H.B. 241

1

COMMITMENT FOR MENTAL RETARDATION
2 2004 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Calvin G. Bird
5
6 LONG TITLE
7 General Description:
8 This bill affects admission to a mental retardation facility.
9 Highlighted Provisions:
10 This bill:
11 . repeals voluntary commitment of an adult with mental retardation to the Division of
12 Services for People with Disabilities or a mental retardation facility or program;
13 . eliminates a discretionary delay of proceedings on a petition for reexamination of
14 involuntary commitment;
15 . amends the duties of the Board of Services for People with Disabilities; and
16 . makes conforming amendments.
17 Monies Appropriated in this Bill:
18 None
19 Other Special Clauses:
20 None
21 Utah Code Sections Affected:
22 AMENDS:
23 62A-5-105, as last amended by Chapter 246, Laws of Utah 2003
24 62A-5-301, as last amended by Chapter 248, Laws of Utah 1996
25 62A-5-302, as last amended by Chapter 132, Laws of Utah 1993
26 62A-5-309, as last amended by Chapter 132, Laws of Utah 1993
27 62A-5-311, as last amended by Chapter 132, Laws of Utah 1993

28 62A-5-312, as last amended by Chapter 132, Laws of Utah 1993
29 62A-5-315, as enacted by Chapter 1, Laws of Utah 1988
30 62A-5-317, as enacted by Chapter 1, Laws of Utah 1988
31 REPEALS:
32 62A-5-303, as last amended by Chapter 243, Laws of Utah 1996
33 62A-5-306, as last amended by Chapter 132, Laws of Utah 1993
34 62A-5-307, as last amended by Chapter 132, Laws of Utah 1993
35 62A-5-314, as last amended by Chapter 132, Laws of Utah 1993
36
37 Be it enacted by the Legislature of the state of Utah:
38 Section 1. Section 62A-5-105 is amended to read:
39 62A-5-105. Board -- Membership -- Responsibilities -- Policy mediation.
40 (1) The board is the policymaking body for the division and shall establish by rule the
41 policy of the division in accordance with:
42 (a) the policy of the Legislature as set forth by this chapter; and
43 (b) Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
44 (2) The board shall:
45 (a) establish program policy for the division, the developmental center, and programs
46 and facilities operated by or under contract with the division;
47 (b) establish policies for the assessment and collection of fees for programs within the
48 division;
49 (c) no later than July 1, 2003, establish a graduated fee schedule based on ability to pay
50 and implement [such] the schedule with respect to service recipients and their families where
51 not otherwise prohibited by federal law or regulation or not otherwise provided for in Section
52 62A-5-109 ;
53 (d) establish procedures to ensure that private citizens, consumers, private contract
54 providers, allied state and local agencies, and others are provided with an opportunity to
55 comment and provide input regarding any new policy or proposed revision to an existing
56 policy;
57 (e) provide a mechanism for systematic and regular review of existing policy and for
58 consideration of policy changes proposed by the persons and agencies described under

59 Subsection (2)(d);
60 (f) (i) establish and periodically review the criteria used to determine who may receive
61 services from the division and how the delivery of those services is prioritized within available
62 funding; and
63 (ii) make periodic recommendations based on the review conducted under Subsection
64 (2)(f)(i) to the Health and Human Services Interim Committee beginning at or before the
65 September 2002 meeting of the committee;
66 (g) review implementation and compliance by the division with policies established by
67 the board to ensure that the policies established by the Legislature in this chapter are carried
68 out; and
69 (h) annually report to the executive director.
70 (3) At least one member of the board shall be a person whose life or family is directly
71 affected by a disability, and at least one other board member shall be a person with a physical
72 disability.
73 (4) The executive director shall mediate any differences which arise between the
74 policies of the board and those of any other policy board in the department.
75 Section 2. Section 62A-5-301 is amended to read:
76 62A-5-301. Definitions.
77 As used in this part:
78 (1) "Designated mental retardation professional" means:
79 (a) a psychologist licensed under Title 58, Chapter 25a, who has either one year of
80 specialized training in work with persons with mental retardation or one year of clinical
81 experience with persons with mental retardation and who has been designated by the division
82 as specially qualified, by training and experience, in the treatment of mental retardation; or
83 (b) a clinical or certified social worker licensed under Title 58, Chapter 60, Mental
84 Health Professional Practice Act, who has two years of clinical experience with persons with
85 mental retardation and who has been designated by the division as specially qualified, by
86 training and experience, in the treatment of mental retardation.
87 (2) "Licensed physician" means an individual licensed to practice medicine under
88 Section 58-67-301 , Utah Medical Practice Act, Section 58-68-301 , Utah Osteopathic Medical
89 Practice Act, or a medical officer of the United States Government while in this state in the

90 performance of official duties.
91 (3) "Mental retardation facility" means a residential facility for persons with mental
92 retardation, that receives state or federal funds under Title XIX of the federal Social Security
93 Act, for the purpose of serving the population of mentally retarded persons in this state.
94 (4) "Resident" means an individual under observation, care, or treatment in a mental
95 retardation facility.
96 [(5) "Review committee" means a committee established under Section 62A-5-303 to
97 review and approve or disapprove voluntary commitments to the division and admissions to
98 mental retardation facilities in accordance with this part.]
99 Section 3. Section 62A-5-302 is amended to read:
100 62A-5-302. Division responsibility.
101 [(1)] The division is responsible for the supervision, care, and treatment of persons
102 with mental retardation in this state who are committed to its jurisdiction under the provisions
103 of this part.
104 [(2) The division is also responsible to evaluate and determine, after the voluntary
105 commitment criteria described in Section 62A-5-303 have been found to exist, the most
106 appropriate, least restrictive setting for a mentally retarded individual.]
107 Section 4. Section 62A-5-309 is amended to read:
108 62A-5-309. Commitment -- Person 18 years or older.
109 Beginning July 1, 1993, the director or his designee may commit to the division an
110 individual 18 years of age or older who has mental retardation, for observation, diagnosis, care,
111 and treatment if that commitment is based on:
112 (1) involuntary commitment under the provisions of Section 62A-5-312 ; or
113 [(2) voluntary commitment under the provisions of Section 62A-5-307 ; or]
114 [(3)] (2) temporary emergency commitment under the provisions of Section
115 62A-5-311 .
116 Section 5. Section 62A-5-311 is amended to read:
117 62A-5-311. Temporary emergency commitment -- Observation and evaluation.
118 (1) The director of the division or his designee may temporarily commit an individual
119 to the division and therefore, as a matter of course, to a mental retardation facility for
120 observation and evaluation upon:

121 (a) written application by a responsible person who has reason to know that the
122 individual is in need of commitment, stating:
123 (i) a belief that the individual has mental retardation and is likely to cause serious
124 injury to self or others if not immediately committed;
125 (ii) personal knowledge of the individual's condition; and
126 (iii) the circumstances supporting that belief; or
127 (b) certification by a licensed physician or designated mental retardation professional
128 stating that the physician or designated mental retardation professional:
129 (i) has examined the individual within a three-day period immediately preceding the
130 certification; and
131 (ii) is of the opinion that the individual has mental retardation, and that because of the
132 individual's mental retardation is likely to injure self or others if not immediately committed.
133 (2) If the individual in need of commitment is not placed in the custody of the director
134 or his designee by the person submitting the application, the director or his designee may
135 certify, either in writing or orally that the individual is in need of immediate commitment to
136 prevent injury to self or others.
137 (3) Upon receipt of the application required by Subsection (1)(a) and the certifications
138 required by Subsection (1)(b) and Subsection (2), a peace officer may take the individual
139 named in the application and certificates into custody, and may transport the individual to a
140 designated mental retardation facility.
141 (4) (a) An individual committed under this section may be held for a maximum of 24
142 hours, excluding Saturdays, Sundays, and legal holidays. At the expiration of that time, the
143 individual shall be released unless proceedings for involuntary commitment have been
144 commenced under Section 62A-5-312 .
145 (b) After proceedings for involuntary commitment have been commenced the
146 individual shall be released unless[: (i) the individual has made voluntary application for
147 commitment in accordance with Section 62A-5-307 ; or (ii)] an order of detention is issued in
148 accordance with Section 62A-5-312 .
149 (5) If an individual is committed to the division under this section on the application of
150 any person other than the individual's legal guardian, spouse, parent, or next of kin, the
151 director or his designee shall immediately give notice of the commitment to the individual's

152 legal guardian, spouse, parent, or next of kin, if known.
153 Section 6. Section 62A-5-312 is amended to read:
154 62A-5-312. Involuntary commitment -- Procedures -- Necessary findings
155 -- Periodic review.
156 (1) Any responsible person who has reason to know that an individual is in need of
157 commitment, who has a belief that the individual has mental retardation, and who has personal
158 knowledge of the conditions and circumstances supporting that belief, may commence
159 proceedings for involuntary commitment by filing a written petition with the district court, or if
160 the subject of the petition is less than 18 years of age with the juvenile court, of the county in
161 which the individual to be committed is physically located at the time the petition is filed. The
162 application shall be accompanied by:
163 (a) a certificate of a licensed physician or a designated mental retardation professional,
164 stating that within a seven-day period immediately preceding the certification, the physician or
165 designated mental retardation professional examined the individual and believes that the
166 individual is mentally retarded and is in need of involuntary commitment; or
167 (b) a written statement by the petitioner stating that the individual was requested but
168 refused to submit to an examination for mental retardation by a licensed physician or
169 designated mental retardation professional, and that the individual refuses to voluntarily go to
170 the division or a mental retardation facility recommended by the division for treatment. That
171 statement shall be under oath and set forth the facts on which it is based.
172 (2) Before issuing a detention order, the court may require the petitioner to consult
173 with personnel at the division or at a mental retardation facility and may direct a designated
174 mental retardation professional to interview the petitioner and the individual to be committed,
175 to determine the existing facts, and to report them to the court.
176 (3) The court may issue a detention order and may direct a peace officer to immediately
177 take the individual to a mental retardation facility to be detained for purposes of an
178 examination if the court finds from the petition, from other statements under oath, or from
179 reports of physicians or designated mental retardation professionals that there is a reasonable
180 basis to believe that the individual to be committed:
181 (a) poses an immediate danger of physical injury to self or others;
182 (b) requires involuntary commitment pending examination and hearing;

183 (c) the individual was requested but refused to submit to an examination by a licensed
184 physician or designated mental retardation professional; or
185 (d) the individual refused to voluntarily go to the division or to a mental retardation
186 facility recommended by the division.
187 (4) (a) If the court issues a detention order based on an application that did not include
188 a certification by a designated mental retardation professional or physician in accordance with
189 Subsection (1)(a), the director or his designee shall within 24 hours after issuance of the
190 detention order, excluding Saturdays, Sundays, and legal holidays, examine the individual,
191 report the results of the examination to the court and inform the court:
192 (i) whether the director or his designee believes that the individual is mentally retarded;
193 and
194 [(ii) whether the individual is capable of giving informed consent and has agreed to
195 voluntary admission under Section 62A-5-307 ; and]
196 [(iii)] (ii) whether appropriate treatment programs are available and [acceptable] will
197 be used by the individual without court proceedings.
198 (b) If the report of the director or his designee is based on an oral report of the
199 examiner, the examiner shall immediately send the results of the examination in writing to the
200 clerk of the court.
201 (5) Immediately after an individual is involuntarily committed under a detention order
202 or under Section 62A-5-311 , the director or his designee shall inform the individual, orally and
203 in writing, of his right to communicate with an attorney. If an individual desires to
204 communicate with an attorney, the director or his designee shall take immediate steps to assist
205 the individual in contacting and communicating with an attorney.
206 (6) (a) Immediately after commencement of proceedings for involuntary commitment,
207 the court shall give notice of commencement of the proceedings to:
208 (i) the individual to be committed;
209 (ii) the applicant;
210 (iii) any legal guardian of the individual;
211 (iv) adult members of the individual's immediate family;
212 (v) legal counsel of the individual to be committed, if any;
213 (vi) the division; and

214 (vii) any other person to whom the individual requests, or the court designates, notice
215 to be given.
216 (b) If an individual cannot or refuses to disclose the identity of persons to be notified,
217 the extent of notice shall be determined by the court.
218 (7) That notice shall:
219 (a) set forth the allegations of the petition and all supporting facts;
220 (b) be accompanied by a copy of any detention order issued under Subsection (3); and
221 (c) state that a hearing will be held within the time provided by law, and give the time
222 and place for that hearing.
223 (8) The court may transfer the case and the custody of the individual to be committed
224 to any other district court within the state, if:
225 (a) there are no appropriate facilities for persons with mental retardation within the
226 judicial district; and
227 (b) the transfer will not be adverse to the interests of the individual.
228 (9) (a) Within 24 hours, excluding Saturdays, Sundays, and legal holidays, after any
229 order or commitment under a detention order, the court shall appoint two designated mental
230 retardation professionals to examine the individual. If requested by the individual's counsel,
231 the court shall appoint a reasonably available, qualified person designated by counsel to be one
232 of the examining designated mental retardation professionals. The examinations shall be
233 conducted:
234 (i) separately;
235 (ii) at the home of the individual to be committed, a hospital, a facility for person's
236 with mental retardation, or any other suitable place not likely to have a harmful effect on the
237 individual; and
238 (iii) within a reasonable period of time after appointment of the examiners by the court.
239 (b) The court shall set a time for a hearing to be held within [10] ten court days of the
240 appointment of the examiners. However, the court may immediately terminate the proceedings
241 and dismiss the application if, prior to the hearing date, the examiners, the director, or his
242 designee informs the court that:
243 (i) the individual is not mentally retarded; or
244 [(ii) the individual has agreed to voluntary commitment under Section 62A-5-307 ; or]

245 [(iii)] (ii) treatment programs are available and [acceptable] will be used by the
246 individual without court proceedings.
247 (10) (a) Each individual has the right to be represented by counsel at the commitment
248 hearing and in all preliminary proceedings. If neither the individual nor others provide counsel,
249 the court shall appoint counsel and allow sufficient time for counsel to consult with the
250 individual prior to any hearing.
251 (b) If the individual is indigent, the county in which the individual was physically
252 located when taken into custody shall pay reasonable attorneys' fees as determined by the court.
253 (11) The division or a designated mental retardation professional in charge of the
254 individual's care shall provide all documented information on the individual to be committed
255 and to the court at the time of the hearing. The individual's attorney shall have access to all
256 documented information on the individual at the time of and prior to the hearing.
257 (12) (a) The court shall provide an opportunity to the individual, the petitioner, and all
258 other persons to whom notice is required to be given to appear at the hearing, to testify, and to
259 present and cross-examine witnesses.
260 (b) The court may, in its discretion:
261 (i) receive the testimony of any other person;
262 (ii) allow a waiver of the right to appear only for good cause shown;
263 (iii) exclude from the hearing all persons not necessary to conduct the proceedings; and
264 (iv) upon motion of counsel, require the testimony of each examiner to be given out of
265 the presence of any other examiner.
266 (c) The hearing shall be conducted in as informal a manner as may be consistent with
267 orderly procedure, and in a physical setting that is not likely to have a harmful effect on the
268 individual. The Utah Rules of Evidence apply, and the hearing shall be a matter of court
269 record. A verbatim record of the proceedings shall be maintained.
270 (13) The court may order commitment if, upon completion of the hearing and
271 consideration of the record, it finds by clear and convincing evidence that all of the following
272 conditions are met:
273 (a) the individual to be committed is mentally retarded;
274 (b) because of the individual's mental retardation one or more of the following
275 conditions exist:

276 (i) the individual poses an immediate danger of physical injury to self or others;
277 (ii) the individual lacks the capacity to provide the basic necessities of life, such as
278 food, clothing, or shelter; or
279 (iii) the individual is in immediate need of habilitation, rehabilitation, care, or
280 treatment to minimize the effects of the condition which poses a threat of serious physical or
281 psychological injury to the individual, and the individual lacks the capacity to engage in a
282 rational decision-making process concerning the need for habilitation, rehabilitation, care, or
283 treatment, as evidenced by an inability to weigh the possible costs and benefits of the care or
284 treatment and the alternatives to it;
285 (c) there is no appropriate, less restrictive alternative reasonably available; and
286 (d) the division or the mental retardation facility recommended by the division in
287 which the individual is to be committed can provide the individual with treatment, care,
288 habilitation, or rehabilitation that is adequate and appropriate to the individual's condition and
289 needs.
290 (14) In the absence of any of the required findings by the court, described in Subsection
291 (13), the court shall dismiss the proceedings.
292 (15) (a) The order of commitment shall designate the period for which the individual
293 will be committed. An initial commitment may not exceed six months. Before the end of the
294 initial commitment period, the administrator of the facility for persons with mental retardation
295 shall commence a review hearing on behalf of the individual.
296 (b) At the conclusion of the review hearing, the court may issue an order of
297 commitment for up to a one-year period.
298 (16) An individual committed under this part has the right to a rehearing, upon filing a
299 petition with the court within 30 days after entry of the court's order. If the petition for
300 rehearing alleges error or mistake in the court's findings, the court shall appoint one impartial
301 licensed physician and two impartial designated mental retardation professionals who have not
302 previously been involved in the case to examine the individual. The rehearing shall, in all other
303 respects, be conducted in accordance with this part.
304 (17) (a) The court shall maintain a current list of all individuals under its orders of
305 commitment. That list shall be reviewed in order to determine those patients who have been
306 under an order of commitment for the designated period.

307 (b) At least two weeks prior to the expiration of the designated period of any
308 commitment order still in effect, the court that entered the original order shall inform the
309 director of the division of the impending expiration of the designated commitment period.
310 (c) The staff of the division shall immediately:
311 (i) reexamine the reasons upon which the order of commitment was based and report
312 the results of the examination to the court;
313 (ii) discharge the resident from involuntary commitment if the conditions justifying
314 commitment no longer exist; and
315 (iii) immediately inform the court of any discharge.
316 (d) If the director of the division reports to the court that the conditions justifying
317 commitment no longer exist, and the administrator of the mental retardation facility does not
318 discharge the individual at the end of the designated period, the court shall order the immediate
319 discharge of the individual, unless involuntary commitment proceedings are again commenced
320 in accordance with this section.
321 (e) If the director of the division, or his designee reports to the court that the conditions
322 designated in Subsection (13) still exist, the court may extend the commitment order for up to
323 one year. At the end of any extension, the individual must be reexamined in accordance with
324 this section, or discharged.
325 (18) When a resident is discharged under this subsection, the division shall provide any
326 further support services available and required to meet the resident's needs.
327 Section 7. Section 62A-5-315 is amended to read:
328 62A-5-315. Petition for reexamination.
329 (1) A resident committed under Section 62A-5-312 , or his parent, spouse, legal
330 guardian, relative, or attorney, may file a petition for reexamination with the district court of
331 the county in which the resident is domiciled or detained.
332 (2) Upon receipt of that petition, the court shall conduct proceedings under Section
333 62A-5-312 . [If the petition is filed sooner than six months after the issuance of an order of
334 indeterminate involuntary commitment, the court may delay commencing proceedings until
335 that six-month period has ended, unless good cause for holding a hearing before the end of that
336 six-month period exists.]
337 Section 8. Section 62A-5-317 is amended to read:

338 62A-5-317. Authority to transfer resident.
339 (1) The administrator of a mental retardation facility, or his designee, may transfer or
340 authorize the transfer of a resident to another mental retardation facility if, before the transfer,
341 the administrator conducts a careful evaluation of the resident and his treatment needs, and
342 determines that a transfer would be in the best interest of that resident. If a resident is
343 transferred, the administrator shall give immediate notice of the transfer to the resident's
344 spouse, guardian, parent, [or advocate appointed under Section 62A-5-303 ] or, if none of those
345 persons are known, to the resident's nearest known relative.
346 (2) If a resident, or his parent or guardian, objects to a proposed transfer under this
347 section, the administrator shall conduct a hearing on the objection before a committee
348 composed of persons selected by the administrator. That committee shall hear all evidence and
349 make a recommendation to the administrator concerning the proposed transfer. The transfer
350 may not take effect until the committee holds that hearing and the administrator renders a final
351 decision on the proposed transfer.
352 Section 9. Repealer.
353 This bill repeals:
354 Section 62A-5-303, Admission committee -- Voluntary commitment.
355 Section 62A-5-306, Application -- Affidavit.
356 Section 62A-5-307, Voluntary commitment.
357 Section 62A-5-314, Release of person voluntarily committed -- Exceptions.




Legislative Review Note
as of 1-2-04 1:23 PM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel