Section 37-4-42. Procedure for continuation of court ordered habilitation

   (a) If it is necessary to continue habilitation of a client beyond the end of the period during which the facility is currently authorized by order of a court or of an administrative law judge to retain the client, the superintendent or regional state hospital administrator, prior to the expiration of the period, shall seek an order authorizing such continued habilitation in the manner provided in this Code section.

(b) A Committee for Continued Habilitation Review shall be established by the superintendent or regional state hospital administrator of each facility and shall consist of not less than five persons who meet the same requirements as those persons eligible to be members of the comprehensive habilitation team as defined in Code Section 37-4-2. The committee may conduct its meetings with a quorum of any three members. The function of this committee shall be to review and evaluate the updated individualized program plan and to report to the superintendent or regional state hospital administrator its recommendations concerning the client's need for continued habilitation. No person who has responsibility for the habilitation of the individual client for whom continued habilitation is requested shall serve on any committee which reviews such individual's case.

(c) If the superintendent or regional state hospital administrator desires to seek an order under this Code section authorizing continued habilitation for up to 12 months beyond the expiration of the currently authorized period of habilitation, he or she shall first file a notice of such intended action with the Committee for Continued Habilitation Review, which shall be forwarded to the committee at least 60 days prior to the expiration of that period.

(d) Within ten days of the date of the notice, the committee shall meet to consider the matter of the superintendent's or regional state hospital administrator's intention to seek an order for continued habilitation. Prior to the committee's meeting, the client and his or her representatives shall be notified of the following: the purpose of such meeting, the time and place of such meeting, their right to be present at such meeting, and their right to present any alternative individualized program plan secured at their expense. In those cases in which the client will not or cannot appear, at least one member of the committee will make all reasonable efforts to interview the client and report to the committee. An updated individualized program plan for the client shall be presented to the committee. The committee shall report to the superintendent or regional state hospital administrator or his or her designee, other than the attending physician or a member of the committee, its written recommendations along with any minority recommendations which may also be submitted. Such report shall specify whether or not the client is a developmentally disabled person requiring continued habilitation and whether continued habilitation is the least restrictive alternative available.

(e) If after considering the committee's recommendations and minority recommendations, if any, the superintendent or regional state hospital administrator or his or her designee, other than the attending physician or a member of the committee, determines that the client is not a developmentally disabled person requiring continued habilitation, the client shall be discharged from the facility pursuant to subsection (b) of Code Section 37-4-44.

(f) If after considering the committee's recommendations and minority recommendations, if any, the superintendent or regional state hospital administrator or his or her designee, other than the client's attending physician or a member of the committee, determines that the client is a developmentally disabled person requiring continued habilitation, he or she shall, within ten days after receiving the committee's recommendations, serve a petition for an order authorizing continued habilitation along with copies of the updated individualized program plan and the committee's report on the designated office within the department and shall also serve such petition along with a copy of the updated individualized program plan on the client. The petition shall contain a plain and simple statement that the client or his or her representatives may file a request for a hearing with the Office of State Administrative Hearings within 15 days after service of the petition, that the client has a right to counsel at the hearing, that the client or his or her representatives may apply immediately to the administrative law judge to have counsel appointed if the client cannot afford counsel, and that the administrative law judge will appoint counsel for the client unless the client indicates in writing that he or she will have retained counsel by the time set for hearing or does not desire to be represented by counsel.

(g) If a hearing is not requested by the client or the representatives within 15 days after service of the petition on the client and his or her representatives, the administrative law judge shall make an independent review of the committee's report, the updated individualized program plan, and the petition. If he or she concludes that continued habilitation may not be necessary or if he or she finds any member of the committee so concluded, then he or she shall order that a hearing be held pursuant to subsection (h) of this Code section. If he or she concludes that continued habilitation is necessary, then he or she shall order continued habilitation for a period not to exceed one year.

(h) If a hearing is requested within 15 days after service of the petition on the client and his or her representatives or if the administrative law judge orders a hearing pursuant to subsection (g) of this Code section, the administrative law judge shall set a time and place for the hearing to be held within 25 days of the time the administrative law judge receives the request, but, in any event, no later than the day on which the current order for habilitation expires. Notice of the hearing shall be served on the client, his or her representatives, the facility, and, when appropriate, on counsel for the client. The administrative law judge, within his or her discretion, may grant a change of venue for the convenience of parties or witnesses. Such hearing shall be a full and fair hearing, except that the client's attorney, when the client is unable to attend the hearing and is incapable of consenting to a waiver of his or her appearance, may move that the client not be required to appear; however, the record shall reflect the reasons for the administrative law judge's actions.

(i) After such hearing, the administrative law judge may order the client's continued habilitation for a period not to exceed one year, subject to the power of the superintendent or regional state hospital administrator to discharge the client under subsection (b) of Code Section 37-4-44; provided, however, that if the administrative law judge finds that the client is not developmentally disabled or is not in need of care, training, education, habilitation, or other specialized services which the client is then receiving, the administrative law judge shall dismiss the petition.

Code 1933, § 88-2507, enacted by Ga. L. 1978, p. 1826, § 1; Ga. L. 1979, p. 734, § 7; Ga. L. 1985, p. 926, § 2; Ga. L. 2002, p. 1324, § 1-18; Ga. L. 2009, p. 453, § 3-5/HB 228; Ga. L. 2011, p. 337, § 6/HB 324.