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6 AN ACT RELATING TO HUMAN SERVICES; MODIFYING CERTAIN DEFINITIONS AND
7 PROVISIONS GOVERNING THE RESPONSIBILITY AND AUTHORITY OF THE DIVISION
8 OF SERVICES FOR PEOPLE WITH DISABILITIES; FORMALIZING THE MEDICAID
9 REQUIREMENT THAT PERSONS WITH DISABILITIES CAN MAKE A CHOICE OF
10 SERVICES; AND MAKING TECHNICAL CORRECTIONS.
11 This act affects sections of Utah Code Annotated 1953 as follows:
13 62A-5-101, as last amended by Chapter 332, Laws of Utah 1996
14 62A-5-103, as last amended by Chapter 332, Laws of Utah 1996
15 62A-5-104, as last amended by Chapter 104, Laws of Utah 1992
16 62A-5-105, as last amended by Chapter 179, Laws of Utah 1996
17 62A-5-109, as last amended by Chapter 258, Laws of Utah 1995
18 62A-5-201, as last amended by Chapter 179, Laws of Utah 1996
19 62A-5-207, as last amended by Chapter 104, Laws of Utah 1992
20 62A-5-208, as last amended by Chapter 207, Laws of Utah 1991
21 62A-5-301, as last amended by Chapter 248, Laws of Utah 1996
22 62A-5-303, as last amended by Chapter 243, Laws of Utah 1996
23 62A-5-304, as last amended by Chapter 207, Laws of Utah 1991
24 62A-5-306, as last amended by Chapter 132, Laws of Utah 1993
25 62A-5-307, as last amended by Chapter 132, Laws of Utah 1993
26 62A-5-308, as last amended by Chapter 132, Laws of Utah 1993
27 62A-5-309, as last amended by Chapter 132, Laws of Utah 1993
28 62A-5-311, as last amended by Chapter 132, Laws of Utah 1993
29 62A-5-312, as last amended by Chapter 132, Laws of Utah 1993
30 62A-5-313, as last amended by Chapter 207, Laws of Utah 1991
31 62A-5-314, as last amended by Chapter 132, Laws of Utah 1993
32 62A-5-315, as enacted by Chapter 1, Laws of Utah 1988
33 62A-5-316, as enacted by Chapter 1, Laws of Utah 1988
34 62A-5-317, as enacted by Chapter 1, Laws of Utah 1988
35 62A-5-318, as enacted by Chapter 132, Laws of Utah 1993
36 62A-5-402, as last amended by Chapter 332, Laws of Utah 1996
37 62A-5-403, as last amended by Chapters 179 and 318, Laws of Utah 1996
38 62A-5a-103, as last amended by Chapter 276, Laws of Utah 1997
39 62A-6-101, as last amended by Chapter 108, Laws of Utah 1997
40 62A-6-102, as enacted by Chapter 1, Laws of Utah 1988
41 62A-6-103, as enacted by Chapter 1, Laws of Utah 1988
42 62A-6-105, as enacted by Chapter 1, Laws of Utah 1988
43 62A-6-107, as enacted by Chapter 1, Laws of Utah 1988
44 62A-6-108, as enacted by Chapter 1, Laws of Utah 1988
45 62A-6-110, as enacted by Chapter 1, Laws of Utah 1988
47 62A-5-501, Utah Code Annotated 1953
48 62A-5-502, Utah Code Annotated 1953
49 Be it enacted by the Legislature of the state of Utah:
50 Section 1. Section 62A-5-101 is amended to read:
51 62A-5-101. Definitions.
52 As used in this chapter:
53 (1) "Board" means the Board of Services for People with Disabilities established in
54 accordance with Section 62A-1-105 .
55 (2) "Developmental center" means the Utah State Developmental Center, established in
56 accordance with Part 2 of this chapter.
57 (3) "Director" means the director of the Division of Services for People with Disabilities.
58 (4) (a) "Disability" means a severe, chronic disability that:
59 (i) is attributable to a mental or physical impairment or a combination of mental and
60 physical impairments;
61 (ii) is likely to continue indefinitely;
62 (iii) results in a substantial functional limitation in three or more of the following areas of
63 major life activity:
64 (A) self-care;
65 (B) receptive and expressive language;
66 (C) learning;
67 (D) mobility;
68 (E) self-direction;
69 (F) capacity for independent living; or
70 (G) economic self-sufficiency; and
71 (iv) requires a combination or sequence of special interdisciplinary or generic care,
72 treatment, or other services that may continue throughout life and must be individually planned
73 and coordinated.
74 (b) For purposes of this chapter mental illness alone does not constitute a "disability."
75 (5) "Division" means the Division of Services for People with Disabilities.
76 (6) "Mental retardation" means a significant, subaverage general intellectual functioning,
77 existing concurrently with deficits in adaptive behavior, and manifested during the developmental
78 period as defined in the current edition of the Diagnostic and Statistical Manual of Mental
79 Disorders, published by the American Psychiatric Association.
80 (7) "Mental retardation facility" means a residential facility for persons with mental
81 retardation, that receives state or federal funds under Title XIX of the federal Social Security Act,
82 for the purpose of serving the population of mentally retarded persons in this state.
96 Section 2. Section 62A-5-103 is amended to read:
97 62A-5-103. Responsibility and authority of division.
98 The division has the authority and responsibility to:
99 (1) plan, develop, and manage an array of services and supports for persons with
100 disabilities and their families throughout the state[
116 (a) community living services and supports;
117 (b) supported employment and other day services and supports;
118 (c) family support, including respite care;
119 (d) personal assistant services;
120 (e) community skills training;
121 (f) transportation;
122 (g) assessment and service planning;
123 (h) support coordination;
124 (i) intermediate care services; and
125 (j) housing assistance;
126 (2) establish either directly or by contract with private, nonprofit organizations, programs
127 of outreach, information and referral, prevention, technical assistance, and public awareness, in
128 an effort to enhance the quality of life for persons with disabilities in this state;
129 (3) supervise the programs and facilities operated by or under contract with the division;
130 (4) (a) cooperate with other state, governmental, and private agencies that provide services
131 to persons with disabilities; and
132 (b) ensure that the constitutionally protected liberty interests of persons with disabilities
133 are not deprived without due process procedures designed to minimize the risk of error when those
134 persons are admitted to any structured residential mental retardation facility, including the
135 developmental center and facilities within the community such as intermediate care facilities for
137 periodic reviews to determine the constitutional appropriateness of the placement. The
138 constitutional due process review process required by this subsection, with regard to intermediate
139 care facilities for [
140 commitment to the division;
141 (5) contract for services and supports for persons with disabilities;
142 (6) approve and monitor approved providers;
143 (7) act as a fiscal agent to receive and disburse funds;
144 (8) establish standards and rules for the administration and operation of programs operated
145 by or under contract with the division;
146 (9) approve and monitor division programs to insure compliance with the board's policies
147 and standards;
148 (10) establish standards and rules necessary to fulfill the division's responsibilities under
149 Parts 2 and 3 of this chapter with regard to mental retardation facilities;
150 (11) establish and collect fair and equitable fees for services provided by the division, and
151 account for those funds;
152 (12) establish rules governing the admission, transfer, and discharge of persons with
153 disabilities to mental retardation facilities, in accordance with state law, with regard to facilities
154 and programs operated by or under contract with the division, and with regard to facilities and
155 programs that serve persons committed to the division under Part 3;
156 (13) manage funds for a person residing in a facility operated by the division, upon request
157 of [
158 (14) fulfill the responsibilities described in Chapter 5a.
159 Section 3. Section 62A-5-104 is amended to read:
160 62A-5-104. Director -- Qualifications -- Responsibilities.
161 (1) The director of the division shall be appointed by the executive director with the
162 concurrence of the board.
163 (2) The director shall have a bachelor's degree from an accredited university or college,
164 be experienced in administration, and be knowledgeable in developmental disabilities, particularly
165 mental retardation, and other disabilities.
166 (3) The director is the administrative head of the division.
167 (4) The director shall appoint the superintendent of the developmental center and the
168 necessary and appropriate administrators for other facilities operated by the division with the
169 concurrence of the executive director and the board.
170 Section 4. Section 62A-5-105 is amended to read:
171 62A-5-105. Board -- Membership -- Responsibilities.
172 (1) At least one member of the board, established in accordance with Sections 62A-1-105
173 and 62A-1-107 , shall be a person whose life or family is directly affected by a disability, and at
174 least one other board member shall be a person with a [
175 who is eligible for or receives division services.
176 (2) The board shall report annually to the governor. The executive director shall mediate
177 any differences which arise between the policies of the board and those of any other policy board
178 in the department.
179 (3) The board shall review rules necessary to carry out the purposes of this part, comment
180 on existing programs and services to persons with disabilities, recommend new program areas to
181 the director, and establish policies for the assessment and collection of fees.
182 (4) The board has the power and responsibility to set policy for the division, the
183 developmental center, and for other programs and facilities operated by or under contract with the
185 Section 5. Section 62A-5-109 is amended to read:
186 62A-5-109. Parent liable for cost and support of minor -- Guardian liable for costs.
187 (1) Parents of a person under 18 years old who receives services or support from the
188 division, who are financially responsible, are liable for the cost of the actual care and maintenance
189 of that person and for the support of the child in accordance with Title 78, Chapter 45, Uniform
190 Civil Liability for Support Act, and Title 62A, Chapter 11, [
192 (2) A guardian of a person who receives services or support from the division is liable for
193 the cost of actual care and maintenance of that person, regardless of [
194 funds are available in the guardianship estate established on [
195 purpose. However, if the person who receives services is a beneficiary of a trust created in
196 accordance with Section 62A-5-110 , or if the guardianship estate meets the requirements of a trust
197 described in that section, the trust income prior to distribution to the beneficiary, and the trust
198 principal are not subject to payment for services or support for that person.
199 (3) If, at the time a person who receives services or support from the division is discharged
200 from [
201 or after the death and burial of a resident of the developmental center, there remains in the custody
202 of the division or the superintendent any money paid by a parent or guardian for the support or
203 maintenance of that person, it shall be repaid upon demand.
204 Section 6. Section 62A-5-201 is amended to read:
205 62A-5-201. Utah State Developmental Center.
206 (1) The facility for persons with mental retardation located in American Fork City, Utah
207 County, shall be known as the "Utah State Developmental Center."
208 (2) Within appropriations authorized by the Legislature, the role and function of the
209 developmental center is to:
210 (a) provide [
211 described in Subsection (3); and
212 (b) provide the following services and supports to persons with disabilities who do not
213 reside at the developmental center:
217 (ii) crisis intervention;
220 therapy, [
222 for families, public organizations, providers of home and community [
223 services, and courts.
224 (3) Within appropriations authorized by the Legislature, notwithstanding the provisions
225 of Part 3 of this chapter, after October 1, 1997, only the following persons may be residents of, be
226 admitted to, or receive care, services, or treatment at the developmental center:
227 (a) persons with mental retardation;
228 (b) persons who receive services and supports under Subsection (2)(b); and
229 (c) persons who require at least one of the following services from the developmental
231 (i) continuous medical care;
232 (ii) intervention for conduct that is dangerous to self or others; or
233 (iii) temporary residential assessment and evaluation.
234 (4) The division [
235 developmental center into appropriate less restrictive placements and shall determine each year the
236 number to be placed based upon the individual assessed needs of the [
237 division shall confer with parents and guardians to ensure the most appropriate placement for each
239 (5) Within appropriations authorized by the Legislature, notwithstanding the provisions
240 of Subsection (3) and Part 3 of this chapter, after June 30, 1996, a person who is under 18 years
241 of age may be a resident of, admitted to, or receive care, services, or treatment at the
242 developmental center only if the director certifies in writing that the developmental center is the
243 most appropriate placement for that person. This restriction does not apply to persons who receive
244 services and supports under Subsection (2)(b).
245 Section 7. Section 62A-5-207 is amended to read:
246 62A-5-207. Superintendent -- Qualifications.
247 The superintendent of the developmental center, appointed in accordance with Subsection
248 62A-5-104 (4), shall have a bachelor's degree from an accredited university or college, be
249 experienced in administration, and be knowledgeable in developmental disabilities [
250 particularly mental retardation.
251 Section 8. Section 62A-5-208 is amended to read:
252 62A-5-208. Powers and duties of superintendent.
253 The chief administrative officer of the developmental center is the superintendent, [
255 (1) [
256 developmental center;
257 (2) [
258 to state law; and
259 (3) with the approval of the division, [
260 performance of his duties.
261 Section 9. Section 62A-5-301 is amended to read:
262 62A-5-301. Definitions.
263 As used in this part:
264 (1) "Designated mental retardation professional" means:
265 (a) a psychologist licensed under Title 58, Chapter 25a, who has either one year of
266 specialized training in diagnostic work with persons with mental retardation or one year of clinical
267 experience with persons with mental retardation and who has been designated by the division as
268 specially qualified, by training and experience, in the [
270 (b) a clinical or certified social worker licensed under Title 58, Chapter 60, Mental Health
271 Professional Practice Act, who has two years of clinical experience with persons with mental
272 retardation and who has been designated by the division as specially qualified, by training and
273 experience, in [
274 (2) "Licensed physician" means an individual licensed to practice medicine under Section
275 58-67-301 , Utah Medical Practice Act, Section 58-68-301 , Utah Osteopathic Medical Practice Act,
276 or a medical officer of the United States Government while in this state in the performance of
277 official duties.
278 (3) "Mental retardation facility" means a residential facility for persons with mental
279 retardation, that receives state or federal funds under Title XIX of the federal Social Security Act,
280 for the purpose of serving the population of mentally retarded persons in this state.
284 to review and approve or disapprove voluntary commitments to the division and admissions to
285 mental retardation facilities in accordance with this part.
286 Section 10. Section 62A-5-303 is amended to read:
287 62A-5-303. Admission committee -- Voluntary commitment.
288 (1) (a) The division shall appoint a review committee of designated mental retardation
289 professionals and others with relevant training and experience to four-year terms to review and
290 approve or disapprove voluntary, adult commitments to the division under Section 62A-5-307 .
291 (b) Notwithstanding the requirements of Subsection (1)(a), the division shall, at the time
292 of appointment or reappointment, adjust the length of terms to ensure that the terms of committee
293 members are staggered so that approximately half of the committee is appointed every two years.
294 (c) When a vacancy occurs in the membership for any reason, the replacement shall be
295 appointed for the unexpired term.
296 (2) (a) Members shall receive no compensation or benefits for their services, but may
297 receive per diem and expenses incurred in the performance of the member's official duties at the
298 rates established by the Division of Finance under Sections 63A-3-106 and 63A-3-107 .
299 (b) Members may decline to receive per diem and expenses for their service.
300 (3) The review committee shall determine whether there is clear and convincing evidence
302 (a) the individual to be committed has mental retardation;
303 (b) because of that mental retardation, one or more of the following conditions exist:
304 (i) the individual poses an immediate danger of physical injury to self or others;
305 (ii) the individual lacks the capacity to provide the basic necessities of life, such as food,
306 clothing, or shelter; or
307 (iii) the individual is in immediate need of [
308 specialized services and supports to minimize the effects of the condition which poses a threat of
309 serious physical or psychological injury to the individual, and the individual lacks the capacity to
310 engage in a rational decision-making process concerning the need for [
312 possible costs and benefits of the [
313 (c) there is no appropriate, less restrictive alternative reasonably available as certified by
314 the division; and
315 (d) the facility or program in which the individual is to be committed can provide the
316 individual with [
317 supports that [
318 Section 11. Section 62A-5-304 is amended to read:
319 62A-5-304. Limited admission of persons convicted of felony offenses.
320 A person with mental retardation who has been convicted of a felony, or if a minor, of a
321 crime that would constitute a felony if committed by an adult, may not be admitted to a mental
322 retardation facility unless it is determined by the division, in accordance with the provisions of this
323 part and other state law, that the person may benefit from [
324 Section 12. Section 62A-5-306 is amended to read:
325 62A-5-306. Application -- Affidavit.
326 An application by or on behalf of an individual 18 years of age or older for whom voluntary
327 commitment to the division is sought under Section 62A-5-307 shall:
328 (1) be in the form prescribed by the division; and
329 (2) be accompanied by an affidavit of a physician, or designated mental retardation
330 professional stating:
331 (a) that the physician or designated mental retardation professional has completed
332 diagnostic testing of the individual within the last three months;
333 (b) the diagnosis of the individual and the date of that diagnosis;
334 (c) that in the opinion of the physician or designated mental retardation professional the
335 individual has mental retardation;
336 (d) one or more of the conditions described in Subsection 62A-5-303 [
337 (e) if the individual is over the age of 18, and seeks voluntary commitment, that in the
338 physician or designated mental retardation professional's opinion the individual has the mental
339 capacity for informed consent.
340 Section 13. Section 62A-5-307 is amended to read:
341 62A-5-307. Voluntary commitment.
342 The director of the division, or [
343 for observation, diagnosis, care, and treatment any individual 18 years of age or older, who:
344 (1) has mental retardation or has symptoms of mental retardation;
345 (2) files a voluntary application for commitment that includes an affidavit in compliance
346 with Section 62A-5-306 ;
347 (3) has not been coerced into submitting the application; and
348 (4) has been reviewed and approved by the division's review committee.
349 Section 14. Section 62A-5-308 is amended to read:
350 62A-5-308. Commitment -- Persons under age 18.
351 Beginning July 1, 1993, the director of the division or [
352 commit an individual under 18 years of age who has mental retardation or symptoms of mental
353 retardation, to the division for observation, diagnosis, care, and treatment if that commitment is
354 based on:
355 (1) involuntary commitment under the provisions of Section 62A-5-312 . Proceedings for
356 involuntary commitment of an individual under 18 years of age may be commenced by filing a
357 written petition with the juvenile court under Section 62A-5-312 . The juvenile court has
358 jurisdiction to proceed in the same manner and with the same authority as the district court; or
359 (2) an emergency commitment in accordance with the provisions of Section 62A-5-311 .
360 Section 15. Section 62A-5-309 is amended to read:
361 62A-5-309. Commitment -- Person 18 years or older.
362 Beginning July 1, 1993, the director or [
363 division an individual 18 years of age or older who has mental retardation, for observation,
364 diagnosis, care, and treatment if that commitment is based on:
365 (1) involuntary commitment under the provisions of Section 62A-5-312 ;
366 (2) voluntary commitment under the provisions of Section 62A-5-307 ; or
367 (3) temporary emergency commitment under the provisions of Section 62A-5-311 .
368 Section 16. Section 62A-5-311 is amended to read:
369 62A-5-311. Temporary emergency commitment -- Observation and evaluation.
370 (1) The director of the division or [
371 an individual to the division and therefore, as a matter of course, to a mental retardation facility
372 for observation and evaluation upon:
373 (a) written application by a responsible person who has reason to know that the individual
374 is in need of commitment, stating:
375 (i) a belief that the individual has mental retardation and is likely to cause serious injury
376 to self or others if not immediately committed;
377 (ii) personal knowledge of the individual's condition; and
378 (iii) the circumstances supporting that belief;
379 (b) certification by a licensed physician or designated mental retardation professional
380 stating that the physician or designated mental retardation professional:
381 (i) has examined the individual within a three-day period immediately preceding the
382 certification; and
383 (ii) is of the opinion that the individual has mental retardation, and that because of the
384 individual's mental retardation is likely to injure self or others if not immediately committed.
385 (2) If the individual in need of commitment is not placed in the custody of the director or
387 director's designee may certify, either in writing or orally, that the individual is in need of
388 immediate [
389 (3) Upon receipt of the application required by Subsection (1)(a) and the certifications
390 required by Subsection (1)(b) and Subsection (2), a peace officer may take the individual named
391 in the application and certificates into custody, and may transport the individual to a designated
392 mental retardation facility.
393 (4) (a) An individual committed under this section may be held for a maximum of 24
394 hours, excluding Saturdays, Sundays, and legal holidays. At the expiration of that time, the
395 individual shall be released unless proceedings for involuntary commitment have been commenced
396 under Section 62A-5-312 .
397 (b) After proceedings for involuntary commitment have been commenced the individual
398 shall be released unless:
399 (i) the individual has made voluntary application for commitment in accordance with
400 Section 62A-5-307 ; or
401 (ii) an order of detention is issued in accordance with Section 62A-5-312 .
402 (5) If an individual is committed to the division under this section on the application of
403 any person other than the individual's legal guardian, spouse, parent, or next of kin, the director
404 or [
405 legal guardian, spouse, parent, or next of kin, if known.
406 Section 17. Section 62A-5-312 is amended to read:
407 62A-5-312. Involuntary commitment -- Procedures -- Necessary findings
408 -- Periodic review.
409 (1) Any responsible person who has reason to know that an individual is in need of
410 commitment, who has a belief that the individual has mental retardation, and who has personal
411 knowledge of the conditions and circumstances supporting that belief, may commence proceedings
412 for involuntary commitment by filing a written petition with the district court, or if the subject of
413 the petition is less than 18 years of age with the juvenile court, of the county in which the
414 individual to be committed is physically located at the time the petition is filed. The application
415 shall be accompanied by:
416 (a) a certificate of a licensed physician or a designated mental retardation professional,
417 stating that within a seven-day period immediately preceding the certification, the physician or
418 designated mental retardation professional examined the individual and believes that the individual
420 (b) a written statement by the petitioner stating that the individual was requested but
421 refused to submit to an examination for mental retardation by a licensed physician or designated
422 mental retardation professional, and that the individual refuses to voluntarily go to the division or
423 a mental retardation facility recommended by the division for treatment. That statement shall be
424 under oath and set forth the facts on which it is based.
425 (2) Before issuing a detention order, the court may require the petitioner to consult with
426 personnel at the division or at a mental retardation facility and may direct a designated mental
427 retardation professional to interview the petitioner and the individual to be committed, to
428 determine the existing facts, and to report them to the court.
429 (3) The court may issue a detention order and may direct a peace officer to immediately
430 take the individual to a mental retardation facility to be detained for purposes of an examination
431 if the court finds from the petition, from other statements under oath, or from reports of physicians
432 or designated mental retardation professionals that there is a reasonable basis to believe that the
433 individual to be committed:
434 (a) poses an immediate danger of physical injury to self or others;
435 (b) requires involuntary commitment pending examination and hearing;
436 (c) the individual was requested but refused to submit to an examination by a licensed
437 physician or designated mental retardation professional; or
438 (d) the individual refused to voluntarily go to the division or to a mental retardation facility
439 recommended by the division.
440 (4) (a) If the court issues a detention order based on an application that did not include a
441 certification by a designated mental retardation professional or physician in accordance with
442 Subsection (1)(a), the director or [
443 of the detention order, excluding Saturdays, Sundays, and legal holidays, examine the individual,
444 report the results of the examination to the court and inform the court:
445 (i) whether the director or [
447 (ii) whether the individual is capable of giving informed consent and has agreed to
448 voluntary admission under Section 62A-5-307 ; and
449 (iii) whether appropriate [
450 acceptable without court proceedings.
451 (b) If the report of the director or [
452 the examiner, the examiner shall immediately send the results of the examination in writing to the
453 clerk of the court.
454 (5) Immediately after an individual is involuntarily committed under a detention order or
455 under Section 62A-5-311 , the director or [
456 orally and in writing, of [
457 individual desires to communicate with an attorney, the director or [
458 shall take immediate steps to assist the individual in contacting and communicating with an
460 (6) (a) Immediately after commencement of proceedings for involuntary commitment, the
461 court shall give notice of commencement of the proceedings to:
462 (i) the individual to be committed;
463 (ii) the applicant;
464 (iii) any legal guardian of the individual;
465 (iv) adult members of the individual's immediate family;
466 (v) legal counsel of the individual to be committed, if any;
467 (vi) the division; and
468 (vii) any other person to whom the individual requests, or the court designates, notice to
469 be given.
470 (b) If an individual cannot or refuses to disclose the identity of persons to be notified, the
471 extent of notice shall be determined by the court.
472 (7) That notice shall:
473 (a) set forth the allegations of the petition and all supporting facts;
474 (b) be accompanied by a copy of any detention order issued under Subsection (3); and
475 (c) state that a hearing will be held within the time provided by law, and give the time and
476 place for that hearing.
477 (8) The court may transfer the case and the custody of the individual to be committed to
478 any other district court within the state, if:
479 (a) there are no appropriate facilities for persons with mental retardation within the judicial
480 district; and
481 (b) the transfer will not be adverse to the interests of the individual.
482 (9) (a) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, after any order
483 or commitment under a detention order, the court shall appoint two designated mental retardation
484 professionals to examine the individual. If requested by the individual's counsel, the court shall
485 appoint a reasonably available, qualified person designated by counsel to be one of the examining
486 designated mental retardation professionals. The examinations shall be conducted:
487 (i) separately;
488 (ii) at the home of the individual to be committed, a hospital, a facility for person's with
489 mental retardation, or any other suitable place not likely to have a harmful effect on the individual;
491 (iii) within a reasonable period of time after appointment of the examiners by the court.
492 (b) The court shall set a time for a hearing to be held within [
493 appointment of the examiners. However, the court may immediately terminate the proceedings
494 and dismiss the application if, prior to the hearing date, the examiners, the director, or [
495 director's designee informs the court that:
496 (i) the individual [
497 (ii) the individual has agreed to voluntary commitment under Section 62A-5-307 ; or
498 (iii) treatment programs are available and acceptable without court proceedings.
499 (10) (a) Each individual has the right to be represented by counsel at the commitment
500 hearing and in all preliminary proceedings. If neither the individual nor others provide counsel,
501 the court shall appoint counsel and allow sufficient time for counsel to consult with the individual
502 prior to any hearing.
503 (b) If the individual is indigent, the county in which the individual was physically located
504 when taken into custody shall pay reasonable attorneys' fees as determined by the court.
505 (11) The division or a designated mental retardation professional in charge of the
506 individual's care shall provide all documented information on the individual to be committed and
507 to the court at the time of the hearing. The individual's attorney shall have access to all
508 documented information on the individual at the time of and prior to the hearing.
509 (12) (a) The court shall provide an opportunity to the individual, the petitioner, and all
510 other persons to whom notice is required to be given to appear at the hearing, to testify, and to
511 present and cross-examine witnesses.
512 (b) The court may, in its discretion:
513 (i) receive the testimony of any other person;
514 (ii) allow a waiver of the right to appear only for good cause shown;
515 (iii) exclude from the hearing all persons not necessary to conduct the proceedings; and
516 (iv) upon motion of counsel, require the testimony of each examiner to be given out of the
517 presence of any other examiner.
518 (c) The hearing shall be conducted in as informal a manner as may be consistent with
519 orderly procedure, and in a physical setting that is not likely to have a harmful effect on the
520 individual. The Utah Rules of Evidence apply, and the hearing shall be a matter of court record.
521 A verbatim record of the proceedings shall be maintained.
522 (13) The court may order commitment if, upon completion of the hearing and
523 consideration of the record, it finds by clear and convincing evidence that all of the following
524 conditions are met:
525 (a) the individual to be committed [
526 (b) because of the individual's mental retardation one or more of the following conditions
528 (i) the individual poses an immediate danger of physical injury to self or others;
529 (ii) the individual lacks the capacity to provide the basic necessities of life, such as food,
530 clothing, or shelter; or
531 (iii) the individual is in immediate need of [
532 specialized services and supports to minimize the effects of the condition which poses a threat of
533 serious physical or psychological injury to the individual, and the individual lacks the capacity to
534 engage in a rational decision-making process concerning the need for [
536 of the [
537 (c) there is no appropriate, less restrictive alternative reasonably available; and
538 (d) the division or the mental retardation facility recommended by the division in which
539 the individual is to be committed can provide the individual with [
541 condition and needs.
542 (14) In the absence of any of the required findings by the court, described in Subsection
543 (13), the court shall dismiss the proceedings.
544 (15) (a) The order of commitment shall designate the period for which the individual will
545 be committed. An initial commitment may not exceed six months. Before the end of the initial
546 commitment period, the administrator of the facility for persons with mental retardation shall
547 commence a review hearing on behalf of the individual.
548 (b) At the conclusion of the review hearing, the court may issue an order of commitment
549 for up to a one-year period.
550 (16) An individual committed under this part has the right to a rehearing, upon filing a
551 petition with the court within 30 days after entry of the court's order. If the petition for rehearing
552 alleges error or mistake in the court's findings, the court shall appoint one impartial licensed
553 physician and two impartial designated mental retardation professionals who have not previously
554 been involved in the case to examine the individual. The rehearing shall, in all other respects, be
555 conducted in accordance with this part.
556 (17) (a) The court shall maintain a current list of all individuals under its orders of
557 commitment. That list shall be reviewed in order to determine those [
558 been under an order of commitment for the designated period.
559 (b) At least two weeks prior to the expiration of the designated period of any commitment
560 order still in effect, the court that entered the original order shall inform the director of the division
561 of the impending expiration of the designated commitment period.
562 (c) The staff of the division shall immediately:
563 (i) reexamine the reasons upon which the order of commitment was based and report the
564 results of the examination to the court;
565 (ii) discharge the [
566 justifying commitment no longer exist; and
567 (iii) immediately inform the court of any discharge.
568 (d) If the director of the division reports to the court that the conditions justifying
569 commitment no longer exist, and the administrator of the mental retardation facility does not
570 discharge the individual at the end of the designated period, the court shall order the immediate
571 discharge of the individual, unless involuntary commitment proceedings are again commenced in
572 accordance with this section.
573 (e) If the director of the division, or [
574 the conditions designated in Subsection (13) still exist, the court may extend the commitment order
575 for up to one year. At the end of any extension, the individual must be reexamined in accordance
576 with this section, or discharged.
577 (18) When a resident is discharged under this subsection, the division shall provide any
578 further support services available and required to meet the [
579 Section 18. Section 62A-5-313 is amended to read:
580 62A-5-313. Transfer -- Procedures.
581 (1) The director of the division, or [
582 committed [
583 During that placement, the order of commitment shall remain in effect, until the [
584 is discharged or the order is terminated.
585 (2) If the [
586 placement under this section, [
587 executive director or [
588 with the procedures and requirements of Title 63, Chapter 46b, Administrative Procedures Act.
589 If an objection is made, the proposed placement may not take effect until the committee holds that
590 hearing and the executive director makes a final decision on the placement.
591 Section 19. Section 62A-5-314 is amended to read:
592 62A-5-314. Release of person voluntarily committed -- Exceptions.
593 A person who has been voluntarily committed who requests release, or whose release is
594 requested in writing by [
595 be immediately released except that:
596 (1) if the person is 18 years of age or older and was voluntarily admitted on [
597 person's own application, the release shall be conditioned upon the agreement of the [
598 person; and
599 (2) if the director or [
600 person, committed under Section 62A-5-307 , 62A-5-308 , or 62A-5-309 would pose an immediate
601 danger of physical injury to self or others, release of that [
602 up to 48 hours, excluding Saturdays, Sundays, and legal holidays. Within that time period, the
603 director or [
604 district or juvenile court. The director or [
605 person immediate written notice of postponement of release and the reasons for that postponement.
606 Section 20. Section 62A-5-315 is amended to read:
607 62A-5-315. Petition for reexamination.
608 (1) A [
609 spouse, legal guardian, relative, or attorney, may file a petition for reexamination with the district
610 court of the county in which the [
611 (2) Upon receipt of that petition, the court shall conduct proceedings under Section
612 62A-5-312 . If the petition is filed sooner than six months after the issuance of an order of
613 indeterminate involuntary commitment, the court may delay commencing proceedings until that
614 six-month period has ended, unless good cause for holding a hearing before the end of that
615 six-month period exists.
616 Section 21. Section 62A-5-316 is amended to read:
617 62A-5-316. Temporary detention.
618 Pending removal to a mental retardation facility, an individual taken into custody or
619 ordered to be committed under this part may be detained in [
620 some other suitable facility. The individual shall not, however, be detained in a nonmedical
621 facility used for detention of individuals charged with or convicted of penal offenses, except in a
622 situation of extreme emergency. The division shall take reasonable measures, as may be necessary,
623 to assure proper care of an individual temporarily detained under this part.
624 Section 22. Section 62A-5-317 is amended to read:
625 62A-5-317. Authority to transfer resident.
626 (1) The administrator of a mental retardation facility, or [
627 may transfer or authorize the transfer of a [
628 if, before the transfer, the administrator conducts a careful evaluation of the [
630 best interest of that [
631 give immediate notice of the transfer to the [
634 (2) If a [
635 transfer under this section, the administrator shall conduct a hearing on the objection before a
636 committee composed of persons selected by the administrator. That committee shall hear all
637 evidence and make a recommendation to the administrator concerning the proposed transfer. The
638 transfer may not take effect until the committee holds that hearing and the administrator renders
639 a final decision on the proposed transfer.
640 Section 23. Section 62A-5-318 is amended to read:
641 62A-5-318. Involuntary treatment with medication -- Committee -- Findings.
642 (1) If, after commitment, a [
643 the director, the administrator of the facility for persons with mental retardation, or a designee,
644 shall submit documentation regarding the [
645 composed of:
646 (a) a licensed physician experienced in treating persons with mental retardation and related
647 disabilities, who is not directly involved in the [
648 is not biased toward any one facility;
649 (b) a psychologist who is a designated mental retardation professional who is not directly
650 involved in the resident's treatment or diagnosis; and
651 (c) another designated mental retardation professional of the facility for persons with
652 mental retardation, or a designee.
653 (2) Based upon the court's finding, under Subsection 62A-5-312 (13), that the [
654 person lacks the ability to engage in a rational decision-making process regarding the need for
656 by evidence of inability to weigh the possible costs and benefits of treatment, the committee may
657 authorize involuntary treatment with medication if it determines that:
658 (a) the proposed treatment is in the medical best interest of the [
659 into account the possible side effects as well as the potential benefits of the medication; and
660 (b) the proposed treatment is in accordance with prevailing standards of accepted medical
662 (3) In making the determination described in Subsection (2), the committee shall consider
663 the [
664 its possible side effects, and any previous reaction to the same or comparable medication.
665 (4) Any authorization of involuntary treatment under this section shall be periodically
666 reviewed in accordance with rules promulgated by the division.
667 Section 24. Section 62A-5-402 is amended to read:
668 62A-5-402. Scope of services -- Principles.
692 for family members with disabilities:
696 entire family;
698 individual families; and
700 that are available to each family.
701 Section 25. Section 62A-5-403 is amended to read:
702 62A-5-403. Services for persons under 11 years of age.
703 (1) Except as provided in Subsection (2), after June 30, 1996, the division may not provide
704 residential services to persons with disabilities who are under 11 years of age.
705 (2) The prohibition of Subsection (1) does not include residential services that are
707 (a) for persons in the custody of the Division of Child and Family Services;
708 (b) under a plan for home-based services, including respite and temporary residential care
709 or services provided by a professional parent under contract with the division; or
710 (c) after a written finding by the director that out-of-home residential placement is the most
711 appropriate way to meet the needs of the person with disabilities and [
712 Section 26. Section 62A-5-501 is enacted to read:
715 62A-5-501. Definitions.
716 As used in this part:
717 (1) "Annual open enrollment period" means a defined period of time each year during
718 which all eligible persons will be informed of the service venues that might be available to them
719 and within which those persons will be invited to declare their interest in either continuing in their
720 current residential services or making a change of venues.
721 (2) "Home and community-based waiver services" means the array of services and
722 supports defined by Utah's "Home and Community-Based Services Waiver for Individuals with
723 Mental Retardation and Other Developmental Disabilities."
724 (3) "Intermediate care facility for persons with mental retardation" means a licensed
725 state-operated or privately operated residential center that meets and maintains the standards for
726 that designation as defined by Title XIX of the Social Security Act.
727 (4) "Portability" means the physical transfer of eligible persons between intermediate care
728 facilities for persons with mental retardation and home and community-based waiver services.
729 Section 27. Section 62A-5-502 is enacted to read:
730 62A-5-502. Division duties.
731 (1) The division shall apply this part to assure reasonable and appropriate choice of
732 services and service providers by persons who qualify for and receive residential services funded
733 under Title XIX of the Social Security Act.
734 (2) The division director shall:
735 (a) coordinate with the director of the Division of Health Care Financing in the planning
736 and execution of an annual open enrollment period for all persons receiving residential services
737 either through the home and community-based services waiver for individuals with mental
738 retardation and other developmental disabilities or through an intermediate care facility for persons
739 with mental retardation, including Utah State Developmental Center; and
740 (b) assure that the actual transfer of individuals between home and community-based
741 services and intermediate care services remain within the boundaries of the established residential
742 service budgets of the Division of Services for People with Disabilities and the Division of Health
743 Care Financing or within appropriations made by the Legislature for the purpose of increasing
745 (3) The division shall continue to provide for appropriate choice of services and service
746 providers by persons who receive division services and their guardians, and to seek to
747 accommodate requests for changes in services or service providers regardless of whether the
748 request is made within or beyond the time frame of the annual open enrollment period.
749 Section 28. Section 62A-5a-103 is amended to read:
750 62A-5a-103. Coordinating Council for Persons with Disabilities -- Creation --
751 Membership -- Expenses.
752 (1) There is created the Coordinating Council for Persons with Disabilities.
753 (2) The council shall consist of:
754 (a) the director of the Division of Services for People with Disabilities within the
755 Department of Human Services, or [
756 (b) the director of family health services programs, appointed under Section 26-10-3 , or
758 (c) the executive director of the Utah State Office of Rehabilitation, or [
759 director's designee;
760 (d) the state director of special education, or [
761 (e) the director of the Division of Health Care Financing within the Department of Health,
762 or [
763 (f) the director of the Division of Mental Health within the Department of Human
764 Services, or [
765 (g) the superintendent of Schools for the Deaf and Blind, or [
766 designee; and
767 (h) a person with a disability, a family member of a person with a disability, or an advocate
768 for persons with disabilities, appointed by the members listed in Subsections (2)(a) through (g).
769 (3) (a) The council shall annually elect a chair from its membership.
770 (b) Five members of the council are a quorum.
771 (4) (a) State government officer and employee members who do not receive salary, per
772 diem, or expenses from their agency for their service may receive per diem and expenses incurred
773 in the performance of their official duties from the council at the rates established by the Division
774 of Finance under Sections 63A-3-106 and 63A-3-107 .
775 (b) State government officer and employee members may decline to receive per diem and
776 expenses for their service.
777 Section 29. Section 62A-6-101 is amended to read:
778 62A-6-101. Definitions.
779 As used in this chapter:
780 (1) "Informed consent" means consent that is voluntary and based on an understanding by
781 the person to be sterilized of the nature and consequences of sterilization, the reasonably
782 foreseeable risks and benefits of sterilization, and the available alternative methods of
784 (2) "Institutionalized" means residing in the Utah State Developmental Center, the Utah
785 State Hospital, a residential facility for persons with [
786 10-9-605 and 17-27-605 , a group home for [
787 or a foster care home or facility.
788 (3) "Sterilization" means any medical procedure, treatment, or operation rendering an
789 individual permanently incapable of procreation.
790 Section 30. Section 62A-6-102 is amended to read:
791 62A-6-102. Sterilization of persons 18 years of age or older.
792 (1) It is lawful for a physician to sterilize a person who is 18 years of age or older and who
793 has the capacity to give informed consent.
794 (2) It is unlawful for a physician to sterilize a person who is 18 years of age or older and
795 who is institutionalized, unless:
796 (a) the physician, through careful examination and counseling, ensures that the person is
797 capable of giving informed consent and that no undue influence or coercion to consent has been
798 placed on that person by nature of the fact that [
799 (b) the person is not capable of giving informed consent, a petition has been filed in
800 accordance with Section 62A-6-107 , and an order authorizing the sterilization has been entered
801 by a court of competent jurisdiction.
802 (3) It is unlawful for a physician to sterilize a person who is 18 years of age or older and
803 who is not capable of giving informed consent unless a petition has been filed in accordance with
804 Section 62A-6-107 and an order authorizing sterilization has been entered by a court of competent
806 Section 31. Section 62A-6-103 is amended to read:
807 62A-6-103. Sterilization of persons under 18 years of age.
808 It is unlawful for a physician to sterilize a person who is under 18 years of age unless:
809 (1) the person is married or otherwise emancipated and the physician, through careful
810 examination and counseling, ensures that the person is capable of giving informed consent. If that
811 person is institutionalized, the physician shall also ensure that no undue influence or coercion to
812 consent has been placed on the person by nature of the fact that [
814 (2) a petition has been filed in accordance with Section 62A-6-107 , and an order
815 authorizing sterilization has been entered by a court of competent jurisdiction.
816 Section 32. Section 62A-6-105 is amended to read:
817 62A-6-105. Persons who may give informed consent.
818 For purposes of this chapter, the following persons may give informed consent to
820 (1) a person who is the subject of sterilization, if [
821 informed consent; and
822 (2) a person appointed by the court to give informed consent on behalf of a subject of
823 sterilization who is incapable of giving informed consent.
824 Section 33. Section 62A-6-107 is amended to read:
825 62A-6-107. Petition for order authorizing sterilization.
826 A petition for an order authorizing sterilization may be filed by a person who desires
827 sterilization, or by [
828 The court shall adjudicate the petition for sterilization in accordance with Section 62A-6-108 .
829 Section 34. Section 62A-6-108 is amended to read:
830 62A-6-108. Factors to be considered by court -- Evaluations -- Interview -- Findings
831 of fact.
832 (1) If the court finds that the subject of sterilization is not capable of giving informed
833 consent, the court shall consider, but not by way of limitation, the following factors concerning that
835 (a) the nature and degree of [
836 the condition is permanent;
837 (b) the level of [
838 contraception, and whether [
840 (c) [
841 presumption that the ability to procreate and reproduce exists in a person of normal physical
843 (d) the potentially injurious physical and psychological effects from sterilization,
844 pregnancy, childbirth, and parenthood;
845 (e) the alternative methods of birth control presently available including, but not limited
846 to, drugs, intrauterine devices, education and training, and the feasibility of one or more of those
847 methods as an alternative to sterilization;
848 (f) the likelihood that [
849 abused or exploited;
850 (g) the method of sterilization that is medically advisable, and least intrusive and
851 destructive of [
852 (h) the advisability of postponing sterilization until a later date; and
853 (i) the likelihood that [
854 care and provide for a child.
855 (2) The court may require that independent medical, psychological, and social evaluations
856 of the subject of sterilization be made prior to ruling on a petition for sterilization. The court may
857 appoint experts to perform those examinations and evaluations and may require the petitioner, to
858 the extent of the petitioner's ability, to bear the costs incurred.
859 (3) The court shall interview the subject of sterilization to determine [
860 understanding of and desire for sterilization. The expressed preference of the person shall be made
861 a part of the record, and shall be considered by the court in rendering its decision. The court is not
862 bound by the expressed preference of the subject of sterilization; however, if the person expresses
863 a preference not to be sterilized, the court shall deny the petition unless the petitioner proves
864 beyond a reasonable doubt that the person will suffer serious physical or psychological injury if
865 the petition is denied.
866 (4) When adjudicating a petition for sterilization the court shall determine, on the basis
867 of all the evidence, what decision regarding sterilization would have been made by the subject of
868 sterilization, if [
869 decision regarding sterilization shall be in the best interest of the person to be sterilized.
870 (5) If the court grants a petition for sterilization, it shall make appropriate findings of fact
871 in support of its order.
872 Section 35. Section 62A-6-110 is amended to read:
873 62A-6-110. Notice of hearing -- Service.
874 A copy of the petition and notice of the hearing shall be served personally on the person
875 to be sterilized not less than 20 days before the hearing date. The notice shall state the date, time,
876 and place of the hearing, and shall specifically state that the hearing is to adjudicate either a
877 petition for declaration of capacity to give informed consent to sterilization or a petition for
878 sterilization. Notice shall be served on that person's parents, spouse, guardian, or custodian and
879 on [
880 before the hearing date.
Legislative Review Note
as of 1-28-00 9:01 AM
A limited legal review of this legislation raises no obvious constitutional or statutory concerns.