S*1167 Session 108 (1989-1990)
S*1167(Rat #0593, Act #0496 of 1990) General Bill, By Bryan, H.U. Fielding,
J.C. Hayes and Peeler
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 20
to Title 44 so as to provide for the Mental Retardation and Related
Disabilities Act by setting forth the organization and a system for the
delivery of services, requirements for licensure and regulation of facilities
and programs, penalties, and capital improvements for mental retardation; to
repeal Chapter 19, Title 44 relating to the State Mental Retardation
Department and Chapter 21, Title 44 relating to the care and commitment of
mentally retarded persons; and to provide for the continuation of service of
the members of the South Carolina Mental Retardation Commission and the county
mental retardation boards.-amended title
01/30/90 Senate Introduced and read first time SJ-15
01/30/90 Senate Referred to Committee on Medical Affairs SJ-15
03/21/90 Senate Committee report: Favorable with amendment
Medical Affairs SJ-12
03/22/90 Senate Amended SJ-20
03/22/90 Senate Read second time SJ-24
03/22/90 Senate Ordered to third reading with notice of
amendments SJ-24
03/27/90 Senate Read third time and sent to House SJ-21
03/28/90 House Introduced and read first time HJ-204
03/28/90 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-204
05/02/90 House Committee report: Favorable Medical, Military,
Public and Municipal Affairs HJ-53
05/10/90 House Read second time HJ-41
05/10/90 House Unanimous consent for third reading on next
legislative day HJ-43
05/11/90 House Read third time and enrolled HJ-4
05/24/90 Ratified R 593
05/30/90 Signed By Governor
05/30/90 Effective date 05/30/90
05/30/90 Act No. 496
07/16/90 Copies available
(A496, R593, S1167)
AN ACT TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976, BY ADDING
CHAPTER 20 TO TITLE 44 SO AS TO PROVIDE FOR THE MENTAL RETARDATION AND
RELATED DISABILITIES ACT BY SETTING FORTH THE ORGANIZATION AND A
SYSTEM FOR THE DELIVERY OF SERVICES, REQUIREMENTS FOR LICENSURE AND
REGULATION OF FACILITIES AND PROGRAMS, PENALTIES, AND CAPITAL
IMPROVEMENTS FOR MENTAL RETARDATION; TO REPEAL CHAPTER 19, TITLE 44
RELATING TO THE STATE MENTAL RETARDATION DEPARTMENT AND CHAPTER 21,
TITLE 44 RELATING TO THE CARE AND COMMITMENT OF MENTALLY RETARDED
PERSONS; AND TO PROVIDE FOR THE CONTINUATION OF SERVICE OF THE MEMBERS
OF THE SOUTH CAROLINA MENTAL RETARDATION COMMISSION AND THE COUNTY
MENTAL RETARDATION BOARDS.
Whereas, the General Assembly recognizes the need to provide services
to persons who have disabilities related to mental retardation; and
Whereas, the General Assembly recognizes that the training and
treatment of persons with mental retardation and related disabilities
has progressed from institutional to community settings; and
Whereas, statutes providing for services to these citizens of South
Carolina were written when services were provided within large
institutions and clients were considered "patients" and
"wards of the State"; and
Whereas, the role of the community and family in providing support and
determining services for persons with mental retardation and related
disabilities has become a partnership with professionals and the
State; and
Whereas, future systems to deliver services to persons with mental
retardation and related disabilities must focus on fashioning services
to meet individual needs instead of requiring clients' needs to meet
program guidelines; and
Whereas, citizens who have mental retardation and related disabilities
enjoy the rights and privileges of other citizens of South Carolina;
and
Whereas, the statutes prescribing the role and responsibility of the
State to support citizens with mental retardation and related
disabilities in their and their families' efforts to live productive
lives should reflect these purposes and principles. Now, therefore,
Be it enacted by the General Assembly of the State of South Carolina:
Mental Retardation and Related Disabilities Act
SECTION 1. Title 44 of the 1976 Code is amended by adding:
"CHAPTER 20
South Carolina Mental Retardation and
Related Disabilities Act
Article 1
General Provisions
Section 44-20-10. This chapter may be cited as the South
Carolina Mental Retardation and Related Disabilities Act'.
Section 44-20-20. The State of South Carolina recognizes that a
person with mental retardation or a related disability is a person who
experiences the benefits of family, education, employment, and
community as do all citizens. It is the purpose of this chapter to
assist persons with mental retardation or related disabilities by
providing services to enable them to participate as valued members of
their communities to the maximum extent practical and to live with
their families or in family settings in the community in the least
restrictive environment available.
When persons with mental retardation or related disabilities
cannot live in communities or with their families, the State shall
provide quality care and treatment in the least restrictive
environment practical.
In order to plan and coordinate state and locally funded services
for persons with mental retardation or related disabilities, a
statewide network of local boards of mental retardation is
established. Services will be delivered to clients in their homes or
communities through these boards and other local providers.
It is recognized that persons with mental retardation or related
disabilities have the right to receive services from public and other
agencies that provide services to South Carolina citizens and to have
those services coordinated with the services needed because of their
disabilities.
South Carolina recognizes the value of preventing mental
retardation or related disabilities through education and research and
supports efforts to this end.
The State recognizes the importance of the role of parents and
families in shaping services for persons with mental retardation or
related disabilities as well as the importance of providing services
to families to enable them to care for a family member with these
disabilities.
Admission to services of the South Carolina Department of Mental
Retardation does not terminate or reduce the rights and
responsibilities of parents. Parental involvement and participation
in mutual planning with the department to meet the needs of the client
facilitates decisions and treatment plans that serve the best interest
and welfare of the client.
Section 44-20-30. As used in this chapter:
(1) Applicant' means a person who is believed to have mental
retardation or one or more related disabilities or an infant at high
risk of mental retardation who has applied for services of the South
Carolina Department of Mental Retardation.
(2) Client' is a person who is determined by the Department of
Mental Retardation to have mental retardation or a related disability
and is receiving services or is an infant at risk of having mental
retardation or a related disability and is receiving services.
(3) Commission' means the South Carolina Commission on Mental
Retardation, the policy-making and governing body of the Department of
Mental Retardation.
(4) Commissioner' means the South Carolina Commissioner of
Mental Retardation, the Department of Mental Retardation's chief
executive officer appointed by the commission.
(5) County mental retardation board' means the local public
body administering, planning, coordinating, or providing services
within a county or combination of counties for persons with mental
retardation or related disabilities and recognized by the department.
(6) Day programs' are programs provided to persons with mental
retardation or related disabilities outside of their residences
affording development, training, employment, or recreational
opportunities as prescribed by the Department of Mental Retardation.
(7) Department' means the South Carolina Department of Mental
Retardation.
(8) High risk infant' means a child less than thirty-six months
of age whose genetic, medical, or environmental history is predictive
of a substantially greater risk for mental retardation than that for
the general population.
(9) Least restrictive environment' means the surrounding
circumstances that provide as little intrusion and disruption from the
normal pattern of living as possible.
(10) Improvements' means the construction, reconstruction of
buildings, and other permanent improvements for regional centers and
other programs provided by the department directly or through contract
with county boards of mental retardation, including equipment and the
cost of acquiring and improving lands for equipment.
(11) Mental retardation' means significantly subaverage general
intellectual functioning existing concurrently with deficits in
adaptive behavior and manifested during the developmental period.
(12) Mental retardation services' are activities designed to
achieve the results specified in an individual client's plan.
(13) Obligations' means the obligations in the form of notes or
bonds or contractual agreements issued or entered into by the
commission pursuant to the authorization of this chapter and of Act
1377 of 1968 to provide funds with which to repay the proceeds of
capital improvement bonds allocated by the State Budget and Control
Board.
(14) Regional residential center' is a twenty-four hour
residential facility serving a multi-county area and designated by the
department.
(15) Related disability' is a severe, chronic condition found to
be closely related to mental retardation or to require treatment
similar to that required for persons with mental retardation and must
meet the following conditions:
(a) It is attributable to cerebral palsy or epilepsy or
any other condition other than mental illness found to be closely
related to mental retardation because this condition results in
impairment of general intellectual functioning or adaptive behavior
similar to that of persons with mental retardation and requires
treatment or services similar to those required for these persons.
(b) It is manifested before twenty-two years of age.
(c) It is likely to continue indefinitely.
(d) It results in substantial functional limitations in
three or more of the following areas of major life activity:
self-care, understanding and use of language, learning, mobility,
self-direction, and capacity for independent living.
(16) Residential programs' are services providing dwelling
places to clients for an extended period of time with assistance for
activities of daily living ranging from constant to intermittent
supervision as required by the individual client's needs.
(17) Revenues' or its revenues' means revenue derived from
paying clients at regional residential centers and community
residences but does not include Medicaid, Medicare, or other federal
funds received with the stipulation that they be used to provide
services to clients.
(18) State capital improvement bonds' means bonds issued
pursuant to Act 1377 of 1968.
(19) State board' shall mean the State Budget and Control Board
as constituted pursuant to Chapter 11, Title 1.
Article 3
Organization and System For
Delivery of Services
Section 44-20-210. There is created the South Carolina Commission
on Mental Retardation. The commission consists of seven members. One
member must be a resident of each congressional district and one must
be from the State at large to be appointed by the Governor upon the
advice and consent of the Senate. They shall serve for four years and
until their successors are appointed and qualify. The Governor may
remove a member of the commission for cause. A vacancy may be filled
by the Governor for the unexpired portion of the term.
Section 44-20-220. The commission shall determine the policy and
promulgate regulations governing the operation of the department and
the employment of professional staff and personnel. The members of
the commission shall receive subsistence, mileage, and per diem as may
be provided by law for members of state boards, committees, and
commissions. The commission shall appoint and in its discretion
remove a South Carolina Commissioner of Mental Retardation who is the
chief executive officer of the department. The commission may appoint
advisory committees it considers necessary to assist in the effective
conduct of its responsibilities. The commission may educate the
public and state and local officials as to the need for the funding,
development, and coordination of services for persons with mental
retardation and related disabilities and promote the best interest of
persons with mental retardation and related disabilities. The
commission is authorized to promulgate regulations to carry out the
provisions of this chapter.
Section 44-20-230. Subject to the supervision, direction, and
control of the commission, the commissioner shall administer the
policies and regulations established by the commission. The
commissioner may appoint and in his discretion remove all other
officers and employees of the department subject to the approval of
the commission.
Section 44-20-240. There is created the South Carolina Department
of Mental Retardation which has authority over all of the state's
services and programs for the treatment and training of persons with
mental retardation and related disabilities. This authority does not
include services delivered by other agencies of the State as
prescribed by statute. The department may be divided into divisions
as may be determined by the commissioner and approved and named by the
commission.
Section 44-20-250. The department shall coordinate services and
programs with other state and local agencies for persons with mental
retardation and related disabilities. The department may negotiate
and contract with local agencies, county boards of mental retardation,
private organizations, and foundations in order to implement the
planning and development of a full range of services and programs for
persons with mental retardation and related disabilities subject to
law and the availability of fiscal resources. The department has the
same right to be reimbursed for expenses in providing mental
retardation services through a contractual arrangement as it has to be
reimbursed for expenses provided through direct departmental services.
The department shall develop service standards for programs of the
department and for programs for which the department may contract and
shall review and evaluate these programs on a periodic basis.
Section 44-20-260. The department, with funds available for
these purposes, may conduct research to determine the causes, proper
treatment, and diagnosis of mental retardation and related
disabilities and may use facilities and personnel under its control
and management for carrying out the research so long as the rights of
the client are preserved.
Section 44-20-270. The department is designated as the state's
mental retardation and related disabilities authority for the purpose
of administering federal funds allocated to South Carolina for mental
retardation programs. This authority does not include the functions
and responsibilities granted to the South Carolina Department of
Health and Environmental Control or the administration of the State
Hospital Construction and Franchising Act'.
Section 44-20-280. The department may negotiate and contract with
an agency of the United States or a state or private agency to obtain
grants to assist in the expansion and improvement of services to
persons with mental retardation or related disabilities and may expend
the grants under the terms and conditions of the award.
Section 44-20-290. The commissioner or his designee may employ at
regional centers security guards who are vested and charged with the
powers and the duties of peace officers. They may arrest felons and
misdemeanants, eject trespassers, and, without warrant, arrest persons
for disorderly conduct who are trespassers on the grounds of the
regional center and have them tried in a court of competent
jurisdiction. Officers so employed must be bonded and under the
direct supervision of the South Carolina Law Enforcement Division and
shall report directly to the commissioner or his designee.
Section 44-20-300. The department may acquire motor vehicle
liability insurance for employees operating department vehicles or
private vehicles in connection with their official departmental duties
to protect against liability.
Section 44-20-310. The department may sell timber from its
forest lands with the proceeds from the sales to be deposited in the
general fund of the State. Before a sale, the State Budget and
Control Board shall consult with the State Forester to determine the
economic feasibility of the sale, and a sale must not be made without
the approval of the board.
Section 44-20-320. The department or any of its programs may
accept gifts, bequests, devises, grants, and donations of money, real
property, and personal property for use in expanding and improving
services to persons with mental retardation and related disabilities
available to the people of this State. However, nothing may be
accepted by the department with the understanding that it diminishes
an obligation for paying care and maintenance charges or other monies
due the department for services rendered. The commission may
formulate policies and promulgate regulations governing the
disposition of gifts, bequests, devises, grants, and donations. If
they are given to a specific service program of the department they
must remain and be used for that program only or to its successor
program.
Section 44-20-330. The department may grant easements, permits,
or rights-of-way on terms and conditions it considers to be in the
best interest of the State, across, over, or under land held by the
department for the construction of water, sewer, drainage, natural
gas, telephone, telegraph, and electric power lines.
Section 44-20-340. (A) A person, hospital, or other organization
may provide information, interviews, reports, statements, written
memoranda, documents, or other data related to the condition and
treatment of a client or applicant to the department, and no
liability for damages or other relief arises against the person,
hospital, or organization for providing the information or material.
(B) All records pertaining to the identity of a person whose
condition or treatment has been studied by the department are
confidential and privileged information. However, upon the written
request of the client, the client's or applicant's parent with legal
custody, legal guardian, or spouse with the written permission of the
client or applicant or under subpoena by a court of law, the
department may furnish pertinent records in its possession to
appropriate parties.
Section 44-20-350. (A) Reasonable reimbursement to the State
for its fiscal outlay on behalf of services rendered by the department
or any other agency authorized by the department to offer services to
clients is a just obligation of the person with mental retardation or
related disability, his estate, or his parent or guardian under the
conditions and terms provided in this section.
(B) The department or an agency authorized by the department to
offer services to clients may charge for its services. However, no
service may be denied a client or his parent or guardian because of
inability to pay part or all of the department's or other agency's
expenses in providing that service. Where federal reimbursement is
authorized for services provided, the department initially shall seek
federal reimbursement. No charge or combination of charges may exceed
the actual cost of services rendered. The commission shall approve
the procedures established to determine ability to pay and may
authorize its designees to reduce or waive charges based upon its
findings.
(C) Parents, guardians, or other responsible relatives must not
be charged for regional center or community residential services
provided by the department for their child or ward. However, a person
receiving nonresidential services or his parent or guardian may be
assessed a charge for services received, not to exceed cost. The
department with the approval of the commission may determine for which
services it charges.
(D) The department shall establish a hearing and review
procedure so that a client or his parent or guardian may appeal
charges made for services or may present to officials of the
department information or evidence to be considered in establishing
charges. The department may utilize legal procedures to collect
lawful claims.
(E) The department may establish by regulation charges for other
services it renders.
Section 44-20-360. (A) The physical boundaries of Midlands
Center, Coastal Center, Pee Dee Center, and Whitten Center are
designated as independent school districts. These facilities may
elect to participate in the usual activities of the districts, to
receive state and federal aid, and to utilize other benefits enjoyed
by independent school districts in general.
(B) The commission operates as the board of trustees for these
districts for administrative purposes, including the receipt and
expenditure of funds granted to these districts for any purpose.
Section 44-20-370. (A) The department shall:
(1) notify applicants when they have qualified under the
provisions of this chapter;
(2) establish standards of operation and service for
county mental retardation programs funded in part or in whole by state
appropriations to the department or through other fiscal resources
under its control;
(3) review service plans submitted by county boards of
mental retardation and determine priorities for funding plans or
portions of the plans subject to available funds;
(4) review county programs covered in this chapter;
(5) offer consultation and direction to county boards;
(6) take other action not inconsistent with the law to
promote a high quality of services to persons with mental retardation
or related disabilities and their families.
(B) The department shall seek to develop and utilize the most
current and promising methods for the training of persons with mental
retardation and related disabilities. It shall utilize the
assistance, services, and findings of other state and federal
agencies. The department shall disseminate these methods to county
boards and programs providing related services.
Section 44-20-375. Every county or combination of counties
establishing a county mental retardation services program, before it
comes within the provisions of this article, shall establish a county
mental retardation board of not less than five members. The members
must be appointed by the Governor, upon the recommendation of the
majority of the members of the county legislative delegations of the
county or counties participating. The number of members representing
each county must be proportional to that county's population in
relation to the total population of the counties served by the county
board. However, no county participating in a multi-county board may
have less than two members. The terms of the members are for four
years and until their successors are appointed and qualify. As near
an equal number as possible must be appointed each year. Vacancies
must be filled for unexpired terms in the same manner as original
appointments. A member may be removed by the appointing authority for
neglect of duty, misconduct, or malfeasance in office after being
given a written statement of reasons and an opportunity to be heard.
Section 44-20-378. County mental retardation boards created by
actions of county councils have equal status with and shall accept and
perform the duties assigned to those created pursuant to Section
44-20-375. The department may contract with them for a full range of
mental retardation services.
Section 44-20-380. (A) County mental retardation boards are
encouraged to utilize lawful sources of funding to further the
development of appropriate community services to meet the needs of
persons with mental retardation or related disabilities and their
families.
(B) County boards may apply to the department for funds for
community services development under the terms and conditions as may
be prescribed by the department. The department shall review the
applications and, subject to state appropriations to the department or
to other funds under the department's control, may fund the programs
it considers in the best interest of service delivery to the citizens
of the State with mental retardation or related disabilities.
(C) Subject to the approval of the department, county boards may
seek state or federal funds administered by state agencies other than
the department, funds from local governments or from private sources,
or funds available from agencies of the federal government. The
county boards may not apply directly to the General Assembly for
funding or receive funds directly from the General Assembly.
Section 44-20-390. (A) In order to provide assistance to
families and individuals the department shall provide an initial
intake and assessment service to a person believed to be in need of
services and who makes application for them. An assessment must be
provided through diagnostic centers approved by the department. If
upon completion of the assessment the applicant is determined to have
mental retardation or a related disability and be in need of services,
he may become a client of the department and eligible for services. A
service plan must be designated for each person assessed. A person
determined to have mental retardation or a related disability and who
chooses to become a client of the department, must be provided with
the delivery or coordination of services by the department. A person
determined not to have mental retardation or a related disability may
be provided by the department with referral and assistance in
obtaining appropriate services or further evaluation.
(B) Service plans must recommend the services to assist the
individual in developing to the fullest potential in the least
restrictive environment available. The department shall determine the
least restrictive environment' and may contract with individuals or
organizations for a reasonable sum as determined by the department to
provide the services. The department shall review service plans of
its clients at least periodically according to standards prescribing
the frequency to ensure that appropriate services are being provided
in the least restrictive environment available. The parents, the
legal guardian, the client, and other appropriate parties must be
included in the review. The department shall develop standards
prescribing the service plan review.
(C) No individual believed to have mental retardation or a
related disability may be admitted to the services of the department
until he has been examined at a diagnostic center of the department or
a diagnostic center approved by the department and certified by the
department on the basis of acceptable data to have mental retardation
or a related disability or unless he is an infant at risk of mental
retardation and in need of the department's services.
(D) The applicant shall meet residency requirements in at least
one of the following categories:
(1) The applicant or his spouse, parent, with or without
legal custody, or legal guardian is domiciled in South Carolina.
(2) The applicant or his spouse, parent, with or without
legal custody, or legal guardian lives outside South Carolina but
retains legal residency in this State and demonstrates to the
department's satisfaction his intent to return to South Carolina.
(3) The applicant or his spouse or parent, with or without
legal custody, or legal guardian is a legal resident of a state which
is an active member of the Interstate Compact on Mental Health and
qualifies for services under it.
Section 44-20-400. Upon the written request of the person, the
person's parents, parent with legal custody, or lawful custodian or
legal guardian and subject to the availability of suitable
accommodations and services, a person with mental retardation or a
related disability may be admitted to the services of the department
for evaluation and diagnosis and shall remain in the residential
services of the department for that period required to complete the
diagnostic study. However, this period may not exceed thirty days
except upon approval of the commissioner or his designee. Individuals
admitted under the provisions of this section are subject to the same
regulations and departmental policies as regular admissions. The
department may prescribe the form of the written application for
diagnostic services.
Section 44-20-410. A person who is determined to be eligible
for services is subject to the following considerations regarding his
order of admission to services and programs:
(1) relative need of the person for special training,
supervision, treatment, or care;
(2) availability of services suitable to the needs of the
applicant.
Section 44-20-420. The commissioner or his designee may
designate the service or program in which a client is placed. The
appropriate services and programs must be determined by the evaluation
and assessment of the needs, interests, and goals of the client.
Section 44-20-430. The commissioner or his designee has the
final authority over applicant eligibility, determination, or services
and admission order, subject to policies adopted by the commission.
Section 44-20-440. Subject to the availability of suitable
services and programs and subject to the provisions of Requirement
for Admission to Services', Order in which Person May be Admitted',
and Final Authority over Eligibility', the commissioner or his
designee may admit a client to the services of the department upon the
written request of the parents of the person with mental retardation
or a related disability, a parent with legal custody, spouse, lawful
custodian or legal guardian, or the person with mental retardation or
a related disability seeking to be admitted to the department's
services if the person is twenty-one years of age or over and
competent to make the decision. The department shall prescribe the
form of the application for services.
Section 44-20-450. (A) Proceedings for the involuntary admission
of a person with mental retardation or a related disability to the
services of the department may be initiated by the filing of a
verified petition with the probate or the family court by the spouse,
a relative, the parents, a parent with legal custody, or the legal
guardian of the person, by the person in charge of a public or private
institution in which the individual is residing at the time, or by the
director of the county department of social services of the county in
which the person resides. Upon filing of the petition, the judge
shall set a date for a hearing on it and ensure that the client has an
attorney who represents him. The parents, parent with legal custody,
spouse, guardian, or nearest known relative of the person alleged to
have mental retardation or a related disability and in whose behalf
the petition has been made and in the discretion of the court, the
individual alleged to have mental retardation or a related disability
and the department must be served by the court with a written notice
of the time and place of the hearing, together with a written
statement of the matters stated in the petition. If no parent,
spouse, legal guardian, or known relative of the person alleged to
have mental retardation or a related disability is found, the court
shall appoint a guardian ad litem to represent the person alleged to
have mental retardation or a related disability, and the notice must
be served upon the guardian. If the parent, spouse, guardian or known
relative of the person alleged to have mental retardation or a related
disability is found, he must be notified of the right to an attorney
at the hearing.
(B) The hearing on the petition may be in the courthouse or at
the place of residence of the person alleged to have mental
retardation or a related disability or at another place considered
appropriate by the court. The person alleged to have mental
retardation or a related disability does not need to be present if the
court determines that the hearing would be injurious or detrimental to
the person alleged to have mental retardation or a related disability
or if the persons' mental or physical condition prevents his
participation in the hearing. However, his attorney must be present.
(C) A report of the person in charge of the examination of the
person alleged to have mental retardation or a related disability at
the diagnostic center referred to in Requirement for Admission' must
be submitted to the court at the hearing. The court may not render
judgment in the hearing unless this report is available and
introduced.
(D) If the court determines that the evidence presented by the
examiners at the diagnostic center, along with other evidence
presented to the court, is to the effect that the person does not in
fact have mental retardation or a related disability to an extent
which would require commitment, it shall terminate the proceeding and
dismiss the petition.
(E) If the person is found by the court to have mental
retardation or a related disability and be in need of placement in a
facility or service program of the department, the court shall order
that he be admitted to the jurisdiction of the department as soon as
necessary services are available and include in the order a summary of
the evidence presented and order of the court.
(F) The department shall inform the court as soon after the date
of the order as practical that suitable accommodations and services
are available to meet the needs of the person with mental retardation
or a related disability. Upon notification, the court shall direct
the petitioner in these proceedings to transport the person with
mental retardation or a related disability to a program the department
designates.
(G) A party to these proceedings may appeal from the order of
the court to the court of common pleas, and a trial de novo with a
jury must be held in the same manner as in civil actions unless the
petitioner through his attorney waives his right to a jury trial.
Pending a final determination of the appeal, the person with mental
retardation or a related disability must be placed in protective
custody in either a facility of the department or in some other
suitable place designated by the court. No person with mental
retardation or a related disability must be confined in jail unless
there is a criminal charge pending against him.
Section 44-20-460. (A) A person admitted or committed to the
services of the department remains a client and is eligible for
services until discharged. When the department determines that a
client admitted to services is no longer in need of them, the
commissioner or his designee may discharge him. When the only basis
of the department's provision of services to a client is that he is a
person with mental retardation or a related disability and it is
determined that he is no longer in that condition, the commissioner or
his designee shall discharge him as soon as practical. A client of
the department who is receiving residential services may be released
to his spouse, parent, guardian, or relative or another suitable
person for a time and under conditions the commissioner or his
designee may prescribe.
(B) When a client voluntarily admitted requests discharge or the
person upon whose application the client was admitted to the
department's services requests discharge in writing, the client may be
detained by the department for no more than ninety-six hours.
However, if the condition of the person is considered by the
commissioner or his designee to be such that he cannot be discharged
with safety to himself or with safety to the general public, the
commissioner or his designee may postpone the requested discharge for
not more than fifteen days and cause to be filed an application for
judicial admission. For the purpose of this section, the probate
court or family court of the county in which the facility where the
person with mental retardation or a related disability resides is
located is the venue for judicial admission. Pending a final
determination on the application, the court shall order the person
with mental retardation or a related disability placed in protective
custody in either a facility of the department or in some other
suitable place designated by the court.
Section 44-20-470. (A) The department may return a nonresident
person with mental retardation or a related disability admitted to a
service or program in this State to the proper agency of the state of
his residence.
(B) The department is authorized to enter into reciprocal
agreements with the proper agencies of other states to facilitate the
return to the state of their residence persons admitted or committed
to services for persons with mental retardation or a related
disability in this State or other states.
(C) The department may detain a person with mental retardation
or a related disability returned to this State from the state of his
commitment for not more than ninety-six hours pending order of the
court in commitment proceedings in this State.
(D) The expense of returning persons with mental retardation or
a related disability to other states must be paid by this State, and
the expense of returning residents of this State with mental
retardation or a related disability must be paid by the state making
the return when interstate agreements to that effect have been
negotiated.
Section 44-20-480. When the department determines that the
welfare of a client would be facilitated by his placement out of the
home, the client must be evaluated by the department, and the least
restrictive level of care possible for the client must be recommended
and provided when available. The department shall determine which
levels of care are more restrictive and is responsible for providing a
range of placements offering various levels of supervision. The
department may pay an individual or organization furnishing
residential alternatives to clients under this section a reasonable
sum for services rendered, as determined by the department.
Section 44-20-490. (A) When the department determines that a
client may benefit from being placed in an employment situation, the
department shall regulate the terms and conditions of employment,
shall supervise persons with mental retardation or a related
disability so employed, and may assist the client in the management of
monies earned through employment to the end that the best interests of
the client are served.
(B) The department may operate sheltered employment and training
programs at its various facilities and in communities and may pay
clients employed in these settings from earnings of the program or
from other funds available for this purpose.
(C) Clients who receive job training and employment services
from the department must be compensated in accordance with applicable
state and federal laws and regulations.
Section 44-20-500. When a client is absent from a facility or
program and there is probable cause the client may be in danger, the
commissioner or his designee may issue an order of confinement for the
client. This order, when endorsed by the judge of the probate,
family, or circuit court of the county in which the client is present
or residing, authorizes a peace officer to take the client into
custody for not more than twenty-four hours and to return him or cause
him to be returned to the place designated by the commissioner or his
designee.
Section 44-20-510. Placement of a person with mental retardation
or a related disability in a program of the department does not
preclude his attendance in community-based public school classes when
the individual qualifies for the classes.
Article 5
Licensure and Regulation of
Facilities and Programs
Section 44-20-710. No day program in part or in full for the
care, training, or treatment of a person with mental retardation or a
related disability may deliver services unless a license first is
obtained from the department. For the purpose of this article in
part' means a program operating for ten hours a week or more.
Educational and training services offered under the sponsorship and
direction of school districts and other state agencies are not
required to be licensed under this article.
Section 44-20-720. The department shall establish minimum
standards of operation and license programs provided for in
Facilities and Programs must be Licensed'.
Section 44-20-730. In determining whether a license may be issued
the department shall consider if the program for which the license is
applied conforms with the local and state service plans and if the
proposed location conforms to use.
Section 44-20-740. No day program may accept a person who has
mental retardation or a related disability for services other than
those for which it is licensed. No program may serve more than the
number of clients as provided on the license. An applicant for a
license shall file an application with the department in a form and
under conditions the department may prescribe. The license must be
issued for up to three years unless sooner suspended, revoked, or
surrendered. The license is not transferable and must not be
assigned.
Section 44-20-750. The department shall make day program
inspections as it may prescribe by regulation. The day programs
subject to this article may be visited and inspected by the
commissioner or his designees no less than annually and before the
issuance of a license. Upon request, each program shall file with the
department a copy of its bylaws, regulations, and rates of charges.
The records of each licensed program are open to the inspection of the
commissioner or his designees.
Section 44-20-760. Information received by the department through
licensing inspections or as otherwise authorized may be disclosed
publicly upon written request to the department. The reports may not
identify individuals receiving services from the department.
Section 44-20-770. The department shall deny, suspend, or
revoke a license on any of the following grounds:
(1) failure to establish or maintain proper standards of care
and service as prescribed by the department;
(2) conduct or practices detrimental to the health or safety of
residents or employees of the day program. This item does not apply
to healing practices authorized by law;
(3) violation of the provisions of this article or regulations
promulgated under it.
Section 44-20-780. (A) The department shall give written
notification to the governing board or if none, the operator of a
program of deficiencies, and the applicant or licensee must be given a
specified time in which to correct the deficiencies. If the
department determines to deny, suspend, or revoke a license, it shall
send to the applicant or licensee by certified mail a notice setting
forth the reason for the determination. The denial, suspension, or
revocation becomes final fifteen calendar days after the mailing of
the notice, unless the applicant or licensee within that time gives
written notice of his desire for a hearing. If the applicant or
licensee gives that notice, he must be given a hearing before the
department and may present evidence. On the basis of the evidence,
the determination must be affirmed or set aside by the commissioner,
and a copy of the decision, setting forth the findings of fact and the
reasons upon which it is based must be sent by registered mail to the
applicant.
(B) If an existing program has conditions or practices which, in
the department's judgment, provide an immediate threat to the safety
and welfare of the person with mental retardation or a related
disability served, the department may immediately suspend or revoke
the license of the program. Notification of the program board or
operator by certified mail of the license suspension or revocation
also must include the reasons or conditions. A person operating a
program which has had its license suspended or revoked must be
punished as provided in Injunctions; Penalties'.
Section 44-20-790. The procedures governing hearings authorized
by Notice of Deficiencies. . .' must be in accordance with
regulations promulgated by the department. The commissioner may
appoint a review team, including consumers, to assist in the
collection of information pertinent to the hearing.
Section 44-20-800. An applicant or licensee who is dissatisfied
with the decision of the department as a result of the hearing
provided for by Procedures Governing Disciplinary Hearings . . .' may
appeal to the appropriate court for judicial relief.
Section 44-20-900. (A) The department, in accordance with the
laws of the State governing injunctions and other processes, may
maintain an action in the name of the State against a person for
establishing, conducting, managing, or operating a day program for the
care, training, and treatment of a person with mental retardation or a
related disability without obtaining a license as provided in this
article. In charging a defendant in a complaint in the action, it is
sufficient to charge that the defendant, upon a certain day and in a
certain county, provided day program services without a license,
without averring more particular facts concerning the charge.
(B) A person violating the provisions of this article is guilty
of a misdemeanor and, upon conviction, must be fined not more than one
thousand dollars for a first offense and two thousand dollars for a
subsequent offense. Each day the day program operates after a first
conviction is considered a subsequent offense.
Section 44-20-1000. Licensing by the department must be done in
conjunction with and not in place of licensing by an agency having
responsibilities outside the department's jurisdiction. However,
nothing in this section prevents the department from entering into
cooperative agreements or contracts with an agency which has or may
have licensing responsibilities in order to accomplish the licensing
of programs.
Article 7
Capital Improvements for
Mental Retardation
Section 44-20-1110. The department has authority for all of the
state's mental retardation services and programs.
Section 44-20-1120. The commission may raise monies for the
construction of improvements under the terms and conditions of this
article.
Section 44-20-1130. The aggregate of the outstanding principal
amounts of state capital improvement bonds issued for the commission
may not exceed twenty million dollars.
Section 44-20-1140. If the commission determines that
improvements are required for a residential regional center or
community facility, it may make application for them to the State
Budget and Control Board. The application must contain:
(1) a description of the improvements sought and their estimated
cost;
(2) the number of paying clients receiving services from the
department, the amount of fees received from the clients during the
preceding fiscal year, and the estimated amount to be received from
them during the next succeeding fiscal year;
(3) the revenues derived from the paying clients during the
preceding three fiscal years;
(4) a suggested maturity schedule, which may not exceed twenty
years, for the repayment of monies to be made available to the
commission for state capital improvement bonds;
(5) a statement showing the debt service requirements of other
outstanding obligations.
Section 44-20-1150. The State Budget and Control Board may
approve, in whole or in part, or may modify an application received
from the commission. If it finds that a need for the improvements
sought by the commission exists, it may contract to make available to
the commission funds to be realized from the sale of state capital
improvements bonds if it finds that the revenues for the preceding
fiscal year, if multiplied by the number of years, which may not
exceed twenty, contemplated by the suggested or revised maturity
schedule for the repayment of the monies to be made available to the
commission, result in the production of a sum equal to not less than
one hundred twenty-five percent of the aggregate principal and
interest requirement of all outstanding obligations and all
obligations to be incurred by the commission.
Section 44-20-1160. Upon receiving the approval of the State
Budget and Control Board the commission shall obligate itself to apply
all monies derived from its revenues to the payment of the principal
and interest of its outstanding obligations and those to be issued and
to deliver to the board its obligations.
Section 44-20-1170. (A) Following the execution and delivery of
its obligations, the commission shall remit to the State Treasurer all
its revenues, including accumulated revenues not applicable to prior
obligations, for credit to a special fund. The special fund must be
applied to meet the sums due by the commission under its obligations.
These monies from the special fund must be applied by the State
Treasurer to the payment of the principal of and interest on
outstanding state capital improvement bonds.
(B) If the accumulation of revenues of the commission in the
special fund exceeds the payment due or to become due during the then
current fiscal year, and an additional sum equal to the maximum annual
debt service requirement of the obligations for a succeeding fiscal
year, the State Budget and Control Board may permit the commission to
withdraw the excess and apply it to improvements that have received
the approval of the board."
Repeals
SECTION 2. Chapters 19 and 21 of Title 44 of the 1976 Code are
repealed.
South Carolina Mental Retardation Commission; county mental
retardation boards; continuation of service
SECTION 3. The members of the South Carolina Mental Retardation
Commission serving on the effective date of this act pursuant to
Section 44-19-30 of the 1976 Code continue to serve pursuant to
Section 44-20-210 as added in Section 1. The members of the county
mental retardation boards serving on the effective date of this act
pursuant to Section 44-21-830 continue to serve pursuant to Section
44-20-375 as added in Section 1.
Time effective
SECTION 4. This act takes effect upon approval by the Governor.
Approved the 30th day of May, 1990.
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