11 LC
33 4032/AP
House
Bill 324 (AS PASSED HOUSE AND SENATE)
By:
Representatives Neal of the
1st,
Collins of the
27th,
Cooper of the
41st,
Gardner of the
57th,
and Murphy of the
120th
A
BILL TO BE ENTITLED
AN ACT
To
amend Chapter 4 of Title 37 of the Official Code of Georgia Annotated, relating
to the habilitation of the developmentally disabled generally, so as to revise
definitions; to repeal various obsolete provisions relating to procedures for
obtaining services from the Department of Behavioral Health and Developmental
Disabilities relative to developmentally disabled persons; to provide for
hearings by administrative law judges; to eliminate hearing examiners; to amend
various other titles of the Official Code of Georgia Annotated, so as to revise
provisions for purposes of conformity; to provide for related matters; to repeal
conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
4 of Title 37 of the Official Code of Georgia Annotated, relating to the
habilitation of the developmentally disabled generally, is amended in Code
Section 37-4-2, relating to definitions, as follows:
"37-4-2.
As
used in this chapter, the term:
(1)
'Client' means any person with a developmental disability who seeks habilitation
under this chapter or any person for whom such habilitation is
sought.
(2)
'Clinical record' means a written record pertaining to an individual client and
includes habilitation record, progress notes, charts, admission and discharge
data, and all other information which is recorded by a facility and which
pertains to the client's habilitation. Such other information as may be
required by rules and regulations of the board shall also be
included.
(3)
'Community services' means all services deemed reasonably necessary by the
Department of Behavioral Health and Developmental Disabilities to provide for
the education, training, habilitation, and care of developmentally disabled
individuals. Such services shall include, but not be limited to, diagnostic and
evaluation services, day-care and training services, work activity services,
community residential services such as group family care homes, transportation
services, social services, medical services, and specified home
services.
(4)
'Comprehensive
evaluation
team' or 'comprehensive habilitation team'
means and shall consist of a group of persons with special training and
experience in the assessment of needs and provision of services for
developmentally disabled
persons,
which.
The group shall include, at a minimum,
persons qualified to provide social, psychological, medical, and other services.
The department shall specify the qualifications of the individuals who comprise
a
comprehensive evaluation team or a
comprehensive habilitation team and shall ensure that such teams are located
throughout the state so as to provide diagnostic, evaluation, and habilitation
services for all citizens of Georgia.
(5)
'Court' means:
(A)
In the case of an individual who is 17 years of age or older, the probate court
of the county of residence of the client or the county in which such client is
found. Notwithstanding Code Section 15-9-13, in any case in which the judge of
said probate court is unable to hear a case brought under this chapter within
the time required for such hearing, said judge shall appoint a person to serve
and exercise all the jurisdiction of the probate court in such case. Any person
so appointed shall be a member of the State Bar of Georgia and shall be
otherwise qualified for his or her duties by training and experience. Such
appointment may be made on a case-by-case basis or by making a standing
appointment of one or more persons. Any person receiving such standing
appointment shall serve at the pleasure of the judge making the appointment or
the judge's successor in office to hear such cases if and when necessary. The
compensation of a person so appointed shall be as agreed upon by the judge who
makes the appointment and the person appointed with the approval of the
governing authority of the county for which such person is appointed and shall
be paid from the county funds of said county. All fees collected for the
services of such appointed person shall be paid into the general funds of the
county served; or
(B)
In the case of an individual who is under the age of 17 years, the juvenile
court of the county of residence of the client or the county in which such
client is found.
(6)
'Developmentally disabled person in need of community services' means a
developmentally disabled person who, after comprehensive evaluation, is found
to be in need of community services as defined in Code Section
37-5-3.
(7)
'Developmentally disabled person requiring temporary and immediate care' means a
person who is developmentally disabled, and:
(A)
Who presents a substantial risk of imminent harm to himself or herself or
others;
(B)
Who is in need of immediate care, evaluation, stabilization, or treatment for
certain developmental, medical, or behavioral needs; and
(C)
For whom there currently exists no available, appropriate community residential
setting for meeting the needs of the person.
(8)(6)
'Facility' means any state owned or state operated institution utilized 24 hours
a day for the habilitation and residence of persons who are developmentally
disabled, any facility operated or utilized for such purpose by the United
States Department of Veterans Affairs or any other federal agency, and any other
facility within the State of Georgia approved for such purpose by the
department.
(9)(7)
'Full and fair hearing' or 'hearing' means a proceeding before
a hearing
examiner
an
administrative law judge, under Code
Section 37-4-42, or before a court, as defined in paragraph (5) of this Code
section. The hearing may be held in a regular courtroom or in an informal
setting, in the discretion of the
hearing
examiner
administrative
law judge or the court, but the hearing
shall be recorded electronically or by a qualified court reporter. The client
shall be provided with effective assistance of counsel. If the client cannot
afford counsel, the court shall appoint counsel for him or her or the
hearing
examiner
administrative
law judge shall have the court appoint
such counsel. The client shall have the right to confront and cross-examine
witnesses and to offer evidence. The client shall have the right to subpoena
witnesses and to require testimony before the
hearing
examiner
administrative
law judge or in court in person or by
deposition from any physician upon whose evaluation the decision of the
hearing
examiner
administrative
law judge or the court may rest. The
client shall have the right to obtain a continuance for any reasonable time for
good cause shown. The
hearing
examiner
administrative
law judge and the court shall apply the
rules of evidence applicable in civil cases. The burden of proof shall be upon
the party seeking treatment of the client. The standard of proof shall be by
clear and convincing evidence. At the request of the client, the public may be
excluded from the
hearing;,
and the client need not be present if the court consents; in either of these
events, the record shall reflect the reason for the
hearing
examiner's
administrative
law judge's or the court's
action.
(10)(8)
'Habilitation' means the process by which program personnel help clients acquire
and maintain those life skills which will enable them to cope more effectively
with the demands of their own persons and of their environment and to raise the
level of their physical, mental, social, and vocational abilities.
(11)(9)
'Individualized program plan' means a proposed habilitation program written in
behavioral terms, developed by the comprehensive
evaluation
habilitation
team, and specifically tailored to the needs of an individual client. Each plan
shall include:
(A)
A statement of the nature of the client's specific problems and specific
needs;
(B)
A description of intermediate and long-range habilitation goals and a projected
timetable for their attainment;
(C)
A description of the proposed habilitation program and its relation to
habilitation goals;
(D)
Identification of the facility and types of professional personnel responsible
for execution of the client's habilitation program;
(E)
A statement of the least restrictive environment necessary to achieve the
purposes of habilitation, based upon the needs of the client;
(F)
An explanation of criteria for acceptance or rejection of alternative
environments for habilitation; and
(G)
Proposed criteria for release of the client into less restrictive habilitation
environments upon obtaining specified habilitation goals.
(12)(10)
'Least restrictive alternative,' 'least restrictive environment,' or 'least
restrictive appropriate habilitation' means that which is the least restrictive
available alternative, environment, or appropriate habilitation, as applicable,
within the limits of state funds specifically appropriated
therefor.
(13)(11)
'Person in charge of a client's habilitation' means a superintendent or regional
state hospital administrator of a facility, a case manager, or any other service
provider designated by the department to have overall responsibility for
implementation of a client's individualized program plan. The department shall
designate such a person for each individual ordered to receive services from the
department under this chapter.
(14)(12)
'Representatives' means the persons appointed as provided in Code Section
37-4-107 to receive any notice under this chapter.
(15)(13)
'Superintendent' means the chief administrative officer who has overall
management responsibility at any facility, other than a regional state hospital
or state owned or operated community program, receiving developmentally disabled
persons under this chapter or an individual appointed as the designee of such
superintendent."
SECTION
2.
Said
chapter is further amended in Code Section 37-4-5, relating to validity of
hospitalization orders entered before September 1, 1978, as
follows:
"37-4-5.
(a)
No hospitalization of a developmentally disabled person lawful before September
1, 1978, shall be deemed unlawful because of the enactment of this chapter. The
board is authorized to establish reasonable regulations to require that the
superintendent or regional state hospital administrator of each facility where
developmentally disabled persons are in residence apply under Code Section
37-4-42 for an order authorizing continued care of a client for whom such care
is necessary and who was initially hospitalized under an order of a court prior
to September 1, 1978. Such prior orders of hospitalization entered by the
courts, unless superseded at an earlier date by an order under this chapter, or
unless such prior orders expire under their own terms at an earlier date, shall
remain valid until 12 months following September 1, 1978, after which all such
orders shall be null and void and of no effect.
(b)
No hospitalization of a person with developmental disabilities which was lawful
before July 1, 2011, shall be deemed unlawful because of the repeal of former
Code sections under Article 2 of this
chapter."
SECTION
3.
Said
chapter is further amended by repealing and reserving Part 1 of Article 2,
relating to general provisions relative to procedures for obtaining services
from the department.
SECTION
4.
Said
chapter is further amended by repealing and reserving Code Sections 37-4-40,
37-4-41, and 37-4-43, relating to filing petitions with the court for according
of program of services to developmentally disabled persons, procedure upon
failure of or client's noncompliance with court ordered habilitation programs,
and appointment of hearing examiners for hearings as to continued habilitation,
respectively.
SECTION
5.
Said
chapter is further amended by repealing Code Sections 37-4-40.1, 37-4-40.2,
37-4-40.3, 37-4-40.4, and 37-4-40.5, relating to certification that a person
requires temporary care, admission or discharge of a person in custody of a
state facility for temporary care, rights of a person in custody of a state
facility for temporary care, evaluation of a person in custody of a state
facility for temporary care, and hearings to determine disposition of persons in
custody of a state facility for temporary care, respectively.
SECTION
6.
Said
chapter is further amended by revising Code Section 37-4-42, relating to
procedure for continuation of court ordered habilitation, as
follows:
"37-4-42.
(a)
If it is necessary to continue habilitation of a client beyond the end of the
period during which the facility is currently authorized
by order of a
court or of an administrative law judge
under this
chapter to retain the client, the
superintendent
or regional state hospital administrator,
prior to the expiration of the period, shall seek an order authorizing such
continued habilitation in the manner provided in this Code section.
(b)
A Committee for Continued Habilitation Review shall be established by the
superintendent
or regional state hospital administrator
of each facility and shall consist of not less than five persons who meet the
same requirements as those persons eligible to be members of the comprehensive
evaluation
habilitation
team as defined in Code Section 37-4-2. The committee may conduct its meetings
with a quorum of any three members. The function of this committee shall be to
review and evaluate the updated individualized program plan and to report to
the
superintendent
or regional state hospital administrator
its recommendations concerning the client's need for continued habilitation. No
person who has responsibility for the habilitation of the individual client for
whom continued habilitation is requested shall serve on any committee which
reviews such individual's case.
(c)
If the
superintendent
or regional state hospital administrator
desires to seek an order under this Code section authorizing continued
habilitation for up to 12 months beyond the expiration of the currently
authorized period of habilitation, he
or
she shall first file a notice of such
intended action with the Committee for Continued Habilitation Review, which
notice
shall be forwarded to the committee at
least 60 days prior to the expiration of that period.
(d)
Within ten days of the date of the notice, the committee shall meet to consider
the matter of the
superintendent's
or regional state hospital administrator's
intention to seek an order for continued habilitation. Prior to the committee's
meeting, the client and his
or
her representatives shall be notified of
the following: the purpose of such meeting, the time and place of such meeting,
their right to be present at such meeting, and their right to present any
alternative individualized program plan secured at their expense. In those
cases in which the client will not or cannot appear, at least one member of the
committee will make all reasonable efforts to interview the client and report to
the committee. An updated individualized program plan for the client shall be
presented to the committee. The committee shall report to the
superintendent
or regional state hospital administrator
or his or
her designee, other than the attending
physician or a member of the committee, its written recommendations along with
any minority recommendations which may also be submitted. Such report
will
shall
specify whether or not the client is a developmentally disabled person requiring
continued habilitation and whether continued habilitation is the least
restrictive alternative available.
(e)
If after considering the committee's recommendations and minority
recommendations, if any, the
superintendent
or regional state hospital administrator
or his or
her designee, other than the attending
physician or a member of the committee, determines that the client is not a
developmentally disabled person requiring continued habilitation, the client
shall be discharged from the facility pursuant to subsection (b) of Code Section
37-4-44.
(f)
If after considering the committee's recommendations and minority
recommendations, if any, the
superintendent
or regional state hospital administrator
or his or
her designee, other than the client's
attending physician or a member of the committee, determines that the client is
a developmentally disabled person requiring continued habilitation, he
or
she shall, within ten days after receiving
the committee's recommendations, serve a petition for an order authorizing
continued habilitation along with copies of the updated individualized program
plan and the committee's report on the designated office within the department
and shall also serve such petition along with a copy of the updated
individualized program plan on the client. The petition shall contain a plain
and simple statement that the client or his
or
her representatives may file a request for
a hearing with
a hearing
examiner appointed pursuant to Code Section
37-4-43
the Office of
State Administrative Hearings within 15
days after service of the petition, that the client has a right to counsel at
the hearing, that the client or his
or
her representatives may apply immediately
to the
court
administrative
law judge to have counsel appointed if the
client cannot afford counsel, and that the
court
administrative
law judge will appoint counsel for the
client unless the client indicates in writing that he
or
she will have retained counsel by the time
set for hearing or does not desire to be represented by counsel.
(g)
If a hearing is not requested by the client or the representatives within 15
days after service of the petition on the client and his
or
her representatives, the
hearing
examiner
administrative
law judge shall make an independent review
of the committee's report, the updated individualized program plan, and the
petition. If he
or
she concludes that continued habilitation
may not be necessary or if he
or
she finds any member of the committee so
concluded, then he
or
she shall order that a hearing be held
pursuant to subsection (h) of this Code section. If he
or
she concludes that continued habilitation
is necessary, then he
or
she shall order continued habilitation for
a period not to exceed one year.
(h)
If a hearing is requested within 15 days after service of the petition on the
client and his
or
her representatives or if the
hearing
examiner
administrative
law judge orders a hearing pursuant to
subsection (g) of this Code section, the
hearing
examiner
administrative
law judge shall set a time and place for
the hearing to be held within 25 days of the time the
hearing
examiner
administrative
law judge receives the request, but, in
any event, no later than the day on which the current order for habilitation
expires. Notice of the hearing shall be served on the client, his
or
her representatives, the facility, and,
when appropriate, on counsel for the client. The
hearing
examiner
administrative
law judge, within his
or
her discretion, may grant a change of
venue for the convenience of parties or witnesses. Such hearing shall be a full
and fair hearing, except that the client's attorney, when the client is unable
to attend the hearing and is incapable of consenting to a waiver of his
or
her appearance, may move that the client
not be required to appear; however, the record shall reflect the reasons for the
hearing
examiner's
administrative
law judge's actions.
(i)
After such hearing, the
hearing
examiner may issue any order which the court is authorized to issue under
subsection (e) of Code Section 37-4-40, provided that the hearing
examiner
administrative
law judge may order the client's continued
habilitation for a period not to exceed one year, subject to the power of the
superintendent
or regional state hospital administrator
to discharge the client under subsection (b) of Code Section
37-4-44;
provided, however, that if the administrative law judge finds that the client is
not developmentally disabled or is not in need of care, training, education,
habilitation, or other specialized services which the client is then receiving,
the administrative law judge shall dismiss the
petition.
(i)
The hearing examiner for a client who was admitted under the jurisdiction of the
juvenile court and who reaches the age of 17 without having had a full and fair
hearing pursuant to any provisions of this chapter or without having waived such
hearing shall order that a hearing be held pursuant to subsection (h) of this
Code section."
SECTION
7.
Said
chapter is further amended in Code Section 37-4-82, relating to payment of
expenses incurred in connection with hearings held under Chapter 4 of Title 37,
as follows:
"37-4-82.
(a)
Except as provided in this Code section, the expenses of any hearing held under
this chapter by a court or by
a hearing
examiner
an
administrative law judge, including
attorneys' fees authorized by paragraph (1) of subsection (b) of this Code
section and including
hearing
officer expenses authorized by paragraph
(3) of subsection (b) of this Code section, shall be paid by the county in which
the client has his
or
her residence or, if the client is a
transient, by the county in which the client was initially taken into the
custody of the state. Payment by such county of the hearing expenses shall only
be required if the person who actually presides over the hearing executes an
affidavit or includes a statement in his
or
her final order relating to the hearing
that the assets of the client, his
or
her estate, and any persons legally
obligated to support the client appear to be insufficient to defray such
expenses, based upon all relevant information available to the person who
actually presides over the hearing. Such affidavit or statement may include the
client's name, address, and age. The cost on appeal to the appropriate court
shall be the same as provided for in other appeals from the probate and juvenile
courts.
(b)
Expenses of any hearing held under this chapter shall include:
(1)
The fee to be paid to an attorney appointed under this chapter to represent a
patient at such hearing. Such fee shall be as agreed between the attorney and
the appointing court but shall not exceed an amount determined under the fee
schedule followed by the county when computing the fees to be paid to an
attorney who has been appointed to represent an indigent criminal defendant,
plus actual expenses which an attorney may incur and which have been approved by
the court holding the hearing. In exceptional circumstances, the attorney may
apply to the superior court of the judicial circuit in which the hearing was
held for an order granting reasonable fees in excess of the amounts specified in
this paragraph;
(2)
The fee to be paid to the
court,
which fee shall be to defray the cost of
clerical help and the cost of any additional office space and equipment required
for the conduct of such hearing. In hearings conducted pursuant to Code Section
37-4-42 such fee shall be $20.00, and in all other hearings under this chapter
such fee shall be $40.00, excluding attorneys' fees and expenses of the
hearing
officer
administrative
law judge; and
(3)
The fee to be paid to
a hearing
officer
an
administrative law judge appointed
pursuant to subparagraph (A) of paragraph (5) of Code Section 37-4-2 to conduct
a hearing. Such fee shall be as agreed between the
hearing
officer
administrative
law judge and the appointing court, but
shall not exceed an amount determined under the fee schedule followed by the
county when computing the fees to be paid to an attorney who has been appointed
to represent an indigent criminal defendant plus actual expenses which the
hearing
officer
administrative
law judge may incur and which have been
approved by the court holding the hearing. In exceptional circumstances, the
hearing
officer
administrative
law judge may apply to the superior court
of the judicial circuit in which the hearing was held for an order granting
reasonable fees in excess of the amounts specified in this paragraph. The $40.00
court cost authorized by paragraph (2) of this subsection shall also be
authorized to defray the cost of clerical help and additional office space and
equipment required for the conduct of such hearings."
SECTION
8.
Said
chapter is further amended in Code Section 37-4-110, relating to appeal rights
of clients, their representatives, or attorneys, as follows:
"37-4-110.
The
client, the client's representatives, or the client's attorney may appeal any
order of the probate court or
hearing
officer
administrative
law judge rendered in a proceeding under
this chapter to the superior court of the county in which the proceeding was
held, except as otherwise provided in Article 6 of Chapter 9 of Title 15, and
may appeal any order of the juvenile court rendered in a proceeding under this
chapter to the Court of Appeals and the Supreme Court. The appeal to the
superior court shall be made in the same manner as appeals from the probate
court to the superior court, except that the appeal shall be heard before the
court sitting without a jury as soon as practicable but not later than 30 days
following the date on which the appeal is filed with the clerk of the superior
court. The appeal from the order of the juvenile court to the Court of Appeals
and the Supreme Court shall be as provided by law but shall be heard as
expeditiously as possible. The client must pay all costs upon filing any appeal
authorized under this Code section or must make an affidavit that he or she is
unable to pay costs. The client shall retain all rights of review of any order
of the superior court, the Court of Appeals, and the Supreme Court as provided
by law. The client shall have a right to counsel or, if unable to afford
counsel, shall have counsel appointed for the client by the court. The appeal
rights provided to the client, the client's representatives, or the client's
attorney in this Code section are in addition to any other appeal rights which
the parties may have, and the provision of the right for the client, the
client's representatives, or the client's attorney to appeal does not deny the
right to the Department of Behavioral Health and Developmental Disabilities to
appeal under the general appeal provisions of Code Sections 5-3-2 and
5-3-3."
SECTION
9.
Code
Section 17-7-131 of the Official Code of Georgia Annotated, relating to
proceedings upon plea of insanity or mental incompetency at the time of the
crime, is amended by revising paragraph (3) of subsection (e), as
follows:
"(3)
The defendant shall be detained in custody until completion of the hearing. The
hearing shall be conducted at the earliest opportunity after the expiration of
the 30 days' evaluation period but in any event within 30 days after receipt by
the prosecuting attorney of the evaluation report from the mental health
facility. The court may take judicial notice of evidence introduced during the
trial of the defendant and may call for testimony from any person with knowledge
concerning whether the defendant is currently a mentally ill person in need of
involuntary
treatment, as
defined by paragraph (12) of Code Section
37-3-1, or
currently
mentally retarded and in need of being ordered to receive services, as those
terms are defined by paragraph (12) of Code Section 37-3-1 and Code Section
37-4-40
a person with
a developmental disability, as defined in paragraph (8) of Code Section 37-1-1,
who presents a substantial risk of imminent harm to himself or herself or
others. The prosecuting attorney may
cross-examine the witnesses called by the court and the defendant's witnesses
and present relevant evidence concerning the issues presented at the
hearing."
SECTION
10.
Code
Section 31-22-9.1 of the Official Code of Georgia Annotated, relating to who may
perform HIV tests, is amended by revising subparagraph (a)(8)(B), as
follows:
"(B)
Facility for
the
mentally
ill,
persons or
persons with developmental disabilities, as such terms are defined in Code
Section 37-1-1
developmentally
disabled, or alcoholic or drug dependent
persons, as defined in
Code
Sections 37-3-1, 37-4-2, and
Code
Section
37-7-1,
respectively;"
SECTION
11.
Said
chapter is further amended in Code Section 37-9-6, relating to standards for
determination of assessments for less than the full cost of care, as
follows:
"37-9-6.
The
board shall establish standards for determining assessments when such
assessments are less than the full cost of care. Such standards shall be based
on the income, assets, and other circumstances of the persons liable for cost of
care and shall include consideration of the number of dependents, as defined
under Georgia income tax law and regulations; legal rights to payment under any
insurance agreement, and other evidence of ability to pay; but no assessment
shall be fixed or collected on the basis of any assets exempted by subsection
(b) of Code Section 37-9-8. In determining assessments for persons liable for
cost of care, the department shall develop procedures to ensure that no
dependent, deduction, or personal exemption as defined by Georgia income tax law
will be reflected more than once in the determination of assessments for any one
patient. In establishing standards to determine such assessments, the board
shall adopt criteria to be applied uniformly to all persons liable for cost of
care, except that the board may adopt separate criteria for assessing monthly
benefits or funds from any source to cover cost of care, support, and treatment
provided to patients who are hospitalized for longer than three months and whose
current needs, as defined by the Social Security Administration, are being met.
However, the board shall ensure that the assessment made each month shall allow
the recipients of such benefits or funds to retain at a minimum an amount as a
personal allowance equal to the amount of the personal needs allowance allowed
beneficiaries under the state medical assistance plan. Further, such standards
will include special provisions for assessing
developmentally
disabled respite care admissions under Code Section 37-4-21 or any other
respite program
developmental
disabilities respite care allowed by law
or duly adopted departmental regulations, where such admissions are legally
limited to 56 days of care a year. To the extent practicable, such criteria
shall ensure that persons having the same or substantially the same financial
ability to pay cost of care shall have the same or substantially the same
financial obligation to pay such cost of care."
SECTION
12.
All
laws and parts of laws in conflict with this Act are repealed.