Effective: October 12, 2016
Latest Legislation: House Bill 158 - 131st General Assembly
(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 person with an intellectual disability 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 person with an intellectual disability 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 person with an intellectual disability 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 program offered by a county board of developmental disabilities for persons with i ntellectual disabilities;
(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 person with an intellectual disability 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 person with an intellectual disability 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 person with an intellectual disability 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.
Structure Ohio Revised Code
Chapter 5123 | Department of Developmental Disabilities
Section 5123.01 | Department of Developmental Disabilities Definitions.
Section 5123.011 | Adoption of Rules.
Section 5123.012 | Eligibility Determinations.
Section 5123.013 | Application of Chapter.
Section 5123.014 | Reference to Department or Director and Other Terms.
Section 5123.02 | Duties of Department.
Section 5123.021 | Determining Need for Nursing Facility Care.
Section 5123.023 | Employment First Task Force.
Section 5123.024 | Implementation of Early Intervention Services Program.
Section 5123.025 | Technology First Policy.
Section 5123.026 | Technology First Task Force.
Section 5123.03 | Management of Institutions and Facilities.
Section 5123.031 | Nonpartisan Management.
Section 5123.032 | Closure of a Developmental Center.
Section 5123.033 | Department Program Fee Fund.
Section 5123.034 | Developmental Centers Services and Cost Recovery.
Section 5123.04 | Director of Department - Powers and Duties.
Section 5123.042 | Plans for Development or Modification of Residential Services; Rules.
Section 5123.043 | Complaint Resolution.
Section 5123.044 | Determination of Violation of Rights; Assistance to Individuals.
Section 5123.045 | Certification and Licensing of Providers.
Section 5123.047 | Department Payment of Nonfederal Share of Certain Expenditures.
Section 5123.048 | Payment of Nonfederal Share of County Medicaid Expenditures.
Section 5123.0410 | Individual Receiving Services Moving to New County.
Section 5123.0412 | Oddd Administration and Oversight Fund.
Section 5123.0414 | Methods of Notice by Department.
Section 5123.0415 | Notification of Change of Address.
Section 5123.0416 | Expenditure and Allocation of Appropriated Fees.
Section 5123.0417 | Programs for Person Under 22 With Intensive Behavioral Needs.
Section 5123.0418 | Additional Uses of Funds.
Section 5123.0419 | Interagency Workgroup on Autism.
Section 5123.0421 | Rules to Implement Part C Early Intervention Services Program.
Section 5123.0422 | Early Intervention Services Advisory Council.
Section 5123.0423 | Request for Student Data Verification Code.
Section 5123.0424 | Reimbursement of Travel Expenses of Official Members of Workgroups.
Section 5123.05 | Audits of Services and Programs.
Section 5123.051 | Payment Agreements With Providers.
Section 5123.06 | Divisions of Department.
Section 5123.07 | Bureau of Research - Duties.
Section 5123.08 | Classified and Unclassified Appointments.
Section 5123.081 | Criminal Records Check.
Section 5123.09 | Managing Officer of Institution - Powers and Duties.
Section 5123.091 | Changing Purpose and Use of Institutions.
Section 5123.092 | Citizen's Advisory Council.
Section 5123.093 | Duties of Citizen's Advisory Council.
Section 5123.10 | Bond of Employees.
Section 5123.11 | Residency Medical and Psychological Training Programs.
Section 5123.12 | Residency Training Programs for Students Enrolled in Appropriate Care Programs.
Section 5123.122 | Support Rate.
Section 5123.13 | Special Police Officers.
Section 5123.14 | Investigations.
Section 5123.15 | Appointing Special Agents and Persons.
Section 5123.16 | Valid Supported Living Certificate Required.
Section 5123.161 | Application for Supported Living Certificate.
Section 5123.162 | Applicant Survey to Determine if Standards Met.
Section 5123.163 | Term of Supported Living Certificate.
Section 5123.164 | Renewal of Supported Living Certificate.
Section 5123.165 | Provision of Supported Living and Residence.
Section 5123.166 | Adjudication Order Against Certificate Applicant or Holder.
Section 5123.167 | Reapplication After Negative Adjudication on Certificate.
Section 5123.168 | Termination of Certificate for Failure to Bill for Services.
Section 5123.169 | Issuance of Supported Living Certificate.
Section 5123.1610 | Termination or Refusal of Provider Agreement for Supported Living.
Section 5123.1611 | Rules Governing Supported Living Program.
Section 5123.17 | Care Outside Institution.
Section 5123.171 | Respite Care Services.
Section 5123.18 | Contracts With Person or Agency to Provide Services.
Section 5123.19 | Operation of Residential Facilities.
Section 5123.191 | Appointing Receiver to Operate Residential Facility.
Section 5123.192 | Licensing for Icf/iid After 7/1/2013.
Section 5123.193 | Searchable Database of Vacancies in Licensed Residential Facilities.
Section 5123.194 | Waiving Support Collection Requirements to Facilitate Independent Living.
Section 5123.195 | Reporting Implementation of Amendments to Statute.
Section 5123.196 | Maximum Number of Beds.
Section 5123.198 | Reduction in Number of Residents.
Section 5123.20 | Prohibiting Operation Without License.
Section 5123.22 | Appropriating Property.
Section 5123.221 | Cultivating Land - Purchases From Other Institutions.
Section 5123.24 | Businesses Located Near Institutions.
Section 5123.25 | Purchasing Supplies.
Section 5123.27 | Holding Property in Trust.
Section 5123.28 | Handling Funds Belonging to Residents.
Section 5123.29 | Industrial and Entertainment Fund - Commissary Fund.
Section 5123.30 | Books and Accounts.
Section 5123.31 | Confidentiality.
Section 5123.33 | Annual Report.
Section 5123.34 | Liberal Construction of Chapter.
Section 5123.35 | Ohio Developmental Disabilities Council.
Section 5123.352 | Community Developmental Disabilities Trust Fund.
Section 5123.36 | State Participation in Developmental Disability Construction Programs.
Section 5123.37 | Application to Sell Facility and Acquire Replacement.
Section 5123.371 | Payment to Director After Sale of Facility.
Section 5123.372 | Deadline for Acquisition of Replacement Facility.
Section 5123.373 | Agreement to Pay Percentage of Cost of Acquisition.
Section 5123.374 | Rescission of Approval of Application.
Section 5123.375 | Developmental Disabilities Community Capital Replacement Fund.
Section 5123.38 | Effect of Transfer From Supported Services to Commitment to Icf/iid.
Section 5123.39 | Patient Clothing.
Section 5123.40 | Services Fund for Individuals With Developmental Disabilities.
Section 5123.421 | Complaints and Investigations.
Section 5123.44 | Training Registered Nurses to Provide Training Courses for Department Personnel.
Section 5123.441 | Certificates to Provide Training Courses.
Section 5123.45 | Program for Issuing of Certificates.
Section 5123.451 | Registry Listing Personnel and Registered Nurses Holding Valid Certificates.
Section 5123.452 | Adjudication Orders.
Section 5123.47 | Authorizing In-Home Worker to Perform Health Care Tasks.
Section 5123.50 | Registry of Employees Guilty of Abuse, Neglect or Misappropriation Definitions.
Section 5123.51 | Reviewing Report of Abuse, Neglect or Misappropriation.
Section 5123.52 | Registry of Employees Guilty of Abuse, Neglect or Misappropriation.
Section 5123.53 | Petitioning for Removal From Registry.
Section 5123.54 | Rehabilitation Standard Rules.
Section 5123.542 | Notice Explaining Prohibited Conduct.
Section 5123.55 | Protective Services Definitions.
Section 5123.56 | Statewide System of Protective Service.
Section 5123.57 | Evaluation Before Guardianship or Trusteeship Begins.
Section 5123.58 | Nomination of Protective Services Agency as Guardian, Trustee or Protector.
Section 5123.60 | Ohio Protection and Advocacy System.
Section 5123.601 | Access to Information by Staff and Attorneys.
Section 5123.602 | Compensation in Class Action Cases.
Section 5123.603 | Joint Committee to Examine Protection and Advocacy System.
Section 5123.61 | Reporting Abuse, Neglect, and Other Major Unusual Incidents.
Section 5123.611 | Reviewing Report of Abuse, Neglect, or a Major Unusual Incident.
Section 5123.612 | Reporting Unusual Incidents.
Section 5123.613 | Subject of Report or Representative Has Right to Report and Related Records.
Section 5123.614 | Procedure Following Report of Major Unusual Incident.
Section 5123.62 | Rights of Persons With a Developmental Disability.
Section 5123.621 | Legislative Intent Regarding Adult Day Services.
Section 5123.63 | Distributing Copies of Rights.
Section 5123.64 | Enforcement Duties.
Section 5123.65 | Self-Administration of Medication.
Section 5123.651 | Assistance in Self-Administration of Prescribed Medication.
Section 5123.67 | Liberal Construction of Chapter.
Section 5123.69 | Voluntary Admission.
Section 5123.691 | Admission to Specialized Treatment Unit for Minors.
Section 5123.70 | Requesting Release of Voluntary Resident.
Section 5123.701 | Application for Short-Term Care.
Section 5123.71 | Affidavit for Involuntary Institutionalization.
Section 5123.711 | Assessment of Individual's Needs.
Section 5123.72 | Presentation of Case for State.
Section 5123.73 | Notice of Hearing.
Section 5123.74 | Emergency Institutionalization by Probate Court.
Section 5123.75 | Probable Cause Hearing.
Section 5123.76 | Full Hearing.
Section 5123.77 | Temporary Holding.
Section 5123.79 | Discharging Involuntary Resident.
Section 5123.80 | Trial Visits.
Section 5123.801 | Expenses of Trial Visit or Discharge.
Section 5123.81 | Involuntarily Committed Resident Absent Without Leave.
Section 5123.811 | Reporting Change of Location, Death or Condition of Resident.
Section 5123.82 | Application for Habilitation and Care of Discharged Resident.
Section 5123.83 | Civil and Public or Private Employment Rights.
Section 5123.84 | Free Communication With Others by Residents.
Section 5123.85 | Habilitation Plan.
Section 5123.851 | Procedure Upon Discharge.
Section 5123.86 | Consent for Medical Treatment.
Section 5123.87 | Labor or Tasks Performed by Residents.
Section 5123.88 | Writ of Habeas Corpus.
Section 5123.89 | Confidentiality.
Section 5123.90 | Attorney General Duties.
Section 5123.93 | Guardianship of Minor.
Section 5123.95 | Transmission of Court Papers.
Section 5123.96 | Payment of Costs, Fees, and Expenses of Proceedings.