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Indicates Matter Stricken Indicates New Matter COMMITTEE AMENDMENT

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Indicates Matter Stricken Indicates New Matter COMMITTEE AMENDMENT Powered By Docstoc
					 1   Indicates Matter Stricken
 2   Indicates New Matter
 3
 4   COMMITTEE AMENDMENT ADOPTED
 5   April 26, 2011
 6
 7                                                            S. 687
 8
 9            Introduced by Senators Scott, Ford and Knotts
10
11 S. Printed 4/26/11--S.
12 Read the first time March 10, 2011.
13
14
15




     [687-1]
 1
 2
 3
 4
 5
 6
 7
 8
 9                       A BILL
10
11   TO AMEND SECTION 43-7-460, AS AMENDED, CODE OF
12   LAWS OF SOUTH CAROLINA, 1976, RELATING TO THE
13   RECOVERY OF FUNDS FROM ESTATES OF PERSONS WHO
14   RECEIVED MEDICAID, SO AS TO SUBSTITUTE “PERSONS
15   WITH    INTELLECTUAL   DISABILITY”   FOR    “THE
16   MENTALLY RETARDED”; TO AMENDED SECTION 44-7-
17   130, AS AMENDED, RELATING TO THE DEFINITION OF
18   TERMS USED IN THE STATE CERTIFICATION OF NEED
19   AND HEALTH FACILITY LICENSURE ACT, SO AS TO
20   SUBSTITUTE, IN RELEVANT DEFINITIONS, “PERSONS
21   WITH    INTELLECTUAL   DISABILITY”   FOR    “THE
22   MENTALLY RETARDED”; TO AMEND SECTION 44-7-260,
23   AS AMENDED, RELATING TO HEALTH FACILITY
24   LICENSURE REQUIREMENTS, SO AS TO SUBSTITUTE
25   “PERSONS WITH INTELLECTUAL DISABILITY” FOR “
26   MENTALLY RETARDED”; TO AMEND SECTION 44-7-315,
27   AS AMENDED, RELATING TO DISCLOSURE OF
28   INFORMATION OBTAINED BY THE DEPARTMENT OF
29   HEALTH AND ENVIRONMENTAL CONTROL REGARDING
30   HEALTH CARE FACILITIES, SO AS TO SUBSTITUTE
31   “PERSONS WITH INTELLECTUAL DISABILITY” FOR “THE
32   MENTALLY RETARDED” TO AMEND SECTION 44-7-320,
33   AS    AMENDED,   RELATING    TO    THE   DENIAL,
34   REVOCATION, OR SUSPENSION OF A HEALTH FACILITY
35   LICENSE, SO AS TO SUBSTITUTE “PERSONS WITH
36   INTELLECTUAL DISABILITY” FOR “THE MENTALLY
37   RETARDED”; TO AMEND CHAPTER 20, TITLE 44,
38   RELATING TO THE SOUTH CAROLINA MENTAL
39   RETARDATION, RELATED DISABILITIES, HEAD INJURIES,
40   AND SPINAL CORD INJURIES ACT, INCLUDING THE
41   CREATION, GOVERNANCE, AND OPERATION OF THE
42   SOUTH CAROLINA DEPARTMENT OF DISABILITIES AND

     [687]                   1
 1   SPECIAL NEEDS, CHAPTER 21, TITLE 44, RELATING TO
 2   THE DEPARTMENT OF DISABILITIES AND SPECIAL
 3   NEEDS FAMILY SUPPORT SERVICES, SECTION 44-23-10,
 4   AND ARTICLES 3 AND 5 OF CHAPTER 23, TITLE 44,
 5   RELATING TO PROVISIONS APPLICABLE TO BOTH
 6   MENTALLY ILL AND MENTALLY RETARDED PERSONS,
 7   CHAPTER 26, TITLE 44, RELATING TO THE RIGHTS OF
 8   MENTAL RETARDATION CLIENTS, ALL SO AS TO
 9   CHANGE THE TERM “MENTAL RETARDATION” TO
10   “INTELLECTUAL    DISABILITY”   AND    THE    TERM
11   “MENTALLY     RETARDED”     TO    “PERSON    WITH
12   INTELLECTUAL DISABILITY”; TO PROVIDE THAT THE
13   TERMS “INTELLECTUAL DISABILITY” AND “PERSON
14   WITH INTELLECTUAL DISABILITY” HAVE REPLACED
15   AND HAVE THE SAME MEANINGS AS THE FORMER
16   TERMS “MENTAL RETARDATION” AND “MENTALLY
17   RETARDED”; AND TO DIRECT STATE AGENCIES,
18   BOARDS, COMMITTEES, AND COMMISSIONS AND
19   POLITICAL SUBDIVISIONS OF THE STATE AND THE
20   CODE COMMISSIONER TO SUBSTITUTE THE TERM
21   “INTELLECTUAL     DISABILITY”     FOR    “MENTAL
22   RETARDATION”     AND THE TERM “PERSON WITH
23   INTELLECTUAL     DISABILITY”    FOR    “MENTALLY
24   RETARDED” IN RULES, REGULATIONS, POLICIES,
25   PROCEDURES,     STATUTES,     ORDINANCES,     AND
26   PUBLICATIONS WHEN THESE RULES, REGULATIONS,
27   POLICIES, PROCEDURES, STATUTES, ORDINANCES, OR
28   PUBLICATIONS    ARE    AMENDED,     REVISED,   OR
29   REPUBLISHED.
30
31   Be it enacted by the General Assembly of the State of South
32   Carolina:
33
34   SECTION 1. Section 44-7-130(19) of the 1976 Code is amended
35   to read:
36
37     “(19) „Intermediate care facility for the mentally retarded
38   persons with intellectual disability‟ means a facility that serves
39   four or more mentally retarded persons with intellectual disability
40   or persons with related conditions and provides health or
41   rehabilitative services on a regular basis to individuals whose
42   mental and physical conditions require services including room,


     [687]                            2
 1   board, and active treatment for their mental retardation or related
 2   conditions.”
 3
 4   SECTION 2. Chapter 20, Title 44 of the 1976 Code is amended
 5   to read:
 6
 7                              “CHAPTER 20
 8
 9   South Carolina Mental Retardation Intellectual Disability, Related
10       Disabilities, Head Injuries, and Spinal Cord Injuries Act
11
12                                  Article 1
13
14                             General Provisions
15
16     Section 44-20-10. This chapter may be cited as the „South
17   Carolina Mental Retardation Intellectual Disability, Related
18   Disabilities, Head Injuries, and Spinal Cord Injuries Act‟.
19
20      Section 44-20-20. The State of South Carolina recognizes that
21   a person with mental retardation intellectual disability, a related
22   disability, head injury, or spinal cord injury is a person who
23   experiences the benefits of family, education, employment, and
24   community as do all citizens. It is the purpose of this chapter to
25   assist persons with mental retardation intellectual disability, related
26   disabilities, head injuries, or spinal cord injuries by providing
27   services to enable them to participate as valued members of their
28   communities to the maximum extent practical and to live with their
29   families or in family settings in the community in the least
30   restrictive environment available.
31      When persons with mental retardation intellectual disability,
32   related disabilities, head injuries, or spinal cord injuries cannot live
33   in communities or with their families, the State shall provide
34   quality care and treatment in the least restrictive environment
35   practical.
36      In order to plan and coordinate state and locally funded services
37   for persons with mental retardation intellectual disability, related
38   disabilities, head injuries, or spinal cord injuries, a statewide
39   network of local boards of disabilities and special needs is
40   established. Services will be delivered to clients in their homes or
41   communities through these boards and other local providers.
42      It is recognized that persons with mental retardation intellectual
43   disability, related disabilities, head injuries, or spinal cord injuries

     [687]                              3
 1   have the right to receive services from public and other agencies
 2   that provide services to South Carolina citizens and to have those
 3   services coordinated with the services needed because of their
 4   disabilities.
 5   South Carolina recognizes the value of preventing mental
 6   retardation intellectual disability, related disabilities, head injuries,
 7   and spinal cord injuries through education and research and
 8   supports efforts to this end.
 9      The State recognizes the importance of the role of parents and
10   families in shaping services for persons with mental retardation
11   intellectual disability, related disabilities, head injuries, or spinal
12   cord injuries as well as the importance of providing services to
13   families to enable them to care for a family member with these
14   disabilities.
15      Admission to services of the South Carolina Department of
16   Disabilities and Special Needs does not terminate or reduce the
17   rights and responsibilities of parents. Parental involvement and
18   participation in mutual planning with the department to meet the
19   needs of the client facilitates decisions and treatment plans that
20   serve the best interest and welfare of the client.
21
22      Section 44-20-30. As used in this chapter:
23      (1) „Applicant‟ means a person who is believed to have mental
24   retardation intellectual disability, one or more related disabilities,
25   one or more head injuries, one or more spinal cord injuries, or an
26   infant at high risk of a developmental disability who has applied
27   for services of the South Carolina Department of Disabilities and
28   Special Needs.
29      (2) „Client‟ is a person who is determined by the Department
30   of Disabilities and Special Needs to have mental retardation
31   intellectual disability, a related disability, head injury, or spinal
32   cord injury and is receiving services or is an infant at risk of
33   having a developmental disability and is receiving services.
34      (3) „Commission‟ means the South Carolina Commission on
35   Disabilities and Special Needs, the policy-making and governing
36   body of the Department of Disabilities and Special Needs.
37      (4) „County disabilities and special needs boards‟ means the
38   local public body administering, planning, coordinating, or
39   providing services within a county or combination of counties for
40   persons with mental retardation intellectual disability, related
41   disabilities, head injuries, or spinal cord injuries and recognized by
42   the department.


     [687]                               4
 1      (5) „Day programs‟ are programs provided to persons with
 2   mental retardation intellectual disability, related disabilities, head
 3   injuries, or spinal cord injuries outside of their residences affording
 4   development, training, employment, or recreational opportunities
 5   as prescribed by the Department of Disabilities and Special Needs.
 6      (6) „Department‟ means the South Carolina Department of
 7   Disabilities and Special Needs.
 8      (7) „Director‟ means the South Carolina Director of the
 9   Department of Disabilities and Special Needs, the chief executive
10   director appointed by the commission.
11      (8) „Disabilities and special needs services‟ are activities
12   designed to achieve the results specified in an individual client‟s
13   plan.
14      (9) „High risk infant‟ means a child less than thirty-six months
15   of age whose genetic, medical, or environmental history is
16   predictive of a substantially greater risk for a developmental
17   disability than that for the general population.
18      (9)(10) „Least restrictive environment‟ means the surrounding
19   circumstances that provide as little intrusion and disruption from
20   the normal pattern of living as possible.
21      (10)(11) „Improvements‟          means        the      construction,
22   reconstruction of buildings, and other permanent improvements for
23   regional centers and other programs provided by the department
24   directly or through contract with county boards of disabilities and
25   special needs, including equipment and the cost of acquiring and
26   improving lands for equipment.
27      (11)(12) „Mental retardation Intellectual disability‟ means
28   significantly subaverage general intellectual functioning existing
29   concurrently with deficits in adaptive behavior and manifested
30   during the developmental period.
31      (12) „Disabilities and special needs services‟ are activities
32   designed to achieve the results specified in an individual client‟s
33   plan.
34      (13) „Obligations‟ means the obligations in the form of notes or
35   bonds or contractual agreements issued or entered into by the
36   commission pursuant to the authorization of this chapter and of
37   Act 1377 of 1968 to provide funds with which to repay the
38   proceeds of capital improvement bonds allocated by the State
39   Budget and Control Board.
40      (14) „Regional residential center‟ is a twenty-four hour
41   residential facility serving a multi-county area and designated by
42   the department.


     [687]                              5
 1      (15) „Related disability‟ is a severe, chronic condition found to
 2   be closely related to mental retardation intellectual disability or to
 3   require treatment similar to that required for persons with mental
 4   retardation intellectual disability and must meet the following
 5   conditions:
 6        (a) It is attributable to cerebral palsy, epilepsy, autism, or
 7   any other condition other than mental illness found to be closely
 8   related to mental retardation intellectual disability because this
 9   condition results in impairment of general intellectual functioning
10   or adaptive behavior similar to that of persons with mental
11   retardation intellectual disability and requires treatment or services
12   similar to those required for these persons.
13        (b) It is manifested before twenty-two years of age.
14        (c) It is likely to continue indefinitely.
15        (d) It results in substantial functional limitations in three or
16   more of the following areas of major life activity: self-care,
17   understanding and use of language, learning, mobility,
18   self-direction, and capacity for independent living.
19      (16) „Residential programs‟ are services providing dwelling
20   places to clients for an extended period of time with assistance for
21   activities of daily living ranging from constant to intermittent
22   supervision as required by the individual client‟s needs.
23      (17) „Revenues‟ or „its revenues‟ means revenue derived from
24   paying clients at regional residential centers and community
25   residences but does not include Medicaid, Medicare, or other
26   federal funds received with the stipulation that they be used to
27   provide services to clients.
28      (18) „State capital improvement bonds‟ means bonds issued
29   pursuant to Act 1377 of 1968.
30      (19) „State board‟ shall mean the State Budget and Control
31   Board as constituted pursuant to Chapter 11, Title 1.
32
33                                 Article 3
34
35            Organization and System for Delivery of Services
36
37      Section 44-20-210. (A) There is created the South Carolina
38   Commission on Disabilities and Special Needs. The commission
39   consists of seven members. One member must be a resident of
40   each congressional district and one must be from the State at large
41   to be appointed by the Governor upon the advice and consent of
42   the Senate. They shall serve for four years and until their
43   successors are appointed and qualify. Members of the commission

     [687]                             6
 1   are subject to removal by the Governor pursuant to the provisions
 2   of Section 1-3-240. A vacancy may be filled by the Governor for
 3   the unexpired portion of the term.
 4     (B) On July 1, 1993 the Commission on Mental Retardation
 5   becomes the Commission on Disabilities and Special Needs. The
 6   commissioners continue to serve until their terms expire and their
 7   successors are appointed and qualify.
 8
 9      Section 44-20-220. The commission shall determine the
10   policy and promulgate regulations governing the operation of the
11   department and the employment of professional staff and
12   personnel. The members of the commission shall receive
13   subsistence, mileage, and per diem as may be provided by law for
14   members of state boards, committees, and commissions. The
15   commission shall appoint and in its discretion remove a South
16   Carolina Director of Disabilities and Special Needs who is the
17   chief executive officer of the department. The commission may
18   appoint advisory committees it considers necessary to assist in the
19   effective conduct of its responsibilities. The commission may
20   educate the public and state and local officials as to the need for
21   the funding, development, and coordination of services for persons
22   with mental retardation intellectual disability, related disabilities,
23   head injuries, and spinal cord injuries and promote the best interest
24   of persons with mental retardation intellectual disability, related
25   disabilities, head injuries, and spinal cord injuries.              The
26   commission is authorized to promulgate regulations to carry out
27   the provisions of this chapter and other laws related to mental
28   retardation intellectual disability, related disabilities, head injuries,
29   or spinal cord injuries. In promulgating these regulations, the
30   commission must consult with the advisory committee of the
31   division for which the regulations shall apply.
32
33      Section 44-20-225. The        Governor   shall    appoint     a
34   seven-member consumer advisory board with the advice and
35   consent of the Senate for each of the following divisions: the
36   mental retardation Intellectual Disability Division, the Autism
37   Division, and the Head and Spinal Cord Injury Division. One
38   member must be a resident of each congressional district, and one
39   must be from the State at large.
40      The membership of each advisory board must consist of persons
41   with knowledge and expertise in the subject area of that division.
42   In making such appointments, race, gender, and other demographic
43   factors should be considered to ensure nondiscrimination,

     [687]                               7
 1   inclusion and representation to the greatest extent possible of all
 2   segments of the population of the State; however, consideration of
 3   these factors in making an appointment in no way creates a cause
 4   of action or basis for an employee grievance for a person appointed
 5   or for a person who fails to be appointed.
 6      The members of the commission shall receive subsistence,
 7   mileage, and per diem as may be provided by law for members of
 8   state boards, committees, and commissions.
 9      Terms of the members shall be for four years and until their
10   successors are appointed and qualify, except that of the original
11   appointees, two shall be appointed for a period of two years, two
12   shall be appointed for a period of three years, and three shall be
13   appointed for a period of four years.
14
15      Section 44-20-230. Subject to the supervision, direction, and
16   control of the commission, the director shall administer the
17   policies and regulations established by the commission. The
18   director may appoint and in his discretion remove all other officers
19   and employees of the department subject to the approval of the
20   commission.
21
22      Section 44-20-240. There is created the South Carolina
23   Department of Disabilities and Special Needs which has authority
24   over all of the state‟s services and programs for the treatment and
25   training of persons with mental retardation intellectual disability,
26   related disabilities, head injuries, and spinal cord injuries. This
27   authority does not include services delivered by other agencies of
28   the State as prescribed by statute. The department must be
29   comprised of a Mental Retardation an Intellectual Disability
30   Division, an Autism Division, and a Head and Spinal Cord Injuries
31   Division. The department may be divided into additional divisions
32   as may be determined by the director and approved and named by
33   the commission. Responsibility for all autistic services is
34   transferred from the Department of Mental Health to the
35   Department of Disabilities and Special Needs.
36
37      Section 44-20-250. The department shall coordinate services
38   and programs with other state and local agencies for persons with
39   mental retardation intellectual disability, related disabilities, head
40   injuries, and spinal cord injuries. The department may negotiate
41   and contract with local agencies, county boards of disabilities and
42   special needs, private organizations, and foundations in order to
43   implement the planning and development of a full range of

     [687]                             8
 1   services and programs for persons with mental retardation
 2   intellectual disability, related disabilities, head injuries, and spinal
 3   cord injuries subject to law and the availability of fiscal resources.
 4   The department has the same right to be reimbursed for expenses
 5   in providing disabilities and special needs services through a
 6   contractual arrangement as it has to be reimbursed for expenses
 7   provided through direct departmental services. The department
 8   shall develop service standards for programs of the department and
 9   for programs for which the department may contract and shall
10   review and evaluate these programs on a periodic basis.
11
12      Section 44-20-255. (A) Upon execution of the deed as
13   provided in subsection (B) of this section, ownership of the tract of
14   real property in Richland County described in Section 1 of Act
15   1645 of 1972 is confirmed in the South Carolina Department of
16   Disabilities and Special Needs as the successor agency to the
17   South Carolina Department of Mental Retardation.
18      (B) The State Budget and Control Board shall cause to be
19   executed and recorded an appropriate deed conveying the tract to
20   the South Carolina Department of Disabilities and Special Needs.
21      (C) Proceeds of a subsequent sale of the tract that is the subject
22   of this section may be retained by the South Carolina Department
23   of Disabilities and Special Needs.
24
25      Section 44-20-260. The department, with funds available for
26   these purposes, may conduct research to determine the causes,
27   proper treatment, and diagnosis of mental retardation intellectual
28   disability, related disabilities, head injuries, and spinal cord
29   injuries and may use facilities and personnel under its control and
30   management for carrying out the research so long as the rights of
31   the client are preserved and prior consent is obtained pursuant to
32   Section 44-26-180.
33
34      Section 44-20-270. The department is designated as the state‟s
35   mental retardation intellectual disability, related disabilities, head
36   injuries, and spinal cord injuries authority for the purpose of
37   administering federal funds allocated to South Carolina for mental
38   retardation intellectual disability programs, related disability
39   programs, head injury programs, and spinal cord injury programs.
40   This authority does not include the functions and responsibilities
41   granted to the South Carolina Department of Health and
42   Environmental Control or to the South Carolina Department of


     [687]                              9
 1   Vocational Rehabilitation or the administration of the „State
 2   Hospital Construction and Franchising Act‟.
 3
 4      Section 44-20-280. The department may negotiate and
 5   contract with an agency of the United States or a state or private
 6   agency to obtain grants to assist in the expansion and improvement
 7   of services to persons with mental retardation intellectual
 8   disability, related disabilities, head injuries, or spinal cord injuries
 9   and may expend the grants under the terms and conditions of the
10   award.
11
12      Section 44-20-290. The director or his designee may employ
13   at regional centers security guards who are vested and charged
14   with the powers and the duties of peace officers. They may arrest
15   felons and misdemeanants, eject trespassers, and, without warrant,
16   arrest persons for disorderly conduct who are trespassers on the
17   grounds of the regional center and have them tried in a court of
18   competent jurisdiction. Officers so employed must be bonded and
19   under the direct supervision of the South Carolina Law
20   Enforcement Division and shall report directly to the director or
21   his designee.
22
23     Section 44-20-300. The department may acquire motor
24   vehicle liability insurance for employees operating department
25   vehicles or private vehicles in connection with their official
26   departmental duties to protect against liability.
27
28     Section 44-20-310. The department may sell timber from its
29   forest lands with the proceeds from the sales to be deposited in the
30   general fund of the State. Before a sale, the State Budget and
31   Control Board shall consult with the State Forester to determine
32   the economic feasibility of the sale, and a sale must not be made
33   without the approval of the board.
34
35      Section 44-20-320. The department or any of its programs
36   may accept gifts, bequests, devises, grants, and donations of
37   money, real property, and personal property for use in expanding
38   and improving services to persons with mental retardation
39   intellectual disability, related disabilities, head injuries, and spinal
40   cord injuries available to the people of this State. However,
41   nothing may be accepted by the department with the understanding
42   that it diminishes an obligation for paying care and maintenance
43   charges or other monies due the department for services rendered.

     [687]                              10
 1   The commission may formulate policies and promulgate
 2   regulations governing the disposition of gifts, bequests, devises,
 3   grants, and donations. If they are given to a specific service
 4   program of the department they must remain and be used for that
 5   program only or to its successor program.
 6
 7      Section 44-20-330. The department may grant easements,
 8   permits, or rights-of-way on terms and conditions it considers to be
 9   in the best interest of the State, across, over, or under land held by
10   the department for the construction of water, sewer, drainage,
11   natural gas, telephone, telegraph, and electric power lines.
12
13      Section 44-20-340. (A) A person, hospital, or other
14   organization may provide information, interviews, reports,
15   statements, written memoranda, documents, or other data related to
16   the condition and treatment of a client or applicant to the
17   department, and no liability for damages or other relief arises
18   against the person, hospital, or organization for providing the
19   information or material.
20      (B) All records pertaining to the identity of a person whose
21   condition or treatment has been studied by the department are
22   confidential and privileged information. However, upon the
23   written request of the client, the client‟s or applicant‟s parent with
24   legal custody, legal guardian, or spouse with the written
25   permission of the client or applicant or under subpoena by a court
26   of law, the department may furnish pertinent records in its
27   possession to appropriate parties.
28
29      Section 44-20-350. (A) Reasonable reimbursement to the
30   State for its fiscal outlay on behalf of services rendered by the
31   department or any other agency authorized by the department to
32   offer services to clients is a just obligation of the person with
33   mental retardation intellectual disability, a related disability, head
34   injury, or spinal cord injury, his estate, or his parent or guardian
35   under the conditions and terms provided in this section.
36      (B) The department or an agency authorized by the department
37   to offer services to clients may charge for its services. However,
38   no service may be denied a client or his parent or guardian because
39   of inability to pay part or all of the department‟s or other agency‟s
40   expenses in providing that service. Where federal reimbursement
41   is authorized for services provided, the department initially shall
42   seek federal reimbursement. No charge or combination of charges
43   may exceed the actual cost of services rendered. The commission

     [687]                             11
 1   shall approve the procedures established to determine ability to pay
 2   and may authorize its designees to reduce or waive charges based
 3   upon its findings.
 4      (C) Parents, guardians, or other responsible relatives must not
 5   be charged for regional center or community residential services
 6   provided by the department for their child or ward. However, a
 7   person receiving nonresidential services or his parent or guardian
 8   may be assessed a charge for services received, not to exceed cost.
 9   The department with the approval of the commission may
10   determine for which services it charges.
11      (D) The department shall establish a hearing and review
12   procedure so that a client or his parent or guardian may appeal
13   charges made for services or may present to officials of the
14   department information or evidence to be considered in
15   establishing charges. The department may utilize legal procedures
16   to collect lawful claims.
17      (E) The department may establish by regulation charges for
18   other services it renders.
19
20     Section 44-20-355. The department shall assess and collect a
21   fee on all Intermediate Care Facilities for the mentally retarded
22   persons with intellectual disability, as defined in Section
23   44-7-130(19). Providers holding licenses on these facilities shall
24   pay to the department a fee equal to eight dollars and fifty cents a
25   patient day in these facilities. The department shall pay all
26   proceeds from the fee into the general fund of the State.
27
28      Section 44-20-360. (A) The physical boundaries of Midlands
29   Center, Coastal Center, Pee Dee Center, and Whitten Center are
30   designated as independent school districts. These facilities may
31   elect to participate in the usual activities of the districts, to receive
32   state and federal aid, and to utilize other benefits enjoyed by
33   independent school districts in general.
34      (B) The commission operates as the board of trustees for these
35   districts for administrative purposes, including the receipt and
36   expenditure of funds granted to these districts for any purpose.
37
38      Section 44-20-365. No regional center of the department may
39   be closed except as authorized by the General Assembly by law in
40   an enactment that specifies by name the regional center to be
41   closed.
42
43     Section 44-20-370. (A) The department shall:

     [687]                              12
 1         (1) notify applicants when they have qualified under the
 2   provisions of this chapter;
 3         (2) establish standards of operation and service for county
 4   disabilities and special needs programs funded in part or in whole
 5   by state appropriations to the department or through other fiscal
 6   resources under its control;
 7         (3) review service plans submitted by county boards of
 8   disabilities and special needs and determine priorities for funding
 9   plans or portions of the plans subject to available funds;
10         (4) review county programs covered in this chapter;
11         (5) offer consultation and direction to county boards;
12         (6) take other action not inconsistent with the law to promote
13   a high quality of services to persons with mental retardation
14   intellectual disability, related disabilities, head injuries, or spinal
15   cord injuries and their families.
16      (B) The department shall seek to develop and utilize the most
17   current and promising methods for the training of persons with
18   mental retardation intellectual disability, related disabilities, head
19   injuries, and spinal cord injuries. It shall utilize the assistance,
20   services, and findings of other state and federal agencies. The
21   department shall disseminate these methods to county boards and
22   programs providing related services.
23
24      Section 44-20-375. (A) Before July 1, 1992, county boards of
25   disabilities and special needs must be created within a county or
26   within a combination of counties by ordinance of the governing
27   bodies of the counties concerned. The ordinance must establish
28   the number, terms, appointment, and removal of board members
29   and provide for their powers and duties in compliance with state
30   law and the process for appointing board members which existed
31   on January 1, 1991, must be preserved in the ordinance. However,
32   where the county legislative delegation or county council
33   recommends board members to the appointing authority, the
34   delegation may transfer its authority to recommend to the council
35   or the council may transfer its authority to the delegation. If there
36   is a transfer, preservation of the authority to recommend existing
37   on January 1, 1991, is not required, and the new recommending
38   authority must be contained in the ordinance.
39      (B) County boards of disabilities and special needs established
40   before January 1, 1991, shall continue to exist, operate, and
41   function as they existed on January 1, 1991, until created by
42   ordinance pursuant to subsection (A).


     [687]                             13
 1      (C) After June 30, 1992, the department shall recognize only
 2   county boards of disabilities and special needs that plan,
 3   administer, or provide services to persons with mental retardation
 4   intellectual disability, related disabilities, head injuries, spinal cord
 5   injuries within a county or combination of counties which are
 6   created or established pursuant to this section, including those
 7   whose members are appointed by the Governor. A county board
 8   of disabilities and special needs created by ordinance before
 9   January 1, 1991, is considered created pursuant to this section,
10   provided the ordinance includes and complies with the provisions
11   of subsection (A).
12      (D) A county board of disabilities and special needs is a public
13   entity.
14      (E) In Dorchester County, appointments made pursuant to this
15   section are governed by the provisions of Act 512 of 1996.
16      (F) In Georgetown County, appointments made pursuant to this
17   section are governed by the provisions of Act 515 of 1996.
18
19     Section 44-20-378. A county board of disabilities and special
20   needs established pursuant to Section 44-20-375 must consist of
21   not less than five members. If the board is created within a
22   combination of counties, the number of members representing each
23   county must be proportional to the county‟s population in relation
24   to the total population of the counties served by the board.
25   However, a county participating in a multicounty board must not
26   have less than two members. The term of the members is four
27   years and until their successors are appointed and qualify.
28   Vacancies for unexpired terms must be filled in the same manner
29   as the original appointments. A member may be removed by the
30   appointing authority for neglect of duty, misconduct, or
31   malfeasance in office after being given a written statement of
32   reasons and an opportunity to be heard.
33
34      Section 44-20-380. (A) County disabilities and special needs
35   boards are encouraged to utilize lawful sources of funding to
36   further the development of appropriate community services to
37   meet the needs of persons with mental retardation intellectual
38   disability, related disabilities, head injuries, or spinal cord injuries
39   and their families.
40      (B) County boards may apply to the department for funds for
41   community services development under the terms and conditions
42   as may be prescribed by the department. The department shall
43   review the applications and, subject to state appropriations to the

     [687]                              14
 1   department or to other funds under the department‟s control, may
 2   fund the programs it considers in the best interest of service
 3   delivery to the citizens of the State with mental retardation
 4   intellectual disability, related disabilities, head injuries, or spinal
 5   cord injuries.
 6      (C) Subject to the approval of the department, county boards
 7   may seek state or federal funds administered by state agencies
 8   other than the department, funds from local governments or from
 9   private sources, or funds available from agencies of the federal
10   government. The county boards may not apply directly to the
11   General Assembly for funding or receive funds directly from the
12   General Assembly.
13
14      Section 44-20-385. Subject to the provisions of this chapter
15   and the regulations of the department each county disabilities and
16   special needs board:
17      (1) is the administrative, planning, coordinating, and service
18   delivery body for county disabilities and special needs services
19   funded in whole or in part by state appropriations to the
20   department or funded from other sources under the department‟s
21   control. It is a body corporate in deed and in law with all the
22   powers incident to corporation including the power to incur debt
23   insofar as that debt is payable from contract, grant, or other
24   revenues and is not the debt of the State or its other political
25   subdivisions. A county board may purchase and hold real and
26   mortgage property and erect and maintain buildings. The
27   department shall approve all debt of a county board to be paid in
28   whole or in part from contract, grant, or other revenues provided
29   by the State. However, the department has no responsibility for
30   the debt so approved;
31      (2) shall submit an annual plan and projected budget to the
32   department for approval and consideration of funding;
33      (3) shall review and evaluate on at least an annual basis the
34   county disabilities and special needs services provided pursuant to
35   this chapter and report its findings and recommendations to the
36   department;
37      (4) shall promote and accept local financial support for the
38   county program from private and other lawful sources and promote
39   public support from municipal and county sources;
40      (5) shall employ personnel and expend its budget for the direct
41   delivery of services or contract with those service vendors
42   necessary to carry out the county mental retardation intellectual
43   disability, related disabilities, head injuries, and spinal cord

     [687]                             15
 1   injuries services program who meet specifications prescribed by
 2   the department;
 3      (6) shall plan, arrange, implement, and monitor working
 4   agreements with other human service agencies, public and private,
 5   and with other educational and judicial agencies;
 6      (7) shall provide the department records, reports, and access to
 7   its sponsored services and facilities the department may require
 8   and submit its sponsored services and facilities to licensing
 9   requirements of the department or to the licensing requirements of
10   other state or local agencies having this legal authority;
11      (8) shall represent the best interest of persons with mental
12   retardation intellectual disability, related disabilities, head injuries,
13   or spinal cord injuries to the public, public officials, and other
14   public or private organizations.
15
16      Section 44-20-390. (A) In order to provide assistance to
17   families and individuals the department shall provide an initial
18   intake and assessment service to a person believed to be in need of
19   services and who makes application for them. An assessment must
20   be provided through diagnostic centers approved by the
21   department. If upon completion of the assessment the applicant is
22   determined to have mental retardation intellectual disability, a
23   related disability, head injury, or spinal cord injury and be in need
24   of services, he may become a client of the department and eligible
25   for services. A service plan must be designated for each person
26   assessed. A person determined to have mental retardation
27   intellectual disability, a related disability, head injury, or spinal
28   cord injury and who chooses to become a client of the department,
29   must be provided with the delivery or coordination of services by
30   the department. A person determined not to have mental
31   retardation intellectual disability, a related disability, head injury,
32   or spinal cord injury may be provided by the department with
33   referral and assistance in obtaining appropriate services or further
34   evaluation.
35      (B) Service plans must recommend the services to assist the
36   individual in developing to the fullest potential in the least
37   restrictive environment available. The department shall determine
38   the „least restrictive environment‟ and may contract with
39   individuals or organizations for a reasonable sum as determined by
40   the department to provide the services. The department shall
41   review service plans of its clients at least periodically according to
42   standards prescribing the frequency to ensure that appropriate
43   services are being provided in the least restrictive environment

     [687]                              16
 1   available. The parents, the legal guardian, the client, and other
 2   appropriate parties must be included in the review.                The
 3   department shall develop standards prescribing the service plan
 4   review.
 5      (C) No individual believed to have mental retardation
 6   intellectual disability, a related disability, head injury, or spinal
 7   cord injury may be admitted to the services of the department until
 8   he has been examined at a diagnostic center of the department or a
 9   diagnostic center approved by the department and certified by the
10   department on the basis of acceptable data to have mental
11   retardation intellectual disability, a related disability, head injury,
12   or spinal cord injury or unless he is an infant at risk of a
13   developmental disability and in need of the department‟s services.
14      (D) The applicant shall meet residency requirements in at least
15   one of the following categories:
16         (1) The applicant or his spouse, parent, with or without legal
17   custody, or legal guardian is domiciled in South Carolina.
18         (2) The applicant or his spouse, parent, with or without legal
19   custody, or legal guardian lives outside South Carolina but retains
20   legal residency in this State and demonstrates to the department‟s
21   satisfaction his intent to return to South Carolina.
22         (3) The applicant or his spouse or parent, with or without
23   legal custody, or legal guardian is a legal resident of a state which
24   is an active member of the Interstate Compact on Mental Health
25   and qualifies for services under it.
26
27      Section 44-20-400. Upon the written request of the person, the
28   person‟s parents, parent with legal custody, or lawful custodian or
29   legal guardian and subject to the availability of suitable
30   accommodations and services, a person with mental retardation
31   intellectual disability, a related disability, head injury, or spinal
32   cord injury may be admitted to the services of the department for
33   evaluation and diagnosis and shall remain in the residential
34   services of the department for that period required to complete the
35   diagnostic study. However, this period may not exceed thirty days
36   except upon approval of the director or his designee. Individuals
37   admitted under the provisions of this section are subject to the
38   same regulations and departmental policies as regular admissions.
39   The department may prescribe the form of the written application
40   for diagnostic services.
41



     [687]                             17
 1      Section 44-20-410. A person who is determined to be eligible
 2   for services is subject to the following considerations regarding his
 3   order of admission to services and programs:
 4      (1) relative need of the person for special training, supervision,
 5   treatment, or care;
 6      (2) availability of services suitable to the needs of the
 7   applicant.
 8
 9      Section 44-20-420. The director or his designee may
10   designate the service or program in which a client is placed. The
11   appropriate services and programs must be determined by the
12   evaluation and assessment of the needs, interests, and goals of the
13   client.
14
15     Section 44-20-430. The director or his designee has the final
16   authority over applicant eligibility, determination, or services and
17   admission order, subject to policies adopted by the commission.
18
19      Section 44-20-440. Subject to the availability of suitable
20   services and programs and subject to the provisions of
21   „Requirement for Admission to Services‟, „Order in which Person
22   May be Admitted‟, and „Final Authority over Eligibility‟, the
23   director or his designee may admit a client to the services of the
24   department upon the written request of the parents of the person
25   with mental retardation intellectual disability, a related disability,
26   head injury or spinal cord injury, a parent with legal custody,
27   spouse, lawful custodian or legal guardian, or the person with
28   mental retardation intellectual disability, a related disability, head
29   injury, or spinal cord injury seeking to be admitted to the
30   department‟s services if the person is twenty-one years of age or
31   over and competent to make the decision. The department shall
32   prescribe the form of the application for services.
33
34      Section 44-20-450. (A) Proceedings for the involuntary
35   admission of a person with mental retardation intellectual
36   disability or a related disability to the services of the department
37   may be initiated by the filing of a verified petition with the probate
38   or the family court by:
39        (1) the spouse;
40        (2) a relative;
41        (3) the parents;
42        (4) a parent with legal custody;
43        (5) the legal guardian of the person;

     [687]                             18
 1         (6) the person in charge of a public or private institution in
 2   which the individual is residing at the time;
 3         (7) the director of the county department of social services
 4   of the county in which the person resides; or
 5         (8) a solicitor or an assistant solicitor responsible for the
 6   criminal prosecution pursuant to Section 44-23-430(2).
 7      Upon filing of the petition, the judge shall set a date for a
 8   hearing on it and ensure that the client has an attorney who
 9   represents him. The parents, parent with legal custody, spouse,
10   guardian, or nearest known relative of the person alleged to have
11   mental retardation intellectual disability or a related disability and
12   in whose behalf the petition has been made and in the discretion of
13   the court, the individual alleged to have mental retardation
14   intellectual disability or a related disability and the department
15   must be served by the court with a written notice of the time and
16   place of the hearing, together with a written statement of the
17   matters stated in the petition. If no parent, spouse, legal guardian,
18   or known relative of the person alleged to have mental retardation
19   intellectual disability or a related disability is found, the court shall
20   appoint a guardian ad litem to represent the person alleged to have
21   mental retardation intellectual disability or a related disability, and
22   the notice must be served upon the guardian. If the parent, spouse,
23   guardian, or known relative of the person alleged to have mental
24   retardation intellectual disability or a related disability is found, he
25   must be notified of the right to an attorney at the hearing.
26      (B) The hearing on the petition may be in the courthouse or at
27   the place of residence of the person alleged to have mental
28   retardation intellectual disability or a related disability or at
29   another place considered appropriate by the court. The person
30   alleged to have mental retardation intellectual disability or a
31   related disability does not need to be present if the court
32   determines that the hearing would be injurious or detrimental to
33   the person alleged to have mental retardation intellectual disability
34   or a related disability or if the person‟s mental or physical
35   condition prevents his participation in the hearing. However, his
36   attorney must be present.
37      (C) A report of the person in charge of the examination of the
38   person alleged to have mental retardation intellectual disability or a
39   related disability at the diagnostic center referred to in
40   „Requirement for Admission‟ must be submitted to the court at the
41   hearing. The court may not render judgment in the hearing unless
42   this report is available and introduced.


     [687]                              19
 1      (D) If the court determines that the evidence presented by the
 2   examiners at the diagnostic center, along with other evidence
 3   presented to the court, is to the effect that the person does not in
 4   fact have mental retardation intellectual disability or a related
 5   disability to an extent which would require commitment, it shall
 6   terminate the proceeding and dismiss the petition.
 7      (E) If the person is found by the court to have mental
 8   retardation intellectual disability or a related disability and be in
 9   need of placement in a facility or service program of the
10   department, the court shall order that he be admitted to the
11   jurisdiction of the department as soon as necessary services are
12   available and include in the order a summary of the evidence
13   presented and order of the court.
14      (F) The department shall inform the court as soon after the date
15   of the order as practical that suitable accommodations and services
16   are available to meet the needs of the person with mental
17   retardation intellectual disability or a related disability. Upon
18   notification, the court shall direct the petitioner in these
19   proceedings to transport the person with mental retardation
20   intellectual disability or a related disability to a program the
21   department designates.
22      (G) A party to these proceedings may appeal from the order of
23   the court to the court of common pleas, and a trial de novo with a
24   jury must be held in the same manner as in civil actions unless the
25   petitioner through his attorney waives his right to a jury trial.
26   Pending a final determination of the appeal, the person with mental
27   retardation intellectual disability or a related disability must be
28   placed in protective custody in either a facility of the department or
29   in some other suitable place designated by the court. No person
30   with mental retardation intellectual disability or a related disability
31   must be confined in jail unless there is a criminal charge pending
32   against him.
33
34      Section 44-20-460. (A) A person admitted or committed to
35   the services of the department remains a client and is eligible for
36   services until discharged. When the department determines that a
37   client admitted to services is no longer in need of them, the
38   director or his designee may discharge him. When the only basis
39   of the department‟s provision of services to a client is that he is a
40   person with mental retardation intellectual disability or a related
41   disability and it is determined that he is no longer in that condition,
42   the director or his designee shall discharge him as soon as
43   practical. A client of the department who is receiving residential

     [687]                             20
 1   services may be released to his spouse, parent, guardian, or relative
 2   or another suitable person for a time and under conditions the
 3   director or his designee may prescribe.
 4      (B) When a client voluntarily admitted requests discharge or
 5   the person upon whose application the client was admitted to the
 6   department‟s services requests discharge in writing, the client may
 7   be detained by the department for no more than ninety-six hours.
 8   However, if the condition of the person is considered by the
 9   director or his designee to be such that he cannot be discharged
10   with safety to himself or with safety to the general public, the
11   director or his designee may postpone the requested discharge for
12   not more than fifteen days and cause to be filed an application for
13   judicial admission. For the purpose of this section, the Probate
14   Court or Family Court of the county in which the facility where the
15   person with mental retardation intellectual disability or a related
16   disability resides is located is the venue for judicial admission.
17   Pending a final determination on the application, the court shall
18   order the person with mental retardation intellectual disability or a
19   related disability placed in protective custody in either a facility of
20   the department or in some other suitable place designated by the
21   court.
22
23      Section 44-20-470. (A) The department may return a
24   nonresident person with mental retardation intellectual disability or
25   a related disability admitted to a service or program in this State to
26   the proper agency of the state of his residence.
27      (B) The department is authorized to enter into reciprocal
28   agreements with the proper agencies of other states to facilitate the
29   return to the state of their residence persons admitted or committed
30   to services for persons with mental retardation intellectual
31   disability or a related disability in this State or other states.
32      (C) The department may detain a person with mental
33   retardation intellectual disability or a related disability returned to
34   this State from the state of his commitment for not more than
35   ninety-six hours pending order of the court in commitment
36   proceedings in this State.
37      (D) The expense of returning persons with mental retardation
38   intellectual disability or a related disability to other states must be
39   paid by this State, and the expense of returning residents of this
40   State with mental retardation intellectual disability or a related
41   disability must be paid by the state making the return when
42   interstate agreements to that effect have been negotiated.
43

     [687]                             21
 1      Section 44-20-480. When the department determines that the
 2   welfare of a client would be facilitated by his placement out of the
 3   home, the client must be evaluated by the department, and the least
 4   restrictive level of care possible for the client must be
 5   recommended and provided when available. The department shall
 6   determine which levels of care are more restrictive and is
 7   responsible for providing a range of placements offering various
 8   levels of supervision. The department may pay an individual or
 9   organization furnishing residential alternatives to clients under this
10   section a reasonable sum for services rendered, as determined by
11   the department.
12
13      Section 44-20-490. (A) When the department determines that
14   a client may benefit from being placed in an employment situation,
15   the department shall regulate the terms and conditions of
16   employment, shall supervise persons with mental retardation
17   intellectual disability, a related disability, head injury, or spinal
18   cord injury so employed, and may assist the client in the
19   management of monies earned through employment to the end that
20   the best interests of the client are served.
21      (B) The department may operate sheltered employment and
22   training programs at its various facilities and in communities and
23   may pay clients employed in these settings from earnings of the
24   program or from other funds available for this purpose.
25      (C) Clients who receive job training and employment services
26   from the department must be compensated in accordance with
27   applicable state and federal laws and regulations.
28
29      Section 44-20-500. When a client is absent from a facility or
30   program and there is probable cause the client may be in danger,
31   the director or his designee may issue an order of confinement for
32   the client. This order, when endorsed by the judge of the probate,
33   family, or Circuit Court of the county in which the client is present
34   or residing, authorizes a peace officer to take the client into
35   custody for not more than twenty-four hours and to return him or
36   cause him to be returned to the place designated by the director or
37   his designee.
38
39      Section 44-20-510. Placement of a person with mental
40   retardation intellectual disability, a related disability, head injury,
41   or spinal cord injury in a program of the department does not
42   preclude his attendance in community-based public school classes
43   when the individual qualifies for the classes.

     [687]                             22
 1
 2                                 Article 5
 3
 4           Licensure and Regulation of Facilities and Programs
 5
 6      Section 44-20-710. No day program in part or in full for the
 7   care, training, or treatment of a person with mental retardation
 8   intellectual disability, a related disability, head injury, or spinal
 9   cord injury may deliver services unless a license first is obtained
10   from the department. For the purpose of this article „in part‟
11   means a program operating for ten hours a week or more.
12   Educational and training services offered under the sponsorship
13   and direction of school districts and other state agencies are not
14   required to be licensed under this article.
15
16      Section 44-20-720. The department shall establish minimum
17   standards of operation and license programs provided for in
18   „Facilities and Programs must be Licensed‟.
19
20      Section 44-20-730. In determining whether a license may be
21   issued the department shall consider if the program for which the
22   license is applied conforms with the local and state service plans
23   and if the proposed location conforms to use.
24
25      Section 44-20-740. No day program may accept a person who
26   has mental retardation with intellectual disability, a related
27   disability, head injury, or spinal cord injury for services other than
28   those for which it is licensed. No program may serve more than
29   the number of clients as provided on the license. An applicant for
30   a license shall file an application with the department in a form and
31   under conditions the department may prescribe. The license must
32   be issued for up to three years unless sooner suspended, revoked,
33   or surrendered. The license is not transferable and must not be
34   assigned.
35
36      Section 44-20-750. The department shall make day program
37   inspections as it may prescribe by regulation. The day programs
38   subject to this article may be visited and inspected by the director
39   or his designees no less than annually and before the issuance of a
40   license. Upon request, each program shall file with the department
41   a copy of its bylaws, regulations, and rates of charges. The records
42   of each licensed program are open to the inspection of the director
43   or his designees.

     [687]                             23
 1
 2      Section 44-20-760. Information received by the department
 3   through licensing inspections or as otherwise authorized may be
 4   disclosed publicly upon written request to the department. The
 5   reports may not identify individuals receiving services from the
 6   department.
 7
 8      Section 44-20-770. The department shall deny, suspend, or
 9   revoke a license on any of the following grounds:
10      (1) failure to establish or maintain proper standards of care and
11   service as prescribed by the department;
12      (2) conduct or practices detrimental to the health or safety of
13   residents or employees of the day program. This item does not
14   apply to healing practices authorized by law;
15      (3) violation of the provisions of this article or regulations
16   promulgated under it.
17
18      Section 44-20-780. (A) The department shall give written
19   notification to the governing board or if none, the operator of a
20   program of deficiencies, and the applicant or licensee must be
21   given a specified time in which to correct the deficiencies. If the
22   department determines to deny, suspend, or revoke a license, it
23   shall send to the applicant or licensee by certified mail a notice
24   setting forth the reason for the determination. The denial,
25   suspension, or revocation becomes final fifteen calendar days after
26   the mailing of the notice, unless the applicant or licensee within
27   that time gives written notice of his desire for a hearing. If the
28   applicant or licensee gives that notice, he must be given a hearing
29   before the department and may present evidence. On the basis of
30   the evidence, the determination must be affirmed or set aside by
31   the director, and a copy of the decision, setting forth the findings
32   of fact and the reasons upon which it is based must be sent by
33   registered mail to the applicant.
34      (B) If an existing program has conditions or practices which, in
35   the department‟s judgment, provide an immediate threat to the
36   safety and welfare of the person with mental retardation
37   intellectual disability, a related disability, head injury, or spinal
38   cord injury served, the department may immediately suspend or
39   revoke the license of the program. Notification of the program
40   board or operator by certified mail of the license suspension or
41   revocation also must include the reasons or conditions. A person
42   operating a program which has had its license suspended or
43   revoked must be punished as provided in „Injunctions; Penalties‟.

     [687]                            24
 1
 2     Section 44-20-790. The procedures governing hearings
 3   authorized by „Notice of Deficiencies . . .‟ must be in accordance
 4   with regulations promulgated by the department. The director may
 5   appoint a review team, including consumers, to assist in the
 6   collection of information pertinent to the hearing.
 7
 8      Section 44-20-800. An applicant or licensee who is
 9   dissatisfied with the decision of the department as a result of the
10   hearing provided for by „Procedures Governing Disciplinary
11   Hearings . . .‟ may appeal to a South Carolina administrative law
12   judge as provided in Article 5 of Chapter 23 of Title 1.
13
14      Section 44-20-900. (A) The department, in accordance with
15   the laws of the State governing injunctions and other processes,
16   may maintain an action in the name of the State against a person
17   for establishing, conducting, managing, or operating a day program
18   for the care, training, and treatment of a person with mental
19   retardation intellectual disability, a related disability, head injury,
20   or spinal cord injury without obtaining a license as provided in this
21   article. In charging a defendant in a complaint in the action, it is
22   sufficient to charge that the defendant, upon a certain day and in a
23   certain county, provided day program services without a license,
24   without averring more particular facts concerning the charge.
25      (B) A person violating the provisions of this article is guilty of
26   a misdemeanor and, upon conviction, must be fined not more than
27   one thousand dollars for a first offense and two thousand dollars
28   for a subsequent offense. Each day the day program operates after
29   a first conviction is considered a subsequent offense.
30
31     Section 44-20-1000. Licensing by the department must be done
32   in conjunction with and not in place of licensing by an agency
33   having responsibilities outside the department‟s jurisdiction.
34   However, nothing in this section prevents the department from
35   entering into cooperative agreements or contracts with an agency
36   which has or may have licensing responsibilities in order to
37   accomplish the licensing of programs.
38
39                                 Article 7
40
41           Capital Improvements for Disabilities and Special Needs
42


     [687]                             25
 1      Section 44-20-1110. The department has authority for all of the
 2   state‟s disabilities and special needs services and programs.
 3
 4      Section 44-20-1120. The commission may raise monies for the
 5   construction of improvements under the terms and conditions of
 6   this article.
 7
 8     Section 44-20-1130. The aggregate of the outstanding principal
 9   amounts of state capital improvement bonds issued for the
10   commission may not exceed twenty million dollars.
11
12      Section 44-20-1140. If the commission determines that
13   improvements are required for a residential regional center or
14   community facility, it may make application for them to the State
15   Budget and Control Board. The application must contain:
16      (1) a description of the improvements sought and their
17   estimated cost;
18      (2) the number of paying clients receiving services from the
19   department, the amount of fees received from the clients during the
20   preceding fiscal year, and the estimated amount to be received
21   from them during the next succeeding fiscal year;
22      (3) the revenues derived from the paying clients during the
23   preceding three fiscal years;
24      (4) a suggested maturity schedule, which may not exceed
25   twenty years, for the repayment of monies to be made available to
26   the commission for state capital improvement bonds;
27      (5) a statement showing the debt service requirements of other
28   outstanding obligations.
29
30      Section 44-20-1150. The State Budget and Control Board may
31   approve, in whole or in part, or may modify an application
32   received from the commission. If it finds that a need for the
33   improvements sought by the commission exists, it may contract to
34   make available to the commission funds to be realized from the
35   sale of state capital improvements bonds if it finds that the
36   revenues for the preceding fiscal year, if multiplied by the number
37   of years, which may not exceed twenty, contemplated by the
38   suggested or revised maturity schedule for the repayment of the
39   monies to be made available to the commission, result in the
40   production of a sum equal to not less than one hundred twenty-five
41   percent of the aggregate principal and interest requirement of all
42   outstanding obligations and all obligations to be incurred by the
43   commission.

     [687]                           26
 1
 2      Section 44-20-1160. Upon receiving the approval of the State
 3   Budget and Control Board the commission shall obligate itself to
 4   apply all monies derived from its revenues to the payment of the
 5   principal and interest of its outstanding obligations and those to be
 6   issued and to deliver to the board its obligations.
 7
 8      Section 44-20-1170. (A) Following the execution and delivery
 9   of its obligations, the commission shall remit to the State Treasurer
10   all its revenues, including accumulated revenues not applicable to
11   prior obligations, for credit to a special fund. The special fund
12   must be applied to meet the sums due by the commission under its
13   obligations. These monies from the special fund must be applied
14   by the State Treasurer to the payment of the principal of and
15   interest on outstanding state capital improvement bonds.
16      (B) If the accumulation of revenues of the commission in the
17   special fund exceeds the payment due or to become due during the
18   then current fiscal year and an additional sum equal to the
19   maximum annual debt service requirement of the obligations for a
20   succeeding fiscal year, the State Budget and Control Board may
21   permit the commission to withdraw the excess and apply it to
22   improvements that have received the approval of the board or to
23   transfer the excess out of the special fund for contract awards to
24   local disabilities and special needs boards for needed
25   improvements at the local level and for nonrecurring prevention,
26   assistive technology, and quality initiatives at the regional centers
27   and local boards.”
28
29   SECTION 3. Chapter 21, Title 44 of the 1976 Code is amended to
30   read:
31
32                               “CHAPTER 21
33
34      Department of Disabilities and Special Needs Family Support
35                                Services
36
37      Section 44-21-10. (A) It is the intent of the General Assembly
38   that individuals with mental retardation intellectual disability or
39   related disabilities or head injuries, spinal cord injuries, or similar
40   disabilities and their families be afforded supports that emphasize
41   community living and enable them to enjoy typical lifestyles. One
42   way to do this is to recognize that families are the greatest resource
43   available to individuals who have mental retardation with

     [687]                             27
 1   intellectual disability or related disabilities or head injuries, spinal
 2   cord injuries, or similar disabilities and that families must be
 3   supported in their role as primary caregivers. The General
 4   Assembly finds that supporting individuals and families in their
 5   effort to care for themselves or their family members at home is
 6   more efficient, cost-effective, and sensitive than maintaining
 7   people with mental retardation intellectual disability or related
 8   disabilities in out-of-home residential settings.
 9      (B) The intent of the Family Support Services Program
10   provided for in this chapter is to assist individuals with disabilities
11   and their families who desire or choose to support a family
12   member with mental retardation intellectual disability or a related
13   disability or head injury, spinal cord injury, or similar disability in
14   their home. The program is not meant to create a hardship on a
15   family by supplanting or diverting access from other appropriate or
16   necessary services. It is recognized that persons with mental
17   retardation intellectual disability or related disabilities or head
18   injuries, spinal cord injuries, or similar disabilities have the right to
19   receive services from public and other agencies that provide
20   services to South Carolina citizens and to have those services
21   coordinated with the services needed because of their disabilities.
22   It is the position of this State that children and adults have the right
23   to live with their families. The individual‟s and family‟s
24   circumstances and desires must be taken into account when
25   considering the appropriate types of services or supports which can
26   best meet the needs of the individual and family.
27      (C) In recognition of the importance of families, the following
28   principles must be used as guidelines in developing services to
29   support families:
30          (1) Families and individuals with mental retardation
31   intellectual disability or related disabilities or head injuries, spinal
32   cord injuries, or similar disabilities are best able to determine their
33   own needs and should be able to make decisions concerning
34   necessary, desirable, and appropriate services.
35          (2) Individuals and families should receive the support
36   necessary to care for themselves or their family member at home.
37          (3) Family support is needed throughout the lifespan of an
38   individual who has mental retardation with intellectual disability or
39   related disabilities or head injuries, spinal cord injuries, or similar
40   disabilities.
41          (4) Family support services should be sensitive to the unique
42   needs, strengths, and values of the individuals and the family and
43   should be responsive to the needs of the entire family.

     [687]                              28
 1         (5) Family support should build on existing social networks
 2   and natural sources of support and should encourage community
 3   integration.
 4         (6) Family support services should be provided in a manner
 5   that develop comprehensive, responsive, and flexible support to
 6   individuals and families as their needs evolve over time.
 7         (7) Family support services should be coordinated across the
 8   numerous agencies likely to provide resources and services to
 9   individuals and families and should be provided equitably across
10   the State.
11         (8) Family, individual, and community-based services
12   should be based on the principles of sharing ordinary places,
13   developing meaningful relationships, learning things that are
14   useful, making choices, as well as promoting an individual‟s
15   self-esteem.
16         (9) Family support services should be sufficient to enable
17   families to keep their family members with mental retardation
18   intellectual disability or related disabilities or head injuries, spinal
19   cord injuries, or similar disabilities at home or be sufficient to
20   enable the individual with a disability to remain at home.
21         (10) Services provided through the Family Support Program
22   must be coordinated closely with services received from public and
23   other agencies and shall foster collaboration and cooperation with
24   all agencies providing services to individuals with mental
25   retardation intellectual disability or related disabilities or head
26   injuries, spinal cord injuries, or similar disabilities.
27      (D) The General Assembly recognizes that the South Carolina
28   Department of Disabilities and Special Needs for several years has
29   developed and maintained a family support program that provides
30   support services to some families with members who have mental
31   retardation with intellectual disability. The success of this
32   program demonstrates the need and value of family support
33   services. More families in the State should be able to receive
34   appropriate services and assistance needed to stabilize the family
35   unit.
36
37      Section 44-21-20. As used in this chapter:
38      (1) „Department‟ means the Department of Disabilities and
39   Special Needs.
40      (2) „Family support‟ means goods and services needed by
41   individuals or families to care for themselves or their family
42   members with mental retardation intellectual disability or related
43   disabilities or head injuries, spinal cord injuries, or similar

     [687]                             29
 1   disabilities and to enjoy a quality of life comparable to other
 2   community members.
 3      (3) „Family Support Program‟ means a coordinated system of
 4   family support services administered by the department directly or
 5   through contracts with private nonprofit or governmental agencies
 6   across the State, or both.
 7
 8     Section 44-21-30. The department may contract with or make
 9   grants to agencies or individuals to provide for a Family Support
10   Program in accordance with this chapter. Services and supports
11   developed must be flexible to address individual and family needs.
12
13      Section 44-21-40. The focus of the Family Support Program is
14   supporting:
15      (1) families with children with mental retardation intellectual
16   disability or related disabilities or head injuries, spinal cord
17   injuries, or similar disabilities, twenty-one years of age and
18   younger;
19      (2) persons older than twenty-one years of age with mental
20   retardation intellectual disability or related disabilities or head
21   injuries, spinal cord injuries, or similar disabilities who choose to
22   live with their families;
23      (3) persons older than twenty-one years of age with mental
24   retardation intellectual disability or related disabilities or head
25   injuries, spinal cord injuries, or similar disabilities who are
26   residing in the community in an unsupported setting, not a state or
27   federally-funded program.
28
29     Section 44-21-50. The contracted agency shall assist each
30   individual or family for whom services will be provided in
31   assessing its needs and shall prepare a written plan with the person
32   and family. The needs and preferences of the individual and
33   family will be the basis for determining what goods and services
34   will be provided within the resources available.
35
36     Section 44-21-60. The services in the Family Support Program
37   include, but are not limited to, family support services
38   coordination, information, referral, advocacy, educational
39   materials, emergency and outreach services, and other individual
40   and family-centered assistance services such as:
41     (1) respite care;
42     (2) personal assistance services;
43     (3) child care;

     [687]                            30
 1    (4) homemaker services;
 2    (5) minor home and work site modifications and vehicular
 3   modifications;
 4    (6) specialized equipment and maintenance and repair;
 5    (7) specialized nutrition and clothing and supplies;
 6    (8) transportation services;
 7    (9) health-related costs not otherwise covered;
 8    (10) licensed nursing and nurses‟ aid services;
 9    (11) family counseling, training, and support groups;
10    (12) financial assistance;
11    (13) emergency services;
12    (14) recreation and leisure needs.
13
14      Section 44-21-70. Implementation of this chapter and the
15   Family Support Program is contingent upon annual appropriation
16   of sufficient funding for the program and benefits. This chapter
17   does not establish or authorize creation of an entitlement program
18   or benefit.
19
20      Section 44-21-80. (A) The Department of Pediatrics of the
21   Medical University of South Carolina, the University Pediatrics of
22   the University Affiliated Program of the University of South
23   Carolina, and the Children‟s Hospital of the Greenville Hospital
24   System, are each hereby authorized, as agents of the State of South
25   Carolina, to fulfill the role of Regional Tertiary Level
26   Developmental Evaluation Centers providing comprehensive
27   developmental assessment and treatment services for children with
28   developmental disabilities, significant developmental delays, or
29   behavioral or learning disorders.
30      (B) As developmental evaluation centers, the above named
31   institutions shall provide a seamless continuum of developmental
32   services, including medically necessary diagnostic and treatment
33   services for the purpose of correcting or ameliorating physical or
34   mental illnesses and conditions which, left untreated, would
35   negatively impact the health and quality of life of South Carolina‟s
36   children. Further, these centers shall work collectively with the
37   teaching, training, and research entities of each institution,
38   extending the state‟s efforts to prepare professionals to work in the
39   field of developmental medicine, while lending expertise to the
40   research efforts in this field.
41      (C) The developmental evaluation centers shall be involved in
42   research, planning, and needs assessment of issues related to
43   developmental disabilities and shall be committed to develop a

     [687]                            31
 1   regionalized system of community-based, family-centered care for
 2   children with developmental and behavioral disabilities. In so
 3   doing, the centers shall serve as primary points of entry for
 4   developmental evaluation services and as regional coordinators for
 5   the delivery of the services and are encouraged to affiliate with
 6   other providers thus enhancing the availability of high quality
 7   services for the children of South Carolina.”
 8
 9   SECTION 4. Section 44-23-10(21) of the 1976 Code, as last
10   amended by Act 266 of 2008, is amended to read:
11
12      “(21) „Person with mental retardation intellectual disability‟
13   means a person, other than a person with a mental illness primarily
14   in need of mental health services, whose inadequately developed
15   or impaired intelligence and adaptive level of behavior require for
16   the person‟s benefit, or that of the public, special training,
17   education, supervision, treatment, care, or control in the person‟s
18   home or community or in a service facility or program under the
19   control and management of the Department of Disabilities and
20   Special Needs.”
21
22   SECTION 5. Articles 3 and 5 of Chapter 23, Title 44 of the 1976
23   Code are amended to read:
24
25                                 “Article 3
26
27       Detention, Confinement and Transfer of Confined Persons
28
29      Section 44-23-210. A person confined in a state institution or
30   a person confined in a state or private mental health or mental
31   retardation intellectual disability facility may be transferred to
32   another mental health or mental retardation intellectual disability
33   facility if:
34      (1) the director of a state institution not under the jurisdiction
35   of the Department of Mental Health requests the admission of a
36   person confined there to a state mental health facility if the person
37   is suspected of having a mental illness. If after full examination by
38   two designated examiners, one of whom must be a licensed
39   physician, the director of the mental health facility is of the
40   opinion that the person has a mental illness, the director shall
41   notify the director of the institution or the facility to which the
42   person was admitted who shall commence proceedings pursuant to
43   Sections 44-17-510 through 44-17-610;

     [687]                            32
 1      (2) the director of a facility in which the patient resides
 2   determines that it would be consistent with the medical needs of
 3   the person, the Department of Mental Health may transfer or
 4   authorize the transfer of the patient from one facility to another. If
 5   the transfer is from a less restricted facility to a substantially more
 6   secure facility and the patient objects to the transfer, a hearing to
 7   give the patient a reasonable opportunity to contest the transfer
 8   must be held pursuant to Sections 44-17-540 through 44-17-570.
 9   When a patient is transferred, written notice must be given to the
10   patient‟s legal guardian, attorney, parents, or spouse or, if none be
11   known, to the patient‟s nearest known relative or friend. This
12   section may not be construed to apply to transfers of a patient
13   within a mental health facility; or
14      (3) the legal guardian, parent, spouse, relative, or friend of an
15   involuntary patient submits a request for the transfer of the patient
16   from one Department of Mental Health facility to another and the
17   reasons for desiring the transfer and unless the Department of
18   Mental Health reasonably determines that it would be inconsistent
19   with the medical needs of the person, the transfer must be made. If
20   the transfer is from a less restricted to a substantially more secure
21   facility, item (2) governs.
22
23      Section 44-23-220. No person who is mentally ill or mentally
24   retarded who has intellectual disability shall be confined for
25   safekeeping in any jail. If it appears to the officer in charge of the
26   jail that such a person is in prison, he shall immediately cause the
27   person to be examined by two examiners designated by the
28   Department of Mental Health or the Department of Disabilities and
29   Special Needs or both, and if in their opinion admission to a
30   mental health or retardation facility is warranted, the officer in
31   charge of the jail shall commence proceedings pursuant to Sections
32   44-17-510 through 44-17-610, or Section 44-21-90.                    If
33   hospitalization is ordered the person shall be discharged from the
34   custody of the officer in charge of the jail and shall be admitted to
35   an appropriate mental health or retardation facility.
36
37     Section 44-23-240. Any person who wilfully causes, or
38   conspires with or assists another to cause the unwarranted
39   confinement of any individual under the provisions of this chapter,
40   Chapter 9, Chapter 11, Chapter 13, Article 1 of Chapter 15,
41   Chapter 17 or Chapter 27, shall be fined not exceeding one
42   thousand dollars or imprisoned for not exceeding one year, or both.
43

     [687]                             33
 1      Section 44-23-250. Whenever reference is made requiring the
 2   signature of the director of any state mental health facility, the
 3   reference means the director of the facility or the director‟s
 4   designee.
 5
 6                                Article 5
 7
 8                          Fitness to Stand Trial
 9
10      Section 44-23-410. (A) Whenever a judge of the circuit court
11   or family court has reason to believe that a person on trial before
12   him, charged with the commission of a criminal offense or civil
13   contempt, is not fit to stand trial because the person lacks the
14   capacity to understand the proceedings against him or to assist in
15   his own defense as a result of a lack of mental capacity, the judge
16   shall:
17         (1) order examination of the person by two examiners
18   designated by the Department of Mental Health if the person is
19   suspected of having a mental illness or designated by the
20   Department of Disabilities and Special Needs if the person is
21   suspected of being mentally retarded having intellectual disability
22   or having a related disability or by both sets of examiners if the
23   person is suspected of having both mental illness and mental
24   retardation intellectual disability or a related disability. The
25   examination must be made within thirty days after the receipt of
26   the court‟s order and may be conducted in any suitable place
27   unless otherwise designated by the court; or
28         (2) order the person committed for examination and
29   observation to an appropriate facility of the Department of Mental
30   Health or the Department of Disabilities and Special Needs for a
31   period not to exceed fifteen days.
32      (B) Before the expiration of the examination period or the
33   examination and observation period, the Department of Mental
34   Health or the Department of Disabilities and Special Needs, as
35   appropriate, may apply to a judge designated by the Chief Justice
36   of the South Carolina Supreme Court for an extension of time up
37   to fifteen days to complete the examination or the examination and
38   observation.
39      (C) If the person or the person‟s counsel requests, the court
40   may authorize the person to be examined additionally by a
41   designated examiner of the person‟s choice. However, the court
42   may prescribe the time and conditions under which the
43   independent examination is conducted.

     [687]                           34
 1      (D) If the examiners designated by the Department of Mental
 2   Health find indications of mental retardation intellectual disability
 3   or a related disability but not mental illness, the department shall
 4   not render an evaluation on the person‟s mental capacity, but shall
 5   inform the court that the person is „not mentally ill‟ and
 6   recommend that the person should be evaluated for competency to
 7   stand trial by the Department of Disabilities and Special Needs. If
 8   the examiners designated by the Department of Disabilities and
 9   Special Needs find indications of mental illness but not mental
10   retardation intellectual disability or a related disability, the
11   department shall not render an evaluation on the person‟s mental
12   capacity, but shall inform the court that the person does „not have
13   mental retardation intellectual disability or a related disability‟ and
14   recommend that the person should be evaluated for competency to
15   stand trial by the Department of Mental Health. If either the
16   Department of Mental Health or the Department of Disabilities and
17   Special Needs finds a preliminary indication of a dual diagnosis of
18   mental illness and mental retardation intellectual disability or a
19   related disability, this preliminary finding must be reported to the
20   court with the recommendation that one examiner from the
21   Department of Mental Health and one examiner from the
22   Department of Disabilities and Special Needs be designated to
23   further evaluate the person and render a final report on the person‟s
24   mental capacity.
25
26      Section 44-23-420. (A) Within ten days of examination under
27   Section 44-23-410(A)(1) or at the conclusion of the observation
28   period under Section 44-23-410(A)(2), the designated examiners
29   shall make a written report to the court which shall include:
30        (1) a diagnosis of the person‟s mental condition; and
31        (2) clinical findings bearing on the issues of whether or not
32   the person is capable of understanding the proceedings against him
33   and assisting in his own defense, and if there is a substantial
34   probability that he will attain that capacity in the foreseeable
35   future.
36      (B) The report of the designated examiners shall not contain
37   any findings nor shall the examiners testify on the question of
38   insanity should it be raised as a defense unless further examination
39   on the question of insanity is ordered by the court.
40      (C) The report is admissible as evidence in subsequent hearings
41   pursuant to Section 44-23-430.
42


     [687]                             35
 1      Section 44-23-430. Upon receiving the report of the
 2   designated examiners the court shall set a date for and notify the
 3   person and his counsel of a hearing on the issue of his fitness to
 4   stand trial. If, in the judgment of the designated examiners or the
 5   superintendent of the facility if the person has been detained, the
 6   person is in need of hospitalization, the court with criminal
 7   jurisdiction over the person may authorize his detention in a
 8   suitable facility until the hearing. The person shall be entitled to
 9   be present at the hearings and to be represented by counsel. If
10   upon completion of the hearing and consideration of the evidence
11   the court finds that:
12      (1) the person is fit to stand trial, it shall order the criminal
13   proceedings resumed; or
14      (2) the person is unfit to stand trial for the reasons set forth in
15   Section 44-23-410 and is unlikely to become fit to stand trial in the
16   foreseeable future, the solicitor responsible for the criminal
17   prosecution shall initiate judicial admission proceedings pursuant
18   to Sections 44-17-510 through 44-17-610 or Section 44-20-450
19   within fourteen days, excluding Saturdays, Sundays, and holidays,
20   during which time the court may order the person hospitalized,
21   may order the person to continue in detention if detained, or, if on
22   bond, may permit the person to remain on bond; or
23      (3) the person is unfit to stand trial but likely to become fit in
24   the foreseeable future, the court shall order him hospitalized up to
25   an additional sixty days. If the person is found to be unfit at the
26   conclusion of the additional period of treatment the solicitor
27   responsible for the criminal prosecution shall initiate judicial
28   admission proceedings pursuant to Sections 44-17-510 through
29   44-17-610 or Section 44-20-450 within fourteen days, excluding
30   Saturdays, Sundays, and holidays, during which time the person
31   shall remain hospitalized.
32      Subject to the provisions of Section 44-23-460, persons against
33   whom criminal charges are pending shall have all the rights and
34   privileges of other involuntarily hospitalized persons.
35      Persons against whom criminal charges are pending but who are
36   not involuntarily committed following judicial admission
37   proceedings shall be released.
38
39      Section 44-23-440. A finding of unfitness to stand trial under
40   Section 44-23-430 does not preclude any legal objection to the
41   prosecution of the individual which is susceptible of fair
42   determination prior to trial and without the personal participation
43   of the defendant.

     [687]                             36
 1      If either the person found unfit to stand trial or his counsel
 2   believes he can establish a defense of not guilty to the charges
 3   other than the defense of insanity, he may request an opportunity
 4   to offer a defense on the merits to the court. The court may require
 5   affidavits and evidence in support of such request. If the court
 6   grants such request, the evidence of the State and the defendant
 7   shall be heard before the court sitting without a jury. If after
 8   hearing such petition the court finds the evidence is such as would
 9   entitle the defendant to a directed verdict of acquittal, it shall
10   dismiss the indictment or other charges.
11
12      Section 44-23-450. A finding of unfitness to stand trial under
13   Section 44-23-430 may be reexamined by the court upon its own
14   motion, or that of the prosecuting attorney, the person found unfit
15   to stand trial, his legal guardian, or his counsel. Upon receipt of
16   the petition, the court shall order an examination by two designated
17   examiners whose report shall be submitted to the court and shall
18   include underlying facts and conclusions. The court shall notify
19   the individual, his legal guardian, and his counsel of a hearing at
20   least ten days prior to such hearing. The court shall conduct the
21   proceedings in accordance with Section 44-23-430, except that any
22   petition that is filed within six months after the initial finding of
23   unfitness or within six months after the filing of a previous petition
24   under this section shall be dismissed by the court without a
25   hearing.
26
27      Section 44-23-460. When the superintendent of a hospital or
28   mental retardation intellectual disability facility believes that a
29   person against whom criminal charges are pending no longer
30   requires hospitalization, the court in which criminal charges are
31   pending shall be notified and shall set a date for and notify the
32   person of a hearing on the issue of fitness pursuant to Section
33   44-23-430. At such time, the person shall be entitled to assistance
34   of counsel.
35      (1) if upon the completion of the hearing, the court finds the
36   person unfit to stand trial, it shall order his release from the
37   hospital; and
38      (2) if such a person has been hospitalized for a period of time
39   exceeding the maximum possible period of imprisonment to which
40   the person could have been sentenced if convicted as charged, the
41   court shall order the charges dismissed and the person released; or
42      (3) the court may order that criminal proceedings against a
43   person who has been found fit to stand trial be resumed, or the

     [687]                             37
 1   court may dismiss criminal charges and order the person released
 2   if so much time has elapsed that prosecution would not be in the
 3   interest of justice.”
 4
 5   SECTION 6. Chapter 26, Title 44 of the 1976 Code is amended to
 6   read:
 7
 8                             “CHAPTER 26
 9
10    Rights of Mental Retardation Clients with Intellectual Disability
11
12      Section 44-26-10. As used in this chapter:
13      (1) „Aversive stimuli‟ means a clinical procedure which staff
14   apply, contingent upon the exhibition of maladapted behavior,
15   startling, unpleasant, or painful stimuli or stimuli that have a
16   potentially noxious effect.
17      (2) „Client‟ means a person who is determined by the South
18   Carolina Department of Disabilities and Special Needs to have
19   mental retardation intellectual disability or a related disability and
20   is receiving services or is an infant at risk of having mental
21   retardation intellectual disability or a related disability and is
22   receiving services.
23      (3) „Client‟s representative‟ means the client‟s parent,
24   guardian, legal counsel, or other person who acts on behalf or in
25   the best interest of a person with mental retardation intellectual
26   disability or a related disability.
27      (4) „Director‟ means the South Carolina Director of Disabilities
28   and Special Needs.
29      (5) „Court‟ means a probate court of appropriate jurisdiction
30   unless specified otherwise.
31      (6) „Department‟ means the South Carolina Department of
32   Disabilities and Special Needs.
33      (7) „Facility‟ means a residential setting operated, assisted, or
34   contracted out by the department that provides twenty-four hour
35   care and supervision.
36      (8) „Habilitation‟ means the attempt to remedy the delayed
37   learning process to develop maximum growth potential by the
38   acquisition of self-help, language, personal, social, educational,
39   vocational, and recreational skills.
40      (9) „Intellectual disability‟ means significantly subaverage
41   general intellectual functioning existing concurrently with deficits
42   in adaptive behavior and manifested during the developmental
43   period.

     [687]                             38
 1      (10) „Intellectual disability professional‟ means a person
 2   responsible for supervising a client‟s plan of care, integrating
 3   various aspects of the program, recording progress, and initiating
 4   periodic review of each individual plan of habilitation.
 5      (9)(11) „Interdisciplinary team‟ means persons drawn from or
 6   representing the professional disciplines or service areas included
 7   in the individual habilitation plan.
 8      (10)(12) „Major medical treatment‟ means a medical, surgical,
 9   or diagnostic intervention or procedure proposed for a person with
10   mental retardation intellectual disability or a related disability,
11   where a general anesthetic is used or which involves a significant
12   invasion of bodily integrity requiring an incision, producing
13   substantial pain, discomfort, debilitation, or having a significant
14   recovery period. It does not include routine diagnosis or treatment
15   such as the administration of medications or nutrition or the
16   extractions of bodily fluids for analysis or dental care performed
17   with a local anesthetic or a nonpermanent procedure designed for
18   the prevention of pregnancy.
19      (11) „Mental retardation‟ means significantly subaverage
20   general intellectual functioning existing concurrently with deficits
21   in adaptive behavior and manifested during the developmental
22   period.
23      (12) „Mental retardation professional‟ means a person
24   responsible for supervising a client‟s plan of care, integrating
25   various aspects of the program, recording progress, and initiating
26   periodic review of each individual plan of habilitation.
27      (13) „Plan of habilitation‟ means a written plan setting forth
28   measurable goals or behaviorally stated objectives in prescribing
29   an integrated program of individually designed activities or
30   therapies necessary to achieve the goals and objectives.
31      (14) „Planned exclusionary time-out‟ means the technique of
32   behavior modification in which a client is removed from the
33   immediate environment to a physically safe, lighted, and normal
34   temperature room for a specific period of time not to exceed one
35   hour under the direct continued observation of staff.
36
37     Section 44-26-20. Clients have the right to a writ of habeas
38   corpus.
39
40      Section 44-26-30. A mentally retarded person with intellectual
41   disability has the right to be represented by counsel when
42   involuntarily committed to the department pursuant to Section
43   44-20-450.

     [687]                            39
 1      Section 44-26-40. If a client resides in a facility operated by or
 2   contracted to by the department, the determination of that client‟s
 3   competency to consent to or refuse major medical treatment must
 4   be made pursuant to Section 44-66-20(6) of the Adult Health Care
 5   Consent Act. The department shall abide by the decision of a
 6   client found competent to consent.
 7
 8      Section 44-26-50. If the client is found incompetent to consent
 9   to or refuse major medical treatment, the decisions concerning his
10   health care must be made pursuant to Section 44-66-30 of the
11   Adult Health Care Consent Act. An authorized designee of the
12   department may make a health care decision pursuant to Section
13   44-66-30(8) of the Adult Health Care Consent Act. The person
14   making the decision must be informed of the need for major
15   medical treatment, alternative treatments, and the nature and
16   implications of the proposed health care and shall consult the
17   attending physician before making decisions. When feasible, the
18   person making the decision shall observe or consult with the client
19   found to be incompetent.
20
21      Section 44-26-60. (A) If the client is a minor, the decisions
22   concerning his health care must be made by the following persons
23   in the following order of priority:
24         (1) legal guardian;
25         (2) parent;
26         (3) grandparent or adult sibling;
27         (4) other relative by blood or marriage who reasonably is
28   believed by the health care professional to have a close personal
29   relationship with the client;
30         (5) other person who reasonably is believed by the health
31   care professional to have a close personal relationship with the
32   client;
33         (6) authorized designee of the department.
34      (B) If persons of equal priority disagree on whether certain
35   health care must be provided to a client who is a minor, a person
36   authorized in subsection (A), a health care provider involved in the
37   care of the client, or another person interested in the welfare of the
38   client may petition the probate court for an order determining what
39   care is to be provided or for appointment of a temporary or
40   permanent guardian.
41      (C) Priority under this section must not be given to a person if a
42   health care provider, responsible for the care of a client who is
43   unable to consent, determines that the person is not reasonably

     [687]                             40
 1   available, is not willing to make health care decisions for the
 2   client, or is unable to consent as defined in Section 44-66-20(6) of
 3   the Adult Health Care Consent Act.
 4      (D) In an emergency health care may be provided without
 5   consent pursuant to Section 44-66-40 of the Adult Health Care
 6   Consent Act to a person found incompetent to consent to or refuse
 7   major medical treatment or who is incapacitated solely by virtue of
 8   minority.
 9
10      Section 44-26-70. (A) Human rights committees must be
11   established for each regional center and for each
12   county/multi-county program to:
13         (1) review and advise the regional center or the
14   county/multi-county board on the policies pertaining to clients‟
15   rights policies;
16         (2) hear and make recommendations to the regional center or
17   county/multi-county board on research proposals which involve
18   individuals receiving services as research participants pursuant to
19   Section 44-20-260;
20         (3) review and advise the regional center or
21   county/multi-county board on program plans for behavior
22   management which may restrict personal freedoms or rights of
23   clients;
24         (4) advise the regional center or county/multi-county board
25   on other matters as requested pertaining to the rights of clients.
26      (B) Human rights committees must be appointed by the director
27   or his designee. Each committee consists of not less than the
28   following five persons, except employees or former employees of
29   the regional center or county/multi-county board must not be
30   appointed:
31         (1) a family member of a person with mental retardation
32   intellectual disability or a related disability;
33         (2) a client of the department, if appropriate;
34         (3) a representative of the community at large with expertise
35   or a demonstrated interest in the care and treatment of persons with
36   mental retardation intellectual disability or related disabilities.
37      (C) The department shall establish policy and procedures for
38   the operations of the committees.
39      (D) Members of the committees serve in an advisory capacity
40   only and are exempt from liability.
41
42     Section 44-26-80. A client or his representative has the right to
43   appeal decisions concerning the services or treatment provided by

     [687]                            41
 1   the department, county/multi-county board, or contracted service
 2   provider. A human rights committee established in Section
 3   44-26-70 shall review and advise on grievances concerning
 4   applicants or clients receiving services. The department shall
 5   establish policies and procedures for the review of grievances and
 6   the appeal of decisions. The director has final authority.
 7
 8      Section 44-26-90. Unless a client has been adjudicated
 9   incompetent, he must not be denied the right to:
10      (1) dispose of property, real and personal;
11      (2) execute instruments;
12      (3) make purchases;
13      (4) enter into contractual relationships;
14      (5) hold a driver‟s license;
15      (6) marry or divorce;
16      (7) be a qualified elector if otherwise qualified. The county
17   board of voter registration in counties with department facilities
18   reasonably shall assist clients who express a desire to vote to:
19        (a) obtain voter registration forms, applications for absentee
20   ballots, and absentee ballots;
21        (b) comply with other requirements which are prerequisite
22   for voting;
23        (c) vote by absentee ballot if necessary;
24      (8) exercise rights of citizenship in the same manner as a
25   person without mental retardation intellectual disability or a related
26   disability.
27
28      Section 44-26-100. (A) Except           to   the   extent      an
29   interdisciplinary team of a residential program determines that it is
30   required by the medical needs, safety, or habilitative goals of the
31   client to impose restrictions, a client may:
32         (1) communicate by sealed mail, telephone, or otherwise
33   with persons, including official agencies, inside or outside the
34   institution. Reasonable access to writing materials, stamps,
35   envelopes, and telephones, including reasonable funds or means by
36   which to use telephones, must be provided;
37         (2) receive visitors. A facility must have a designated area
38   where clients and visitors may speak privately;
39         (3) wear his clothes, have access to personal hygiene
40   articles, keep and spend a reasonable sum of his money, and keep
41   and use his personal possessions, including articles for personal
42   grooming not provided for by the facility unless the clothes or
43   personal possessions are determined by a mental retardation an

     [687]                             42
 1   intellectual disability professional or physician to be dangerous or
 2   otherwise inappropriate to the habilitation regimen. If clothing is
 3   provided by the facility, clients must have the opportunity to select
 4   from neat, clean, seasonal clothing that allows the client to appear
 5   normal in the community. The clothing must be considered to be
 6   the client‟s throughout his stay in the facility;
 7      (4) have access to individual storage space for private use.
 8   Personal property of a client brought into the facility and placed in
 9   storage by the facility must be inventoried. Receipts must be given
10   to the client and at least one other interested person. The personal
11   property may be reclaimed only by the client or his guardian as
12   long as he is living unless otherwise ordered by the court;
13      (5) follow or abstain from religious practices. Religious
14   practices may be prohibited by the facility supervisor if they lead
15   to physical harm to the client or to others, harassment of other
16   clients, or damage to property.
17      (B) The department shall determine what constitutes reasonable
18   access for the rights provided in this section. Limitations imposed
19   on the exercise of the rights by the client and the reasons for the
20   limitations must be made part of the client‟s record. The
21   limitations are valid for no more than thirty days. The time may be
22   extended an additional thirty days if, upon review, it is determined
23   the client‟s safety or habilitation warrants limitations of the rights.
24   If the department restricts rights, the reasons for the restriction and
25   why the condition cannot be resolved in a less restrictive manner
26   must be recorded in the client‟s record.
27
28      Section 44-26-110. Clients have the right to daily physical
29   exercise. Operators of a facility shall provide indoor and outdoor
30   areas and equipment for this purpose. Clients determined able to
31   be outdoors on a daily basis pursuant to Section 44-26-150 must be
32   allowed this privilege in the absence of contrary medical
33   considerations or during periods of inclement weather.
34
35      Section 44-26-120. (A) A client or his representative with the
36   appropriate permission may have reasonable access to the client‟s
37   medical and habilitative records. The requests must be made in
38   writing.
39      (B) A client or his representative may be refused access to
40   information in the medical and habilitative records if:
41        (1) provided by a third party under assurance that the
42   information remains confidential;


     [687]                             43
 1        (2) the attending physician has determined in writing that the
 2   information would be detrimental to the client‟s habilitation
 3   regimen. The determination must be placed in the client‟s records
 4   and is considered part of restricted information.
 5      (C) A client or his representative refused access to medical or
 6   habilitative records may appeal the refusal to the department
 7   director. The director of the residential program shall notify the
 8   client or his representative of the right to appeal.
 9      (D) Persons granted access to client records shall sign a
10   disclosure form. Disclosure forms are considered part of a client‟s
11   confidential record.
12
13      Section 44-26-130. (A) Communications between clients and
14   mental retardation intellectual disability professionals, including
15   general physicians, psychiatrists, psychologists, nurses, social
16   workers, members of interdisciplinary teams, or other staff
17   members employed in a client-therapist capacity or an employee
18   under supervision of them are considered confidential.
19   Certificates, applications, records, and reports made for the
20   purpose of this chapter that directly or indirectly identify a client,
21   as well as privileged communications, must be kept confidential
22   and must not be disclosed by a person unless:
23         (1) the identified client or his representative consents;
24         (2) a court directs disclosure upon its determination that
25   disclosure is necessary for the conduct of proceedings before it and
26   that failure to make the disclosure is contrary to the public interest;
27         (3) disclosure is required for research conducted or
28   authorized by the department;
29         (4) disclosure is necessary to cooperate with law
30   enforcement, health, welfare, and other state agencies, schools, and
31   county entities;
32         (5) disclosure is necessary to carry out this chapter.
33      (B) Nothing in this section precludes disclosure:
34         (1) upon proper inquiry, of information as to a client‟s
35   current medical condition, to appropriate next of kin;
36         (2) if the information is used in an educational or
37   informational capacity if the identity of the client is concealed;
38         (3) of information to the Governor‟s ombudsman office or
39   the South Carolina Protection and Advocacy System for the
40   Handicapped, Inc., as consistent with state law.
41
42      Section 44-26-140. (A) Clients receiving services for mental
43   retardation intellectual disability shall receive care and habilitation

     [687]                             44
 1   suited to their needs and in the least restrictive appropriate care and
 2   habilitation available.     The care and habilitation must be
 3   administered skillfully, safely, and humanely with full respect for
 4   the client‟s dignity and personal integrity. The department shall
 5   make every effort, based on available resources, to develop
 6   services necessary to meet the needs of its clients.
 7      (B) In emergency admissions when the least restrictive setting
 8   is not available a client must be admitted to the nearest proper
 9   facility until he may be moved to the least restrictive setting.
10      (C) In judicial or emergency admissions to the department
11   every attempt must be made by the court to ensure a client‟s
12   placement in the least restrictive alternative of services available.
13      (D) No client may remain at a level of care that is more
14   restrictive than is warranted to meet his needs if alternative care is
15   available. A residential program must attempt to move clients
16   from:
17         (1) more to less structured living;
18         (2) larger to smaller facilities;
19         (3) larger to smaller living units;
20         (4) group to individual residence;
21         (5) segregated from the community to integrated into the
22   community;
23         (6) dependent to independent living.
24
25      Section 44-26-150. (A) Before or at the time of admission to
26   a Mental Retardation an intellectual disability residential program,
27   a client or his representative must be provided with an explanation
28   in terms and language appropriate to his ability to understand the
29   client‟s rights while under the care of the facility.
30      (B) Within thirty days of admission a client or his
31   representative must be provided with a written individualized plan
32   of habilitation formulated by an interdisciplinary team and the
33   client‟s attending physician. A client or his representative may
34   participate in an appropriate manner in the planning of services.
35   An interim habilitation program based on the preadmission
36   evaluation of the client may be implemented promptly upon
37   admission. The service plan must be developed with the active
38   participation of the individual receiving the services to the extent
39   he is able to participate meaningfully. Each individualized
40   habilitation plan must contain:
41         (1) a statement of the nature and degree of the client‟s
42   mental retardation intellectual disability and the needs of the client;


     [687]                             45
 1        (2) if a physical examination has been conducted, the
 2   client‟s physical condition;
 3        (3) a description of intermediate and long-range habilitative
 4   goals and, if possible, future available services;
 5        (4) a statement as to whether or not the client may be
 6   permitted outdoors on a daily basis and, if not, the reasons why.
 7      (C) A mental retardation An intellectual disability professional
 8   shall review each client‟s individual records quarterly in relation to
 9   goals and objectives established in the habilitation plan. This
10   review must be documented and entered into the client‟s record.
11   The interdisciplinary team shall conduct a full review of the
12   client‟s records and habilitation program annually.
13      (D) Included in a review must be a reassessment of the client‟s
14   plan of habilitation. If the reassessment indicates a need for
15   revisions in the client‟s plan of habilitation, the revisions must be
16   implemented.
17      (E) A client or his representative shall receive an updated plan
18   of habilitation, upon request, pursuant to Section 44-26-120.
19      (F) A client or his representative may request a change in the
20   plan of habilitation. If a request for a change in the plan of
21   habilitation is denied, a grievance may be filed by the client or his
22   representative on his behalf. The request must be reviewed
23   according to the grievance procedure pursuant to Section 44-26-80.
24
25      Section 44-26-160. (A) No client residing in a mental
26   retardation an intellectual disability facility may be subjected to
27   chemical or mechanical restraint or a form of physical coercion or
28   restraint unless the action is authorized in writing by a mental
29   retardation an intellectual disability professional or attending
30   physician as being required by the habilitation or medical needs of
31   the client and it is the least restrictive alternative possible to meet
32   the needs of the client. Emergency restraints require the written
33   authorization of the attending physician or designated staff
34   member and must be noted in the client‟s record.
35      (B) Each use of a restraint and justification for it must be
36   entered into the client‟s record. The authorization is not valid for
37   more than twelve hours during which the client‟s condition must
38   be charted at thirty-minute intervals. If the orders are extended
39   beyond the twelve hours, the extension must have written
40   authorization by a mental retardation an intellectual disability
41   professional or attending physician. Within twenty-four hours a
42   copy of the authorization must be forwarded to the facility
43   supervisor for review. Clients under a form of restraint must be

     [687]                             46
 1   allowed no less than ten minutes every two hours for motion and
 2   exercise. Mechanical restraint must be employed in a manner that
 3   lessens the possibility of physical injury and ensures the least
 4   possible discomfort.
 5      (C) No form of restraint may be used for the convenience of
 6   staff, as punishment, as a substitute for a habilitation program or in
 7   a manner that interferes with the client‟s habilitation program.
 8      (D) In an emergency such as a serious threat of extreme
 9   violence, injury to others, personal injury, or attempted suicide, if
10   the attending physician or a mental retardation an intellectual
11   disability professional is not available, staff may authorize
12   mechanical restraint or physical restraint, in conjunction with state
13   and federal regulations, when these means are necessary for as
14   long as the behavior that warrants restraint persists. The use must
15   be reported immediately to the attending physician or mental
16   retardation an intellectual disability professional who shall
17   authorize its continuance or cessation and make a written record of
18   the reasons for its use and his review. The records and review
19   must be entered into the client‟s record. The facility must have
20   written policies and procedures governing the use of mechanical
21   and physical restraints.
22      (E) The client‟s family or his representative, or both, must be
23   notified immediately of the use of restraints.
24      (F) The appropriate human rights committees must be notified
25   of the use of emergency restraints.
26      (G) Documentation of less restrictive methods that have failed
27   must be entered into the client‟s record when applicable.
28
29      Section 44-26-170. (A) Behavior modification programs
30   involving the use of aversive stimuli are discouraged and may be
31   used only in extraordinary cases where all other efforts have
32   proven ineffective. Clients must not be subjected to aversive
33   stimuli in the absence of:
34        (1) prior written approval for the technique by the director;
35        (2) the informed consent of the client on whom the aversive
36   stimuli is to be used or his representative. Each use of aversive
37   stimuli and justification for it must be entered into the client‟s
38   record;
39        (3) documentation of less restrictive methods that have
40   failed must be entered into the client‟s record.
41      (B) Seclusion must not be used on mentally retarded clients
42   with intellectual disability.


     [687]                             47
 1      (C) Planned exclusionary time-out procedures may be utilized
 2   under close and direct professional supervision as a technique in
 3   behavior shaping.
 4      (D) Behavior modification plans must be reviewed by the
 5   interdisciplinary team periodically for continued appropriateness.
 6
 7      Section 44-26-180. A client or his representative shall give
 8   informed consent in every case before participation in research
 9   conducted by, for, or in cooperation with the department. The
10   department shall promulgate regulations to obtain informed
11   consent and to protect the dignity of the individual.
12
13      Section 44-26-190. (A) The State Department of Education
14   shall seek to develop and utilize the most current and promising
15   methods for the education and training of people with mental
16   retardation intellectual disability. It shall utilize the assistance,
17   service, and findings of other state and federal agencies.
18      (B) School-aged mentally retarded clients with intellectual
19   disability have the right to an appropriate education regardless of
20   the degree of retardation or accompanying disabilities as provided
21   in Public Law 94-142, the Education of Handicapped Children
22   Act. Placement of a school-aged mentally retarded person with
23   intellectual disability in a facility of the department does not
24   preclude his attendance in community-based public schools. It is
25   the goal of each mental retardation intellectual disability facility to
26   effect a move of each resident client from facility-based
27   educational programs to community-based public schools.
28
29     Section 44-26-200. The South Carolina State Employment
30   Service Division of the South Carolina Department of
31   Employment and Workforce and the State Agency of Vocational
32   Rehabilitation shall work together to find employment for citizens
33   with mental retardation intellectual disability. Services must
34   include, but are not limited to, counseling, referral, timely
35   notification of job listings, and other services of the division and
36   the agency.
37
38     Section 44-26-210. A person who wilfully causes, or conspires
39   with or assists another to cause, the denial to a client of rights
40   accorded to him under this chapter, upon conviction, must be fined
41   not more than one thousand dollars or imprisoned not more than
42   one year, or both. A person acting in good faith, upon actual


     [687]                             48
 1   knowledge or information thought by him to be reliable, is exempt
 2   from criminal liability.
 3
 4      Section 44-26-220. (A) A person who in good faith makes a
 5   health care decision as provided in this chapter is not subjected to
 6   civil or criminal liability on account of the substance of the
 7   decision.
 8      (B) A person who consents to major medical treatment as
 9   provided in this chapter does not by virtue of that consent become
10   liable for the costs of care provided to the client found incompetent
11   to consent to or refuse treatment.
12      (C) A health care provider who in good faith relies on a health
13   care decision made by a client or as authorized by this chapter is
14   not subject to civil or criminal liability or disciplinary penalty on
15   account of his reliance on the decision.
16      (D) This section does not affect a health care provider‟s liability
17   arising from provision of care in a negligent manner.”
18
19   SECTION 7. Section 43-7-460(A)(1) and (G)(1) of the 9176
20   Code, as last amended by Act 348 of 2008, are further amended to
21   read:
22
23         “(1) at the time of death was an inpatient in a nursing facility,
24   intermediate care facility for the mentally retarded persons with
25   intellectual disability, or other medical institution, if the individual
26   is required, as a condition of receiving a service in the facility
27   under the state plan, to spend for the cost of medical care all but a
28   minimal amount of the person‟s income required for personal
29   needs; or
30
31      (1) at the time of death was an inpatient in a nursing facility,
32   intermediate care facility for the mentally retarded persons with
33   intellectual disability, or other medical institution if the individual
34   is required, as a condition of receiving services in the facility under
35   the state plan, to spend for costs of medical care all but a minimal
36   amount of the person‟s income required for personal needs; or”
37
38   SECTION 8. Section 44-7-130 (9) of the 1976 Code is amended
39   to read:
40
41     “(9) „The federal act‟ means Title VI of the United States Public
42   Health Service Act (the Hill-Burton Construction Program); Title
43   XVI of the United States Public Health Service Act (National

     [687]                              49
 1   Health Planning and Resources Development Act of 1974--Public
 2   Law 93-641); grants for all center and facility construction under
 3   Public Law 91-211 (community mental health centers‟
 4   amendments to Title II, Public Law 88-164, Community Mental
 5   Health Centers Act); grants for all facility construction under
 6   Public Law 91-517 (developmental disabilities services and
 7   facilities construction amendments of 1970 to Part C, Title I,
 8   grants for construction of facilities for the mentally retarded
 9   persons with intellectual disability--Public Law 88-164); and other
10   federal programs as may exist or be enacted which provide for the
11   construction of hospitals or related health facilities.”
12
13   SECTION 9. Section 44-7-130 (10) of the 1976 Code, as last
14   amended by Act 278 of 2010, is amended to read:
15
16      “(10) „Health care facility‟ means acute care hospitals,
17   psychiatric hospitals, alcohol and substance abuse hospitals,
18   nursing homes, ambulatory surgical facilities, hospice facilities,
19   radiation therapy facilities, rehabilitation facilities, residential
20   treatment facilities for children and adolescents, intermediate care
21   facilities for the mentally retarded persons with intellectual
22   disability, and any other facility for which Certificate of Need
23   review is required by federal law.”
24
25   SECTION 10. Section 44-7-260(A)(11) of the 1976 Code, as
26   last amended by Act 278 of 2010, is further amended to read:
27
28     “(11) intermediate care facilities for the mentally retarded
29   persons with intellectual disability;”
30
31   SECTION 11. Section 44-7-315 of the 1976 Code, as last
32   amended by Act 278 of 2010, is further amended to read:
33
34      “Section 44-7-315. (A) Information received by the Division of
35   Health Licensing of the department, through inspection or
36   otherwise, in regard to a facility or activity licensed by the
37   department pursuant to this article or subject to inspection by the
38   department, including a nursing home, a community residential
39   care facility, or an intermediate care facility for the mentally
40   retarded persons with intellectual disability, must be disclosed
41   publicly upon written request to the department. The request must
42   be specific as to the facility or activity, dates, documents, and
43   particular information requested. The department may not disclose

     [687]                            50
 1   the identity of individuals present in a facility licensed by the
 2   department pursuant to this article or subject to inspection by the
 3   department, including a nursing home, a community residential
 4   care facility, or an intermediate care facility for the mentally
 5   retarded persons with intellectual disability. When a report of
 6   deficiencies or violations regarding a facility licensed by the
 7   department pursuant to this article or subject to inspection by the
 8   department, including a nursing home, a community residential
 9   care facility, or an intermediate care facility for the mentally
10   retarded persons with intellectual disability, is present in the
11   department‟s files when a request for information is received, the
12   department shall inform the applicant that it has stipulated
13   corrective action and the time it determines for completion of the
14   action. The department also shall inform the applicant that
15   information on the resolution of the corrective action order is
16   expected to be available upon written request within fifteen
17   calendar days or less of the termination of time it determines for
18   completion of the action. However, if information on the
19   resolution is present in the files, it must be furnished to the
20   applicant.
21      (B) Subsection (A) does not apply to information considered
22   confidential pursuant to Section 40-71-20 and Section 44-30-60.”
23
24   SECTION 12. Section 44-7-320(A)(1)(d) of the 1976 Code, as
25   last amended by Act 278 of 2010, is further amended to read:
26
27         “(d) refusing to admit and treat alcoholic and substance
28   abusers, the mentally ill, or the mentally retarded persons with
29   intellectual disability, whose admission or treatment has been
30   prescribed by a physician who is a member of the facility‟s
31   medical staff; or discriminating against alcoholics, the mentally
32   ill, or the mentally retarded persons with intellectual disability
33   solely because of the alcoholism, mental illness, or mental
34   retardation intellectual disability;”
35
36   SECTION 13. In Sections 1 through 6 of this act, the terms
37   “intellectual disability” and “person with intellectual disability”
38   have replaced and have the same meanings as the former terms
39   “mental retardation” and “mentally retarded”.
40
41   SECTION 14. (A) If the term “mental retardation”                or
42   “mentally retarded” currently is used by any state agency, board,
43   committee, or commission or any political subdivision of the State

     [687]                           51
 1   in their rules, regulations, policies, procedures, publications,
 2   statutes, or ordinances, the state agency, board, committee, and
 3   commission and the political subdivision of the State shall
 4   substitute the term “intellectual disability” for “mental retardation”
 5   and “person with intellectual disability” for “mentally retarded”
 6   when they are amending, revising, or republishing their rules,
 7   regulations, policies, procedures, publications, statutes, and
 8   ordinances.
 9      (B) The Code Commissioner shall substitute the term
10   “intellectual disability” for “mental retardation” and “person with
11   intellectual disability” for “mentally retarded” in the 1976 Code of
12   Laws at such times as regulations and statutes containing these
13   terms are amended, revised, or republished.
14
15   SECTION 15. The repeal or amendment by this act of any law,
16   whether temporary or permanent or civil or criminal, does not
17   affect pending actions, rights, duties, or liabilities founded thereon,
18   or alter, discharge, release or extinguish any penalty, forfeiture, or
19   liability incurred under the repealed or amended law, unless the
20   repealed or amended provision shall so expressly provide. After
21   the effective date of this act, all laws repealed or amended by this
22   act must be taken and treated as remaining in full force and effect
23   for the purpose of sustaining any pending or vested right, civil
24   action, special proceeding, criminal prosecution, or appeal existing
25   as of the effective date of this act, and for the enforcement of
26   rights, duties, penalties, forfeitures, and liabilities as they stood
27   under the repealed or amended laws.
28
29   SECTION 16. If          any     section,    subsection,    paragraph,
30   subparagraph, sentence, clause, phrase, or word of this act is for
31   any reason held to be unconstitutional or invalid, such holding
32   shall not affect the constitutionality or validity of the remaining
33   portions of this act, the General Assembly hereby declaring that it
34   would have passed this act, and each and every section, subsection,
35   paragraph, subparagraph, sentence, clause, phrase, and word
36   thereof, irrespective of the fact that any one or more other sections,
37   subsections, paragraphs, subparagraphs, sentences, clauses,
38   phrases, or words hereof may be declared to be unconstitutional,
39   invalid, or otherwise ineffective.
40
41   SECTION 17. This act takes effect upon approval by the
42   Governor.
43                         ----XX----

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