 07-01-2007

5123.0412 ODDD administration and oversight fund.

(A) The department of developmental disabilities shall charge each county board of developmental disabilities an annual fee equal to one and one-quarter per cent of the total value of all medicaid paid claims for home and community-based services provided during the year to an individual eligible for services from the county board. However, the department shall not charge the fee for home and community-based services provided under the medicaid waiver component known as the transitions developmental disabilities waiver. No county board shall pass the cost of a fee charged to the county board under this section on to another provider of these services.

(B) The fees collected under this section shall be deposited into the ODDD administration and oversight fund , which is hereby created in the state treasury. The department shall use the money in the ODDD administration and oversight fund for both of the following purposes:

(1) Medicaid administrative costs, including administrative and oversight costs of medicaid case management services and home and community-based services. The administrative and oversight costs of medicaid case management services and home and community-based services shall include costs for staff, systems, and other resources the department needs and dedicates solely to the following duties associated with the services:

(a) Eligibility determinations;

(b) Training;

(c) Fiscal management;

(d) Claims processing;

(e) Quality assurance oversight;

(f) Other duties the department identifies.

(2) Providing technical support to county boards' local administrative authority under section 5126.055 of the Revised Code for the services.

(C)

The department shall submit an annual report to the director of budget and management certifying how the department spent the money in the ODDD administration and oversight fund for the purposes specified in division (B) of this section.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 7/17/2009.

Amended by 128th General Assemblych.9, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-06-2001; 07-01-2005; 2008 HB562 09-22-2008

5123.0413 Rules to applicable in event county tax levy for services for individuals with developmental disabilities fails.

The department of developmental disabilities, in consultation with the department of job and family services, office of budget and management, and county boards of developmental disabilities, shall adopt rules in accordance with Chapter 119. of the Revised Code to establish both of the following in the event a county property tax levy for services for individuals with mental retardation or other developmental disability fails:

(A) A method of paying for home and community-based services;

(B) A method of reducing the number of individuals a county board would otherwise be required by section 5126.0512 of the Revised Code to ensure are enrolled in home and community-based services .

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 10/16/2009.

Amended by 128th General Assemblych.9, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-06-2001; 06-30-2006

5123.0414 Methods of notice by department.

(A) When the director of developmental disabilities, under section 119.07 of the Revised Code, sends a party a notice by registered mail, return receipt requested, that the director intends to take action against the party authorized by section 5123.166, 5123.168, 5123.19, 5123.45, 5123.51, or 5126.25 of the Revised Code and the notice is returned to the director with an endorsement indicating that the notice was refused or unclaimed, the director shall resend the notice by ordinary mail to the party.

(B) If the original notice was refused, the notice shall be deemed received as of the date the director resends the notice.

(C) If the original notice was unclaimed, the notice shall be deemed received as of the date the director resends the notice unless, not later than thirty days after the date the director sent the original notice, the resent notice is returned to the director for failure of delivery.

If the notice concerns taking action under section 5123.51 of the Revised Code and the resent notice is returned to the director for failure of delivery not later than thirty days after the date the director sent the original notice, the director shall cause the notice to be published in a newspaper of general circulation in the county of the party's last known residence or business and shall mail a dated copy of the published notice to the party at the last known address. The notice shall be deemed received as of the date of the publication.

If the notice concerns taking action under section 5123.166, 5123.168, 5123.19, 5123.45, or 5126.25 of the Revised Code and the resent notice is returned to the director for failure of delivery not later than thirty days after the date the director sent the original notice, the director shall resend the notice to the party a second time. The notice shall be deemed received as of the date the director resends the notice the second time.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 2007 HB119 06-30-2007

5123.0415 Notification of change of address.

Each person and each government entity that applies for or holds a valid license, certification, or registration issued under section 5123.161, 5123.19, 5123.45, or 5126.25 of the Revised Code shall notify the director of developmental disabilities of any change in the person's or government entity's address.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 2007 HB119 06-30-2007

5123.0416 Expenditure and allocation of appropriated fees.

(A) Subject to the availability of funds appropriated to the department of developmental disabilities for medicaid waiver state match, the department shall expend, in fiscal year 2009 and each fiscal year thereafter, not less than the amount appropriated in appropriation item 322-416, medicaid waiver state match, in fiscal year 2008 to do both of the following:

(1) Pay the nonfederal share of medicaid expenditures for home and community-based services that section 5123.047 of the Revised Code requires the department to pay;

(2) Assist county boards of developmental disabilities in paying the nonfederal share of medicaid expenditures for home and community-based services that section 5126.0510 of the Revised Code requires county boards to pay.

(B) The department shall make the expenditures required by division (A)(2) of this section in the form of allocations to county boards or by other means. If the department makes the expenditures in the form of allocations, the process for making the allocations shall conform to a process the department shall establish after consulting with representatives of county boards.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 2007 HB119 07-01-2007

5123.0417 Programs for person under 22 with intensive behavioral needs.

(A) The director of developmental disabilities shall establish one or more programs for individuals under twenty-two years of age who have intensive behavioral needs, including such individuals with a primary diagnosis of autism spectrum disorder. The programs may include one or more medicaid waiver components that the director administers pursuant to section 5166.21 of the Revised Code. The programs may do one or more of the following:

(1) Establish models that incorporate elements common to effective intervention programs and evidence-based practices in services for children with intensive behavioral needs;

(2) Design a template for individualized education plans and individual service plans that provide consistent intervention programs and evidence-based practices for the care and treatment of children with intensive behavioral needs;

(3) Disseminate best practice guidelines for use by families of children with intensive behavioral needs and professionals working with such families;

(4) Develop a transition planning model for effectively mainstreaming school-age children with intensive behavioral needs to their public school district;

(5) Contribute to the field of early and effective identification and intervention programs for children with intensive behavioral needs by providing financial support for scholarly research and publication of clinical findings.

(B) The director of developmental disabilities shall collaborate with the medicaid director and consult with the executive director of the Ohio center for autism and low incidence and university-based programs that specialize in services for individuals with developmental disabilities when establishing programs under this section.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 7/17/2009.

Amended by 128th General Assemblych.9, SB 79, §1, eff. 10/6/2009.

Effective Date: 2008 HB562 07-01-2008

5123.0418 Additional uses of funds.

(A) In addition to other authority granted the director of developmental disabilities for use of funds appropriated to the department of developmental disabilities, the director may use such funds for the following purposes:

(1) All of the following to assist persons with mental retardation or a developmental disability remain in the community and avoid institutionalization:

(a) Behavioral and short-term interventions;

(b) Residential services;

(c) Supported living.

(2) Respite care services;

(3) Staff training to help the following personnel serve persons with mental retardation or a developmental disability in the community:

(a) Employees of, and personnel under contract with, county boards of developmental disabilities;

(b) Employees of providers of supported living;

(c) Employees of providers of residential services;

(d) Other personnel the director identifies.

(B) The director may establish priorities for using funds for the purposes specified in division (A) of this section. The director shall use the funds in a manner consistent with the appropriations that authorize the director to use the funds and all other state and federal laws governing the use of the funds.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

5123.0419 Interagency workgroup on autism.

(A) The director of developmental disabilities may establish an interagency workgroup on autism. The purpose of the workgroup shall be to improve the coordination of the state's efforts to address the service needs of individuals with autism spectrum disorders and the families of those individuals. In fulfilling this purpose, the director may enter into interagency agreements with the government entities represented by the members of the workgroup. The agreements may specify any or all of the following:

(1) The roles and responsibilities of government entities that enter into the agreements;

(2) Procedures regarding the receipt, transfer, and expenditure of funds necessary to achieve the goals of the workgroup;

(3) The projects to be undertaken and activities to be performed by the government entities that enter into the agreements.

(B) Money received from government entities represented by the members of the workgroup shall be deposited into the state treasury to the credit of the interagency workgroup on autism fund, which is hereby created in the state treasury. Money credited to the fund shall be used by the department of developmental disabilities solely to support the activities of the workgroup.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 6/30/2011.

5123.05 Audits of services and programs.

The department of 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.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.051 Payment agreements with providers.

(A) If the department of developmental disabilities determines pursuant to an audit conducted under section 5123.05 of the Revised Code that money is owed the state by a provider of a service or program, the department may enter into a payment agreement with the 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 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) Any other terms and conditions that are agreed to by the department and the provider.

(B) The department may include a provision in a payment agreement that requires the provider to pay interest on the money owed the state. The 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 department and the provider.

(C) If the provider fails to pay any installment in full within forty-five days after its due date, the 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 provider under section 5123.18 of the Revised Code to satisfy a judgment secured by the attorney general.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-26-2003; 2007 HB119 06-30-2007

5123.06 Divisions of department.

The director of developmental disabilities may establish divisions in the department of developmental disabilities and prescribe their powers and duties.

Each division shall consist of a 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 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 the division, and, with the approval of the director, may establish bureaus or other administrative units in the division.

Appointment to the position of deputy director of a division may be made from persons holding positions in the classified service in the department.

The 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 deputy director of a division, under the director, shall have entire executive charge of the division to which the deputy director is appointed. Subject to sections 124.01 to 124.64 of the Revised Code, and civil service rules, the deputy director of a division shall, with the approval of the director, select and appoint the necessary employees in the deputy director's division and may remove those employees for cause.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.07 Bureau of research - duties.

There may be created in the department of developmental disabilities a bureau of research. The bureau shall:

(A) Plan, direct, and coordinate all research programs conducted by the department;

(B) Provide continuing evaluation of research programs;

(C) Direct and coordinate scientific investigations and studies as undertaken under this section.

The department shall institute and encourage scientific investigation by the staffs of the various institutions under its control and supervision, and publish bulletins and reports of the scientific and clinical work done in such institutions. Scientific investigation in the department shall be undertaken and continued only with the approval of the director of developmental disabilities.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 04-04-1986

5123.08 Classified and unclassified appointments.

An appointing officer may appoint a person who holds a certified position in the classified service within the department of developmental disabilities to a position in the unclassified service within the department. A person appointed pursuant to this section to a position in the unclassified service shall retain the right to resume the position and status held by the person in the classified service immediately prior to the person's appointment to the position in the unclassified service, regardless of the number of positions the person held in the unclassified service. An employee's right to resume a position in the classified service may only be exercised when an appointing authority demotes the employee to a pay range lower than the employee's current pay range or revokes the employee's appointment to the unclassified service. An employee forfeits the right to resume a position in the classified service when the employee is removed from the position in the unclassified service due to incompetence, inefficiency, dishonesty, drunkenness, immoral conduct, insubordination, discourteous treatment of the public, neglect of duty, violation of this chapter or Chapter 124. of the Revised Code, the rules of the director of developmental disabilities or the director of administrative services, any other failure of good behavior, any other acts of misfeasance, malfeasance, or nonfeasance in office, or conviction of a felony. An employee also forfeits the right to resume a position in the classified service upon transfer to a different agency.

Reinstatement to a position in the classified service shall be to a position substantially equal to that position in the classified service held previously, as certified by the director of administrative services. If the position the person previously held in the classified service has been placed in the unclassified service or is otherwise unavailable, the person shall be appointed to a position in the classified service within the department that the director of administrative services certifies is comparable in compensation to the position the person previously held in the classified service. Service in the position in the unclassified service shall be counted as service in the position in the classified service held by the person immediately prior to the person's appointment to the position in the unclassified service. When a person is reinstated to a position in the classified service as provided in this section, the person is entitled to all rights, status, and benefits accruing to the position in the classified service during the time of the person's service in the position in the unclassified service.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 01-15-1981; 2006 HB699 03-29-2007

5123.081 Criminal records check.

(A) As used in this section:

(1)

(a) "Applicant" means any of the following:

(i) A person who is under final consideration for appointment to or employment with the department of developmental disabilities or a county board of developmental disabilities;

(ii) A person who is being transferred to the department or a county board;

(iii) An employee who is being recalled to or reemployed by the department or a county board after a layoff;

(iv) A person under final consideration for a direct services position with a provider or subcontractor.

(b) Neither of the following is an applicant:

(i) A person who is employed by a responsible entity in a position for which a criminal records check is required by this section and either is being considered for a different position with the responsible entity or is returning after a leave of absence or seasonal break in employment, unless the responsible entity has reason to believe that the person has committed a disqualifying offense;

(ii) A person who is to provide only respite care under a family support services program established under section 5126.11 of the Revised Code if a family member of the individual with mental retardation or a developmental disability who is to receive the respite care selects the person.

(2) "Criminal records check" has the same meaning as in section 109.572 of the Revised Code.

(3) "Direct services position" means an employment position in which the employee has the opportunity to be alone with or exercises supervision or control over one or more individuals with mental retardation or a developmental disability.

(4) "Disqualifying offense" means any of the offenses listed or described in divisions (A)(3)(a) to (e) of section 109.572 of the Revised Code.

(5)

(a) "Employee" means either of the following:

(i) A person appointed to or employed by the department of developmental disabilities or a county board of developmental disabilities;

(ii) A person employed in a direct services position by a provider or subcontractor.

(b) "Employee" does not mean a person who provides only respite care under a family support services program established under section 5126.11 of the Revised Code if a family member of the individual with mental retardation or a developmental disability who receives the respite care selected the person.

(6) "Minor drug possession offense" has the same meaning as in section 2925.01 of the Revised Code.

(7) "Provider" means a person that provides specialized services to individuals with mental retardation or a developmental disability and employs one or more persons in direct services positions.

(8) "Responsible entity" means the following:

(a) The department of developmental disabilities in the case of either of the following:

(i) A person who is an applicant because the person is under final consideration for appointment to or employment with the department, being transferred to the department, or being recalled to or reemployed by the department after a layoff;

(ii) A person who is an employee because the person is appointed to or employed by the department.

(b) A county board of developmental disabilities in the case of either of the following:

(i) A person who is an applicant because the person is under final consideration for appointment to or employment with the county board, being transferred to the county board, or being recalled to or reemployed by the county board after a layoff;

(ii) A person who is an employee because the person is appointed to or employed by the county board.

(c) A provider in the case of either of the following:

(i) A person who is an applicant because the person is under final consideration for a direct services position with the provider;

(ii) A person who is an employee because the person is employed in a direct services position by the provider.

(d) A subcontractor in the case of either of the following:

(i) A person who is an applicant because the person is under final consideration for a direct services position with the subcontractor;

(ii) A person who is an employee because the person is employed in a direct services position by the subcontractor.

(9) "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 developmental disabilities. If there is a question as to whether a provider or subcontractor is providing specialized services, the provider or subcontractor may request that the director of developmental disabilities make a determination. The director's determination is final.

(10) "Subcontractor" means a person to which both of the following apply:

(a) The person has either of the following:

(i) A subcontract with a provider to provide specialized services included in the contract between the provider and the department of developmental disabilities or a county board of developmental disabilities;

(ii) A subcontract with another subcontractor to provide specialized services included in a subcontract between the other subcontractor and a provider or other subcontractor.

(b) The person employs one or more persons in direct services positions.

(B) A responsible entity shall not employ an applicant or continue to employ an employee if either of the following applies:

(1) The applicant or employee fails to comply with division (D)(3) of this section.

(2) Except as provided in rules adopted under this section, the applicant or employee is found by a criminal records check required by this section to have been convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for a disqualifying offense.

(C) Before employing an applicant in a position for which a criminal records check is required by this section, a responsible entity shall require the applicant to submit a statement with the applicant's signature attesting that the applicant has not been convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for a disqualifying offense. The responsible entity also shall require the applicant to sign an agreement under which the applicant agrees to notify the responsible entity within fourteen calendar days if, while employed by the responsible entity, the applicant is formally charged with, is convicted of, pleads guilty to, or is found eligible for intervention in lieu of conviction for a disqualifying offense. The agreement shall provide that the applicant's failure to provide the notification may result in termination of the applicant's employment.

(D)

(1) As a condition of employing any applicant in a position for which a criminal records check is required by this section, a responsible entity shall request the superintendent of the bureau of criminal identification and investigation to conduct a criminal records check

of the applicant. If rules adopted under this section require an employee to undergo a criminal records check, a responsible entity shall request the superintendent to conduct a criminal records check of the employee at times specified in the rules as a condition of the responsible entity's continuing to employ the employee in a position for which a criminal records check is required by this section. If an applicant or employee does not present proof that the applicant or employee 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 responsible entity shall request that the superintendent obtain information from the federal bureau of investigation as a part of the criminal records check . If the applicant or employee presents proof that the applicant or employee has been a resident of this state for that five-year period, the responsible entity may request that the superintendent include information from the federal bureau of investigation in the criminal records check. For purposes of this division, an applicant or employee may provide proof of residency in this state by presenting, with a notarized statement asserting that the applicant or employee 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 or employee's permanent residence, or any other document the responsible entity considers acceptable.

(2) A responsible entity shall do all of the following:

(a) Provide to each applicant and employee for whom a criminal records check is required by this section a copy of the form prescribed pursuant to division (C)(1) of section 109.572 of the Revised Code and a standard impression sheet to obtain fingerprint impressions prescribed pursuant to division (C)(2) of section 109.572 of the Revised Code ;

(b) Obtain the completed form and standard impression sheet from the applicant or employee;

(c) Forward the completed form and standard impression sheet to the superintendent at the time the criminal records check is requested.

(3) Any applicant or employee 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 the standard impression sheet prescribed pursuant to division (C)(2) of that section and who is requested to complete the form and provide a set of the applicant's or employee's fingerprint impressions shall complete the form or provide all the information necessary to complete the form and shall provide the standard impression sheet with the impressions of the applicant's or employee's fingerprints.

(4) A responsible entity 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.

(E) A responsible entity may request any other state or federal agency to supply the responsible entity with a written report regarding the criminal record of an applicant or employee. If an employee holds an occupational or professional license or other credentials, the responsible entity may request that the state or federal agency that regulates the employee's occupation or profession supply the responsible entity 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. The responsible entity may consider the reports when determining whether to employ the applicant or to continue to employ the employee.

(F) As a condition of employing an applicant in a position for which a criminal records check is required by this section and that involves transporting individuals with mental retardation or developmental disabilities or operating a responsible entity's vehicles for any purpose, the responsible entity shall obtain the applicant's driving record from the bureau of motor vehicles. If rules adopted under this section require a responsible entity to obtain an employee's driving record, the responsible entity shall obtain the employee's driving record from the bureau at times specified in the rules as a condition of continuing to employ the employee. The responsible entity may consider the applicant's or employee's driving record when determining whether to employ the applicant or to continue to employ the employee.

(G) A responsible entity may employ an applicant conditionally pending receipt of a report regarding the applicant requested under this section. The responsible entity shall terminate the applicant's employment if it is determined from a report that the applicant failed to inform the responsible entity that the applicant had been convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for a disqualifying offense.

(H) A responsible entity may charge an applicant a fee for costs the responsible entity incurs in obtaining a report regarding the applicant under this section if the responsible entity notifies 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 responsible entity will not consider the applicant for employment. The fee shall not exceed the amount of the fee, if any, the responsible entity pays for the report.

(I)

(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 following:

(a) The applicant or employee who is the subject of the report or the applicant's or employee's representative ;

(b) The responsible entity that requested the report or its representative ;

(c) The department if a county board, provider, or subcontractor is the responsible entity that requested the report and the department requests the responsible entity to provide a copy of the report to the department;

(d) A county board if a provider or subcontractor is the responsible entity that requested the report and the county board requests the responsible entity to provide a copy of the report to the county board;

(e) Any court, hearing officer, or other necessary individual involved in a case dealing with any of the following:

(i) The denial of employment to the applicant or employee;

(ii) The denial, suspension, or revocation of a certificate under section 5123.166 or 5123.45 of the Revised Code;

(iii) A civil or criminal action regarding the medicaid program or a program the department administers.

(2) An applicant or employee for whom responsible entity has obtained reports under this section may submit a written request to the responsible entity to have copies of the reports sent to any state agency, entity of local government, or private entity. The applicant or employee shall specify in the request the agencies or entities to which the copies are to be sent. On receiving the request, the responsible entity shall send copies of the reports to the agencies or entities specified.

(3) A responsible entity may request that a state agency, entity of local government, or private entity send copies to the responsible entity of any report regarding a records check or criminal records check that the agency or entity possesses, if the responsible entity obtains the written consent of the individual who is the subject of the report.

(4) A responsible entity shall provide each applicant and employee with a copy of any report obtained about the applicant or employee under this section.

(J) The director of developmental disabilities shall adopt rules in accordance with Chapter 119. of the Revised Code to implement this section .

(1) The rules may do the following:

(a) Require employees to undergo criminal records checks under this section;

(b) Require responsible entities to obtain the driving records of employees under this section;

(c) If the rules require employees to undergo criminal records checks, require responsible entities to obtain the driving records of employees, or both, exempt one or more classes of employees from the requirements.

(2) The rules shall do both of the following:

(a) If the rules require employees to undergo criminal records checks, require responsible entities to obtain the driving records of employees, or both, specify the times at which the criminal records checks are to be conducted and the driving records are to be obtained;

(b) Specify circumstances under which a responsible entity may employ an applicant or employee who is found by a criminal records check required by this section to have been convicted of , pleaded guilty to , or been found eligible for intervention in lieu of conviction for a disqualifying offense but meets standards in regard to rehabilitation set by the director.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012 and 1/1/2013.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 01-30-2004

5123.082 [Repealed].

Repealed by 129th General AssemblyFile No.127, HB 487, §105.01, eff. 9/10/2012.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-06-2001

5123.083 [Repealed].

Repealed by 129th General AssemblyFile No.127, HB 487, §105.01, eff. 9/10/2012.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-22-2001

5123.09 Managing officer of institution - powers and duties.

Subject to the rules of the department of 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. The managing officer shall be appointed by the director of 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 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 the managing officer is appointed, except as provided in section 5119.44 of the Revised Code. Subject to civil service rules and rules adopted by the department, the managing officer shall appoint the necessary employees, and the managing officer or the director may remove those employees for cause. 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.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.091 Changing purpose and use of institutions.

The director of developmental disabilities may, by rule and with the approval of the governor, change the purpose for which any institution under the control of the department is being used. The director may designate a new or another use for the institution, provided the change of use and new designation has for its objective improvement in the classification, segregation, care, education, cure, or rehabilitation of the persons admitted.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 04-09-1981

5123.092 Citizen's advisory council.

(A) There is hereby established at each institution and branch institution under the control of the department of 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) The director of 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 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.

Each advisory council shall elect from its 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 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) A citizen's advisory 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 and the department of developmental disabilities.

(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 those expenses shall not exceed limits imposed upon the department of 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.

Amended by 129th General AssemblyFile No.28, HB 153, §120.20, eff. 10/1/2012.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.093 Duties of citizen's advisory council.

The citizen's advisory councils established under section 5123.092 of the Revised Code shall:

(A) Transmit verbal or written information from any person or organization associated with the institution or within the community, that an advisory council considers important, to the director of developmental disabilities;

(B) Review the records of all applicants to any unclassified position at the institution, except for resident physician positions filled under section 5123.11 of the Revised Code;

(C) Review and evaluate institutional employee training and continuing education programs;

(D) On or before the thirty-first day of January of each year, submit a written report to the director of developmental disabilities regarding matters affecting the institution including, but not limited to, allegations of dehumanizing practices and violations of individual or legal rights;

(E) Review institutional budgets, programs, services, and planning;

(F) Develop and maintain relationships within the community with community mental retardation and developmental disabilities organizations;

(G) Participate in the formulation of the institution's objectives, administrative procedures, program philosophy, and long range goals;

(H) Bring any matter that an advisory council considers important to the attention of the joint council on developmental disabilities and the director of developmental disabilities;

(I) Recommend to the director of developmental disabilities persons for appointment to citizen's advisory councils;

(J) Adopt any rules or procedures necessary to carry out this section.

The chairperson of the advisory council or the chairperson's designee shall be notified within twenty-four hours of any alleged incident of abuse to a resident or staff member by anyone. Incidents of resident or staff abuse shall include, but not be limited to, sudden deaths, accidents, suicides, attempted suicides, injury caused by other persons, alleged criminal acts, errors in prescribing or administering medication, theft from clients, fires, epidemic disease, administering unprescribed drugs, unauthorized use of restraint, withholding of information concerning alleged abuse, neglect, or any deprivation of rights as defined in Chapter 5122. or 5123. of the Revised Code.

Amended by 129th General AssemblyFile No.39, SB 171, §1, eff. 6/30/2011.

Amended by 128th General Assemblych.39, SB 79, §1, eff. 10/6/2009.

Effective Date: 12-02-1996

5123.10 Bond of employees.

The department of developmental disabilities shall require any of its employees and each officer and employee of every institution under its control who may be charged with custody or control of any money or property belonging to the state or who is required to give bond to give a surety company bond, properly conditioned, in a sum to be fixed by the department which, when approved by the department, shall be filed in the office of the secretary of state. The cost of such bonds, when approved by the department, shall be paid from funds available for the department. The bonds required or authorized by this section may, in the discretion of the director of developmental disabilities, be individual, schedule, or blanket bonds.

Amended by 128th General Assemblych.39, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1980

5123.11 Residency medical and psychological training programs.

(A) The director of developmental disabilities 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 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 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.

Amended by 128th General Assemblych.39, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.12 Residency training programs for students enrolled in appropriate care programs.

The director of developmental disabilities may enter into an agreement with boards of trustees or boards of directors of one or more universities, colleges, or schools to establish, manage, and conduct residency training programs for students enrolled in courses of studies for occupations or professions which may be determined by the director to be needed by the department to provide adequate care and treatment for the residents of any institution administered by the director.

Amended by 128th General Assemblych.39, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1980

5123.121 Amended and Renumbered RC 5123.18.

Effective Date: 07-01-1980

5123.122 Support rate.

Notwithstanding section 5121.04 of the Revised Code and except as provided in section 5123.194 of the Revised Code, the liable relative of a mentally retarded or developmentally disabled person who is a minor receiving residential services pursuant to a contract entered into with the department of developmental disabilities under section 5123.18 of the Revised Code shall be charged for the minor's support the percentage of a base support rate determined in accordance with division (B)(2) of section 5121.04 of the Revised Code.

Amended by 128th General Assemblych.39, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-30-1997

5123.13 Special police officers.

(A) As used in this section, "felony" has the same meaning as in section 109.511 of the Revised Code.

(B)

(1) Subject to division (C) of this section, upon the recommendation of the director of developmental disabilities, the managing officer of an institution under the jurisdiction of the department of developmental disabilities may designate one or more employees to be special police officers of the department. The special police officers shall take an oath of office, wear the badge of office, and give bond for the proper and faithful discharge of their duties in an amount that the director requires.

(2) In accordance with section 109.77 of the Revised Code, the special police officers shall be required to complete successfully a peace officer basic training program approved by the Ohio peace officer training commission and to be certified by the commission. The cost of the training shall be paid by the department of developmental disabilities.

(3) Special police officers, on the premises of institutions under the jurisdiction of the department of developmental disabilities and subject to the rules of the department, shall protect the property of the institutions and the persons and property of patients in the institutions, suppress riots, disturbances, and breaches of the peace, and enforce the laws of the state and the rules of the department for the preservation of good order. They may arrest any person without a warrant and detain the person until a warrant can be obtained under the circumstances described in division (F) of section 2935.03 of the Revised Code.

(C)

(1) The managing officer of an institution under the jurisdiction of the department of developmental disabilities shall not designate an employee as a special police officer of the department pursuant to division (B)(1) of this section on a permanent basis, on a temporary basis, for a probationary term, or on other than a permanent basis if the employee previously has been convicted of or has pleaded guilty to a felony.

(2)

(a) The managing officer of an institution under the jurisdiction of the department of developmental disabilities shall terminate the employment as a special police officer of the department of an employee designated as a special police officer under division (B)(1) of this section if that employee does either of the following:

(i) Pleads guilty to a felony;

(ii) Pleads guilty to a misdemeanor pursuant to a negotiated plea agreement as provided in division (D) of section 2929.43 of the Revised Code in which the employee agrees to surrender the certificate awarded to that employee under section 109.77 of the Revised Code.

(b) The managing officer shall suspend from employment as a special police officer of the department an employee designated as a special police officer under division (B)(1) of this section if that employee is convicted, after trial, of a felony. If the special police officer files an appeal from that conviction and the conviction is upheld by the highest court to which the appeal is taken or if the special police officer does not file a timely appeal, the managing officer shall terminate the employment of that special police officer. If the special police officer files an appeal that results in that special police officer's acquittal of the felony or conviction of a misdemeanor, or in the dismissal of the felony charge against that special police officer, the managing officer shall reinstate that special police officer. A special police officer of the department who is reinstated under division (C)(2)(b) of this section shall not receive any back pay unless that special police officer's conviction of the felony was reversed on appeal, or the felony charge was dismissed, because the court found insufficient evidence to convict the special police officer of the felony.

(3) Division (C) of this section does not apply regarding an offense that was committed prior to January 1, 1997.

(4) The suspension from employment, or the termination of the employment, of a special police officer under division (C)(2) of this section shall be in accordance with Chapter 119. of the Revised Code.

Amended by 128th General Assemblych.39, SB 79, §1, eff. 10/6/2009.

Effective Date: 01-01-2004

5123.14 Investigations.

The department of developmental disabilities may make such investigations as are necessary in the performance of its duties and to that end the director of developmental disabilities shall have the same power as a judge of a county court to administer oaths and to enforce the attendance and testimony of witnesses and the production of books or papers.

The department shall keep a record of such investigations stating the time, place, charges or subject, witnesses summoned and examined, and its conclusions.

In matters involving the conduct of an officer, a stenographic report of the evidence shall be taken and a copy of such report, with all documents introduced, kept on file at the office of the department.

Witnesses shall be paid the fees and mileage provided for under section 119.094 of the Revised Code, but no officer or employee of the institution under investigation is entitled to such fees.

Any judge of the probate court or of the court of common pleas, upon application of the department, may compel the attendance of witnesses, the production of books or papers, and the giving of testimony before the department, by a judgment for contempt or otherwise, in the same manner as in cases before said courts.

Amended by 128th General Assemblych.39, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1980; 2008 HB525 07-01-2009

5123.141 [Repealed].

Effective Date: 07-01-1980

5123.15 Appointing special agents and persons.

The department of developmental disabilities may appoint and commission any competent agency or person, to serve without compensation, as a special agent, investigator, or representative to perform a designated duty for and in behalf of the department. Specific credentials shall be given by the department to each person so designated, and each credential shall state the:

(A) Name;

(B) Agency with which such person is connected;

(C) Purpose of appointment;

(D) Date of expiration of appointment;

(E) Such information as the department considers proper.

Amended by 128th General Assemblych.39, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1980

5123.16 Valid supported living certificate required.

(A) As used in sections 5123.16 to 5123.1610 of the Revised Code:

(1) "Applicant" means any of the following:

(a) The chief executive officer of a business that applies under section 5123.161 of the Revised Code for a certificate to provide supported living;

(b) The chief executive officer of a business that seeks renewal of the business's supported living certificate under section 5123.164 of the Revised Code;

(c) An individual who applies under section 5123.161 of the Revised Code for a certificate to provide supported living as an independent provider;

(d) An independent provider who seeks renewal of the independent provider's supported living certificate under section 5123.164 of the Revised Code.

(2) "Business" means

an association, corporation, nonprofit organization, partnership, trust, or other group of persons

. "Business" does not mean an independent provider.

(3) "Criminal records check" has the same meaning as in section 109.572 of the Revised Code.

(4) "Disqualifying offense" means any of the offenses listed or described in divisions (A)(3)(a) to (e) of section 109.572 of the Revised Code.

(5) "Independent provider" means a provider who provides supported living on a self-employed basis and does not employ, directly or through contract, another person to provide the supported living.

(6) "Provider" means a person or government entity certified by the director of developmental disabilities to provide supported living. For the purpose of division (A)(8) of this section, "provider" includes a person or government entity that seeks or previously held a certificate to provide supported living.

(7) "Minor drug possession offense" has the same meaning as in section 2925.01 of the Revised Code.

(8) "Related party" means any of the following:

(a) In the case of a provider who is an individual, any of the following:

(i) The spouse of the provider;

(ii) A parent or stepparent of the provider or provider's spouse;

(iii) A child of the provider or provider's spouse;

(iv) A sibling, half sibling, or stepsibling of the provider or provider's spouse;

(v) A grandparent of the provider or provider's spouse;

(vi) A grandchild of the provider or provider's spouse

.

(b) In the case of a provider that is a person other than an individual, any of the following:

(i) Any person or government entity that directly or indirectly controls the provider's day-to-day operations (including as a general manager, business manager, financial manager, administrator, or director), regardless of whether the person or government entity exercises the control pursuant to a contract or other arrangement and regardless of whether the person or government entity is required to file an Internal Revenue Code form W-2 for the provider;

(ii) An officer of the provider, including the chief executive officer, president, vice-president, secretary, and treasurer;

(iii) A member of the provider's board of directors or trustees;

(iv) A person owning a financial interest of five per cent or more in the provider, including a direct, indirect, security, or mortgage financial interest;

(v)

The spouse, parent, stepparent, child, sibling, half sibling, stepsibling, grandparent, or grandchild of any of the persons specified in divisions (A)(8)(b)(i) to (iv) of this section;

(vi) A person over which the provider has control of the day-to-day operation;

(vii) A corporation that has a subsidiary relationship with the provider.

(c) In the case of a provider that is a government entity, any of the following:

(i) Any person or government entity that directly or indirectly controls the provider's day-to-day operations (including as a general manager, financial manager, administrator, or director), regardless of whether the person or government entity exercises the control pursuant to a contract or other arrangement;

(ii) An officer of the provider;

(iii) A member of the provider's governing board;

(iv)

A person or government entity over which the provider has control of the day-to-day operation.

(B) No person or government entity may provide supported living without a valid supported living certificate issued by the director of developmental disabilities.

(C) A county board of developmental disabilities may provide supported living only to the extent permitted by rules adopted under section 5123.1610 of the Revised Code.

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 1/1/2013.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-2005; 2007 HB119 06-30-2007

5123.161 Application for supported living certificate.

A person or government entity that seeks to provide supported living shall apply to the director of developmental disabilities for a supported living certificate.

Except as provided in sections 5123.166 and 5123.169 of the Revised Code, the director shall issue to the person or government entity a supported living certificate if the person or government entity follows the application process established in rules adopted under section 5123.1610 of the Revised Code, meets the applicable certification standards established in those rules, and pays the certification fee established in those rules.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 1/1/2013.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 2007 HB119 06-30-2007

5123.162 Applicant survey to determine if standards met.

(A) The director of developmental disabilities may conduct surveys of persons and government entities that seek a supported living certificate to determine whether the persons and government entities meet the certification standards. The director may also conduct surveys of providers to determine whether the providers continue to meet the certification standards. The director may assign to a county board of developmental disabilities the responsibility to conduct either type of survey. Each survey shall be conducted in accordance with rules adopted under section 5123.1610 of the Revised Code.

(B) Following each survey of a provider, the director shall issue a report listing the date of the survey, any citations issued as a result of the survey, and the statutes or rules that purportedly have been violated and are the bases of the citations. The director shall also do both of the following:

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

(2) When appropriate, specify a timetable within which the provider must submit a plan of correction describing how the problems specified in the citations will be corrected and the date by which the provider anticipates the problems will be corrected.

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

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

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

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 1/1/2013.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 2007 HB119 06-30-2007

5123.163 Term of supported living certificate.

A supported living certificate is valid for a period of time established in rules adopted under section 5123.1610 of the Revised Code, unless any of the following occur before the end of that period of time:

(A) The director of developmental disabilities issues an order requiring that action be taken against the certificate holder under section 5123.166 of the Revised Code.

(B) The director issues an order terminating the certificate under section 5123.168 of the Revised Code.

(C) The certificate holder voluntarily surrenders the certificate to the director.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 1/1/2013.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 2007 HB119 06-30-2007

5123.164 Renewal of supported living certificate.

Except as provided in sections 5123.166 and 5123.169 of the Revised Code, the director of developmental disabilities shall renew a supported living certificate if the certificate holder follows the renewal process established in rules adopted under section 5123.1610 of the Revised Code, continues to meet the applicable certification standards established in those rules, and pays the renewal fee established in those rules.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 1/1/2013.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 2007 HB119 06-30-2007

5123.165 Provision of supported living and residence.

(A) Except as provided in division (B) of this section, no person or government entity may provide supported living to an individual with mental retardation or a developmental disability if the person or government entity also provides the individual a residence.

(B) A person may provide supported living to an individual with mental retardation or a developmental disability even though the person also provides the individual a residence if either of the following apply:

(1) The person also resides in the residence with the individual and does not provide at any one time supported living to more than a total of three individuals with mental retardation or a developmental disability who reside in that residence;

(2) The person is an association of family members related to two or more of the individuals with mental retardation or a developmental disability who reside in the residence and does not provide at any one time supported living to more than a total of four individuals with mental retardation or a developmental disability who reside in that residence.

Effective Date: 2007 HB119 06-30-2007

5123.166 Adjudication order against certificate applicant or holder.

(A) If good cause exists as specified in division (B) of this section and determined in accordance with procedures established in rules adopted under section 5123.1610 of the Revised Code, the director of developmental disabilities may issue an adjudication order requiring that one of the following actions be taken against a person or government entity seeking or holding a supported living certificate:

(1) Refusal to issue or renew a supported living certificate;

(2) Revocation of a supported living certificate;

(3) Suspension of a supported living certificate holder's authority to do either or both of the following:

(a) Continue to provide supported living to one or more individuals from one or more counties who receive supported living from the certificate holder at the time the director takes the action;

(b) Begin to provide supported living to one or more individuals from one or more counties who do not receive supported living from the certificate holder at the time the director takes the action.

(B) The following constitute good cause for taking action under division (A) of this section against a person or government entity seeking or holding a supported living certificate:

(1) The person or government entity's failure to meet or continue to meet the applicable certification standards established in rules adopted under section 5123.1610 of the Revised Code;

(2) The person or government entity violates section 5123.165 of the Revised Code;

(3) The person or government entity's failure to satisfy the requirements of section 5123.081 or 5123.52 of the Revised Code;

(4) Misfeasance;

(5) Malfeasance;

(6) Nonfeasance;

(7) Confirmed abuse or neglect;

(8) Financial irresponsibility;

(9) Other conduct the director determines is or would be injurious to individuals who receive or would receive supported living from the person or government entity.

(C) Except as provided in division (D) of this section, the director shall issue an adjudication order under division (A) of this section in accordance with Chapter 119. of the Revised Code.

(D)

(1) The director may issue an order requiring that action specified in division (A)(3) of this section be taken before a provider is provided notice and an opportunity for a hearing if all of the following are the case:

(a) The director determines such action is warranted by the provider's failure to continue to meet the applicable certification standards;

(b) The director determines that the failure either represents a pattern of serious noncompliance or creates a substantial risk to the health or safety of an individual who receives or would receive supported living from the provider;

(c) If the order will suspend the provider's authority to continue to provide supported living to an individual who receives supported living from the provider at the time the director issues the order, both of the following are the case:

(i) The director makes the individual, or the individual's guardian, aware of the director's determination under division (D)(1)(b) of this section and the individual or guardian does not select another provider.

(ii) A county board of developmental disabilities has filed a complaint with a probate court under section 5126.33 of the Revised Code that includes facts describing the nature of abuse or neglect that the individual has suffered due to the provider's actions that are the basis for the director making the determination under division (D)(1)(b) of this section and the probate court does not issue an order authorizing the county board to arrange services for the individual pursuant to an individualized service plan developed for the individual under section 5126.31 of the Revised Code.

(2) If the director issues an order under division (D)(1) of this section, sections 119.091 to 119.13 of the Revised Code and all of the following apply:

(a) The director shall send the provider notice of the order by registered mail, return receipt requested, not later than twenty-four hours after issuing the order and shall include in the notice the reasons for the order, the citation to the law or rule directly involved, and a statement that the provider will be afforded a hearing if the provider requests it within ten days of the time of receiving the notice.

(b) If the provider requests a hearing within the required time and the provider has provided the director the provider's current address, the director shall immediately set, and notify the provider of, the date, time, and place for the hearing.

(c) The date of the hearing shall be not later than thirty days after the director receives the provider's timely request for the hearing.

(d) The hearing shall be conducted in accordance with section 119.09 of the Revised Code, except for all of the following:

(i) The hearing shall continue uninterrupted until its close, except for weekends, legal holidays, and other interruptions the provider and director agree to.

(ii) If the director appoints a referee or examiner to conduct the hearing, the referee or examiner, not later than ten days after the date the referee or examiner receives a transcript of the testimony and evidence presented at the hearing or, if the referee or examiner does not receive the transcript or no such transcript is made, the date that the referee or examiner closes the record of the hearing, shall submit to the director a written report setting forth the referee or examiner's findings of fact and conclusions of law and a recommendation of the action the director should take.

(iii) The provider may, not later than five days after the date the director, in accordance with section 119.09 of the Revised Code, sends the provider or the provider's attorney or other representative of record a copy of the referee or examiner's report and recommendation, file with the director written objections to the report and recommendation.

(iv) The director shall approve, modify, or disapprove the referee or examiner's report and recommendation not earlier than six days, and not later than fifteen days, after the date the director, in accordance with section 119.09 of the Revised Code, sends a copy of the report and recommendation to the provider or the provider's attorney or other representative of record.

(3) The director may lift an order issued under division (D)(1) of this section even though a hearing regarding the order is occurring or pending if the director determines that the provider has taken action eliminating the good cause for issuing the order. The hearing shall proceed unless the provider withdraws the request for the hearing in a written letter to the director.

(4) The director shall lift an order issued under division (D)(1) of this section if both of the following are the case:

(a) The provider provides the director a plan of compliance the director determines is acceptable.

(b) The director determines that the provider has implemented the plan of compliance correctly.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012 and 1/1/2013.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 2007 HB119 06-30-2007

5123.167 Reapplication after negative adjudication on certificate.

If the director of developmental disabilities issues an adjudication order under section 5123.166 of the Revised Code refusing to issue a supported living certificate to a person or government entity or to renew a person or government entity's supported living certificate, neither the person or government entity nor a related party of the person or government entity may apply for another supported living certificate earlier than the date that is one year after the date the order is issued. If the director issues an adjudication order under that section revoking a person or government entity's supported living certificate, neither the person or government entity nor a related party of the person or government entity may apply for another supported living certificate earlier than the date that is five years after the date the order is issued.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 2007 HB119 06-30-2007

5123.168 Termination of certificate for failure to bill for services.

The director of developmental disabilities may issue an adjudication order in accordance with Chapter 119. of the Revised Code to terminate a supported living certificate if the certificate holder has not billed for supported living for twelve consecutive months.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 2007 HB119 06-30-2007

5123.169 Issuance of supported living certificate.

(A) The director of developmental disabilities shall not issue a supported living certificate to an applicant or renew an applicant's supported living certificate if either of the following applies:

(1) The applicant fails to comply with division (C)(2) of this section;

(2) Except as provided in rules adopted under section 5123.1610 of the Revised Code, the applicant is found by a criminal records check required by this section to have been convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for a disqualifying offense.

(B) Before issuing a supported living certificate to an applicant or renewing an applicant's supported living certificate, the director shall require the applicant to submit a statement with the applicant's signature attesting that the applicant has not been convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for a disqualifying offense. 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 holding a supported living certificate, the applicant is formally charged with, is convicted of, pleads guilty to, or is found eligible for intervention in lieu of conviction for a disqualifying offense. The agreement shall provide that the applicant's failure to provide the notification may result in action being taken by the director against the applicant under section 5123.166 of the Revised Code.

(C)

(1) As a condition of receiving a supported living certificate or having a supported living certificate renewed, an applicant shall request the superintendent of the bureau of criminal identification and investigation to conduct a criminal records check of the applicant. If an applicant does not present proof to the director that the applicant has been a resident of this state for the five-year period immediately prior to the date that the applicant applies for issuance or renewal of the supported living certificate, the director shall require the applicant to request that the superintendent obtain information from the federal bureau of investigation as a part of the criminal records check. If the applicant presents proof to the director that the applicant has been a resident of this state for that five-year period, the director may require the applicant to request that the superintendent 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.

(2) Each applicant shall do all of the following:

(a) Obtain a copy of the form prescribed pursuant to division (C)(1) of section 109.572 of the Revised Code and a standard impression sheet prescribed pursuant to division (C)(2) of section 109.572 of the Revised Code;

(b) Complete the form and provide the applicant's fingerprint impressions on the standard impression sheet;

(c) Forward the completed form and standard impression sheet to the superintendent at the time the criminal records check is requested;

(d) Instruct the superintendent to submit the completed report of the criminal records check directly to the director;

(e) 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 of the applicant requested and conducted pursuant to this section.

(D) The director may request any other state or federal agency to supply the director with a written report regarding the criminal record of an applicant. The director may consider the reports when determining whether to issue a supported living certificate to the applicant or to renew an applicant's supported living certificate.

(E) An applicant who seeks to be an independent provider or is an independent provider seeking renewal of the applicant's supported living certificate shall obtain the applicant's driving record from the bureau of motor vehicles and provide a copy of the record to the director if the supported living that the applicant will provide involves transporting individuals with mental retardation or developmental disabilities. The director may consider the applicant's driving record when determining whether to issue the applicant a supported living certificate or to renew the applicant's supported living certificate.

(F)

(1) A 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 following:

(a) The applicant who is the subject of the report or the applicant's representative;

(b) The director or the director's representative;

(c) Any court, hearing officer, or other necessary individual involved in a case dealing with any of the following:

(i) The denial of a supported living certificate or refusal to renew a supported living certificate;

(ii) The denial, suspension, or revocation of a certificate under section 5123.45 of the Revised Code;

(iii) A civil or criminal action regarding the medicaid program.

(2) An applicant 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 person or state or local government entity. The applicant shall specify in the request the person or entities to which the copies are to be sent. On receiving the request, the director shall send copies of the reports to the persons or entities specified.

(3) The director may request that a person or state or local government entity send copies to the director of any report regarding a records check or criminal records check that the person or entity possesses, if the director obtains the written consent of the individual who is the subject of the report.

(4) The director shall provide each applicant with a copy of any report obtained about the applicant under this section.

Added by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 1/1/2013.

5123.1610 Rules governing supported living program.

The director of developmental disabilities shall adopt rules under Chapter 119. of the Revised Code establishing all of the following:

(A) The extent to which a county board of developmental disabilities may provide supported living;

(B) The application process for obtaining a supported living certificate under section 5123.161 of the Revised Code;

(C) The certification standards a person or government entity must meet to obtain a supported living certificate to provide supported living;

(D) The certification fee for a supported living certificate, which shall be deposited into the program fee fund created under section 5123.033 of the Revised Code;

(E) The period of time a supported living certificate is valid;

(F) The process for renewing a supported living certificate under section 5123.164 of the Revised Code;

(G) The renewal fee for a supported living certificate, which shall be deposited into the program fee fund created under section 5123.033 of the Revised Code;

(H) Procedures for conducting surveys under section 5123.162 of the Revised Code;

(I) Procedures for determining whether there is good cause to take action under section 5123.166 of the Revised Code against a person or government entity seeking or holding a supported living certificate;

(J) Circumstances under which the director may issue a supported living certificate to an applicant or renew an applicant's supported living certificate if the applicant is found by a criminal records check required by section 5123.169 of the Revised Code to have been convicted of, pleaded guilty to, or been found eligible for intervention in lieu of conviction for a disqualifying offense but meets standards in regard to rehabilitation set by the director.

Renumbered from § 5123.169 and amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 1/1/2013.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 2007 HB119 06-30-2007

5123.17 Care outside institution.

The department of developmental disabilities may provide for the custody, supervision, control, treatment, and training of 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 those persons and of the public.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.171 Respite care services.

As used in this section, "respite care" means appropriate, short-term, temporary care provided to a mentally retarded or developmentally disabled person to sustain the family structure or to meet planned or emergency needs of the family.

The department of developmental disabilities shall provide respite care services to persons with mental retardation or a developmental disability for the purpose of promoting self-sufficiency and normalization, preventing or reducing inappropriate institutional care, and furthering the unity of the family by enabling the family to meet the special needs of a mentally retarded or developmentally disabled person.

In order to be eligible for respite care services under this section, the mentally retarded or developmentally disabled person must be in need of habilitation services as defined in section 5126.01 of the Revised Code.

Respite care may be provided in a residential facility licensed under section 5123.19 of the Revised Code , including a residential facility certified as an ICF/IID, and a respite care home certified under section 5126.05 of the Revised Code.

The department shall develop a system for locating vacant beds that are available for respite care and for making information on vacant beds available to users of respite care services. ICFs/IID shall report vacant beds to the department but shall not be required to accept respite care clients.

The director of developmental disabilities shall adopt, and may amend or rescind, rules in accordance with Chapter 119. of the Revised Code for both of the following:

(A) Certification by county boards of developmental disabilities of respite care homes;

(B) Provision of respite care services authorized by this section. Rules adopted under this division shall establish all of the following:

(1) A formula for distributing funds appropriated for respite care services;

(2) Standards for supervision, training and quality control in the provision of respite care services;

(3) Eligibility criteria for emergency respite care services.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 10-29-1993

5123.172 [Repealed].

Repealed by 129th General AssemblyFile No.28, HB 153, §105.01, eff. 9/29/2011.

5123.18 Contracts with person or agency to provide services.

(A) The department of 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. To be eligible to enter into a contract with the department under this section, a person or government entity and the home in which the residential services are provided must meet all applicable standards for licensing or certification by the appropriate government entity.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.181 [Repealed].

Repealed by 129th General AssemblyFile No.28, HB 153, §105.01, eff. 9/29/2011.

5123.182 [Repealed].

Effective Date: 2007 HB119 06-30-2007

5123.183 Amended and Renumbered RC 5123.051.

Effective Date: 09-22-2000

5123.19 Operation of residential facilities.

(A) As used in sections 5123.19 to 5123.20 of the Revised Code:

(1) "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.

(2) "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.

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

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

(5)

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(6) 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 the 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 send a copy of the letter to the county board of developmental disabilities. The county board shall send a copy of the letter to each of the following:

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

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

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

(7) 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.

(8) In determining whether a residential facility is being operated in compliance with a provision of this chapter that applies to residential facilities or the rules adopted under such a provision, 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 developmental disabilities or other governmental agencies.

(9) In proceedings initiated to deny, refuse to renew, or revoke licenses, the director may deny, refuse to renew, 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.

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

(F)

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

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

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

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

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

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

(i) The close of the hearing;

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

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

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

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

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

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

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

(H) 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 for residential facilities that are ICFs/IID may differ from those for other residential facilities. The rules shall establish and specify the following:

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

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

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

(4) Procedures for surveying residential facilities;

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

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

(7) 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;

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

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

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

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

(I)

(1) Before issuing a license, the director shall conduct a survey of the residential facility for which application is made. The director shall conduct a survey of each licensed residential facility at least once during the period the license is valid and may conduct additional inspections as needed. A survey includes but is not limited to an on-site examination and evaluation of the residential facility, its personnel, and the services provided there. The director may assign to a county board of developmental disabilities the responsibility to conduct any survey or inspection under this section.

(2) In conducting surveys, the director 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 in conducting the survey.

(3) Following each survey, the director shall provide the licensee with a report listing the date of the survey, any citations issued as a result of the survey, and the statutes or rules that purportedly have been violated and are the bases of the citations. The director shall also do both of the following:

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

(b) When appropriate, specify a timetable within which the licensee must submit a plan of correction describing how the problems specified in the citations will be corrected and, the date by which the licensee anticipates the problems will be corrected.

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

(5) After a plan of correction is submitted, the director shall approve or disapprove the plan. If the plan of correction is approved, a copy of the approved plan shall be provided, not later than five business days after it is approved, to any person or government entity who requests it and made available on the internet web site maintained by the department of developmental disabilities. If the plan of correction is not approved and the director initiates a proceeding to revoke the license, a copy of the survey report shall be provided to any person or government entity that requests it and shall be made available on the internet web site maintained by the department.

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

(J) 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. This division does not apply to renewal of a license or to an applicant for an initial or modified license who meets the requirements of section 5123.197 of the Revised Code.

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

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. 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 the notification that the current license shall continue in effect or a new license will be required pursuant to this section. If the director requires a new license, the director shall permit the facility to continue to operate under the current license until the new license is issued, unless the current license is revoked, refused to be renewed, or terminated in accordance with Chapter 119. of the Revised Code.

(L) A county board of developmental disabilities 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 adopt rules in accordance with Chapter 119. of the Revised Code establishing procedures for the receipt, referral, investigation, and disposition of complaints filed with the department under this division.

(M) 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.

(N) 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 fiscal officer 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.

(O) Any person may operate a licensed 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. 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.

(P) Any person may operate a licensed 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 these residential facilities from those districts, and a political subdivision that has enacted a zoning ordinance or resolution may regulate 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 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 these residential facilities.

(Q) 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.

(R) Divisions (O) and (P) 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.

(S)

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

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

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

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

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

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

(T) 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 the 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 developmental disabilities and which is in the review process prior to April 4, 1986.

(U) The director 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.

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.127, HB 487, §110.20, eff. 10/1/2012.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §120.20, eff. 10/1/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01. See act for effective dates.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 7/17/2009.

Amended by 128th General Assemblych.9, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-26-2003; 12-20-2005; 2007 HB119 06-30-2007

5123.191 Appointing receiver to operate residential facility.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Petitions filed pursuant to this division shall include the following:

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

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

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

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

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

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

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

To assist the court in identifying persons qualified to be named as receivers, the director of developmental disabilities shall maintain a list of the names of such persons. The director shall, in accordance with Chapter 119. of the Revised Code, establish standards for evaluating persons desiring to be included on such a list.

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

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

The court shall authorize the receiver to do the following:

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

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

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

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

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

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

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

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

(d) Preparing residents for the trauma of discharge;

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

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

(5) Compromise demands or claims;

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

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

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

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

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Amended by 129th General AssemblyFile No.28, HB 153, §120.20, eff. 10/1/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-2000

5123.192 Licensing for ICF/IID after 7/1/2013.

(A) A person or government agency operating, on September 10, 2012, an ICF/IID pursuant to a nursing home license issued under Chapter 3721. of the Revised Code shall do both of the following as a condition of continuing to operate the ICF/IID on and after July 1, 2013:

(1) Not later than February 1, 2013, apply to the director of developmental disabilities for a residential facility license under section 5123.19 of the Revised Code for the ICF/IID;

(2) Not later than July 1, 2013, obtain the residential facility license for the ICF/IID.

(B) The nursing home license of an ICF/IID shall cease to be valid at the earliest of the following:

(1) The date that the ICF/IID's nursing home license is revoked or voided under section 3721.07 of the Revised Code;

(2) The date that a residential facility license is obtained for the ICF/IID under section 5123.19 of the Revised Code;

(3) July 1, 2013.

(C) Except for existing nursing home beds not certified as ICF/IID beds and relocated in accordance with a move authorized by a certificate of need under Chapter 3702. of the Revised Code, no bed that is part of an ICF/IID that is licensed as a nursing home on September 10, 2012, may be used as part of a nursing home on and after the earlier of the following:

(1) The date that a residential facility license is obtained for the ICF/IID under section 5123.19 of the Revised Code;

(2) July 1, 2013.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

5123.193 [Repealed].

Repealed by 129th General AssemblyFile No.28, HB 153, §105.01, eff. 9/29/2011.

5123.194 Waiving support collection requirements to facilitate independent living.

In the case of an individual who resides in a residential facility and is preparing to move into an independent living arrangement and the individual's liable relative, the department of developmental disabilities may waive the support collection requirements of sections 5121.04 and 5123.122 of the Revised Code for the purpose of allowing income or resources to be used to acquire items necessary for independent living. The department shall adopt rules in accordance with section 111.15 of the Revised Code to implement this section, including rules that establish the method the department shall use to determine when an individual is preparing to move into an independent living arrangement.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-30-1997

5123.195 Reporting implementation of amendments to statute.

(A) Not later than sixty days after the end of calendar years 2003, 2004, and 2005, the director of developmental disabilities shall submit a report to the president and minority leader of the senate and speaker and minority leader of the house of representatives regarding the implementation of section 5123.19 of the Revised Code since March 31, 2003. The director shall include in the report all of the following information:

(1) A summary of any rules adopted under that section to implement the amendments to that section that go into effect on March 31, 2003;

(2) The number of residential facility licenses issued, renewed, and denied under that section since the effective date of the amendments to section 5123.19 of the Revised Code that go into effect on March 31, 2003 or, in the case of the reports due in 2005 and 2006, since the previous report was submitted;

(3) The length of time for which residential facility licenses are issued and renewed under that section;

(4) The sanctions imposed pursuant to division (D) of section 5123.19 of the Revised Code and the kinds of violations that cause the sanctions;

(5) Any other information the director determines is important to the implementation of the amendments to section 5123.19 of the Revised Code that go into effect on March 31, 2003.

(B) On submission of the report under division (A) of this section, the director shall inform each member of the general assembly that the report is available.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-31-2003

5123.196 Maximum number of beds.

(A) Except as provided in division (E) of this section, the director of developmental disabilities shall not issue a license under section 5123.19 of the Revised Code on or after July 1, 2003, if issuance will result in there being more beds in all residential facilities licensed under that section than is permitted under division (B) of this section.

(B) The maximum number of beds for the purpose of division (A) of this section shall not exceed ten thousand eight hundred thirty-eight minus, except as provided in division (C) of this section, both of the following:

(1) The number of such beds that cease to be residential facility beds on or after July 1, 2003, because a residential facility license is revoked, terminated, or not renewed for any reason or is surrendered in accordance with section 5123.19 of the Revised Code;

(2) The number of such beds for which a licensee voluntarily converts to use for supported living on or after July 1, 2003.

(C) The director is not required to reduce the maximum number of beds pursuant to division (B) of this section by a bed that ceases to be a residential facility bed if the director determines that the bed is needed to provide services to an individual with mental retardation or a developmental disability who resided in the residential facility in which the bed was located.

(D) The director shall maintain an up-to-date written record of the maximum number of residential facility beds provided for by division (B) of this section.

(E) The director may issue an interim license under division (S) of section 5123.19 of the Revised Code and issue, pursuant to rules adopted under division (H)(11) of that section, a waiver allowing a residential facility to admit more residents than the facility is licensed to admit regardless of whether the interim license or waiver will result in there being more beds in all residential facilities licensed under that section than is permitted under division (B) of this section.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-26-2003; 06-30-2006; 2007 HB119 06-30-2007; 2008 HB562 06-24-2008

5123.197 Initial residential facility license or modification of existing facility license not required in certain instances.

Neither an applicant for an initial residential facility license under section 5123.19 of the Revised Code nor an applicant for a modification of an existing residential facility license under that section is required to obtain approval of a plan for the proposed new residential facility or modification to the existing residential facility pursuant to section 5123.042 of the Revised Code if all of the following apply:

(A) The new residential facility or modification to the existing residential facility is to serve individuals who have diagnoses or special care needs for which a medicaid payment rate is set pursuant to section 5124.152 of the Revised Code;

(B) The medicaid director and director of developmental disabilities determine that there is a need under the medicaid program for the proposed new residential facility or modification to the existing residential facility and that approving the application for the initial residential facility license or modification to the existing residential facility license is fiscally prudent for the medicaid program;

(C) The director of budget and management notifies the medicaid director and director of developmental disabilities that the director of budget and management agrees with the directors' determination under division (B) of this section.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 7/17/2009.

5123.198 Reduction in number of residents.

(A) As used in this section, "date of the commitment" means the date that an individual specified in division (B) of this section begins to reside in a state-operated ICF/IID after being committed to the ICF/IID pursuant to sections 5123.71 to 5123.76 of the Revised Code.

(B) Except as provided in division (C) of this section, whenever a resident of a residential facility is committed to a state-operated ICF/IID pursuant to sections 5123.71 to 5123.76 of the Revised Code, the department of developmental disabilities, pursuant to an adjudication order issued in accordance with Chapter 119. of the Revised Code, shall reduce by one the number of residents for which the residential facility in which the resident resided is licensed.

(C) The department shall not reduce under division (B) of this section the number of residents for which a residential facility is licensed if any of the following are the case:

(1) The resident of the residential facility who is committed to a state-operated ICF/IID resided in the residential facility because of the closure, on or after June 26, 2003, of another state-operated ICF/IID;

(2) The residential facility admits within ninety days of the date of the commitment an individual who resides on the date of the commitment in a state-operated ICF/IID or another residential facility;

(3) The department fails to do either of the following within ninety days of the date of the commitment:

(a) Identify an individual to whom all of the following applies:

(i) Resides on the date of the commitment in a state-operated ICF/IID or another residential facility;

(ii) Has indicated to the department an interest in relocating to the residential facility or has a parent or guardian who has indicated to the department an interest for the individual to relocate to the residential facility;

(iii) The department determines the individual has needs that the residential facility can meet.

(b) Provide the residential facility with information about the individual identified under division (C)(2)(a) of this section that the residential facility needs in order to determine whether the facility can meet the individual's needs.

(4) If the department completes the actions specified in divisions (C)(3)(a) and (b) of this section not later than ninety days after the date of the commitment and except as provided in division (D) of this section, the residential facility does all of the following not later than ninety days after the date of the commitment:

(a) Evaluates the information provided by the department;

(b) Assesses the identified individual's needs;

(c) Determines that the residential facility cannot meet the identified individual's needs.

(5) If the department completes the actions specified in divisions (C)(3)(a) and (b) of this section not later than ninety days after the date of the commitment and the residential facility determines that the residential facility can meet the identified individual's needs, the individual, or a parent or guardian of the individual, refuses placement in the residential facility.

(D) The department may reduce under division (B) of this section the number of residents for which a residential facility is licensed even though the residential facility completes the actions specified in division (C)(4) of this section not later than ninety days after the date of the commitment if all of the following are the case:

(1) The department disagrees with the residential facility's determination that the residential facility cannot meet the identified individual's needs.

(2) The department issues a written decision pursuant to the uniform procedures for admissions, transfers, and discharges established by rules adopted under division (H)(9) of section 5123.19 of the Revised Code that the residential facility should admit the identified individual.

(3) After the department issues the written decision specified in division (D)(2) of this section, the residential facility refuses to admit the identified individual.

(E) A residential facility that admits, refuses to admit, transfers, or discharges a resident under this section shall comply with the uniform procedures for admissions, transfers, and discharges established by rules adopted under division (H)(9) of section 5123.19 of the Revised Code.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 128th General Assemblych.9, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-26-2003; 2007 HB119 06-30-2007

5123.199 [Repealed].

Effective Date: 2007 HB119 06-30-2007

5123.20 Prohibiting operation without license.

No person or government agency shall operate a residential facility or receive a mentally retarded or developmentally disabled person as a resident of a residential facility unless the facility is licensed under section 5123.19 of the Revised Code, and no person or governmental agency shall operate a respite care home or receive a mentally retarded or developmentally disabled person in a respite care home unless the home is certified under section 5126.05 of the Revised Code.

Effective Date: 11-11-1994; 2007 HB119 06-30-2007

5123.21 Transfers.

The director of developmental disabilities 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 managing officer of the 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 director 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.

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Amended by 128th General Assemblych.9, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.211 [Repealed].

Repealed by 129th General AssemblyFile No.28, HB 153, §105.01, eff. 9/29/2011.

5123.22 Appropriating property.

When it is necessary for an institution under the jurisdiction of the department of developmental disabilities to acquire any real estate, right-of-way, or easement in real estate in order to accomplish the purposes for which it was organized or is being conducted, and the department is unable to agree with the owner of such property upon the price to be paid therefor, such property may be appropriated in the manner provided for the appropriation of property for other state purposes.

Any instrument by which real property is acquired pursuant to this section shall identify the agency of the state that has the use and benefit of the real property as specified in section 5301.012 of the Revised Code.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 10-26-1999

5123.221 Cultivating land - purchases from other institutions.

The department of developmental disabilities shall determine and direct what lands belonging to institutions under its control shall be cultivated.

The department of agriculture, the department of health, and the Ohio state university shall cooperate with the department of developmental disabilities, and the managing officer of each institution mentioned in section 5123.03 of the Revised Code, in making such cooperative tests as are necessary to determine the quality, strength, and purity of supplies, the value and use of farm lands, or the conditions and needs of mechanical equipment.

The department may direct the purchase of any materials, supplies, or other articles for any institution subject to its jurisdiction from any other such institution at the reasonable market value, such value to be fixed by the department, and payments therefor shall be made as between institutions in the manner provided for payment for supplies.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1985

5123.23 [Repealed].

Repealed by 129th General AssemblyFile No.35, HB 133, §2, eff. 9/30/2011.

Amended by 128th General Assemblych.35, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-24-1986

5123.231 [Repealed].

Effective Date: 09-22-2000

5123.24 Businesses located near institutions.

A person, firm, or corporation may file a petition in the court of common pleas of the county in which an institution under the jurisdiction of the department of developmental disabilities is located, in which petition the desire to erect or carry on at a less distance than that prescribed in section 3767.19 of the Revised Code shall be set forth, the business prohibited, the precise point of its establishment, and the reasons and circumstances, in its opinion, why the erection or carrying on thereof would not annoy or endanger the health, convenience, or recovery of the residents of such institution. The petitioner shall give notice in a newspaper of general circulation in the county of the pendency and prayer of the petition for at least six consecutive weeks before the day set for hearing the petition and serve a written notice upon the superintendent of the institution at least thirty days before the day set for hearing the petition.

If, upon the hearing of the petition, it appears that the notice has been given as required and the court is of the opinion that no good reason exists why such establishment may not be erected or such business carried on and that by the erection or carrying on thereof at the point named, the institution will sustain no detriment, the court may issue an order granting the prayer of the petitioner. Thereafter the petitioner may locate such establishment or carry on such business at the point named in the petition.

Amended by 128th General Assemblych.35, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1980

5123.25 Purchasing supplies.

The department of administrative services shall purchase all supplies needed for the proper support and maintenance of the institutions under the control of the department of developmental disabilities in accordance with the competitive selection procedures of Chapter 125. of the Revised Code and such rules as the department of administrative services adopts. All bids shall be publicly opened on the day and hour and at the place specified in the advertisement.

Preference shall be given to bidders in localities wherein the institution is located, if the price is fair and reasonable and not greater than the usual price.

The department of administrative services may require such security as it considers proper to accompany the bids and shall fix the security to be given by the contractor.

The department of administrative services may reject any or all bids and secure new bids, if for any reason it is considered for the best interest of the state to do so, and it may authorize the managing officer of any institution to purchase perishable goods and supplies for use in cases of emergency, in which cases the managing officer shall certify such fact in writing and the department of administrative services shall record the reasons for the purchases.

Amended by 128th General Assemblych.35, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1993

5123.26 Funds.

The treasurer of state shall have charge of all funds under the jurisdiction of the department of developmental disabilities and shall pay out the same only in accordance with Chapter 5123. of the Revised Code.

The department shall cause to be furnished a contract of indemnity to cover all moneys and funds received by it or by its managing officers, employees, or agents while such moneys or funds are in the possession of such managing officers, employees, or agents. Such funds are designated as follows:

(A) Funds which are due and payable to the treasurer of state as provided by Chapter 131. of the Revised Code;

(B) Those funds which are held in trust by the managing officers, employees, or agents of the institution as local funds or accounts under the jurisdiction of the department.

Such contract of indemnity shall be made payable to the state and the premium for such contract of indemnity may be paid from any of the funds received for the use of the department under this chapter or Chapter 5121. of the Revised Code.

Funds collected from various sources, such as the sale of goods, farm products, and all miscellaneous articles, shall be transmitted on or before Monday of each week to the treasurer of state and a detailed statement of such collections shall be made to the division of business administration by each managing officer.

Amended by 128th General Assemblych.35, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1980

5123.27 Holding property in trust.

The director of 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 developmental disabilities or for the use and benefit of 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 the money and the income 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 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 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, 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 the former resident or 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 the person or the person's legal representative, then, upon proper notice of 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 to them.

Amended by 128th General Assemblych.35, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.28 Handling funds belonging to residents.

(A) Except as otherwise provided in this division, money or property deposited with managing officers of institutions under the jurisdiction of the department of developmental disabilities by any resident under the department's control or by relatives, guardians, conservators, and others for the special benefit of such resident, as well as all other funds and all other income paid to the resident, to the resident's estate, or on the resident's behalf, or paid to the managing officer or to the institution as representative payee or otherwise paid on the resident's behalf, shall remain in the hands of such managing officers in appropriate accounts for use accordingly. Each such managing officer shall keep itemized book accounts of the receipt and disposition of such money and property, which book shall be open at all times to the inspection of the department. The director of developmental disabilities shall adopt rules governing the deposit, transfer, withdrawal, or investment of such funds and the income of the funds, as well as rules under which such funds and income shall be paid by managing officers, institutions, or district managers for the support of such residents pursuant to Chapter 5121. of the Revised Code, or for their other needs.

This division does not require, and shall not be construed as requiring, the deposit of the principal or income of a trust created pursuant to section 5815.28 of the Revised Code with managing officers of institutions under the jurisdiction of the department.

(B) Whenever any resident confined in a state institution under the jurisdiction of the department dies, escapes, or is discharged from the institution, any personal funds of the resident remain in the hands of the managing officer of the institution, and no demand is made upon the managing officer by the owner of the funds or the owner's legally appointed representative, the managing officer shall hold the funds in the personal deposit fund for a period of at least one year during which time the managing officer shall make every effort possible to locate the owner or the owner's legally appointed representative. If, at the end of this period, no demand has been made for the funds, the managing officer shall dispose of the funds as follows:

(1) All money in a personal deposit fund in excess of ten dollars due for the support of a resident, shall be paid in accordance with Chapter 5121. of the Revised Code.

(2) All money in a personal deposit fund in excess of ten dollars not due for the support of a resident, shall be placed to the credit of the institution's local account designated as the "industrial and entertainment" fund.

(3) The first ten dollars to the credit of a resident shall be placed to the credit of the institution's local account designated as the "industrial and entertainment" fund.

(C) Whenever any resident in any state institution subject to the jurisdiction of the department dies, escapes, or is discharged from the institution, any personal effects of the resident remain in the hands of the managing officer of the institution, and no demand is made upon the managing officer by the owner of the personal effects or the owner's legally appointed representative, the managing officer shall hold and dispose of the personal effects in the following manner. All the miscellaneous personal effects shall be held for a period of at least one year, during which time the managing officer shall make every effort possible to locate the owner or the owner's legal representative. If, at the end of this period, no demand has been made by the owner of the property or the owner's legal representative, the managing officer shall file with the county recorder of the county of commitment of such owner, all deeds, wills, contract mortgages, or assignments. The balance of the personal effects shall be sold at public auction after being duly advertised, and the funds turned over to the treasurer of state for credit to the general revenue fund. If any of the property is not of a type to be filed with the county recorder and is not salable at public auction, the managing officer of the institution shall destroy that property.

Amended by 128th General Assemblych.35, SB 79, §1, eff. 10/6/2009.

Effective Date: 10-29-1993; 01-01-2007

5123.29 Industrial and entertainment fund - commissary fund.

Each managing officer of an institution under the jurisdiction of the department of developmental disabilities, with the approval of the director of developmental disabilities, may establish funds in the institutions under the jurisdiction of the department, designated as follows:

(A) Industrial and entertainment fund for the entertainment and welfare of the residents of the institution.

(B) Commissary fund for the benefit of residents of the institution. Commissary revenue in excess of operating costs and reserve shall be considered profits. All profits from the commissary fund operations shall be paid into the industrial and entertainment fund, and used only for the entertainment and welfare of residents.

The director shall establish rules for the operation of the industrial and entertainment and commissary funds.

Amended by 128th General Assemblych.35, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1980

5123.30 Books and accounts.

The department of developmental disabilities shall keep in its office a proper and complete set of books and accounts with each institution, which shall clearly show the nature and amount of every expenditure authorized and made at such institution, and which shall contain an account of all appropriations made by the general assembly and of all other funds, together with the disposition of such funds.

The department shall prescribe the form of vouchers, records, and methods of keeping accounts at each of the institutions, which shall be as nearly uniform as possible. The department may examine the records of any institution at any time.

The department may authorize any of its bookkeepers, accountants, or employees to examine the records, accounts, and vouchers or take an inventory of the property of any institution, or do whatever is necessary, and pay the actual and reasonable expenses incurred in such service when an itemized account is filed and approved.

Amended by 128th General Assemblych.35, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1980

5123.31 Confidentiality.

(A) The department of developmental disabilities shall keep a record showing the name, residence, sex, age, nativity, occupation, condition, and date of entrance or commitment of every resident in the institutions governed by it, the date, cause, and terms of discharge and the condition of such person at the time of leaving, and also a record of all transfers from one institution to another, and, if such person dies while in the care or custody of the department, the date and cause of death. These and such other facts as the department requires shall be furnished by the managing officer of each institution within ten days after the commitment, entrance, death, or discharge of a resident.

Except as provided in division (C) of this section, the department shall maintain the records described in this division in its office. The department shall make the records accessible only to its employees, except by the consent of the department or the order of the judge of a court of record.

(B) In case of an accident or injury or peculiar death of an institution resident the managing officer shall make a special report to the department within twenty-four hours thereafter, giving the circumstances as fully as possible.

(C) After a period of time determined by the department, the records described in division (A) of this section may be deposited with the Ohio historical society. Neither the records nor the information contained in them shall be disclosed by the historical society, except as provided in section 5123.89 of the Revised Code.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1980

5123.32 [Repealed].

Effective Date: 09-29-1997

5123.33 Annual report.

In its annual report, the department of developmental disabilities shall include a list of the officers and agents employed, and complete financial statement of the various institutions under its control. The report shall describe the condition of each institution, and shall state, as to each institution, whether:

(A) The moneys appropriated have been economically and judiciously expended;

(B) The objects of the institutions have been accomplished;

(C) The laws in relation to such institutions have been fully complied with;

(D) All parts of the state are equally benefited by the institutions.

Such annual report shall be accompanied by the reports of the managing officers, such other information as the department considers proper, and the department's recommendations for the more effective accomplishment of the general purpose of this chapter.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1980

5123.34 Liberal construction of chapter.

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 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 developmental disabilities.

Sections 5123.02 to 5123.04 , 5123.042 , 5123.043 , 5123.10 , 5123.21 , 5123.221 , 5123.25 , and 5123.31 of the Revised Code shall be liberally construed to attain these purposes.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000; 07-01-2005

5123.35 Ohio developmental disabilities council.

(A) There is hereby created the Ohio developmental disabilities council, which shall serve as an advocate for all persons with developmental disabilities. The council shall act in accordance with the "Developmental Disabilities Assistance and Bill of Rights Act," 98 Stat. 2662 (1984), 42 U.S.C. 6001, as amended. The governor shall appoint the members of the council in accordance with 42 U.S.C. 6024.

(B) The Ohio developmental disabilities council shall develop the state plan required by federal law as a condition of receiving federal assistance under 42 U.S.C. 6021 to 6030. The department of developmental disabilities, as the state agency selected by the governor for purposes of receiving the federal assistance, shall receive, account for, and disburse funds based on the state plan and shall provide assurances and other administrative support services required as a condition of receiving the federal assistance.

(C) The federal funds may be disbursed through grants to or contracts with persons and government agencies for the provision of necessary or useful goods and services for developmentally disabled persons. The Ohio developmental disabilities council may award the grants or enter into the contracts.

(D) The Ohio developmental disabilities council may award grants to or enter into contracts with a member of the council or an entity that the member represents if all of the following apply:

(1) The member serves on the council as a representative of one of the principal state agencies concerned with services for persons with developmental disabilities as specified in 42 U.S.C. 6024(b)(3), a representative of a university affiliated program as defined in 42 U.S.C. 6001(18), or a representative of the legal rights service created under section 5123.60 of the Revised Code.

(2) The council determines that the member or the entity the member represents is capable of providing the goods or services specified under the terms of the grant or contract.

(3) The member has not taken part in any discussion or vote of the council related to awarding the grant or entering into the contract, including service as a member of a review panel established by the council to award grants or enter into contracts or to make recommendations with regard to awarding grants or entering into contracts.

(E) A member of the Ohio developmental disabilities council is not in violation of Chapter 102. or section 2921.42 of the Revised Code with regard to receiving a grant or entering into a contract under this section if the requirements of division (D) of this section have been met.

(F)

(1) Notwithstanding division (C) of section 121.22 of the Revised Code, the requirement for a member's presence in person at a meeting in order to be part of a quorum or to vote does not apply if the council holds a meeting by interactive video conference and all of the following apply:

(a) A primary meeting location that is open and accessible to the public is established for the meeting of the council;

(b) A clear video and audio connection is established that enables all meeting participants at the primary meeting location to witness the participation of each member;

(c) A roll call vote is recorded for each vote taken;

(d) The minutes of the council identify which members participated by interactive video conference.

(2) Notwithstanding division (C) of section 121.22 of the Revised Code, the requirement for a member's presence in person at a meeting in order to be part of a quorum or to vote does not apply if the council holds a meeting by teleconference and all of the following apply:

(a) The council has determined its membership does not have access to and the council cannot provide access to the equipment needed to conduct interactive video conferencing;

(b) A primary meeting location that is open and accessible to the public is established for the meeting of the council;

(c) A clear audio connection is established that enables all meeting participants at the primary meeting location to hear the participation of each member;

(d) A roll call vote is recorded for each vote taken;

(e) The minutes of the council identify which members participated by teleconference.

(3) The Ohio developmental disabilities council shall adopt any rules the council considers necessary to implement this section. The rules shall be adopted in accordance with Chapter 119. of the Revised Code. At a minimum, the rules shall do all of the following:

(a) Authorize council members to remotely attend a council meeting by interactive video conference or teleconference in lieu of attending the meeting in person;

(b) Establish a minimum number of members required to be physically present in person at the primary meeting location if the council conducts a meeting by interactive video conference or teleconference;

(c) Establish geographic restrictions for participation in meetings by interactive video conference or teleconference;

(d) Establish a policy for distributing and circulating necessary documents to council members, the public, and the media in advance of a meeting at which members are permitted to attend by interactive video conference or teleconference;

(e) Establish a method for verifying the identity of a member who remotely attends a meeting by teleconference.

Amended by 130th General Assembly File No. TBD, HB 286, §1, eff. 9/17/2014.

Amended by 129th General AssemblyFile No.28, HB 153, §120.20, eff. 10/1/2012.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 10-29-1993; 12-30-2004; 06-27-2005

5123.351 Eligibility for state reimbursement of expenses incurred by facilities and programs.

The director of 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 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 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 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.

Amended by 128th General Assemblych.39, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.352 Community developmental disabilities trust fund.

There is hereby created in the state treasury the community developmental disabilities trust fund. The director of developmental disabilities, not later than sixty days after the end of each fiscal year, shall certify to the director of budget and management the amount of all the unexpended, unencumbered balances of general revenue fund appropriations made to the department of developmental disabilities for the fiscal year, excluding appropriations for rental payments to the Ohio public facilities commission, and the amount of any other funds held by the department in excess of amounts necessary to meet the department's operating costs and obligations pursuant to this chapter and Chapter 5126. of the Revised Code. On receipt of the certification, the director of budget and management shall transfer cash to the trust fund in an amount up to, but not exceeding, the total of the amounts certified by the director of developmental disabilities, except in cases in which the transfer will involve more than twenty million dollars. In such cases, the director of budget and management shall notify the controlling board and must receive the board's approval of the transfer prior to making the transfer.

All moneys in the trust fund shall be used for purposes specified in section 5123.0418 of the Revised Code.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-29-2004; 12-30-2004; 06-27-2005

5123.353 [Repealed].

Effective Date: 12-30-2004

5123.36 State participation in developmental disability construction programs.

(A) To the extent funds are available and on application by a county board of developmental disabilities or private nonprofit agency incorporated to provide mental retardation or developmental disability services, the director of developmental disabilities may enter into an agreement with the county board or agency to assist the county board or agency with a mental retardation or developmental disability construction project. Except as provided by division (B) of this section, the director may provide up to ninety per cent of the total project cost where circumstances warrant. The director may, where circumstances warrant, use existing facilities or other in-kind match for the local share of the communities' share of the cost.

(B) Upon the recommendation of the director, for projects of the highest priority of the department of developmental disabilities, the controlling board may authorize the director to provide more than ninety per cent of the total cost of a project under this section.

(C) A county board is eligible for funds under this section for a project bid on or after January 1, 1992, under either section 153.07 or 307.86 of the Revised Code, as long as all other applicable requirements were followed.

(D) A private nonprofit agency that receives funds pursuant to this section for the construction of a single-family home, including, where appropriate, the acquisition and installation of a single-family home fabricated in an off-site facility, is not subject to the requirements of Chapter 153. of the Revised Code with respect to the construction project, notwithstanding any provision of that chapter to the contrary.

(E) The director may not assist a project under this section unless the controlling board or director of budget and management also approves the project pursuant to section 126.14 of the Revised Code.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 11-11-1994; 03-30-2006; 03-30-2006; 2008 HB562 09-22-2008

5123.37 Application to sell facility and acquire replacement.

A county board of developmental disabilities or private, nonprofit agency that receives state funds pursuant to an agreement with the director of developmental disabilities under section 5123.36 of the Revised Code to acquire a facility may apply to the director for approval to sell the facility before the terms of the agreement expire for the purpose of acquiring a replacement facility to be used to provide mental retardation or developmental disability services to individuals the county board or agency serves. The application shall be made on a form the director shall prescribe. The county board or agency shall include in the application the specific purpose for which the replacement facility is to be used. The director may refuse to approve the application if the director determines that any of the following apply:

(A) The application is incomplete or indicates that the county board or agency is unable to purchase a replacement facility.

(B) The replacement facility would not be used to continue to provide mental retardation or developmental disability services that the director determines are appropriate for the individuals the county board or agency serves.

(C) The county board or agency has failed to comply with a provision of Chapter 5123. or 5126. of the Revised Code or a rule adopted by the director.

(D) Approving the application would be inconsistent with the plans and priorities of the department of developmental disabilities.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-30-2006

5123.371 Payment to director after sale of facility.

If the director of developmental disabilities approves an application submitted under section 5123.37 of the Revised Code, the county board of developmental disabilities or private, nonprofit agency that submitted the application shall, after selling the facility for which the county board or agency received approval to sell, pay to the director the portion of the proceeds that equals the amount that the director determines the county board or agency owes the department of developmental disabilities, including the department's security interest in the facility, for the state funds used to acquire the facility.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-30-2006

5123.372 Deadline for acquisition of replacement facility.

If the director of developmental disabilities approves an application submitted under section 5123.37 of the Revised Code, the director shall establish a deadline by which the county board of developmental disabilities or private, nonprofit agency that submitted the application must notify the director that the county board or agency is ready to acquire a replacement facility to be used for the purpose stated in the application. The director may extend the deadline as many times as the director determines necessary.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-30-2006

5123.373 Agreement to pay percentage of cost of acquisition.

If, on or before the deadline or, if any, the last extended deadline established under section 5123.372 of the Revised Code for a county board of developmental disabilities or private, nonprofit agency, the county board or agency notifies the director of developmental disabilities that the county board or agency is ready to acquire the replacement facility, the director shall enter into an agreement with the county board or agency that provides for the director to pay to the county board or agency a percentage of the cost of acquiring the replacement facility. The agreement shall specify the amount that the director shall pay. The amount may be the amount of the security interest that the department of developmental disabilities had in the previous facility or a different amount. The agreement may provide for the department to hold a security interest in the replacement facility.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-30-2006

5123.374 Rescission of approval of application.

(A) The director of developmental disabilities may rescind approval of an application submitted under section 5123.37 of the Revised Code if either of the following occurs:

(1) The county board of developmental disabilities or private, nonprofit agency that submitted the application fails, on or before the deadline or, if any, the last extended deadline established under section 5123.372 of the Revised Code for the county board or agency, to notify the director that the county board or agency is ready to acquire the replacement facility.

(2) The county board or agency at any time notifies the director that the county board or agency no longer intends to acquire a replacement facility.

(B) If the director rescinds approval of an application, the director shall use any funds the county board or agency paid to the director under section 5123.371 of the Revised Code to assist mental retardation or developmental disabilities construction projects under section 5123.36 of the Revised Code.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-30-2006

5123.375 Developmental disabilities community capital replacement fund.

The developmental disabilities community capital replacement facilities fund is hereby created in the state treasury. The director of developmental disabilities shall credit all amounts paid to the director under section 5123.371 of the Revised Code to the fund. The director shall use the money in the fund as follows:

(A) To make payments to county boards of developmental disabilities and private, nonprofit agencies pursuant to agreements entered into under section 5123.373 of the Revised Code;

(B) To provide, pursuant to section 5123.374 of the Revised Code, assistance for mental retardation or developmental disabilities construction projects under section 5123.36 of the Revised Code.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-30-2006

5123.38 Effect of transfer from supported services to commitment to ICF/IID.

(A) Except as provided in division (B) of this section, if an individual receiving supported living or home and community-based services funded by a county board of developmental disabilities is committed to a state-operated ICF/IID pursuant to sections 5123.71 to 5123.76 of the Revised Code, the county board is responsible for the nonfederal share of medicaid expenditures for the individual's care in the state-operated ICF/IID. The department of developmental disabilities shall collect the amount of the nonfederal share from the county board by either withholding that amount from funds the department has otherwise allocated to the county board or submitting an invoice for payment of that amount to the county board.

(B) Division (A) of this section does not apply under any of the following circumstances:

(1) The county board, not later than ninety days after the date of the commitment of a person receiving supported living, commences funding of supported living for an individual who resides in a state-operated ICF/IID on the date of the commitment or another eligible individual designated by the department.

(2) The county board, not later than ninety days after the date of the commitment of a person receiving home and community-based services, commences funding of home and community-based services for an individual who resides in a state-operated ICF/IID on the date of the commitment or another eligible individual designated by the department.

(3) The director of developmental disabilities, after determining that circumstances warrant granting a waiver in an individual's case, grants the county board a waiver that exempts the county board from responsibility for the nonfederal share for that case.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-26-2003; 2007 HB119 06-30-2007

5123.39 Patient clothing.

If not otherwise furnished, the probate judge shall see that each patient hospitalized under section 5123.76 of the Revised Code is properly attired for transportation, and, in addition, the institution shall be furnished a complete change of clothing for such patient, which shall be paid for on the certificate of the probate judge and the order of the county auditor from the county treasury. Such clothing shall be new or as good as new.

Effective Date: 07-01-1988

5123.40 Services fund for individuals with developmental disabilities.

There is hereby created in the state treasury the services fund for individuals with mental retardation and developmental disabilities. On the death of the beneficiary of a trust created pursuant to section 5815.28 of the Revised Code, the portion of the remaining assets of the trust specified in the trust instrument shall be deposited to the credit of the fund.

Money credited to the fund shall be used for individuals with mental retardation and developmental disabilities. In accordance with Chapter 119. of the Revised Code, the department of developmental disabilities may adopt any rules necessary to implement this section.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 04-16-1993; 01-01-2007

5123.41 Administration of prescribed medications, performance of health-related activities, tube feeding definitions.

As used in this section and sections 5123.42 to 5123.47 of the Revised Code:

(A) "Adult services" has the same meaning as in section 5126.01 of the Revised Code.

(B) "Certified supported living provider" means a person or government entity certified under section 5123.161 of the Revised Code.

(C) "Drug" has the same meaning as in section 4729.01 of the Revised Code.

(D) "Family support services" has the same meaning as in section 5126.01 of the Revised Code.

(E) "Health-related activities" means the following:

(1) Taking vital signs;

(2) Application of clean dressings that do not require health assessment;

(3) Basic measurement of bodily intake and output;

(4) Oral suctioning;

(5) Use of glucometers;

(6) External urinary catheter care;

(7) Emptying and replacing colostomy bags;

(8) Collection of specimens by noninvasive means.

(F) "Licensed health professional authorized to prescribe drugs" has the same meaning as in section 4729.01 of the Revised Code.

(G) "MR/DD personnel" means the employees and the workers under contract who provide specialized services to individuals with mental retardation and developmental disabilities. "MR/DD personnel" includes those who provide the services as follows:

(1) Through direct employment with the department of developmental disabilities or a county board of developmental disabilities;

(2) Through an entity under contract with the department of developmental disabilities or a county board of developmental disabilities;

(3) Through direct employment or by being under contract with private entities, including private entities that operate residential facilities.

(H) "Nursing delegation" means the process established in rules adopted by the board of nursing pursuant to Chapter 4723. of the Revised Code under which a registered nurse or licensed practical nurse acting at the direction of a registered nurse transfers the performance of a particular nursing activity or task to another person who is not otherwise authorized to perform the activity or task.

(I) "Prescribed medication" means a drug that is to be administered according to the instructions of a licensed health professional authorized to prescribe drugs.

(J) "Residential facility" means a facility licensed under section 5123.19 of the Revised Code .

(K) "Specialized services" has the same meaning as in section 5123.50 of the Revised Code.

(L) "Tube feeding" means the provision of nutrition to an individual through a gastrostomy tube or a jejunostomy tube.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-31-2003; 07-01-2005; 2007 HB119 06-30-2007

5123.42 Authorization for workers to administer prescribed medications, perform health-related activities, or perform tube feedings.

(A) Beginning nine months after March 31, 2003, MR/DD personnel who are not specifically authorized by other provisions of the Revised Code to administer prescribed medications, perform health-related activities, or perform tube feedings may do so pursuant to this section as part of the specialized services the MR/DD personnel provide to individuals with mental retardation and developmental disabilities in the following categories:

(1) Recipients of early intervention, preschool, and school-age services offered or provided pursuant to this chapter or Chapter 5126. of the Revised Code;

(2) Recipients of adult services offered or provided pursuant to this chapter or Chapter 5126. of the Revised Code;

(3) Recipients of family support services offered or provided pursuant to this chapter or Chapter 5126. of the Revised Code;

(4) Recipients of services from certified supported living providers, if the services are offered or provided pursuant to this chapter or Chapter 5126. of the Revised Code;

(5) Recipients of residential support services from certified home and community-based services providers, if the services are received in a community living arrangement that includes not more than four individuals with mental retardation and developmental disabilities and the services are offered or provided pursuant to this chapter or Chapter 5126. of the Revised Code;

(6) Recipients of services not included in divisions (A)(1) to (5) of this section that are offered or provided pursuant to this chapter or Chapter 5126. of the Revised Code;

(7) Residents of a residential facility with five or fewer resident beds;

(8) Residents of a residential facility with at least six but not more than sixteen resident beds;

(9) Residents of a residential facility with seventeen or more resident beds who are on a field trip from the facility, if all of the following are the case:

(a) The field trip is sponsored by the facility for purposes of complying with federal medicaid statutes and regulations, state medicaid statutes and rules, or other federal or state statutes, regulations, or rules that require the facility to provide habilitation, community integration, or normalization services to its residents.

(b) Not more than ten field trip participants are residents who have health needs requiring the administration of prescribed medications, excluding participants who self-administer prescribed medications or receive assistance with self-administration of prescribed medications.

(c) The facility staffs the field trip with MR/DD personnel in such a manner that one person will administer prescribed medications, perform health-related activities, or perform tube feedings for not more than four participants if one or more of those participants have health needs requiring the person to administer prescribed medications through a gastrostomy or jejunostomy tube.

(d) According to the instructions of a health care professional acting within the scope of the professional's practice, the health needs of the participants who require administration of prescribed medications by MR/DD personnel are such that the participants must receive the medications during the field trip to avoid jeopardizing their health and safety.

(B)

(1) In the case of recipients of early intervention, preschool, and school-age services, as specified in division (A)(1) of this section, all of the following apply:

(a) With nursing delegation, MR/DD personnel may perform health-related activities.

(b) With nursing delegation, MR/DD personnel may administer oral and topical prescribed medications.

(c) With nursing delegation, MR/DD personnel may administer prescribed medications through gastrostomy and jejunostomy tubes, if the tubes being used are stable and labeled.

(d) With nursing delegation, MR/DD personnel may perform routine tube feedings, if the gastrostomy and jejunostomy tubes being used are stable and labeled.

(2) In the case of recipients of adult services, as specified in division (A)(2) of this section, all of the following apply:

(a) With nursing delegation, MR/DD personnel may perform health-related activities.

(b) With nursing delegation, MR/DD personnel may administer oral and topical prescribed medications.

(c) With nursing delegation, MR/DD personnel may administer prescribed medications through gastrostomy and jejunostomy tubes, if the tubes being used are stable and labeled.

(d) With nursing delegation, MR/DD personnel may perform routine tube feedings, if the gastrostomy and jejunostomy tubes being used are stable and labeled.

(3) In the case of recipients of family support services, as specified in division (A)(3) of this section, all of the following apply:

(a) Without nursing delegation, MR/DD personnel may perform health-related activities.

(b) Without nursing delegation, MR/DD personnel may administer oral and topical prescribed medications.

(c) With nursing delegation, MR/DD personnel may administer prescribed medications through gastrostomy and jejunostomy tubes, if the tubes being used are stable and labeled.

(d) With nursing delegation, MR/DD personnel may perform routine tube feedings, if the gastrostomy and jejunostomy tubes being used are stable and labeled.

(e) With nursing delegation, MR/DD personnel may administer routine doses of insulin through subcutaneous injections and insulin pumps.

(4) In the case of recipients of services from certified supported living providers, as specified in division (A)(4) of this section, all of the following apply:

(a) Without nursing delegation, MR/DD personnel may perform health-related activities.

(b) Without nursing delegation, MR/DD personnel may administer oral and topical prescribed medications.

(c) With nursing delegation, MR/DD personnel may administer prescribed medications through gastrostomy and jejunostomy tubes, if the tubes being used are stable and labeled.

(d) With nursing delegation, MR/DD personnel may perform routine tube feedings, if the gastrostomy and jejunostomy tubes being used are stable and labeled.

(e) With nursing delegation, MR/DD personnel may administer routine doses of insulin through subcutaneous injections and insulin pumps.

(5) In the case of recipients of residential support services from certified home and community-based services providers, as specified in division (A)(5) of this section, all of the following apply:

(a) Without nursing delegation, MR/DD personnel may perform health-related activities.

(b) Without nursing delegation, MR/DD personnel may administer oral and topical prescribed medications.

(c) With nursing delegation, MR/DD personnel may administer prescribed medications through gastrostomy and jejunostomy tubes, if the tubes being used are stable and labeled.

(d) With nursing delegation, MR/DD personnel may perform routine tube feedings, if the gastrostomy and jejunostomy tubes being used are stable and labeled.

(e) With nursing delegation, MR/DD personnel may administer routine doses of insulin through subcutaneous injections and insulin pumps.

(6) In the case of recipients of services not included in divisions (A)(1) to (5) of this section, as specified in division (A)(6) of this section, all of the following apply:

(a) With nursing delegation, MR/DD personnel may perform health-related activities.

(b) With nursing delegation, MR/DD personnel may administer oral and topical prescribed medications.

(c) With nursing delegation, MR/DD personnel may administer prescribed medications through gastrostomy and jejunostomy tubes, if the tubes being used are stable and labeled.

(d) With nursing delegation, MR/DD personnel may perform routine tube feedings, if the gastrostomy and jejunostomy tubes being used are stable and labeled.

(7) In the case of residents of a residential facility with five or fewer beds, as specified in division (A)(7) of this section, all of the following apply:

(a) Without nursing delegation, MR/DD personnel may perform health-related activities.

(b) Without nursing delegation, MR/DD personnel may administer oral and topical prescribed medications.

(c) With nursing delegation, MR/DD personnel may administer prescribed medications through gastrostomy and jejunostomy tubes, if the tubes being used are stable and labeled.

(d) With nursing delegation, MR/DD personnel may perform routine tube feedings, if the gastrostomy and jejunostomy tubes being used are stable and labeled.

(e) With nursing delegation, MR/DD personnel may administer routine doses of insulin through subcutaneous injections and insulin pumps.

(8) In the case of residents of a residential facility with at least six but not more than sixteen resident beds, as specified in division (A)(8) of this section, all of the following apply:

(a) With nursing delegation, MR/DD personnel may perform health-related activities.

(b) With nursing delegation, MR/DD personnel may administer oral and topical prescribed medications.

(c) With nursing delegation, MR/DD personnel may administer prescribed medications through gastrostomy and jejunostomy tubes, if the tubes being used are stable and labeled.

(d) With nursing delegation, MR/DD personnel may perform routine tube feedings, if the gastrostomy and jejunostomy tubes being used are stable and labeled.

(9) In the case of residents of a residential facility with seventeen or more resident beds who are on a field trip from the facility, all of the following apply during the field trip, subject to the limitations specified in division (A)(9) of this section:

(a) With nursing delegation, MR/DD personnel may perform health-related activities.

(b) With nursing delegation, MR/DD personnel may administer oral and topical prescribed medications.

(c) With nursing delegation, MR/DD personnel may administer prescribed medications through gastrostomy and jejunostomy tubes, if the tubes being used are stable and labeled.

(d) With nursing delegation, MR/DD personnel may perform routine tube feedings, if the gastrostomy and jejunostomy tubes being used are stable and labeled.

(C) The authority of MR/DD personnel to administer prescribed medications, perform health-related activities, and perform tube feedings pursuant to this section is subject to all of the following:

(1) To administer prescribed medications, perform health-related activities, or perform tube feedings for individuals in the categories specified under divisions (A)(1) to (8) of this section, MR/DD personnel shall obtain the certificate or certificates required by the department of developmental disabilities and issued under section 5123.45 of the Revised Code. MR/DD personnel shall administer prescribed medication, perform health-related activities, and perform tube feedings only as authorized by the certificate or certificates held.

(2) To administer prescribed medications, perform health-related activities, or perform tube feedings for individuals in the category specified under division (A)(9) of this section, MR/DD personnel shall successfully complete the training course or courses developed under section 5123.43 of the Revised Code for the MR/DD personnel. MR/DD personnel shall administer prescribed medication, perform health-related activities, and perform tube feedings only as authorized by the training completed.

(3) If nursing delegation is required under division (B) of this section, MR/DD personnel shall not act without nursing delegation or in a manner that is inconsistent with the delegation.

(4) The employer of MR/DD personnel shall ensure that MR/DD personnel have been trained specifically with respect to each individual for whom they administer prescribed medications, perform health-related activities, or perform tube feedings. MR/DD personnel shall not administer prescribed medications, perform health-related activities, or perform tube feedings for any individual for whom they have not been specifically trained.

(5) If the employer of MR/DD personnel believes that MR/DD personnel have not or will not safely administer prescribed medications, perform health-related activities, or perform tube feedings, the employer shall prohibit the action from continuing or commencing. MR/DD personnel shall not engage in the action or actions subject to an employer's prohibition.

(D) In accordance with section 5123.46 of the Revised Code, the department of developmental disabilities shall adopt rules governing its implementation of this section. The rules shall include the following:

(1) Requirements for documentation of the administration of prescribed medications, performance of health-related activities, and performance of tube feedings by MR/DD personnel pursuant to the authority granted under this section;

(2) Procedures for reporting errors that occur in the administration of prescribed medications, performance of health-related activities, and performance of tube feedings by MR/DD personnel pursuant to the authority granted under this section;

(3) Other standards and procedures the department considers necessary for implementation of this section.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-31-2003

5123.421 Complaints and investigations.

The department of developmental disabilities shall accept complaints from any person or government entity regarding the administration of prescribed medications, performance of health-related activities, and performance of tube feedings by MR/DD personnel pursuant to the authority granted under section 5123.42 of the Revised Code. The department shall conduct investigations of complaints as it considers appropriate. The department shall adopt rules in accordance with section 5123.46 of the Revised Code establishing procedures for accepting complaints and conducting investigations under this section.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-31-2003

5123.422 Immunity.

MR/DD personnel who administer prescribed medications, perform health-related activities, or perform tube feedings pursuant to the authority granted under section 5123.42 of the Revised Code are not liable for any injury caused by administering the medications, performing the health-related activities, or performing the tube feedings, if both of the following apply:

(A) The MR/DD personnel acted in accordance with the methods taught in training completed in compliance with section 5123.42 of the Revised Code;

(B) The MR/DD personnel did not act in a manner that constitutes wanton or reckless misconduct.

Effective Date: 12-31-2003

5123.43 Training courses for administration of prescribed medications, performance of health-related activities, and performance of tube feedings.

(A) The department of developmental disabilities shall develop courses for the training of MR/DD personnel in the administration of prescribed medications, performance of health-related activities, and performance of tube feedings pursuant to the authority granted under section 5123.42 of the Revised Code. The department may develop separate or combined training courses for the administration of prescribed medications, performance of health-related activities, and performance of tube feedings. Training in the administration of prescribed medications through gastrostomy and jejunostomy tubes may be included in a course providing training in tube feedings. Training in the administration of insulin may be developed as a separate course or included in a course providing training in the administration of other prescribed medications.

(B)

(1) The department shall adopt rules in accordance with section 5123.46 of the Revised Code that specify the content and length of the training courses developed under this section. The rules may include any other standards the department considers necessary for the training courses.

(2) In adopting rules that specify the content of a training course or part of a training course that trains MR/DD personnel in the administration of prescribed medications, the department shall ensure that the content includes all of the following:

(a) Infection control and universal precautions;

(b) Correct and safe practices, procedures, and techniques for administering prescribed medication;

(c) Assessment of drug reaction, including known side effects, interactions, and the proper course of action if a side effect occurs;

(d) The requirements for documentation of medications administered to each individual;

(e) The requirements for documentation and notification of medication errors;

(f) Information regarding the proper storage and care of medications;

(g) Information about proper receipt of prescriptions and transcription of prescriptions into an individual's medication administration record, except when the MR/DD personnel being trained will administer prescribed medications only to residents of a residential facility with seventeen or more resident beds who are participating in a field trip, as specified in division (A)(9) of section 5123.42 of the Revised Code;

(h) Course completion standards that require successful demonstration of proficiency in administering prescribed medications;

(i) Any other material or course completion standards that the department considers relevant to the administration of prescribed medications by MR/DD personnel.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-31-2003

5123.44 Training registered nurses to provide training courses for department personnel.

The department of developmental disabilities shall develop courses that train registered nurses to provide the MR/DD personnel training courses developed under section 5123.43 of the Revised Code. The department may develop courses that train registered nurses to provide all of the courses developed under section 5123.43 of the Revised Code or any one or more of the courses developed under that section.

The department shall adopt rules in accordance with section 5123.46 of the Revised Code that specify the content and length of the training courses. The rules may include any other standards the department considers necessary for the training courses.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-31-2003

5123.441 Certificates to provide training courses.

(A) Each MR/DD personnel training course developed under section 5123.43 of the Revised Code shall be provided by a registered nurse.

(B)

(1) Except as provided in division (B)(2) of this section, to provide a training course or courses to MR/DD personnel, a registered nurse shall obtain the certificate or certificates required by the department and issued under section 5123.45 of the Revised Code. The registered nurse shall provide only the training course or courses authorized by the certificate or certificates the registered nurse holds.

(2) A registered nurse is not required to obtain a certificate to provide a training course to MR/DD personnel if the only MR/DD personnel to whom the course or courses are provided are those who administer prescribed medications, perform health-related activities, or perform tube feedings for residents of a residential facility with seventeen or more resident beds who are on a field trip from the facility, as specified in division (A)(9) of section 5123.42 of the Revised Code. To provide the training course or courses, the registered nurse shall successfully complete the training required by the department through the courses it develops under section 5123.44 of the Revised Code. The registered nurse shall provide only the training courses authorized by the training the registered nurse completes.

Effective Date: 03-31-2003

5123.45 Program for issuing of certificates.

(A) The department of developmental disabilities shall establish a program under which the department issues certificates to the following:

(1) MR/DD personnel, for purposes of meeting the requirement of division (C)(1) of section 5123.42 of the Revised Code to obtain a certificate or certificates to administer prescribed medications, perform health-related activities, and perform tube feedings;

(2) Registered nurses, for purposes of meeting the requirement of division (B)(1) of section 5123.441 of the Revised Code to obtain a certificate or certificates to provide the MR/DD personnel training courses developed under section 5123.43 of the Revised Code.

(B)

(1) Except as provided in division (B)(2) of this section, to receive a certificate issued under this section, MR/DD personnel and registered nurses shall successfully complete the applicable training course or courses and meet all other applicable requirements established in rules adopted pursuant to this section. The department shall issue the appropriate certificate or certificates to MR/DD personnel and registered nurses who meet the requirements for the certificate or certificates.

(2) The department shall include provisions in the program for issuing certificates to MR/DD personnel and registered nurses who were required to be included in the certificate program pursuant to division (B)(2) of this section as that division existed immediately before the effective date of this amendment. MR/DD personnel who receive a certificate under division (B)(2) of this section shall not administer insulin until they have been trained by a registered nurse who has received a certificate under this section that allows the registered nurse to provide training courses to MR/DD personnel in the administration of insulin . A registered nurse who receives a certificate under division (B)(2) of this section shall not provide training courses to MR/DD personnel in the administration of insulin unless the registered nurse completes a course developed under section 5123.44 of the Revised Code that enables the registered nurse to receive a certificate to provide training courses to MR/DD personnel in the administration of insulin.

(C) Certificates issued to MR/DD personnel are valid for one year and may be renewed. Certificates issued to registered nurses are valid for two years and may be renewed.

To be eligible for renewal, MR/DD personnel and registered nurses shall meet the applicable continued competency requirements and continuing education requirements specified in rules adopted under division (D) of this section. In the case of registered nurses, continuing nursing education completed in compliance with the license renewal requirements established under Chapter 4723. of the Revised Code may be counted toward meeting the continuing education requirements established in the rules adopted under division (D) of this section.

(D) In accordance with section 5123.46 of the Revised Code, the department shall adopt rules that establish all of the following:

(1) Requirements that MR/DD personnel and registered nurses must meet to be eligible to take a training course;

(2) Standards that must be met to receive a certificate, including requirements pertaining to an applicant's criminal background;

(3) Procedures to be followed in applying for a certificate and issuing a certificate;

(4) Standards and procedures for renewing a certificate, including requirements for continuing education and, in the case of MR/DD personnel who administer prescribed medications, standards that require successful demonstration of proficiency in administering prescribed medications;

(5) Standards and procedures for suspending or revoking a certificate;

(6) Standards and procedures for suspending a certificate without a hearing pending the outcome of an investigation;

(7) Any other standards or procedures the department considers necessary to administer the certification program.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-31-2003

5123.451 Registry listing all MR/DD personnel and registered nurses holding valid certificates.

The department of developmental disabilities shall establish and maintain a registry that lists all MR/DD personnel and registered nurses holding valid certificates issued under section 5123.45 of the Revised Code. The registry shall specify the type of certificate held and any limitations that apply to a certificate holder. The department shall make the information in the registry available to the public in computerized form or any other manner that provides continuous access to the information in the registry.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-31-2003

5123.46 Rules adopted in conjunction with board of nursing and the Ohio nurses association.

All rules adopted under sections 5123.41 to 5123.45 of the Revised Code shall be adopted in consultation with the board of nursing and the Ohio nurses association. The rules shall be adopted in accordance with Chapter 119. of the Revised Code.

Effective Date: 03-31-2003

5123.47 Authorizing in-home worker to perform health care tasks.

(A) As used in this section:

(1) "In-home care" means the supportive services provided within the home of an individual with mental retardation or a developmental disability who receives funding for the services through a county board of developmental disabilities, including any recipient of residential services funded as home and community-based services, 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 an individual'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 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.

(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.

(5) "Health care professional" means any of the following:

(a) A dentist who holds a valid license issued under Chapter 4715. of the Revised Code;

(b) A registered or licensed practical nurse who holds a valid license issued under Chapter 4723. of the Revised Code;

(c) An optometrist who holds a valid license issued under Chapter 4725. of the Revised Code;

(d) A pharmacist who holds a valid license issued under Chapter 4729. of the Revised Code;

(e) A person who holds a valid certificate issued under Chapter 4731. of the Revised Code to practice medicine and surgery, osteopathic medicine and surgery, podiatric medicine and surgery, or a limited brand of medicine;

(f) A physician assistant who holds a valid certificate issued under Chapter 4730. of the Revised Code;

(g) An occupational therapist or occupational therapy assistant or a physical therapist or physical therapist assistant who holds a valid license issued under Chapter 4755. of the Revised Code;

(h) A respiratory care professional who holds a valid license issued under Chapter 4761. of the Revised Code.

(6) "Health care task" means a task that is prescribed, ordered, delegated, or otherwise directed by a health care professional acting within the scope of the professional's practice.

(B) Except as provided in division (E) of this section, a family member of an individual with mental retardation or a developmental disability may authorize an unlicensed in-home care worker to administer oral and topical prescribed medications or perform other health care tasks as part of the in-home care the worker provides to the individual, if all of the following apply:

(1) The family member is the primary supervisor of the care.

(2) The unlicensed in-home care worker has been selected by the family member or the individual receiving care and is under the direct supervision of the family member.

(3) The unlicensed in-home care worker is providing the care through an employment or other arrangement entered into directly with the family member and is not otherwise employed by or under contract with a person or government entity to provide services to individuals with mental retardation and developmental disabilities.

(C) A 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 family member shall authorize the unlicensed in-home care worker to provide the care by preparing a written document granting the authority. The 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.

(D) A family member who authorizes an unlicensed in-home care worker to administer oral and topical prescribed medications 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 developmental disabilities and the department of developmental disabilities.

An unlicensed in-home care worker who is authorized under this section by a 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.

(E) A county board of developmental disabilities may evaluate the authority granted by a 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 a family member has acted in a manner that is inappropriate for the health and safety of the individual receiving the care, the authorization granted by the family member to an unlicensed in-home care worker is void, and the 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 family member an opportunity to file a complaint under section 5126.06 of the Revised Code.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 12-31-2003

5123.48 [Repealed].

Effective Date: 07-01-1980

5123.49 [Repealed].

Effective Date: 10-25-1961

5123.50 Registry of employees guilty of abuse, neglect or misappropriation definitions.

As used in sections 5123.50 to 5123.542 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 developmental disabilities;

(2) An employee of a county board of developmental disabilities;

(3) An employee in a position that includes providing specialized services to an individual with mental retardation or another developmental disability;

(4) An independent provider as defined in section 5123.16 of the Revised Code.

(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) "Offense of violence" has the same meaning as in section 2901.01 of the Revised Code.

(F) "Physical harm" and "serious physical harm" have the same meanings as in section 2901.01 of the Revised Code.

(G) "Prescribed medication" has the same meaning as in section 5123.41 of the Revised Code.

(H) "Sexual abuse" means unlawful sexual conduct or sexual contact.

(I) "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 developmental disabilities. A program or service available to the general public is not a specialized service.

(J) "Verbal abuse" means purposely using words to threaten, coerce, intimidate, harass, or humiliate an individual.

(K) "Sexual conduct," "sexual contact," and "spouse" have the same meanings as in section 2907.01 of the Revised Code.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 01-30-2004

5123.51 Reviewing report of abuse, neglect or misappropriation.

(A) In addition to any other action required by sections 5123.61 and 5126.31 of the Revised Code, the department of 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. On receipt of a notice under section 2930.061 or 5123.541 of the Revised Code, the department shall review the notice.

(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)

(a) Except as provided in division (C)(2)(b) of this section, 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.

(b) The department may conduct a hearing pursuant to division (B)(2) of this section before a criminal proceeding concerning the same allegation is concluded if both of the following are the case:

(i) The department notifies the prosecutor responsible for the criminal proceeding that the department proposes to conduct a hearing.

(ii) The prosecutor consents to the hearing.

(3) In conducting a hearing pursuant to division (B)(2) of this section, the hearing officer shall do all 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 property of one or more individuals with mental retardation or a developmental disability that has a value, either separately or taken together, of one hundred dollars or more;

(ii) Misappropriated property of an individual with mental retardation or a developmental disability that is designed to be used as a check, draft, negotiable instrument, credit card, charge card, or device for initiating an electronic fund transfer at a point of sale terminal, automated teller machine, or cash dispensing machine;

(iii) Misappropriated prescribed medication of an individual with mental retardation or a developmental disability;

(iv) Knowingly abused such an individual;

(v) Recklessly abused or neglected such an individual, with resulting physical harm;

(vi) Negligently abused or neglected such an individual, with resulting serious physical harm;

(vii) Recklessly neglected such an individual, creating a substantial risk of serious physical harm;

(viii) Engaged in sexual conduct or had sexual contact with an individual with mental retardation or another developmental disability who was not the MR/DD employee's spouse and for whom the MR/DD employee was employed or under a contract to provide care;

(ix) Unreasonably failed to make a report pursuant to division (C) of section 5123.61 of the Revised Code when the employee knew or should have known that the failure would result in a substantial risk of harm to an individual with mental retardation or a developmental disability;

(x) Been convicted of or entered a plea of guilty to any of the following if the victim of the offense is an individual with mental retardation or a developmental disability: an offense of violence, a violation of a section contained in Chapter 2907. or Chapter 2913. of the Revised Code, or a violation of section 2903.16 , 2903.34 , 2903.341 , or 2919.22 of the Revised Code.

(b) Give weight to the decision in any collective bargaining arbitration regarding the same allegation;

(c) Give weight to any relevant facts presented at the hearing.

(D)

(1) Unless the director of developmental disabilities determines that there are extenuating circumstances and except as provided in division (E) of this section, if the director, after considering all of the factors listed in division (C)(3) of this section, finds that there is clear and convincing evidence that an MR/DD employee has done one or more of the things described in division (C)(3)(a) of this section the director shall include the name of the employee in the registry established under section 5123.52 of the Revised Code.

(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) If an individual whose name appears on the registry is involved in a court proceeding or arbitration arising from the same facts as the allegation resulting in the individual's placement on the registry, the disposition of the proceeding or arbitration shall be noted in the registry next to the individual's name.

(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)(3) 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 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 developmental disabilities receives such notification, the director shall include the MR/DD employee in the registry and shall provide the notification described in division (D)(3) of this section.

(F) If the department is required by Chapter 119. of the Revised Code to give notice of an opportunity for a hearing and the MR/DD employee subject to the notice does not timely request a hearing in accordance with section 119.07 or 5123.0414 of the Revised Code, the department is not required to hold a hearing.

(G) 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.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 01-30-2004; 2007 HB119 06-30-2007

5123.52 Registry of employees guilty of abuse, neglect or misappropriation.

(A) The department of 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 November22, 2000, 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 November22, 2000, 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 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.

Amended by 128th General Assemblych.10, SB 79, §1, eff. 10/6/2009.

Effective Date: 11-22-2000

5123.53 Petitioning for removal from registry.

An individual who is included in the registry may petition the director of 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.

Amended by 128th General Assemblych.10, SB 79, §1, eff. 10/6/2009.

Effective Date: 11-22-2000

5123.54 Rehabilitation standard rules.

The director of 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.

Amended by 128th General Assemblych.10, SB 79, §1, eff. 10/6/2009.

Effective Date: 11-22-2000

5123.541 Employees engaging in sexual conduct or contact with individual under department care.

(A) No MR/DD employee shall engage in any sexual conduct or have any sexual contact with an individual with mental retardation or another developmental disability for whom the MR/DD employee is employed or under a contract to provide care unless the individual is the MR/DD employee's spouse.

(B) Any MR/DD employee who violates division (A) of this section shall be eligible to be included in the registry regarding misappropriation, abuse, neglect, or other specified misconduct by MR/DD employees established under section 5123.52 of the Revised Code, in addition to any other sanction or penalty authorized or required by law.

(C)

(1) Any person listed in division (C)(2) of section 5123.61 of the Revised Code who has reason to believe that an MR/DD employee has violated division (A) of this section shall immediately report that belief to the department of developmental disabilities.

(2) Any person who has reason to believe that an MR/DD employee has violated division (A) of this section may report that belief to the department of developmental disabilities.

Amended by 128th General Assemblych.10, SB 79, §1, eff. 10/6/2009.

Effective Date: 01-30-2004

5123.542 Notice explaining prohibited conduct.

(A) Each of the following shall annually provide a written notice to each of its MR/DD employees explaining the conduct for which an MR/DD employee may be included in the registry established under section 5123.52 of the Revised Code:

(1) The department of developmental disabilities;

(2) Each county board of developmental disabilities;

(3) Each provider and subcontractor, as defined in section 5123.081 of the Revised Code;

(4) Each owner, operator, or administrator of a residential facility, as defined in section 5123.19 of the Revised Code;

(5) Each owner, operator, or administrator of a program certified by the department to provide supported living.

(B) The department of developmental disabilities or a county board of developmental disabilities shall provide the notice required by division (A) of this section to an MR/DD employee who is an independent provider as defined in section 5123.16 of the Revised Code.

(C) The notice described in division (A) of this section shall be in a form and provided in a manner prescribed by the department of developmental disabilities. The form shall be the same for all persons and entities required to provide notice under division (A) of this section.

(C) The fact that an MR/DD employee does not receive the notice required by this section does not exempt the employee from inclusion in the registry established under section 5123.52 of the Revised Code.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 1/1/2013.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 01-30-2004

5123.55 Protective services definitions.

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 ten thousand dollars or less.

(C) "Protector" means an agency under contract with the department of developmental disabilities acting with or without court appointment to provide guidance, service, and encouragement in the development of maximum self-reliance to a 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 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.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.56 Statewide system of protective service.

The department of developmental disabilities shall develop a statewide system of protective service in accordance with rules and standards established by the department. With respect to this program, the department may enter into a contract with any responsible public or private agency for provision of protective service by the agency, and the contract may permit the agency to charge the person receiving services fees for services provided.

No costs or fees shall be charged by a probate court for the filing of a petition for guardianship, trusteeship, protectorship, or conservatorship under sections 5123.55 to 5123.59 of the Revised Code, or for any service performed by a probate court, or by any state agency in the course of petitioning for protective services, or for any protective services provided under those sections.

An agency that provides protective services pursuant to a contract with another agency or a court may charge the agency or court fees for the services provided.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-17-1990

5123.57 Evaluation before guardianship or trusteeship begins.

No guardianship or trusteeship appointment shall be made under sections 5123.55 to 5123.59 of the Revised Code and no person shall be accepted for service by a protector under those sections unless a comprehensive evaluation has been made in a clinic or other facility approved by the department of developmental disabilities. The evaluation shall include a medical, psychological, social, and educational evaluation, and a copy of the evaluation shall be filed with the department.

Any agency that is appointed as a guardian, trustee, or conservator under sections 5123.55 to 5123.59 of the Revised Code or accepted as a protector under those sections shall provide for a review at least once each year in writing of the physical, mental, and social condition of each mentally retarded or developmentally disabled person for whom it is acting as guardian, trustee, or protector. An agency providing protective services under contract with the department shall file these reports with the department of developmental disabilities. Any record of the department or agency pertaining to a mentally retarded or developmentally disabled person shall not be a public record under section 149.43 of the Revised Code. Information contained in those records shall not be disclosed publicly in such a manner as to identify individuals, but may be made available to persons approved by the director of developmental disabilities or the court.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1991

5123.58 Nomination of protective services agency as guardian, trustee or protector.

An agency providing protective services under contract with the department of developmental disabilities may be nominated under any of the following conditions as guardian, trustee, protector, conservator, or as trustee and protector of a mentally retarded or developmentally disabled person:

(A) The person who needs or believes the person needs protective service may make application in writing.

(B) Any interested person may make application in writing on behalf of a mentally retarded or developmentally disabled person.

(C) A parent may name the department or agency as guardian or successor guardian in a will.

(D) A parent may name the department or agency as guardian, trustee, or protector, to assume such duties during the parent's lifetime.

If the results of the comprehensive evaluation required under section 5123.57 of the Revised Code indicate that the person named in the nomination is in need of protective services, the agency or service either shall reject or accept the nomination as guardian, trustee, or conservator, subject to appointment by the probate court, or reject or accept the nomination as protector, or trustee and protector.

At the time the nomination is accepted or when an appointment is made by the court, the mentally retarded or developmentally disabled person and any person who made application for service on the mentally retarded or developmentally disabled person's behalf under this section shall be informed by the agency, service, or court of the procedure for terminating the appointment or service. The agency or service shall cease to provide protective service as a protector pursuant to nomination under division (A), (B), or (D) of this section when a written request for termination is received by the agency from or on behalf of the mentally retarded or developmentally disabled person. If the agency or service believes the person to be in need of protective service, the agency or service may file an application for guardianship, trusteeship, or protectorship with the probate court. Termination of any court appointment as guardian, trustee, or protector shall be by order of the probate court.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1991

5123.59 Bond.

Before entering upon the duties of trustee, an agency under contract with the department of developmental disabilities may require any of its employees having custody or control of funds or property to give bond to the probate court with sufficient surety, conditioned upon the full and faithful accounting of all trust funds which the employee holds. The amount of the bond shall be determined by the court and may be modified by the court.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 01-01-1990

5123.60 Ohio protection and advocacy system.

(A) As used in this section and section 5123.601 of the Revised Code, "Ohio protection and advocacy system" means the nonprofit entity designated by the governor in accordance with H.B. 153 of the 129th general assembly to serve as the state's protection and advocacy system and client assistance program.

(B) The Ohio protection and advocacy system shall provide both of the following:

(1) Advocacy services for people with disabilities, as provided under section 101 of the "Developmental Disabilities Assistance and Bill of Rights Act of 2000," 114 Stat. 1678 (2000), 42 U.S.C. 15001 ;

(2) A client assistance program, as provided under section 112 of the "Workforce Investment Act of 1998," 112 Stat. 1163 (1998), 29 U.S.C. 732 , as amended.

(C) The Ohio protection and advocacy system may establish any guidelines necessary for its operation.

Added by 129th General AssemblyFile No.28, HB 153, §120.20, eff. 10/1/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Repealed by 129th General AssemblyFile No.39, SB 171, §2.01, eff. 10/1/2012.

Amended by 128th General Assemblych.39, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-26-2003; 2007 HB119 09-29-2007

5123.601 Access to information by staff and attorneys.

(A) The Ohio protection and advocacy system staff, and attorneys designated by the system to represent persons detained, hospitalized, or institutionalized under this chapter or Chapter 5122. of the Revised Code shall have ready access to all of the following:

(1) During normal business hours and at other reasonable times, all records, except records of community residential facilities and records of contract agencies of county boards of developmental disabilities and boards of alcohol, drug addiction, and mental health services, relating to expenditures of state and federal funds or to the commitment, care, treatment, and habilitation of all persons represented by the Ohio protection and advocacy system, including those who may be represented pursuant to division (D) of this section, or persons detained, hospitalized, institutionalized, or receiving services under this chapter or Chapter 340., 5119., 5122., or 5126. of the Revised Code that are records maintained by the following entities providing services for those persons: departments; institutions; hospitals; boards of alcohol, drug addiction, and mental health services; county boards of developmental disabilities; and any other entity providing services to persons who may be represented by the Ohio protection and advocacy system pursuant to division (D) of this section;

(2) Any records maintained in computerized data banks of the departments or boards or, in the case of persons who may be represented by the Ohio protection and advocacy system pursuant to division (D) of this section, any other entity that provides services to those persons;

(3) During their normal working hours, personnel of the departments, facilities, boards, agencies, institutions, hospitals, and other service-providing entities;

(4) At any time, all persons detained, hospitalized, or institutionalized; persons receiving services under this chapter or Chapter 340., 5119., 5122., or 5126. of the Revised Code; and persons who may be represented by the Ohio protection and advocacy system pursuant to division (D) of this section.

(5) Records of a community residential facility, a contract agency of a board of alcohol, drug addiction, and mental health services, or a contract agency of a county board of developmental disabilities with one of the following consents:

(a) The consent of the person, including when the person is a minor or has been adjudicated incompetent;

(b) The consent of the person's guardian of the person, if any, or the parent if the person is a minor;

(c) No consent, if the person is unable to consent for any reason, and the guardian of the person, if any, or the parent of the minor, has refused to consent or has not responded to a request for consent and either of the following has occurred:

(i) A complaint regarding the person has been received by the Ohio protection and advocacy system;

(ii) The Ohio protection and advocacy system has determined that there is probable cause to believe that such person has been subjected to abuse or neglect.

(B) All records received or maintained by the Ohio protection and advocacy system in connection with any investigation, representation, or other activity under this section shall be confidential and shall not be disclosed except as authorized by the person represented by the Ohio protection and advocacy system or, subject to any privilege, a guardian of the person or parent of the minor. Relationships between personnel and the agents of the Ohio protection and advocacy system and its clients shall be fiduciary relationships, and all communications shall be privileged as if between attorney and client.

(C) The Ohio protection and advocacy system may compel by subpoena the appearance and sworn testimony of any person the Ohio protection and advocacy system reasonably believes may be able to provide information or to produce any documents, books, records, papers, or other information necessary to carry out its duties. On the refusal of any person to produce or authenticate any requested documents, the Ohio protection and advocacy system may apply to the Franklin county court of common pleas to compel the production or authentication of requested documents. If the court finds that failure to produce or authenticate any requested documents was improper, the court may hold the person in contempt as in the case of disobedience of the requirements of a subpoena issued from the court, or a refusal to testify in the court.

(D) In addition to providing services to mentally ill, mentally retarded, or developmentally disabled persons, when a grant authorizing the provision of services to other individuals is accepted by the Ohio protection and advocacy system, the Ohio protection and advocacy system may provide advocacy to those other individuals and exercise any other authority granted by this section on behalf of those individuals. Determinations of whether an individual is eligible for services under this division shall be made by the Ohio protection and advocacy system.

Renumbered and amended from § 5123.60 by 129th General AssemblyFile No.28, HB 153, §120.20, eff. 10/1/2012.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1988

5123.602 Compensation in class action cases.

If compensation for the work of attorneys employed by the Ohio protection and advocacy system or an agency or political subdivision of the state is awarded to the system in a class action lawsuit pursued by the system, the compensation shall be limited to the actual hourly rate of pay for that legal work.

Added by 129th General AssemblyFile No.28, HB 153, §120.20, eff. 10/1/2012.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1988; 2007 HB119 09-29-2007

5123.603 [Repealed].

Repealed by 129th General AssemblyFile No.28, HB 153, §120.22, eff. 10/1/2012.

5123.604 [Repealed].

Repealed by 129th General AssemblyFile No.28, HB 153, §120.22, eff. 10/1/2012.

5123.605 [Repealed].

Repealed by 129th General AssemblyFile No.28, HB 153, §120.22, eff. 10/1/2012.

5123.61 Reporting abuse, neglect, and other major unusual incidents.

(A) As used in this section:

(1) "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 developmental disabilities shall establish a registry office for the purpose of maintaining reports of abuse, neglect, and other major unusual incidents made to the department under this section and reports received from county boards of 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 person with mental retardation or a developmental disability has suffered or faces a substantial risk of suffering any wound, injury, disability, or condition of such a nature as to reasonably indicate abuse or neglect of that person, shall immediately report or cause reports to be made of such information to the entity specified in this division. Except as provided in section 5120.173 of the Revised Code or as otherwise provided in this division, the person making the report shall make it to a law enforcement agency or to the county board of developmental disabilities. If the report concerns a resident of a facility operated by the department of developmental disabilities the report shall be made either to a law enforcement agency or to the department. If the report concerns any act or omission of an employee of a county board of developmental disabilities, the report immediately shall be made to the department and to the county board.

(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 a residential facility licensed under section 5119.34 of the Revised Code that provides accommodations, supervision, and person care services for three to sixteen unrelated adults, or employee of a community mental health facility;

(b) Any school teacher or school authority, licensed professional clinical counselor, licensed professional counselor, independent social worker, social worker, independent marriage and family therapist, marriage and family therapist, psychologist, attorney, peace officer, coroner, 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 developmental disabilities; an administrator, board member, or employee of a residential facility licensed under section 5123.19 of the Revised Code; an administrator, board member, or employee of any other public or private provider of services to a 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 developmental disabilities under section 5123.092 of the Revised Code;

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

(3)

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

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

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

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

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

(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 person with mental retardation or a developmental disability and the person's custodian, if known;

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

(3) Any other information 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 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 person with mental retardation or a developmental disability has suffered or faces a substantial risk of suffering abuse or neglect may report or cause a report to be made of that belief to the entity specified in this division. Except as provided in section 5120.173 of the Revised Code or as otherwise provided in this division, the person making the report shall make it to a law enforcement agency or the county board of developmental disabilities. If the person is a resident of a facility operated by the department of developmental disabilities, the report shall be made to a law enforcement agency or to the department. If the report concerns any act or omission of an employee of a county board of developmental disabilities, the report immediately shall be made to the department and to the county board.

(G)

(1) Upon the receipt of a report concerning the possible abuse or neglect of a person with mental retardation or a developmental disability, the law enforcement agency shall inform the county board of developmental disabilities or, if the person is a resident of a facility operated by the department of developmental disabilities, the department .

(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 developmental disabilities shall notify the law enforcement agency.

(3) When a county board of 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. The superintendent or individual shall notify the department of developmental disabilities when it receives any report under this section.

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

(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) 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 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 investigation shall be in accordance with the memorandum of understanding prepared under section 5126.058 of the Revised Code. The department shall determine, with the registry office which shall be maintained by the department, whether prior reports have been made concerning an adult with mental retardation or a developmental disability or other principals in the case. 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, 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 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 person who is the subject of the report, to the person's legal counsel, and to agencies authorized to receive information in the report by the department or by a county board of developmental disabilities.

(N) Notwithstanding section 4731.22 of the Revised Code, the physician-patient privilege shall not be a ground for excluding evidence regarding 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.

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Amended by 130th General Assembly File No. TBD, HB 232, §1, eff. 7/10/2014.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.127, HB 487, §110.30, eff. 10/1/2012.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §120.20, eff. 10/1/2012.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 01-30-2004

5123.611 Reviewing report of abuse, neglect, or a major unusual incident.

(A) As used in this section, "MR/DD employee" means all of the following:

(1) An employee of the department of developmental disabilities;

(2) An employee of a county board of developmental disabilities;

(3) An employee in a position that includes providing specialized services, as defined in section 5123.50 of the Revised Code, 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 individual with mental retardation or a developmental disability who is the subject of the report;

(2) That individual'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 individual 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 individual with mental retardation or a developmental disability who is the subject of the report or the individual's guardian gives the department written consent.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 12-31-2003

5123.612 Reporting unusual incidents.

The director of 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.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.613 Subject of report or representative has right to report and related records.

(A) When a person who is the subject of a report under section 5123.61 of the Revised Code dies, the department of developmental disabilities or the county board of 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.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.614 Procedure following report of major unusual incident.

(A) Subject to division (B) of this section, on receipt of a report of a major unusual incident made pursuant to section 5123.61 or 5126.31 of the Revised Code or rules adopted under section 5123.612 of the Revised Code, the department of developmental disabilities may do either of the following:

(1) Conduct an independent review or investigation of the incident;

(2) Request that an independent review or investigation of the incident be conducted by a county board of developmental disabilities that is not implicated in the report, a regional council of government, or any other entity authorized to conduct such investigations.

(B) If a report described in division (A) of this section concerning the health or safety of a person with mental retardation or a developmental disability involves an allegation that an employee of a county board of developmental disabilities has created a substantial risk of serious physical harm to a person with mental retardation or a developmental disability, the department shall do one of the following:

(1) Conduct an independent investigation regarding the incident;

(2) Request that an independent review or investigation of the incident be conducted by a county board of developmental disabilities that is not implicated in the report, a regional council of government, or any other entity authorized to conduct such investigations.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 01-30-2004

5123.62 Rights of persons with a developmental disability.

The rights of 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.

Effective Date: 09-22-2000

5123.63 Distributing copies of rights.

Every state agency, county board of developmental disabilities, or political subdivision that provides services, either directly or through a contract, to 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 documented.

Each provider shall 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 Ohio protection and advocacy system, the department of developmental disabilities, and the county board of developmental disabilities of the county in which the provider provides services.

Amended by 129th General AssemblyFile No.28, HB 153, §120.20, eff. 10/1/2012.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.64 Enforcement duties.

(A) Every provider of services to persons with mental retardation or a developmental 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 provided to any person receiving services or to any parent, guardian, or advocate of a person receiving services.

(B) Any person with mental retardation or a developmental disability who believes that 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 developmental disabilities, the Ohio protection and advocacy system, or the appropriate county board of developmental disabilities;

(3) Take any other appropriate action to ensure compliance with sections 5123.61 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.

Amended by 129th General AssemblyFile No.28, HB 153, §120.20, eff. 10/1/2012.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.65 Self-administration of medication.

In addition to the rights specified in section 5123.62 of the Revised Code, individuals with mental retardation and developmental disabilities who can safely self-administer medication or receive assistance with self-administration of medication have the right to self-administer medication or receive assistance with the self-administration of medication. The department of developmental disabilities shall adopt rules as it considers necessary to implement and enforce this section. The rules shall be adopted in accordance with Chapter 119. of the Revised Code.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-31-2003

5123.651 Assistance in self-administration of prescribed medication.

(A) As used in this section, "MR/DD personnel" and "prescribed medication" have the same meanings as in section 5123.41 of the Revised Code.

(B) MR/DD personnel who are not specifically authorized by other provisions of the Revised Code to provide assistance in the self-administration of prescribed medication may, under this section, provide that assistance as part of the services they provide to individuals with mental retardation and developmental disabilities. To provide assistance with self-administration of prescribed medication, MR/DD personnel are not required to be trained or certified in accordance with section 5123.42 of the Revised Code.

(C) When assisting in the self-administration of prescribed medication, MR/DD personnel shall take only the following actions:

(1) Remind an individual when to take the medication and observe the individual to ensure that the individual follows the directions on the container;

(2) Assist an individual by taking the medication in its container from the area where it is stored, handing the container with the medication in it to the individual, and opening the container, if the individual is physically unable to open the container;

(3) Assist, on request by or with the consent of, a physically impaired but mentally alert individual, with removal of oral or topical medication from the container and with the individual's taking or applying of the medication. If an individual is physically unable to place a dose of oral medication to the individual's mouth without spilling or dropping it, MR/DD personnel may place the dose in another container and place that container to the individual's mouth.

Effective Date: 03-31-2003

5123.66 Amended and Renumbered RC 5119.53.

Effective Date: 07-01-1980

5123.67 Liberal construction of chapter.

This chapter shall be liberally interpreted to accomplish the following purposes:

(A) To promote the human dignity and to protect the constitutional rights of persons with mental retardation or a developmental disability in the state;

(B) To encourage the development of the ability and potential of each person with mental retardation or a developmental disability in the state to the fullest possible extent, no matter how severe the degree of disability;

(C) To promote the economic security, standard of living, and meaningful employment of persons with mental retardation or a developmental disability;

(D) To maximize the assimilation of persons with mental retardation or a developmental disability into the ordinary life of the communities in which they live;

(E) To promote opportunities for persons 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.

Effective Date: 09-22-2000

5123.68 Amended and Renumbered RC 5123.01.

Effective Date: 07-01-1980

5123.69 Voluntary admission.

(A) Except as provided in division (D) of this section, any person who is eighteen years of age or older and who is or believes self to be mentally retarded may make written application to the managing officer of any institution for voluntary admission. Except as provided in division (D) of this section, the application may be made on behalf of a minor by a parent or guardian, and on behalf of an adult adjudicated mentally incompetent by a guardian.

(B) The managing officer of an institution, with the concurrence of the chief program director, may admit a person applying pursuant to this section only after a comprehensive evaluation has been made of the person and only if the comprehensive evaluation concludes that the person is mentally retarded and would benefit significantly from admission.

(C) The managing officer shall discharge any voluntary resident if, in the judgment of the chief program director, the results of a comprehensive examination indicate that institutionalization no longer is advisable. In light of the results of the comprehensive evaluation, the managing officer also may discharge any voluntary resident if, in the judgment of the chief program director, the discharge would contribute to the most effective use of the institution in the habilitation and care of the mentally retarded.

(D) A person who is found incompetent to stand trial or not guilty by reason of insanity and who is committed pursuant to section 2945.39 , 2945.40 , 2945.401 , or 2945.402 of the Revised Code shall not voluntarily commit self pursuant to this section until after the final termination of the commitment, as described in division (J) of section 2945.401 of the Revised Code.

Amended by 129th General AssemblyFile No.28, HB 153, §120.20, eff. 10/1/2012.

Effective Date: 07-01-1997

5123.70 Requesting release of voluntary resident.

(A) A resident admitted pursuant to section 5123.69 of the Revised Code who requests his own release or whose release is requested in writing by his counsel, legal guardian, parent, spouse, or adult next of kin shall be released forthwith except that;

(1) If a resident was admitted on his own application and the request for release is made by a person other than the resident, release may be made conditional upon the agreement of the resident thereto if his continued institutionalization is supported by his most recent comprehensive evaluation:

(2) If, within three court days from the receipt of the request for release, the managing officer files an affidavit or causes an affidavit to be filed under section 5123.71 of the Revised Code with the probate division of the court of common pleas of the county where the resident has his residence, or where he is institutionalized, release may be postponed until a hearing can be held pursuant to section 5123.76 of the Revised Code. In such case, the request for release shall substitute for the request for a probable cause hearing under section 5123.75 of the Revised Code.

A telephone communication to the probate division from the managing officer of the institution or his designee indicating that the required affidavit has been mailed by certified mail shall be sufficient compliance with division (A)(2) of this section.

(B) Judicial proceedings for institutionalization shall not be commenced with respect to a voluntary resident except pursuant to division (A)(2) of this section.

(C) Sections 5121.01 to 5121.10 of the Revised Code shall apply to the persons received in a public institution on a voluntary application.

(D) The managing officer shall inform residents, parents, guardians, and custodians of the right to release as provided in this section and shall assist residents in making and presenting requests for release.

Effective Date: 07-01-1975

5123.701 Application for short-term care.

(A) Except as provided in division (D) of this section, any person in the community who is eighteen years of age or older and who is or believes self to be mentally retarded may make written application to the managing officer of any institution for temporary admission for short-term care. The application may be made on behalf of a minor by a parent or guardian, and on behalf of an adult adjudicated mentally incompetent by a guardian.

(B) For purposes of this section, short-term care shall be defined to mean appropriate services provided to a person with mental retardation for no more than fourteen consecutive days and for no more than forty-two days in a fiscal year. When circumstances warrant, the fourteen-day period may be extended at the discretion of the managing officer. Short-term care is provided in a developmental center to meet the family's or caretaker's needs for separation from the person with mental retardation.

(C) The managing officer of an institution, with the concurrence of the chief program director, may admit a person for short-term care only after a medical examination has been made of the person and only if the managing officer concludes that the person is mentally retarded.

(D)

A person who is found not guilty by reason of insanity shall not admit self to an institution for short-term care unless a hearing was held regarding the person pursuant to division (A) of section 2945.40 of the Revised Code and either of the following applies:

(1) The person was found at the hearing not to be a mentally retarded person subject to institutionalization by court order;

(2) The person was found at the hearing to be a mentally retarded person subject to institutionalization by court order, was involuntarily committed, and was finally discharged.

(E) The mentally retarded person, liable relatives, and guardians of mentally retarded persons admitted for respite care shall pay support charges in accordance with sections 5121.01 to 5121.21 of the Revised Code.

(F) At the conclusion of each period of short-term care, the person shall return to the person's family or caretaker. Under no circumstances shall a person admitted for short-term care according to this section remain in the institution after the period of short-term care unless the person is admitted according to section 5123.70 , sections 5123.71 to 5123.76 , or section 2945.38 , 2945.39 , 2945.40 , 2945.401 , or 2945.402 of the Revised Code.

Amended by 129th General AssemblyFile No.28, HB 153, §120.20, eff. 10/1/2012.

Effective Date: 07-01-1997; 01-01-2006

5123.71 Affidavit for involuntary institutionalization.

(A)

(1) Proceedings for the involuntary institutionalization of a person pursuant to sections 5123.71 to 5123.76 of the Revised Code shall be commenced by the filing of an affidavit with the probate division of the court of common pleas of the county where the person resides or where the person is institutionalized, in the manner and form prescribed by the department of developmental disabilities either on information or actual knowledge, whichever is determined to be proper by the court. The affidavit may be filed only by a person who has custody of the individual as a parent, guardian, or service provider or by a person acting on behalf of the department or a county board of developmental disabilities. This section does not apply regarding the institutionalization of a person pursuant to section 2945.39 , 2945.40 , 2945.401 , or 2945.402 of the Revised Code.

The affidavit shall contain an allegation setting forth the specific category or categories under division (O) of section 5123.01 of the Revised Code upon which the commencement of proceedings is based and a statement of the factual ground for the belief that the person is a mentally retarded person subject to institutionalization by court order. Except as provided in division (A)(2) of this section, the affidavit shall be accompanied by both of the following:

(a) A comprehensive evaluation report prepared by the person's evaluation team that includes a statement by the members of the team certifying that they have performed a comprehensive evaluation of the person and that they are of the opinion that the person is a mentally retarded person subject to institutionalization by court order;

(b) An assessment report prepared by the county board of developmental disabilities under section 5123.711 of the Revised Code specifying that the individual is in need of services on an emergency or priority basis.

(2) In lieu of the comprehensive evaluation report, the affidavit may be accompanied by a written and sworn statement that the person or the guardian of a person adjudicated incompetent has refused to allow a comprehensive evaluation and county board assessment and assessment reports. Immediately after accepting an affidavit that is not accompanied by the reports of a comprehensive evaluation and county board assessment, the court shall cause a comprehensive evaluation and county board assessment of the person named in the affidavit to be performed. The evaluation shall be conducted in the least restrictive environment possible and the assessment shall be conducted in the same manner as assessments conducted under section 5123.711 of the Revised Code. The evaluation and assessment must be completed before a probable cause hearing or full hearing may be held under section 5123.75 or 5123.76 of the Revised Code.

A written report of the evaluation team's findings and the county board's assessment shall be filed with the court. The reports shall, consistent with the rules of evidence, be accepted as probative evidence in any proceeding under section 5123.75 or 5123.76 of the Revised Code. If the counsel for the person who is evaluated or assessed is known, the court shall send to the counsel a copy of the reports as soon as possible after they are filed and prior to any proceedings under section 5123.75 or 5123.76 of the Revised Code.

(B) Any person who is involuntarily detained in an institution or otherwise is in custody under this chapter shall be informed of the right to do the following:

(1) Immediately make a reasonable number of telephone calls or use other reasonable means to contact an attorney, a physician, or both, to contact any other person or persons to secure representation by counsel, or to obtain medical assistance, and be provided assistance in making calls if the assistance is needed and requested;

(2) Retain counsel and have independent expert evaluation and, if the person is an indigent person, be represented by court-appointed counsel and have independent expert evaluation at court expense;

(3) Upon request, have a hearing to determine whether there is probable cause to believe that the person is a mentally retarded person subject to institutionalization by court order.

(C) No person who is being treated by spiritual means through prayer alone in accordance with a recognized religious method of healing may be ordered detained or involuntarily committed unless the court has determined that the person represents a very substantial risk of self-impairment, self-injury, or impairment or injury to others.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-06-2001; 07-01-2005

5123.711 Assessment of individual's needs.

(A) As used in this section:

(1) "Emergency" means either of the following that creates a risk of substantial harm to an individual or others if action is not taken within thirty days:

(a) Health and safety conditions that pose a serious risk of immediate harm or death to the individual or others;

(b) Changes in the emotional or physical condition of an individual that necessitates substantial accommodation that cannot reasonably be provided by the individual's existing caretaker.

(2) "Priority" means a situation creating a risk of substantial harm to an individual or others, but for which action within thirty days is not necessary.

(3) "Resources" has the same meaning as in section 5126.01 of the Revised Code.

(B) Prior to filing an affidavit under section 5123.71 of the Revised Code for the involuntary institutionalization of an individual, a person who is eligible to file under that section and intends to do so shall request that the county board of developmental disabilities conduct an assessment of the individual's needs. Not later than thirty days after the date a request is received, the board shall complete the assessment and provide to the person a report of its findings and recommendations. The report shall be delivered by certified mail.

Within three working days after receiving a request for an assessment, the board shall notify the department of developmental disabilities that the request has been made and that there is the potential for court-ordered institutionalization of an individual. The department may provide assistance to the board in the performance of the assessment.

(C) The board's assessment of an individual's needs shall include the following:

(1) A determination of the current needs of the individual, including an appropriate plan for services;

(2) A determination of whether the community is the least restrictive environment in which the individual may be appropriately served;

(3) A determination of whether the individual meets the conditions for assistance on an emergency or priority basis;

(4) Identification of available resources to meet the individual's needs, including service providers with the capability of appropriately meeting those needs, special ancillary services, and moneys to pay for the services necessary to meet the individual's needs within the community rather than in a state institution.

(D) If the board's assessment of an individual identifies that county resources are available to meet the individual's needs in the community, the board shall provide services to the individual or arrange for the provision of services. If county resources are not available, the board shall petition the department of developmental disabilities for necessary resources that may be available from the department.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-13-1997

5123.72 Presentation of case for state.

The director of developmental disabilities shall designate a person to present the case on behalf of the state at the hearings provided for in sections 5123.75 and 5123.76 of the Revised Code. The designee of the director also may present the case on behalf of the state in any other hearing provided for in this chapter.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1997

5123.73 Notice of hearing.

(A) After receipt of the affidavit required by section 5123.71 of the Revised Code, the court shall cause written notice, by mail or otherwise, of any hearing the court directs, to be given to all of the following persons:

(1) The respondent;

(2) The respondent's legal guardian, if any;

(3) The respondent's spouse, if address is known;

(4) The person filing the affidavit;

(5) Any one person designated by the respondent, except that if the respondent does not make a selection, the notice shall be sent to the adult next of kin other than the person who filed the affidavit, if that person's address is known to the court;

(6) The respondent's counsel;

(7) The director of developmental disabilities or the director's designee under section 5123.72 of the Revised Code.

(B) All persons entitled to notice under this section may waive that notice.

(C) A copy of the affidavit and of any temporary order shall be served with a notice under this section.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1997

5123.74 Emergency institutionalization by probate court.

(A) On receipt of an affidavit under section 5123.71 of the Revised Code, the probate division of the court of common pleas may, if it has probable cause to believe that the person named in the affidavit is a mentally retarded person subject to institutionalization by court order and that emergency institutionalization is required, do any of the following:

(1) Issue a temporary order of detention ordering any health or police officer or sheriff to take into custody and transport such person to an institution or other place as designated in section 5123.77 of the Revised Code;

(2) Order the county board of developmental disabilities to provide services to the individual in the community if the board's assessment of the individual conducted under section 5123.711 of the Revised Code identifies that resources are available to meet the individual's needs in an appropriate manner within the community as an alternative to institutionalization;

(3) Set the matter for further hearing.

(B) A managing officer of a nonpublic institution may, and the managing officer of a public institution shall, receive for observation, diagnosis, habilitation, and care any person whose admission is ordered pursuant to division (A)(1) of this section.

The alternatives to institutionalization that may be ordered under division (A)(2) of this section are limited to those that are necessary to remediate the emergency condition; necessary for the person's health, safety or welfare; and necessary for the protection of society, if applicable.

(C) A person detained under this section may be observed and habilitated until the probable cause hearing provided for in section 5123.75 of the Revised Code. If no probable cause hearing is requested or held, the person may be evaluated and shall be provided with habilitative services until the full hearing is held pursuant to section 5123.76 of the Revised Code.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 03-13-1997

5123.75 Probable cause hearing.

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

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

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

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

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

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

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

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

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1980

5123.76 Full hearing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(2) A private institution;

(3) A county mental retardation program;

(4) Receive private habilitation and care;

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

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

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

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

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

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

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

(G)

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

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

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

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

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

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

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

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

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

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

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 06-06-2001; 07-01-2005

5123.77 Temporary holding.

(A) Pending removal to an institution, a person taken into custody or ordered to be institutionalized pursuant to this chapter may be held in the person's home, a certified foster home, licensed rest or nursing home, a county home, or a facility used for detention, but the person shall be kept separate from persons charged with or convicted of penal offenses.

(B) Whenever any person is taken into custody under this chapter, the person in charge of the institution or facility in which that person is temporarily held under division (A) of this section immediately shall notify that person's legal guardian, spouse, or next of kin and the person's counsel, if such can be ascertained.

Effective Date: 01-01-2001

5123.78 Amended and Renumbered RC 5123.21.

Effective Date: 07-01-1980

5123.79 Discharging involuntary resident.

(A) Notwithstanding a finding pursuant to section 5123.76 of the Revised Code that a person is a mentally retarded person subject to institutionalization by court order, the managing officer of an institution, with the concurrence of the chief program director, shall, except as provided in division (C) of this section, grant a discharge without the consent or the authorization of any court upon a determination that institutionalization no longer is appropriate. Upon the discharge, the managing officer of the institution shall notify the probate division of the court of common pleas that made the involuntary commitment.

(B) Upon the request of the director of a private institution, program, facility, or person having custody of a resident institutionalized pursuant to section 5123.76 of the Revised Code, or on the order of the probate division of the court of common pleas, the resident may be called for a rehearing to determine the advisability of continued institutionalization at a place within the county of resident's residence or the county where the resident is institutionalized as the probate division designates. The hearing shall be held pursuant to section 5123.76 of the Revised Code.

Effective Date: 07-01-1997

5123.80 Trial visits.

(A) When the chief program director of an institution for the mentally retarded considers that it is in the best interest of a resident, the managing officer may permit the resident to leave the institution on a trial visit. The trial visit shall be for the period of time the managing officer determines.

(B) The managing officer, upon releasing a resident on trial visit, may impose such requirements and conditions upon the resident while the resident is absent from the institution as are consistent with the habilitation plan.

(C) The managing officer of the institution from which an involuntary resident is given trial visit status may at any time revoke the trial visit if there is reason to believe that it is in the best interests of the resident to be returned to the institution.

(D) If the revocation is not voluntarily complied with the managing officer, within five days, shall authorize any health or police officer, or sheriff to take the resident into custody and transport the resident to the institution.

(E) An involuntarily committed resident who has successfully completed one year of continuous trial visit shall be automatically discharged.

Effective Date: 07-01-1997

5123.801 Expenses of trial visit or discharge.

If neither a discharged resident, nor a resident granted trial visit, nor the persons requesting the resident's trial visit or discharge are financially able to bear the expense of the resident's trial visit or discharge, the managing officer of an institution under the control of the department of 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 shall be charged to the current expense fund of the 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 provide sufficient and proper clothing for traveling if neither the resident nor the persons requesting the resident's trial visit or discharge are financially able to provide that clothing.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-26-2003

5123.81 Involuntarily committed resident absent without leave.

When an involuntarily committed resident of an institution for the mentally retarded is absent without leave, an order shall be issued within five days after the resident's absence requiring the resident to be taken into custody by any health or police officer, or sheriff and transported to the institution from which the resident is absent. The order may be issued by the director of developmental disabilities, the managing officer of the institution from which the resident is absent, or the probate judge of the county from which the resident was ordered institutionalized or in which he is found. The officer who takes the resident into custody shall immediately notify the issuer of the order.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1980

5123.811 Reporting change of location, death or condition of resident.

The managing officer of an institution under the control of the department of developmental disabilities shall immediately report the removal, death, absence without leave, discharge, or trial visit of any resident, or return of an absent without leave or visiting resident to the department, the probate judge of the county from which such resident was institutionalized, and the probate judge of the county of the residence of such resident. In case of death, the managing officer shall also notify one or more of the nearest relatives of the deceased resident, if known to the managing officer, by letter, telegram, or telephone. If the place of residence of such relative is unknown to the managing officer, immediately upon receiving notification, the probate judge shall in the speediest manner possible notify such relatives, if known to the probate judge.

The managing officer of the institution shall, upon the request of the probate judge of the county from which such resident was institutionalized or the probate judge of the county of the residence of such resident, make a report to such judge of the condition of any resident under the care, treatment, custody, or control of such managing officer.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 04-09-1981

5123.82 Application for habilitation and care of discharged resident.

(A) Any person who has been institutionalized under this chapter may, at any time after discharge from such institution, make application to the managing officer of any public institution for habilitation and care if such person feels the person is in need of such services. If the chief program director determines the applicant to be in need of such services, the managing officer may provide such services as are required by the applicant.

(B) Any person may apply to the managing officer of any public institution for habilitation and care if such person feels the person is in need of such services. If the person's condition warrants, the person's may be enrolled as an outpatient and, during such enrollment, the person may receive services subject to Chapter 5121. of the Revised Code.

(C) The application prescribed in division (A) or (B) of this section may also be made on behalf of a minor by a parent, guardian, or custodian of a minor, and on behalf of an adult adjudicated incompetent by the guardian or custodian of the adult.

(D) The managing officer of the public institution may refer any discharged resident who makes an application under this section to the director of any community mental retardation program serving the county in which such resident resides, or to such other facility as the director of developmental disabilities may designate. Upon notice of such referral, the director of such program may provide the services required by the applicant.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1980

5123.83 Civil and public or private employment rights.

No person shall be deprived of any civil right, or public or private employment, solely by reason of his having received services, voluntarily or involuntarily, for mental retardation or a developmental disability. Any person in custody, voluntarily or involuntarily, under the provisions of this chapter, retains all rights not specifically denied him under this or any other chapter of the Revised Code.

Effective Date: 07-01-1991

5123.84 Free communication with others by residents.

All residents of institutions for the mentally retarded shall be allowed to communicate freely with others, including but not restricted to the following:

(A) Receiving visitors at reasonable times;

(B) Being visited by counsel or personal physician, or both, at any reasonable time;

(C) Having reasonable access to telephones to make and receive confidential calls, including a reasonable number of free calls if unable to pay for them and assistance in calling if requested and needed;

(D) Having ready access to letter writing materials and stamps, including a reasonable number without cost if the resident is unable to pay for them, to mailing and receiving unopened correspondence, and to receiving assistance in writing if requested and needed.

Effective Date: 07-01-1975

5123.85 Habilitation plan.

(A) All residents institutionalized pursuant to this chapter shall receive, within 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 the resident's counsel.

(C) All such residents shall receive habilitation and care consistent with the habilitation plan. The department of 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.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.851 Procedure upon discharge.

When a resident institutionalized pursuant to this chapter is discharged from the institution, the managing officer of the institution may provide the resident with all personal items that were purchased in implementing the resident's habilitation plan established pursuant to section 5123.85 of the Revised Code. The personal items may be provided to the resident, regardless of the source of the funds that were used to purchase the items.

Effective Date: 09-26-2003

5123.86 Consent for medical treatment.

(A) Except as provided in divisions (C), (D), (E), and (F) of this section, the chief medical officer shall provide all information, including expected physical and medical consequences, necessary to enable any resident of an institution for the mentally retarded to give a fully informed, intelligent, and knowing consent if any of the following procedures are proposed:

(1) Surgery;

(2) Convulsive therapy;

(3) Major aversive interventions;

(4) Sterilization;

(5) Experimental procedures;

(6) Any unusual or hazardous treatment procedures.

(B) No resident shall be subjected to any of the procedures listed in division (A)(4), (5), or (6) of this section without the resident's informed consent.

(C) If a resident is physically or mentally unable to receive the information required for surgery under division (A)(1) of this section, or has been adjudicated incompetent, the information may be provided to the resident's natural or court-appointed guardian, including an agency providing guardianship services under contract with the department of developmental disabilities under sections 5123.55 to 5123.59 of the Revised Code, who may give the informed, intelligent, and knowing written consent for surgery. Consent for surgery shall not be provided by a guardian who is an officer or employee of the department of mental health and addiction services or the department of developmental disabilities.

If a resident is physically or mentally unable to receive the information required for surgery under division (A)(1) of this section and has no guardian, then the information, the recommendation of the chief medical officer, and the concurring judgment of a licensed physician who is not a full-time employee of the state may be provided to the court in the county in which the institution is located, which may approve the surgery. Before approving the surgery, the court shall notify the Ohio protection and advocacy system created by section 5123.60 of the Revised Code, and shall notify the resident of the resident's rights to consult with counsel, to have counsel appointed by the court if the resident is indigent, and to contest the recommendation of the chief medical officer.

(D) If, in the judgment of two licensed physicians, delay in obtaining consent for surgery would create a grave danger to the health of a resident, emergency surgery may be performed without the consent of the resident if the necessary information is provided to the resident's guardian, including an agency providing guardianship services under contract with the department of developmental disabilities under sections 5123.55 to 5123.59 of the Revised Code, or to the resident's spouse or next of kin to enable that person or agency to give an informed, intelligent, and knowing written consent.

If the guardian, spouse, or next of kin cannot be contacted through exercise of reasonable diligence, or if the guardian, spouse, or next of kin is contacted, but refuses to consent, then the emergency surgery may be performed upon the written authorization of the chief medical officer and after court approval has been obtained. However, if delay in obtaining court approval would create a grave danger to the life of the resident, the chief medical officer may authorize surgery, in writing, without court approval. If the surgery is authorized without court approval, the chief medical officer who made the authorization and the physician who performed the surgery shall each execute an affidavit describing the circumstances constituting the emergency and warranting the surgery and the circumstances warranting their not obtaining prior court approval. The affidavit shall be filed with the court with which the request for prior approval would have been filed within five court days after the surgery, and a copy of the affidavit shall be placed in the resident's file and shall be given to the guardian, spouse, or next of kin of the resident, to the hospital at which the surgery was performed, and to the Ohio protection and advocacy system created by section 5123.60 of the Revised Code.

(E)

(1) If it is the judgment of two licensed physicians, as described in division (E)(2) of this section, that a medical emergency exists and delay in obtaining convulsive therapy creates a grave danger to the life of a resident who is both mentally retarded and mentally ill, convulsive therapy may be administered without the consent of the resident if the resident is physically or mentally unable to receive the information required for convulsive therapy and if the necessary information is provided to the resident's natural or court-appointed guardian, including an agency providing guardianship services under contract with the department of developmental disabilities under sections 5123.55 to 5123.59 of the Revised Code, or to the resident's spouse or next of kin to enable that person or agency to give an informed, intelligent, and knowing written consent. If neither the resident's guardian, spouse, nor next of kin can be contacted through exercise of reasonable diligence, or if the guardian, spouse, or next of kin is contacted, but refuses to consent, then convulsive therapy may be performed upon the written authorization of the chief medical officer and after court approval has been obtained.

(2) The two licensed physicians referred to in division (E)(1) of this section shall not be associated with each other in the practice of medicine or surgery by means of a partnership or corporate arrangement, other business arrangement, or employment. At least one of the physicians shall be a psychiatrist as defined in division (E) of section 5122.01 of the Revised Code.

(F) Major aversive interventions shall not be used unless a resident continues to engage in behavior destructive to self or others after other forms of therapy have been attempted. Major aversive interventions shall not be applied to a voluntary resident without the informed, intelligent, and knowing written consent of the resident or the resident's guardian, including an agency providing guardianship services under contract with the department of developmental disabilities under sections 5123.55 to 5123.59 of the Revised Code.

(G)

(1) This chapter does not authorize any form of compulsory medical or psychiatric treatment of any resident who is being treated by spiritual means through prayer alone in accordance with a recognized religious method of healing.

(2) For purposes of this section, "convulsive therapy" does not include defibrillation.

Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §120.20, eff. 10/1/2012.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 12-02-1996

5123.87 Labor or tasks performed by residents.

(A) No resident of an institution for the mentally retarded shall be compelled to perform labor which involves the operation, support, or maintenance of the institution or for which the institution is under contract with an outside organization. Privileges or release from the institution shall not be conditional upon the performance of such labor. Residents who volunteer to perform such labor shall be compensated at a rate derived from the value of the work performed, having reference to the prevailing wage rate for comparable work or wage rates established under section 4111.06 of the Revised Code.

(B) A resident may be required to perform habilitative tasks which do not involve the operation, support, or maintenance of the institution if those tasks are an integrated part of the resident's habilitation plan and supervised by a mental retardation professional designated by the chief program director.

(C) A resident may be required to perform tasks of a personal housekeeping nature.

Effective Date: 07-01-1975

5123.88 Writ of habeas corpus.

Any person detained pursuant to this chapter shall be entitled to the writ of habeas corpus upon proper petition by himself or a friend to any court generally empowered to issue the writ of habeas corpus in the county in which the person is detained.

No person may bring a petition for a writ of habeas corpus that alleges that a person involuntarily detained pursuant to this chapter is no longer mentally retarded subject to institutionalization by court order unless the person shows that the release procedures of division (H) of section 5123.76 of the Revised Code are inadequate or unavailable.

Effective Date: 04-09-1981

5123.89 Confidentiality.

(A) As used in this section:

(1) "Family" means a parent, brother, sister, spouse, son, daughter, grandparent, aunt, uncle, or cousin.

(2) "Payment" means activities undertaken by a service provider or government entity to obtain or provide reimbursement for services provided to a person.

(3) "Treatment" means the provision of services to a person, including the coordination or management of services provided to the person.

(B) 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 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 that person or that person's guardian or, if that person is a minor, that person's parent or guardian consents.

(2) Disclosure is provided for in other sections of this chapter.

(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.

(4) Disclosure is of a record deposited with the Ohio historical society pursuant to division (C) of section 5123.31 of the Revised Code and the disclosure is made to the closest living relative of the person identified, on the relative's request.

(5) Disclosure is needed for the treatment of a person who is a resident or former resident of an institution for the mentally retarded or a person whose institutionalization has been sought under this chapter or is needed for the payment of services provided to the person.

(C) The department of developmental disabilities shall adopt rules with respect to the systematic and periodic destruction of residents' records.

(D) 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.

(E) No person shall reveal the contents of a record of a resident except as authorized by this chapter.

Amended by 130th General Assembly File No. TBD, HB 483, §101.01, eff. 9/15/2014.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 09-22-2000

5123.90 Attorney general duties.

The attorney general shall attend to all suits instituted on behalf of or against any public institution under the jurisdiction of the department of developmental disabilities and the managing officer thereof.

If a writ of habeas corpus is applied for, the clerk of the court shall give notice of the time and place of hearing to the attorney general.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-1980

5123.91 Immunity.

All persons who are not subject to any criminal provisions and who act reasonably and in good faith, either upon actual knowledge or upon information reasonably thought by them to be reliable, shall be free from any liability to a person institutionalized in institutions for the mentally retarded or to any other person in their procedural or physical assistance administered in the course of the institutionalization or discharge of a person pursuant to the provisions of this chapter.

Effective Date: 07-01-1975

5123.92 Venue.

If an affidavit alleging that a person is mentally retarded and subject to institutionalization by court order is filed, according to the provisions of section 5123.71 of the Revised Code, in the probate division of a county within the institutional district but not in the county within which the institution is located, and if such person is detained in the institution, the probate division of the county in which the institution is located shall, upon the request of the probate division receiving the affidavit, hold a hearing and make a disposition of the person in accordance with the procedures prescribed by this chapter.

Effective Date: 07-01-1975

5123.93 Guardianship of minor.

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 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 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.

Effective Date: 09-22-2000

5123.94 Amended and Renumbered RC 5123.60.

Effective Date: 07-01-1980

5123.95 Transmission of court papers.

The probate judge, upon making an order institutionalizing a person under this chapter, shall forthwith transmit copies, under his official seal, of court papers in the case, including the certificate of the expert witnesses, and of his findings in the case to the managing officer of the institution for the mentally retarded.

If not otherwise furnished, the probate judge shall see that each person institutionalized under section 5123.76 of the Revised Code is properly attired for transportation and, in addition, the institution shall be furnished a complete change of clothing for such person, which shall be paid for on the certificate of the probate judge and the order of the county auditor from the county treasury. The clothing shall be new or as good as new. The managing officer of the institution need not receive the person without such clothing.

Upon institutionalization, the managing officer of the institution to which the individual is admitted shall take possession of all money and other valuables that may be upon the person of the individual and shall, within ten days, file a list thereof with the probate judge of the county of which the individual is a resident. If the amount of money is fifty dollars or less it shall be retained and expended by the managing officer of the institution for the benefit of the individual. Unless a guardian of the estate of the individual has already been appointed, the probate judge may, upon his own motion and without notice, appoint a special guardian of the estate of the individual. Any special guardian, before being appointed, shall file a bond approved by the probate judge in the same amount as is required by section 2109.04 of the Revised Code. A special guardian as provided for in this section, and while acting as such, shall be governed by all laws applicable to guardians of the estates of incompetents. The special guardian shall be allowed such compensation for his services as the court thinks reasonable, providing he forthwith performs all the duties incumbent upon him.

Effective Date: 10-29-1993

5123.96 Payment of costs, fees, and expenses of proceedings.

Costs, fees, and expenses of all proceedings held under this chapter shall be paid as follows:

(A) To police and health officers, other than sheriffs or their deputies, the same fees allowed to constables, to be paid upon the approval of the probate judge;

(B) To sheriffs or their deputies, the same fees allowed for similar services in the court of common pleas;

(C) To physicians or licensed clinical psychologists acting as expert witnesses and to other expert witnesses designated by the court, an amount determined by the court;

(D) To witnesses in an administrative proceeding, the same fees and mileage as are provided to witnesses by section 119.094 of the Revised Code, and to witnesses in a judicial proceeding, the same fees and mileage as are provided to witnesses by section 2335.06 of the Revised Code, to be paid upon the approval of the probate judge;

(E) To a person, other than the sheriff or the sheriff's deputies, for taking a mentally retarded person to an institution or removing a mentally retarded person from an institution, the actual necessary expenses incurred, specifically itemized, and approved by the probate judge;

(F) To assistants who convey mentally retarded persons to institutions when authorized by the probate judge, a fee set by the probate court, provided the assistants are not drawing a salary from the state or any political subdivision of the state, and their actual necessary expenses incurred, provided that the expenses are specifically itemized and approved by the probate judge;

(G) To an attorney appointed by the probate division for an indigent who allegedly is a mentally retarded person pursuant to any section of this chapter, the fees that are determined by the probate division. When those indigent persons are before the court, all filing and recording fees shall be waived.

(H) To a referee who is appointed to conduct proceedings under this chapter that involve a respondent whose domicile is or, before the respondent's institutionalization, was not the county in which the proceedings are held, compensation as fixed by the probate division, but not more than the compensation paid for similar proceedings for respondents whose domicile is in the county in which the proceedings are held;

(I) To a court reporter appointed to make a transcript of proceedings under this chapter, the compensation and fees allowed in other cases under section 2101.08 of the Revised Code.

All costs, fees, and expenses described in this section, after payment by the county from appropriations pursuant to section 2101.11 of the Revised Code, shall be certified by the county auditor to the department of developmental disabilities within two months of the date the costs, fees, and expenses are incurred by the county. Payment shall be provided for by the director of budget and management upon presentation of properly verified vouchers. The director of developmental disabilities may adopt rules in accordance with Chapter 119. of the Revised Code to implement the payment of costs, fees, and expenses under this section.

Amended by 128th General Assemblych.127, SB 79, §1, eff. 10/6/2009.

Effective Date: 10-08-1992; 2008 HB525 07-01-2009

5123.97 Record of probate judge.

In cases of proceedings held under this chapter, the probate judge shall file and preserve all papers filed with him and make such entries upon his docket as, together with the papers so filed, will constitute a complete record of each case determined by him.

Effective Date: 07-01-1975

5123.98 Amended and Renumbered RC 5123.61.

Effective Date: 07-01-1980

5123.99 Penalty.

(A) Whoever violates section 5123.16 or 5123.20 of the Revised Code is guilty of a misdemeanor of the first degree.

(B) Whoever violates division (C), (E), or (G)(3) of section 5123.61 of the Revised Code is guilty of a misdemeanor of the fourth degree or, if the abuse or neglect constitutes a felony, a misdemeanor of the second degree. In addition to any other sanction or penalty authorized or required by law, if a person who is convicted of or pleads guilty to a violation of division (C), (E), or (G)(3) of section 5123.61 of the Revised Code is an MR/DD employee, as defined in section 5123.50 of the Revised Code, the offender shall be eligible to be included in the registry regarding misappropriation, abuse, neglect, or other specified misconduct by MR/DD employees established under section 5123.52 of the Revised Code.

Amended by 129th General AssemblyFile No.28, HB 153, §120.20, eff. 10/1/2012.

Effective Date: 01-30-2004; 2007 HB119 06-30-2007