Maryland

MD CRIM PROC T. 3, Refs

 

 

Title 3. Incompetency and Criminal Responsibility in Criminal Cases

3-101. Defined terms

 

 

(a) In this title the following words have the meanings indicated.

 

 

(b) "Committed person" means a person committed to the Health Department as not criminally responsible under the test for criminal responsibility.

 

 

(c) "Court" means a court that has criminal jurisdiction.

 

 

(d) "Health Department" means the Department of Health and Mental Hygiene.

 

 

 

(e) "Hospital warrant" means a legal document issued by a court that:

 

(1) authorizes any law enforcement officer in the State to apprehend a person who is alleged to have violated an order for conditional release and transport the person to a facility designated by the Health Department; and

(2) requires that the issuance of the warrant is entered in the person's criminal history record information of the criminal justice information system.

 

(f) "Incompetent to stand trial" means not able:

 

(1) to understand the nature or object of the proceeding; or

(2) to assist in one's defense.

 

(g)(1) "Mental disorder" means a behavioral or emotional illness that results from a psychiatric or neurological disorder.

 

(2) "Mental disorder" includes a mental illness that so substantially impairs the mental or emotional functioning of a person as to make care or treatment necessary or advisable for the welfare of the person or for the safety of the


person or property of another.

(3) "Mental disorder" does not include mental retardation.

 

(h) "Office" means the Office of Administrative Hearings.

 

 

 

3-102. Secretary to adopt regulations

 

 

The Secretary of the Health Department shall adopt regulations to carry out the provisions of this title that relate to the Health Department.

 

 

 

3-103. Interpreters for proceedings

 

 

(a) The court shall appoint a qualified interpreter to help a defendant throughout any court proceedings under this title when the defendant is:

 

(1) deaf; or

(2) cannot readily understand or communicate the English language and cannot understand a charge made against the defendant or help present the defense.

 

(b) The court shall give an interpreter appointed under this section:

 

(1) compensation for services in an amount equal to that provided for interpreters of languages other than English; and

(2) reimbursement for actual and necessary expenses incurred in the performance of services.

 

 

3-104. Court to determine competence

 

 

(a) If, before or during a trial, the defendant in a criminal case appears to the court to be incompetent to stand trial or the defendant alleges incompetence to stand trial, the court shall determine, on evidence presented on the record, whether the defendant is incompetent to stand trial.

 

 

(b) If, after receiving evidence, the court finds that the defendant is competent to stand trial, the trial shall begin as soon as practicable or, if already begun, shall continue.

 

 

(c) At any time during the trial and before verdict, the court may reconsider the question of whether the defendant is incompetent to stand trial.

 

 

 

3-105. Examination of defendant by Health Department

 

 


(a)(1) For good cause and after giving the defendant an opportunity to be heard, the court may order the Health Department to examine the defendant to determine whether the defendant is incompetent to stand trial.

 

(2) The court shall set and may change the conditions under which the examination is to be made.

 

(b) Except in a capital case, on consideration of the nature of the charge, the court:

 

(1) may require or allow the examination to be done on an outpatient basis; and

(2) if an outpatient examination is authorized, shall set bail for the defendant or authorize release of the defendant on recognizance.

 

(c)(1) If a defendant is to be held in custody for examination under this

section, the defendant may be confined in a correctional facility until the Health Department can conduct the examination. If the court finds it appropriate for the health or safety of the defendant, the court may order confinement in a medical wing or other isolated and secure unit of the correctional facility.

 

(2)(i) If the court finds that, because of the apparent severity of the mental disorder or mental retardation, a defendant in custody would be endangered by confinement in a correctional facility, the court may order that the Health Department, in the Health Department's discretion:

1. confine the defendant, pending examination, in a medical facility that the Health Department designates as appropriate; or

2. immediately conduct a competency examination of the defendant by a community forensic screening program or other agency that the Health Department finds appropriate.

(ii) Unless the Health Department retains the defendant, the defendant shall be promptly returned to the court after the examination.

(3) A defendant who is held for examination under this section may question at any time the legality of the detention by petition for a writ of habeas corpus.

 

 

(d)(1) If a court orders an examination under this section, the Health Department shall:

 

(i) examine the defendant; and

(ii) send a complete report of its findings to:

1. the court;

2. the State's Attorney; and

3. the defense counsel.

(2) Unless there is a plea that the defendant was not criminally responsible under 3-109 of this title, the defendant is entitled to have the report within 7 days after the court orders the examination. However, failure of the Health Department to send the complete report within that time is not, of itself, grounds for dismissal of the charges. On good cause shown, the court may extend the time for examination.

(3) If the Health Department reports that, in its opinion, the defendant is incompetent to stand trial, the report shall state, in a complete supplementary opinion, whether, because of mental retardation or mental disorder, the defendant would be a danger to self or the person or property of another, if released.

 

 

3-106. Finding of incompetency

 

 


(a) Except in a capital case, if, after a hearing, the court finds that the defendant is incompetent to stand trial but is not dangerous, as a result of a mental disorder or mental retardation, to self or the person or property of others, the court may set bail for the defendant or authorize release of the defendant on recognizance.

 

 

(b)(1) If, after a hearing, the court finds that the defendant is incompetent to stand trial and, because of mental retardation or a mental disorder, is a danger to self or the person or property of another, the court may order the defendant committed to the facility that the Health Department designates until the court is satisfied that the defendant no longer is incompetent to stand trial or no longer is, because of mental retardation or a mental disorder, a danger to self or the person or property of others.

 

(2) If a court commits the defendant because of mental retardation, the Health

Department shall require the Developmental Disabilities Administration to provide the care or treatment that the defendant needs.

 

(c)(1) On suggestion of the defendant or on its initiative and subject to the limitations on frequency in 7-507 or 10-805 of the Health - General Article, as the case may be, the court may reconsider whether the defendant is incompetent to stand trial.

 

(2) If the court orders commitment under subsection (b) of this section, the defendant may apply for release under 7-507 or 10-805 of the Health - General Article. In computing the availability of review under those sections, as the case may be, the date of the commitment order shall be treated as a hearing.

 

(d) If the defendant is found incompetent to stand trial, defense counsel may make any legal objection to the prosecution that may be determined fairly before trial and without the personal participation of the defendant.

 

 

(e) The court shall notify the Criminal Justice Information System Central

Repository of any commitment ordered or release authorized under this section and of any determination that a defendant is no longer incompetent to stand trial.

 

 

 

3-107. Dismissal of charges

 

 

(a) Whether or not the defendant is confined, if the court considers that resuming the criminal proceeding would be unjust because so much time has passed since the defendant was found incompetent to stand trial, the court may dismiss the charge. However, the court may not dismiss a charge:

 

(1) without providing the State's Attorney and a victim or victim's representative who has filed a notification request form under 11-104 of this article advance notice and an opportunity to be heard; and

(2)(i) until 10 years after the defendant was found incompetent to stand trial in any capital case; or

(ii) until 5 years after the defendant was found incompetent to stand trial in any other case where the penalty may be imprisonment in a State correctional facility.

 

(b) If charges are dismissed under this section, the court shall notify:

 


(1) the victim of the crime charged or the victim's representative who has filed a notification request form under 11-104 of this article; and

(2) the Criminal Justice Information System Central Repository.

 

 

3-108. Reports on incompetent persons

 

 

(a)(1) In addition to any other report required under this title, the Health Department shall report annually to each court that has ordered commitment of a person under 3-106 of this title.

 

(2) The report shall contain:

(i) a list of the persons held under commitment orders; and

(ii) any recommendations that the Health Department considers appropriate.

 

(b)(1) The clerk of court shall give the last counsel for each person, as shown by the court records, notice that the client is listed in the report and a copy of any recommendation that relates to the client.

 

(2) The Health Department shall send a copy of the report to each State's Attorney who brought charges against a person in the report.

 

(c)(1) Within 30 days after a State's Attorney receives the report, the State's

Attorney shall send a recommendation on disposition of charges against each person who has been held long enough to be eligible for release under 3- 107 of this title.

 

(2) The State's Attorney shall send the recommendation about a person to:

(i) the court that ordered commitment of the person; and

(ii) the last counsel for the person.

 

(d) The facility of the Health Department that has charge of a person committed as incompetent to stand trial shall notify the Criminal Justice Information System Central Repository if the person escapes.

 

 

 

3-109. Test for criminal responsibility

 

 

(a) A defendant is not criminally responsible for criminal conduct if, at the time of that conduct, the defendant, because of a mental disorder or mental retardation, lacks substantial capacity to:

 

(1) appreciate the criminality of that conduct; or

(2) conform that conduct to the requirements of law.

 

(b) For purposes of this section, "mental disorder" does not include an abnormality that is manifested only by repeated criminal or otherwise antisocial conduct.

 

 

 

3-110. Not criminally responsible; plea and verdict

 

 


(a)(1) If a defendant intends to rely on a plea of not criminally responsible, the defendant or defense counsel shall file a written plea alleging, in substance, that when the alleged crime was committed, the defendant was not criminally responsible by reason of insanity under the test for criminal responsibility in 3-109 of this title.

 

(2) A written plea of not criminally responsible by reason of insanity shall be filed at the time provided for initial pleading, unless, for good cause shown, the court allows the plea to be filed later.

 

(b) The defendant has the burden to establish, by a preponderance of the evidence, the defense of not criminally responsible.

 

 

(c) If the trier of fact finds that the State has proved beyond a reasonable doubt that the defendant committed the criminal act charged, then, if the

defendant has pleaded not criminally responsible, the trier of fact separately shall find whether the defendant has established, by a preponderance of the evidence, that the defendant was at the time criminally responsible or not criminally responsible by reason of insanity under the test for criminal responsibility in 3-109 of this title.

 

 

(d) A court may not enter a verdict of not criminally responsible unless the defendant or defense counsel has filed a written plea under subsection (a) of this section.

 

 

 

3-111. Examination

 

 

(a) If a defendant has entered a plea of not criminally responsible, the court may order the Health Department to examine the defendant to determine whether the defendant was not criminally responsible under 3-109 of this title and whether the defendant is competent to stand trial.

 

 

(b)(1) If a defendant is to be held in custody for examination under this section, the defendant shall be confined in a correctional facility until the Health Department can do the examination. If the court finds it appropriate for the health or safety of the defendant, the court may order confinement:

 

(i) in a medical wing or other isolated and secure unit of the correctional facility; or

(ii) if a medical wing or other secure unit is not available, in a medical facility that the Secretary of the Health Department designates as appropriate.

(2)(i) When the Health Department can do the examination, a court unit shall

take the defendant to the evaluation facility that the Health Department designates.

(ii) After the examination, unless the Health Department retains the defendant, a court unit shall return the defendant to the place of confinement.

 

(c) If a court orders an examination under this section:

 

(1) the Health Department shall:

(i) examine the defendant; and

(ii) send a report of its opinions to the court, the State's Attorney, the defendant, and the defense counsel;


(2) the defendant is entitled to have the report within 60 days after the court orders the examination. However, failure of the Health Department to send the complete report within that time is not, of itself, grounds for dismissal of the charges; and

(3) for good cause shown, the court may extend the time for examination or order an additional examination.

 

 

3-112. Commitment

 

 

(a) Except as provided in subsection (c) of this section, after a verdict of not criminally responsible, the court immediately shall commit the defendant to the Health Department for institutional inpatient care or treatment.

 

 

(b) If the court commits a defendant who was found not criminally responsible primarily because of mental retardation, the Health Department shall designate a facility for mentally retarded persons for care and treatment of the committed person.

 

 

(c) After a verdict of not criminally responsible, a court may order that a person be released, with or without conditions, instead of committed to the Health Department, but only if:

 

(1) the court has available an evaluation report within 90 days preceding the

verdict made by an evaluating facility designated by the Health Department;

(2) the report indicates that the person would not be a danger, as a result of mental retardation or mental disorder, to self or to the person or property of others if released, with or without condition; and

(3) the person and the State's Attorney agree to the release and to any conditions for release that the court imposes.

 

(d) The court shall notify the Criminal Justice Information System Central Repository of each person it orders committed under this section.

 

 

 

3-113. Report on committed persons

 

 

(a)(1) Within 10 days after commitment of a person under 3-112 of this title, the facility that receives the committed person shall send to the Health Department an admission report on the committed person.

 

(2) The report shall contain the information and be on the form that the Health Department requires.

 

(b)(1) The facility of the Health Department that has charge of the committed person shall notify the State's Attorney any time a committed person:

 

(i) is transferred;

(ii) is approved for temporary leaves of more than 24 hours; or

(iii) is absent without authorization.

(2) For information purposes, a copy of this notice shall be sent for inclusion in the court file and to counsel for the committed person.

 


(c) The facility of the Health Department that has charge of a committed person shall notify the Criminal Justice Information System Central Repository if the committed person escapes.

 

 

 

3-114. Eligibility for release

 

 

(a) A committed person may be released under the provisions of this section and 3-115 through 3-122 of this title.

 

 

(b) A committed person is eligible for discharge from commitment only if that person would not be a danger, as a result of mental disorder or mental retardation, to self or to the person or property of others if discharged.

 

 

(c) A committed person is eligible for conditional release from commitment only if that person would not be a danger, as a result of mental disorder or mental retardation, to self or to the person or property of others if released from confinement with conditions imposed by the court.

 

 

(d) To be released, a committed person has the burden to establish by a

preponderance of the evidence eligibility for discharge or eligibility for conditional release.

 

 

 

3-115. Release hearing

 

 

(a) Within 50 days after commitment to the Health Department under 3-112 of this title, a hearing officer of the Health Department shall hold a hearing to consider any relevant information that will enable the hearing officer to make recommendations to the court as to whether the committed person is eligible for release under 3-114 of this title.

 

 

(b)(1) The release hearing may be postponed for good cause or by agreement of the committed person and the Health Department.

 

(2) The committed person may waive the release hearing.

 

(c)(1) Unless the Health Department has completed an examination and report during the 90 days preceding the release hearing, at least 7 days before the release hearing is scheduled, the Health Department shall complete an examination and evaluation of the committed person.

 

 

(2) Whether or not the release hearing is waived, the Health Department shall send a copy of the evaluation report:

(i) to the committed person;

(ii) to counsel for the committed person;

(iii) to the State's Attorney; and


(iv) to the Office of Administrative Hearings.

 

(d)(1) The Health Department shall send notice of the release hearing to:

 

(i) the committed person;

(ii) counsel for the committed person; and

(iii) the State's Attorney.

(2) The Office shall issue any appropriate subpoena for any person or evidence. The court may compel obedience to the subpoena.

 

(e)(1) Formal rules of evidence do not apply to the release hearing, and the Office may admit and consider any relevant evidence.

 

(2) The hearing shall be recorded, but the recording need not be transcribed

unless requested. The requesting party shall pay the costs of the transcript and, if exceptions have been filed, provide copies to other parties and the court. If the court orders a transcript, the court shall pay the costs of the transcript.

(3) Any record that relates to evaluation or treatment of the committed person by this State shall be made available, on request, to the committed person or counsel for the committed person.

(4) The Health Department shall present the evaluation report on the committed person and any other relevant evidence.

(5) At the release hearing, the committed person is entitled:

(i) to be present, to offer evidence, and to cross-examine adverse witnesses; and

(ii) to be represented by counsel, including, if the committed person is indigent, the Public Defender or a designee of the Public Defender.

(6) At the release hearing, the State's Attorney and the Health Department are entitled to be present, to offer evidence, and to cross-examine witnesses.

 

 

3-116. Report of Office

 

 

(a) Within 10 days after the hearing ends, the Office shall prepare a report of recommendations to the court that contains:

 

(1) a summary of the evidence presented at the hearing;

(2) recommendations of the Office as to whether the committed person proved, by a preponderance of the evidence, eligibility for conditional release or eligibility for discharge; and

(3) if the Office determines that the committed person proved eligibility for conditional release, the recommended conditions of the release in accordance with subsection (b) of this section.

 

(b) In recommending the conditions of a conditional release, the Office shall give consideration to any specific conditions recommended by the facility of the Health Department that has charge of the committed person, the committed person, or counsel for the committed person.

 

 

 

(c) The Office shall send copies of the report of recommendations:

 

(1) to the committed person;

(2) to counsel for the committed person;

(3) to the State's Attorney;


(4) to the court; and

(5) to the facility of the Health Department that has charge of the committed person.

 

(d) The committed person, the State's Attorney, or the Health Department may file exceptions to the report of the Office within 10 days after receiving the report.

 

 

 

3-117. Court review of report of Office

 

 

(a) Within 30 days after the court receives the report of recommendations from the Office:

 

(1) the court on its own initiative may hold a hearing; or

(2) if timely exceptions are filed, or if the court requires more information, the court shall hold a hearing unless the committed person and the State's Attorney waive the hearing.

 

(b)(1) The court shall hold the hearing on the record that was made before the Office.

 

(2) At the judicial hearing, the committed person is entitled to be present and to be represented by counsel.

(3) The court may continue its hearing and remand for the Office to take additional evidence.

 

 

3-118. Court action on report of Office

 

 

(a) Within 15 days after a judicial hearing ends or is waived, the court shall determine whether the evidence indicates that the committed person proved by a preponderance of the evidence eligibility for release, with or without conditions, in accordance with 3-114 of this title, and enter an appropriate order containing a concise statement of the findings of the court, the reasons for those findings, and ordering:

 

(1) continued commitment;

(2) conditional release; or

(3) discharge from commitment.

 

(b)(1) If timely exceptions are not filed, and, on review of the report of recommendations from the Office, the court determines that the recommendations are supported by the evidence and a judicial hearing is not necessary, the court shall enter an order in accordance with the recommendations within 30 days after receiving the report from the Office.

 

 

(2) A court may not enter an order that is not in accordance with the recommendations from the Office unless the court holds a hearing or the hearing is waived.

 

(c) Unless the conditional release is extended under 3-122 of this title, the court may not continue the conditions of a conditional release for more than 5 years.

 

 

(d) The court shall notify the Criminal Justice Information System Central Repository whenever it orders conditional release or discharge of a committed person.

 


(e)(1) An appeal from a District Court order shall be on the record in the circuit court.

 

(2) An appeal from a circuit court order shall be by application for leave to appeal to the Court of Special Appeals.

 

 

3-119. Application for release

 

 

(a)(1) Not earlier than 1 year after the initial release hearing ends or was waived, and not more than once a year thereafter, a committed person may apply for release under either subsection (b) or (c) of this section, but not both.

 

(2) Notwithstanding the time restrictions in paragraph (1) of this subsection, a committed person may file an application for release at any time if the application is accompanied by an affidavit of a physician or licensed psychologist that states an improvement in the mental condition of the committed person since the last hearing.

 

(b)(1) To apply for release under this subsection, the committed person shall file an application for release with the Health Department and notify the court and State's Attorney, in writing, of this request.

 

(2) The provisions of this title governing administrative hearing and judicial determination of eligibility for release apply to any application for release

under this subsection.

 

(c)(1) To apply for release under this subsection, the committed person shall file a petition for release with the court that ordered commitment.

 

(2) The committed person shall send a copy of the petition for release to the Health Department and the State's Attorney.

(3) If the committed person requests a trial by jury, the trial shall be held in a circuit court with a jury as in a civil action at law.

(4) The trier of fact shall:

(i) determine whether the committed person has proved eligibility for release by a preponderance of the evidence; and

(ii) render a verdict for:

1. continued commitment;

2. conditional release; or

3. discharge from commitment.

(5) If the trier of fact renders a verdict for conditional release, within 30 days after the verdict, the court shall release the committed person under conditions it imposes in accordance with specific recommendations for conditions under 3-116(b) of this title.

 

 

(d)(1) An appeal from a District Court order shall be on the record in the circuit court.

 

(2) An appeal from a circuit court order shall be by application for leave to appeal to the Court of Special Appeals.

 

 

3-120. Conditional release request by Health Department

 

 


(a)(1) If at any time the Health Department considers that a committed person is eligible for conditional release, the Health Department may apply for the conditional release to the court that committed the person.

 

(2) The Health Department shall send a copy of the application for conditional release:

(i) to the committed person;

(ii) to counsel for the committed person; and

(iii) to the State's Attorney, by certified mail, return receipt requested.

 

(b) Within 30 days after receipt of the application from the Health Department, the court shall issue an order that is in accordance with 3-114 of this title for:

 

(1) continued commitment; or

(2) conditional release under the conditions it imposes after giving

consideration to the recommendations of specific conditions from the Health Department.

 

(c) If the court orders a conditional release of the committed person under this section, the committed person, the State's Attorney, or the Health Department may apply for a revocation, change, or extension under 3-122 of this title.

 

 

(d)(1) An appeal from a District Court order shall be on the record in circuit court.

 

(2) An appeal from a circuit court order shall be by application for leave to appeal to the Court of Special Appeals.

 

 

3-121. Allegations of violations of conditional release

 

 

(a)(1) If the State's Attorney receives a report that alleges that a committed person has violated a condition of a conditional release, or if the State's Attorney is notified by the court or Health Department under subsection (b) of this section, the State's Attorney shall determine whether there is a factual basis for the complaint.

 

(2) If the State's Attorney determines that there is no factual basis for the complaint, the State's Attorney shall notify the person who made the report and take no further action.

(3) If the State's Attorney determines that there is a factual basis to believe that the committed person has violated the terms of a conditional release and believes further action by the court is necessary, the State's Attorney promptly shall:

(i) notify the Health Department of the alleged violation; and

(ii) file with the court a petition for revocation or modification of conditional release and send a copy of the petition to the Health Department.

 

 

(b)(1) If a court receives a report that alleges that a committed person has violated a condition of a conditional release, the court promptly shall:

 

(i) notify the Health Department; and

(ii) notify the State's Attorney and provide the name, address, and telephone number of the person who reported the violation and a copy of the order for conditional release.

(2) If the Health Department receives a report that alleges that a committed person has violated conditional release, the Department shall:

(i) notify the court and the State's Attorney; and


(ii) provide the State's Attorney with the name, address, and telephone number of the person who reported the violation and a copy of the order for conditional release.

 

(c) The petition for revocation or modification of a conditional release shall contain:

 

(1) a statement that the committed person has violated a term of a conditional release and that there is therefore reason to believe that the committed person

no longer meets the criteria for eligibility for conditional release;

(2) a statement of the conditions violated;

(3) the factual basis for the statements in items (1) and (2) of this subsection;

(4) the most recent evaluation report on the committed person; and

(5) the designation by the Health Department of the facility to receive the returned committed person.

 

(d) If the court's review of the petition determines that there is no probable cause to believe that the committed person has violated a conditional release, the court shall:

 

(1) note the determination on the petition and file it in the court file on the committed person; and

(2) notify the State's Attorney, the Health Department, and the person who reported the violation.

 

(e) If the court's review of the petition determines that there is probable cause to believe that the committed person has violated a conditional release, the court promptly shall:

 

 

(1) issue a hospital warrant for the committed person and direct that on execution the committed person shall be transported to the facility designated by the Health Department; and

(2) send a copy of the hospital warrant and the petition to:

(i) the State's Attorney;

(ii) the Public Defender;

(iii) the counsel of record for the committed person;

(iv) the person who reported the violation;

(v) the Office; and

(vi) the Health Department.

 

(f) Within 10 days after the committed person is returned to the Health Department in accordance with the hospital warrant, the Office shall hold a hearing unless:

 

(1) the hearing is postponed or waived by agreement of the parties; or

(2) the Office postpones the hearing for good cause shown.

 

(g) At the hearing on revocation or modification:

 

 

(1) the committed person is entitled to be represented by counsel including, if the committed person is indigent, the Public Defender or designee of the Public Defender;

(2) the committed person, Health Department, and State's Attorney are entitled to offer evidence, to cross-examine adverse witnesses, and to exercise any other rights that the Office considers necessary for a fair hearing; and

(3) the Office shall find:

(i) whether, by a preponderance of the evidence, the State has proved that the committed person violated conditional release; and

(ii) whether, by a preponderance of the evidence, the committed person nevertheless has proved eligibility for conditional release.


 

(h)(1) The Office promptly shall:

 

(i) send a report of the hearing and determination to the court; and

(ii) send copies of the report to the committed person, counsel for the committed person, the State's Attorney, and the Health Department.

(2) Within 5 days after receipt of the report of the Office, the committed person, the State's Attorney, or the Health Department may file exceptions to

the determination of the Office.

 

(i) After the court considers the report of the Office, the evidence, and any exceptions filed, within 10 days after the court receives the report, the court shall:

 

(1) revoke the conditional release and order the committed person returned to the facility designated by the Health Department;

(2) modify the conditional release as required by the evidence;

(3) continue the present conditions of release; or

(4) extend the conditional release by an additional term of 5 years.

 

(j) The court shall notify the Criminal Justice Information System Central Repository of the issuance of any hospital warrant and any revocation it orders under this section.

 

 

(k)(1) An appeal from a District Court order shall be on the record in circuit court.

 

 

(2) An appeal from a circuit court order shall be by application for leave to appeal to the Court of Special Appeals.

 

 

3-122. Application for change in conditional release

 

 

(a)(1) An application to the court for a change in conditional release of a committed person may be made by:

 

(i) the Health Department or the State's Attorney at any time; or

(ii) the committed person not earlier than 6 months after the court ordered the conditional release, unless the court for good cause permits an earlier application.

(2) The applicant for a change in conditional release shall notify the court and other parties, in writing, of the application and the reasons for the requested change.

 

(b) The burden of proof of any issue raised by the application for change in conditional release rests with the applicant.

 

 

(c) After the court considers the application for change in conditional release

and the evidence, in accordance with 3-114 of this title, the court shall:

 

(1) change the conditions;

(2) impose appropriate additional conditions;

(3) revoke the conditional release;

(4) continue the present conditions of release; or

(5) extend the conditional release by an additional term of 5 years.

 


(d)(1) Not earlier than 1 year after the court action on the application for change filed by the committed person, and not more than once a year thereafter, a committed person may reapply for a change in conditional release.

 

(2) Notwithstanding the time restrictions in paragraph (1) of this subsection, a committed person may apply for a change in conditional release at any time if the application is accompanied by an affidavit of a physician or licensed psychologist that states an improvement in the mental condition of the committed person.

 

 

3-123. Notification of victim

 

 

(a)(1) In this section the following terms have the meanings indicated.

 

(2) "Defendant" means:

(i) a committed individual;

(ii) an individual found incompetent to stand trial; or

(iii) an individual charged with a crime and the issue of whether the individual is incompetent to stand trial has been raised or where a plea of not criminally responsible has been entered.

(3) "Victim" means a victim of a crime of violence or a victim who has filed a notification request form under 11-104 of this article.

(4) "Victim's representative" includes a family member or guardian of a victim who is:

(i) a minor;

(ii) deceased; or

(iii) disabled.

 

 

(b) A State's Attorney shall notify a victim or victim's representative of all rights provided under this section.

 

 

(c)(1) A victim or victim's representative may request notification under this section by:

 

(i) notifying the State's Attorney and the Health Department of the request for notification; or

(ii) filing a notification request form under 11-104 of this article.

(2) A request for notification under paragraph (1)(i) of this subsection shall designate:

(i) the address and telephone number of the victim; or

(ii) the name, address, and telephone number of a victim's representative.

(3) A victim or victim's representative may, at any time, withdraw a request for notification.

 

(d) If a victim or victim's representative has requested notification in the manner provided under subsection (c) of this section, the Health Department shall promptly notify the victim or the victim's representative in writing

when:

 

(1) the Health Department receives a court order to examine a defendant under this title;

(2) the Health Department receives a court order committing a defendant to the Health Department under this title;

(3) a hearing relating to a defendant is scheduled under this title;

(4) the Health Department receives notice that a defendant has applied for a hearing or filed a petition for release;


(5) the Office recommends that a committed person be released under this title;

(6) the Health Department submits a recommendation to the court for a defendant's conditional release;

(7) the facility of the Health Department that has charge of a defendant has notified the State's Attorney that a defendant is absent without authorization; or

(8) the Health Department receives a court order for the conditional release or discharge from commitment of a defendant.

 

(e)(1) A victim or victim's representative may submit, in writing or orally, to the State's Attorney and to the facility of the Health Department that has

charge of a defendant:

 

(i) any information that the victim or victim's representative considers relevant; and

(ii) a request that the defendant be prohibited from having any contact with the victim or victim's representative, as a condition of release.

(2) Except for a court hearing to determine if a person is incompetent to stand trial or not criminally responsible, a victim or victim's representative may submit a written or oral statement to the court or the Office conducting a hearing or review relating to a defendant under this title containing:

(i) any information regarding the nature and consequences of the crime and any contact after the crime between the defendant and the victim or the victim's family; and

(ii) a request that the defendant be prohibited from having any contact with the victim as a condition of release.

 

(f)(1) If a victim or victim's representative submits written or oral information under this section, the Health Department, court, or Office shall:

 

(i) consider the information;

 

(ii) maintain at the facility that has charge of the defendant, separate from the medical record of the defendant, the written statement of the victim or victim's representative; and

(iii) delete the victim's or the victim's representative's address and telephone number before any document is examined by the defendant or defendant's representative.

(2)(i) If a victim or a victim's representative has submitted a written factual statement under subsection (e)(2)(i) of this section to the Health Department, at least 30 days before a hearing or review under this title the Health Department shall notify the defendant or defendant's representative in writing of the intended use of the victim's or victim's representative's written factual statement and send to the defendant or the defendant's representative a copy of the written factual statement to be admitted.

(ii) If the defendant objects to the admission of the written factual statement of the victim or victim's representative, the defendant shall notify the Health Department, State's Attorney, and court or the Office in writing no later than 20 days before the hearing or review.

(iii) If the timely and proper notice required under subparagraph (ii) of this paragraph is provided by the defendant, the written factual statement is inadmissible without the testimony of the victim or victim's representative.

 

(iv) Failure of the defendant to give the timely and proper notice under subparagraph (ii) of this paragraph is a waiver of the defendant's right to the presence and testimony of the victim or victim's representative and the written factual statement of the victim or victim's representative shall be admitted.

(v) If a defendant provides notice under subparagraph (ii) of this paragraph, the Health Department shall notify the victim that:

1. the victim's or victim's representative's written factual statement is inadmissible at the hearing without the testimony of the victim or victim's representative; and


2. the victim or victim's representative may attend the hearing and testify.

 

(g) Except as otherwise provided under this section, this section may not be construed to authorize the release to the victim or victim's representative of any medical, psychological, or psychiatric information on a defendant.

 

 

(h) The Health Department shall promptly notify the State's Attorney and a victim or a victim's representative who has requested notification regarding a defendant under this section if:

 

 

(1) the defendant is absent without authorization;

(2) a hospital warrant is issued for the defendant; or

(3) notification is required under 11-508 of this article.

 

(i) An agent or employee of the Health Department who acts in compliance with this section shall have the immunity from liability described under 5-522 of the Courts Article.

 

 

(j) Before a hearing under this article relating to a defendant, the victim or victim's representative shall be notified of the proceeding as provided under 11-104 or 11-503 of this article.

 

 

(k)(1) Except as provided in paragraph (2) of this subsection, a victim or victim's representative shall have the right to attend a hearing under this article relating to a defendant as provided under 11-102 of this article.

 

(2) At the request of a defendant, the Office, in a release hearing or a violation hearing under this subtitle for an individual found not criminally

responsible, may exclude a victim or victim's representative from the expert testimony regarding the defendant's medical, psychological, or psychiatric information if the Office finds the medical, psychological, or psychiatric information is:

(i) highly sensitive to the defendant; and

(ii) not relevant to whether the defendant should be released or has violated the conditions of release.

 

 

 

 

 

MD HEALTH GEN T. 7, RefsTitle 7. Developmental Disabilities Law

Title 7. Developmental Disabilities Law (Refs & Annos)

Subtitle 1. Definitions; General Provisions

7-101. Definitions

 

 

(a) In this title the following words have the meanings indicated.

 

 

(b) "Administration" means the Developmental Disabilities Administration.


 

(c)(1) "Admission" means the process by which an individual with mental retardation is accepted as a resident in a State residential center.

 

(2) "Admission" includes the physical act of the individual entering the facility.

 

 

(d)(1) "Alternative living unit" means a residence that:

 

(i) Provides residential services for individuals who, because of developmental disability, require specialized living arrangements;

(ii) Admits not more than 3 individuals; and

(iii) Provides 10 or more hours of supervision per unit, per week.

(2) "Alternative living unit" does not include a residence that is owned or rented by:

(i) 1 or more of its residents; or

(ii) A person who:

1. Is an agent for any of the residents; but

2. Is not a provider of residential supervision.

 

(e) "Developmental disability" means a severe chronic disability of an individual that:

 

(1) Is attributable to a physical or mental impairment, other than the sole diagnosis of mental illness, or to a combination of mental and physical impairments;

(2) Is manifested before the individual attains the age of 22;

 

(3) Is likely to continue indefinitely;

(4) Results in an inability to live independently without external support or continuing and regular assistance; and

(5) Reflects the need for a combination and sequence of special, interdisciplinary, or generic care, treatment, or other services that are individually planned and coordinated for the individual.

 

(f) "Director" means the Director of the Developmental Disabilities Administration.

 

 

(g) "External support" means:

 

(1) Periodic monitoring of the circumstances of an individual with respect to:

(i) Personal management;

(ii) Household management; and

(iii) The use of community resources; and

(2) Rendering appropriate advice or assistance that may be needed.

 

(h) "Group home" means a residence that:

 

 

(1) Provides residential services for individuals who, because of developmental disability, require specialized living arrangements;

(2) Admits at least 4 but not more than 8 individuals; and


(3) Provides 10 or more hours of supervision per home, per week.

 

(i) "Habilitation" means a process by which a provider of services enables an individual to acquire and maintain life skills to cope more effectively with the demands of the individual's own person and environment and to raise the level of the individual's mental, physical, social, and vocational functioning.

 

 

(j)(1) "Individual support services" means an array of services that are designed to increase or maintain an individual's ability to live alone or in a family setting.

 

(2) "Individual support services" include:

(i) In-home assistance with meals and personal care;

(ii) Counseling;

(iii) Physical, occupational, or other therapies;

 

(iv) Architectural modification; and

(v) Any other services that the Administration considers appropriate to meet the individual's needs.

(3) "Individual support services" does not include full day or residential services.

 

(k) "Live independently" means:

 

(1) For adults:

(i) Managing personal care, such as clothing and medication;

(ii) Managing a household, such as menu planning, food preparation and shopping, essential care of the premises, and budgeting; and

(iii) Using community resources, such as commercial establishments, transportation, and services of public agencies; or

(2) For minors, functioning in normal settings without the need for supervision or assistance other than supervision or assistance that is age appropriate.

 

(l) "Mental retardation" means a developmental disability that is evidenced by significantly subaverage intellectual functioning and impairment in the adaptive behavior of an individual.

 

 

 

(n) "Services" means residential, day, or other services that provide for evaluation, diagnosis, treatment, care, supervision, assistance, or attention to individuals with developmental disability and that promote habilitation of these individuals.

 

 

(o) "Services coordination" means a service that consists of the following 3 major functions that are designed to assist an individual in obtaining the needed services and programs that the individual desires in order to gain as much control over the individual's own life as possible:

 

(1) Planning services;

(2) Coordinating services; and

(3) Monitoring service delivery to the individual.

 

(p) "State residential center" means a place that:

 


(1) Is owned and operated by this State;

 

(2) Provides residential services for individuals with mental retardation and who, because of mental retardation, require specialized living arrangements; and

(3) Admits 9 or more individuals with mental retardation.

 

(q) "Treatment" means any education, training, professional care or attention, or other program that is given to an individual with developmental disability.

 

 

(r) "Vocational services" means a service that provides job training and placement, supported employment and training in acceptable work behaviors, and vocationally-related social and other skills.

 

 

 

7-102. Public policy

 

 

To advance the public interest, it is the policy of this State:

 

(1) To promote, protect, and preserve the human dignity, constitutional rights and liberties, social well-being, and general welfare of individuals with developmental disability in this State;

(2) To encourage the full development of the ability and potential of each individual with developmental disability in this State, no matter how severe the individual's disability;

(3) To promote the economic security, standard of living, and meaningful employment of individuals with developmental disability;

(4) To foster the integration of individuals with developmental disability into the ordinary life of the communities where these individuals live;

(5) To support and provide resources to operate community services to sustain individuals with developmental disability in the community, rather than in institutions;

(6) To require the Administration to designate sufficient resources to foster

and strengthen a permanent comprehensive system of community programming for individuals with developmental disability as an alternative to institutional care;

(7) To recognize the right of those individuals with developmental disability who need residential services to live in surroundings as normal as possible and to provide adequate facilities for this purpose;

(8) To provide appropriate social and protective services for those individuals with developmental disability who are unable to manage their own affairs with ordinary prudence;

(9) To protect the rights of parents and to help parents and guardians in planning for and assisting those individuals with developmental disability who are unable to manage their own affairs;

(10) To promote and provide for the development, maintenance, and coordination of all programs for individuals with developmental disability;

(11) To advance research and professional training related to developmental disability; and

(12) To promote public understanding of these policies and programs provided in this title.


 

 

 

 

7-204. Community services advisory commission; composition

 

 

(a) To advance the public interest, it is the policy of this State:

 

(1) To eliminate over a 5-year period the number of mentally retarded and nonretarded developmentally disabled individuals who are on the waiting list for appropriate community services and programs; and

(2) To develop alternative ways and means to finance and expand existing services and programs within this time period.

 

(b)(1) There is a Community Services Advisory Commission within the Administration.

 

(2) The Commission consists of:

(i) 1 member of the Senate of Maryland, appointed by the President of the Senate, and 1 member of the House of Delegates, appointed by the Speaker of the House;

(ii) The Secretary or a designee;

 

(iii) The Director;

(iv) The Secretary of the Department of Budget and Management or a designee;

(v) 1 representative from the State Department of Education; and

(vi) 2 representatives from organizations that provide community program services, 2 representatives from the financial community, 2 representatives from advocacy-related organizations, and 1 member of the general public, appointed by the Governor.

 

(c) The Commission shall:

 

(1) Develop a systematic 5-year plan for:

(i) Identifying alternative funding mechanisms, including uses of State excess properties and proceeds derived from any sales or leases of the properties, which enable community programs to serve all eligible mentally retarded and nonretarded developmentally disabled individuals;

(ii) Providing incentives to facilitate the establishment of new service providers for purposes consistent with this title;

(iii) Assuring appropriate levels of program accountability, monitoring, and quality control;

(iv) Evaluating appropriate personnel-related issues including compensation,

recruitment, retention, professional training, and development; and

(v) Determining the effectiveness of any cost reimbursement system implemented by the Department and evaluating the need to maintain or modify the funding level in subsequent years;

(2) Monitor any implementation of the 5-year plan and make recommendations on how to facilitate further implementation; and

(3) Review Administration activities related to its services and programs.


 

(d) By July 1 of each year, the Commission shall:

 

(1) Update the systematic plan; and

(2) Report any findings and recommendations resulting from the annual update, the monitoring of plan implementation, and the review of Administration activities to the Governor, appropriate State agencies, and, subject to 2- 1246 of the State Government Article, the Legislative Policy Committee.

 

 

7-205. Training of direct care staff

 

 

(a) In this section, "direct care staff" means an individual who is directly involved in the day-to-day education, training, habilitation, assistance, counseling, care, or attention of an individual with a developmental disability.

 

 

(b)(1) The Developmental Disabilities Administration shall assure that all direct care staff in State residential and community-based programs are provided with in-service training.

 

(2) The in-service training program shall include training in:

(i) The theory and practical application of normalization principles;

(ii) The individualization of programming;

(iii) General characteristics and needs of individuals served;

(iv) First aid and cardio-pulmonary resuscitation (CPR);

(v) The fundamental rights of persons with developmental disabilities; and

 

(vi) Other training components as deemed necessary.

 

(c) Each direct care staff member shall participate in the in-service training curriculum within 3 months from the date of the staff member's employment.

 

 

(d) The Developmental Disabilities Administration shall develop standards for in-service training in accordance with recognized standards for direct care staff.

 

 

 

7-206. Waiting List Equity Fund

 

 

(a)(1) There is a continuing, nonlapsing Waiting List Equity Fund in the Department of Health and Mental Hygiene.

 

(2) The purpose of the Waiting List Equity Fund is to ensure that:

(i) When individuals leave State residential centers, the net average cost of serving them in the State residential center, as defined in subsection (d)(2) of this section, shall follow them to community-based services; and


(ii) Any funds remaining after the individuals leaving State residential centers are served, are used to provide community-based services to individuals eligible for, but not receiving, the community-based services listed in subsection (c) of this section.

 

(b) Subject to the appropriation process in the annual operating budget, the Department shall use the Waiting List Equity Fund for:

 

(1) Providing community-based services to each individual who leaves a State

residential center on or after October 1, 1994; and

(2) Providing community-based services to individuals eligible for, but not receiving, services from the Developmental Disabilities Administration, with the funds remaining after each individual who leaves a State residential center on or after October 1, 1994 is served in the community.

 

(c) For individuals eligible for, but not receiving, services from the Developmental Disabilities Administration in the Department, the Waiting List Equity Fund shall be used to provide:

 

(1) Individualized supported living arrangements services;

(2) Respite care;

(3) Individual and family support services;

(4) Supported employment; and

(5) Individualized community integration day services.

 

(d)(1) Subject to the appropriation process in the annual operating budget, the Waiting List Equity Fund shall consist of funds which are equal to the cost of providing services to an individual in a State residential center for each fiscal year, or part of a fiscal year, that the individual is no longer served

in a State residential center and is provided community-based services as defined in paragraph (2) of this subsection.

 

(2) In determining funding for the Waiting List Equity Fund, the cost of providing services to an individual in a State residential center shall be calculated by:

(i) Dividing the State residential center's appropriation by the daily average census reported in the State residential center's annual operating budget for the last full fiscal year the individual was served in the State residential center prorated over the number of months the individual is served in the community; and

(ii) Subtracting the following:

1. The average annual itemized expenses associated with institutional services and administrative overhead costs that are demonstrated to be directly attributable to serving individuals remaining in the State residential center;

2. The cost for new admissions certified in accordance with the provisions of 7-502 and 7-503 of this title;

3. The cost for respite care in accordance with 7-509 of this title;

4. The cost for court-ordered commitments; and

5. Reimbursable federal revenues under TEFRA attributable to direct client

costs.

 

(e)(1)(i) The Department shall adopt regulations for the management and use of the money in the Fund.

 


(ii) The regulations shall authorize the use of money in the Fund to provide services to individuals:

1. Who are in crisis and need emergency services; and

2. Who are not in crisis and do not need emergency services.

(2) The Waiting List Equity Fund may not be used to supplant funds appropriated for:

(i) Emergency community placements; or

(ii) Transitioning students.

 

(f)(1) On or before January 1 of each year the Secretary shall prepare a report to be submitted to the General Assembly and the Department of Legislative Services on the Waiting List Equity Fund.

 

(2) The report shall include:

(i) An accounting of all receipts and expenditures to and from the Fund;

 

(ii) The number of individuals who left and entered State residential centers during the previous year;

(iii) The number of additional persons who were on the waiting list for developmental disabilities services during the previous year; and

(iv) An accounting of each of the factors used in determining the cost of providing services to an individual in a State residential center in accordance with the provisions of subsection (d)(2) of this section.

 

(g) Any unspent portions in the Waiting List Equity Fund and any interest earned on money in the Waiting List Equity Fund may not be transferred or revert to the General Fund of the State, but shall remain in the Waiting List Equity Fund to be used for the purposes specified in this section.

 

 

 

7-207. Reports of deaths of individuals in services or programs

 

 

(a)(1) Upon notification of the death of an individual in a program or facility funded or operated by the Administration, the administrative head of the program or facility shall report the death:

 

(i) Immediately to the sheriff, police, or chief law enforcement official in the jurisdiction in which the death occurred;

(ii) Immediately to the Secretary; and

(iii) By the close of business the next working day to:

1. The Director;

2. The health officer in the jurisdiction where the death occurred; and

3. The designated State protection and advocacy system.

(2) A report may be:

(i) Oral if followed by a written report within 5 working days from the date of the death; or

(ii) Written.

(3) A written report shall contain:

 

(i) The name, age, and sex of the deceased;

(ii) The time of discovery of the death;


(iii) The deceased's place of residence at the time of death;

(iv) The location where the body was discovered;

(v) The name of the person who took custody of the body;

(vi) The name of the person evaluating the death, if known;

(vii) Whether or not an autopsy is being performed, if known;

(viii) The name, address, and telephone number of the next of kin or legal guardian, if known; and

(ix) Any other information the administrative head of the service or program determines should be provided to the medical examiner and the persons listed in paragraph (1) of this subsection on the deaths occurring:

1. By violence;

2. By suicide;

3. By casualty;

4. Suddenly, if the deceased was in apparent good health; or

5. In any suspicious or unusual manner.

 

(b) The sheriff, police, or chief law enforcement officer shall inform a medical examiner in accordance with 5-309(b) of this article, and the

medical examiner, if necessary, shall conduct an investigation in accordance with the provisions of that section.

 

 

 

7-302. Purpose

 

 

The purpose of the State plan is to identify the populations in need of services, the current state of needed services, and the priorities for new services, including the reallocation of resources.

 

 

 

7-303. Plan contents

 

 

(a) Through the Developmental Disabilities Administration, the Secretary shall establish and carry out a State plan to provide the following training and habilitation services:

 

(1) For individuals with developmental disability:

(i) Day habilitation services;

(ii) Family support services;

(iii) Individual support services;

(iv) Prevention and early detection of disabilities;

(v) Residential services in community-based settings;

(vi) Services coordination;

(vii) Services in State residential centers;

(viii) Services to insure protection of the individual rights and liberties of individuals with developmental disability;

(ix) Vocational services;

(x) Community supported living arrangements services; and

 


(xi) Any other services that may be necessary to permit delivery of the services under this subsection.

(2) For individuals without developmental disability, but who meet the eligibility requirements of 7-403 of this title, individual support services.

 

(b) The Secretary periodically shall revise the State plan, but not less than every 2 years, to reflect changes in need, current available services, priorities, and any other changes that may affect the need for or scope of care and services.

 

 

 

7-306.1. Private providers of community based services, payment by Developmental Disabilities Administration

 

 

(a) The Administration shall develop and implement a funding system for the distribution of State funds to private providers that are under contract with the Administration to provide community-based services to individuals with disability in accordance with the State plan.

 

 

(b) Funds received for services that are fee-for-service or that have rates set by regulation shall be subject to recovery by the Administration only for the following purposes:

 

(1) Client attendance;

(2) Client fees; or

(3) Sanctions allowed through regulations.

 

(c)(1) Under the funding system developed under subsection (a) of this section,

the Administration shall notify each private provider at least 30 days before the beginning of the fiscal year of the billing rate or amount of funds to be paid to the provider for the provision of community-based services to an individual with developmental disability or a group of individuals with developmental disability for the coming fiscal year.

 

(2) For rates that are set in regulation, the Administration shall include the cost centers used to determine the funding amount of each rate.

(3)(i) A private provider may request an administrative resolution of a billing rate set under paragraph (1) of this subsection except for rates set in regulation.

(ii) Within 60 days after receipt of the provider's request, the Administration shall make a decision on the request for an administrative resolution.

(iii) If an administrative resolution cannot be reached between the provider and the Administration, the provider may request an evidentiary hearing or an oral hearing in accordance with regulations of the Department.

 

(d) Subject to the provisions of subsections (e), (f), and (g) of this section, the Administration shall provide payment to private providers for the services provided from the funds designated in subsection (c) of this section in

accordance with the following payment schedule:

 

(1) On or before the third business day of the fiscal quarter beginning July 1, 33% of the total annual amount to be paid to the provider;


(2) On or before the third business day of the fiscal quarter beginning October 1, 25% of the total annual amount to be paid to the provider;

(3) On or before the third business day of the fiscal quarter beginning January 1, 25% of the total annual amount to be paid to the provider; and

(4) On or before the third business day of the fiscal quarter beginning April 1, 17% of the total annual amount to be paid to the provider.

 

(e) The Administration may deviate from the payment schedule provided under subsection (d) of this section for any provider:

 

(1) That is reimbursed through the fee payment system and fails to submit properly completed program attendance reports within 15 days of the beginning of each month;

(2) That provides services under the medical assistance program and fails to submit the designated forms used by the medical assistance program to claim federal fund participation within 30 days after the end of each month; or

 

(3) That fails to submit a cost report for rate-based payment systems or wage surveys as required under subsection (k) of this section.

 

(f) A deviation from the payment schedule as provided under subsection (e) of this section may occur only if the Administration has:

 

(1) Advised the provider that:

(i) An attendance report which has been submitted on time is in need of correction;

(ii) A designated medical assistance form which has been submitted on time is in need of correction;

(iii) A cost report for rate-based payment systems has not been submitted within 6 months from the close of the fiscal year or, if submitted, is in need of correction; or

(iv) A wage survey requested under subsection (l) of this section has not been submitted by the later of 60 days from the date of receipt of the request or within 60 days after the last day of the pay period for which the data was requested or, if submitted, is in need of correction.

(2) Allowed the provider at least 5 working days to submit, resubmit or correct the report or form; and

 

(3) Not in any way contributed to the delay of or error on a report or form.

 

(g) The amount of a reduction of payments to a provider pursuant to subsections (e) and (f) of this section may not:

 

(1) Exceed the amount of lost federal revenue attributable to the delay or error; or

(2) In the case of cost reports for rate-based payment systems or wage surveys, exceed $500 per day per report for each day the report is not submitted past the given due date or corrected.

 

(h) The Administration:

 


(1) Shall place sufficient funds in a specially designated account with the Office of the Comptroller to meet its financial obligations under subsection (d) of this section;

(2) Shall disburse funds from the account in accordance with the payment schedule provided in subsection (d) of this section;

(3) May not use the funds in the account for any other purpose except for the purpose of reimbursing private providers for the provision of community-based

services to individuals with developmental disability;

(4) Within 1 year after receipt of a private provider's year-end report and cost report for rate-based payment systems, shall reconcile the report and shall provide the provider with a written approval of the report or a written explanation of any items in dispute; and

(5) Shall conduct an audit of each private provider every 4 years.

 

(i) The Administration shall accept as final the private provider's year-end report and cost report for rate-based payment systems if:

 

(1) The Administration fails to provide written approval or a written explanation of any items in dispute within 1 year after receiving the report; or

(2) The Administration fails to reconcile the year-end report and cost report for rate-based payment systems within 1 year after receiving the report.

 

(j) If the Administration fails to conduct an audit of a private provider as required in subsection (h)(5) of this section, the Administration may not audit the private provider for any fiscal year that began more than 48 months before the Administration's notification of audit, unless the Administration suspects

fraud or misappropriation of funds.

 

 

(k) Private providers shall provide the year-end report to the Administration no later than 6 months after the end of the State fiscal year.

 

 

(l) Private providers shall submit to the Administration:

 

(1) Cost reports for rate-based payment systems no later than 6 months after the end of the State fiscal year; and

(2) Wage surveys by the later of:

(i) 60 days after the last day of the pay period for which the data is requested; or

(ii) 60 days after receipt of a request from the Administration for wage survey information.

 

 

7-403. Action upon application

 

 

(a) An applicant for services provided or funded, wholly or partly, by this State shall submit an application to the Department in writing. The application shall contain the information that the Department requires.

 

 

(b) Within 60 days after the Department receives an application for services for an individual, the Secretary, on the basis of the application, shall:

 

(1) Determine whether there is a reasonable likelihood that the individual:


(i) Has developmental disability; or

(ii) Does not have developmental disability, but may be eligible for individual support services under subsection (c) of this section; and

(2) If a positive determination is made under item (i) or (ii) of paragraph (1) of this subsection:

(i) Approve the application;

(ii) Determine the nature of the disability;

 

(iii) Determine the nature of services that the individual may require;

(iv) Determine the type of environment in which any needed services could be provided with the least restriction on the liberty of the individual;

(v) Determine what types of evaluations, if any, the individual requires;

(vi) Inform the individual of these determinations; and

(vii) Inform the individual that these determinations are preliminary and may be subject to modification as a result of further evaluation.

 

(c) To be eligible for individual support services, an individual shall have a severe chronic disability that:

 

(1) Is attributable to a physical or mental impairment, other than the sole diagnosis of mental illness, or to a combination of mental and physical impairments; and

(2) Is likely to continue indefinitely.

 

(d) If the Secretary determines, based on the application, that the individual has a sole diagnosis of mental disorder, the Secretary shall refer the individual to the Mental Hygiene Administration.

 

 

 

7-404. Acceptance of application

 

 

(a) Before an individual whose application for services has been approved by the Secretary is accepted for services, the individual is required to receive an evaluation in accordance with the rules and regulations adopted under 7-401(a)(1) of this subtitle.

 

 

(b) The Secretary may not accept an individual for services unless the results of the evaluation are that the individual:

 

(1) Has developmental disability; or

(2) Does not have developmental disability, but does meet the eligibility requirements for individual support services.

 

(c)(1) From among the individuals whose applications for services have been approved and who have been found eligible for services as a result of the required evaluation, the Secretary shall determine in accordance with the rules

and regulations adopted under 7-401(a)(2) and (3) of this subtitle the nature, extent, and timing of the services to be provided to individuals.

 

(2) In making a determination under paragraph (1) of this subsection, the Secretary shall consider:

(i) The results of the required evaluation;


(ii) The needs of the individual; and

(iii) The needs of the family unit of the applicant.

 

 

 

 

7-405. Effect of acceptance

 

 

(a) Acceptance for services under this title does not affect an individual's eligibility for services provided by any other public or private agencies.

 

 

(b) If the Secretary determines that an individual who is eligible for services under this title also may be eligible for services provided by another agency, the Secretary shall refer the individual to that agency.

 

 

 

7-406. Informal hearing

 

 

(a) An applicant for services or a recipient of services under this title may:

 

(1) Request an informal hearing before the Secretary's designee on any action or inaction of the Secretary made under this title; and

(2) Request the Secretary to review the decision of the informal hearing.

 

(b) After the Secretary receives a request for a review, the Secretary shall conduct the review in accordance with Title 10, Subtitle 2 of the State Government Article.

 

 

 

7-407. Appeal of final decision

 

 

Any person aggrieved by a final decision of the Secretary in a contested case, as defined in 10-202 of the State Government Article, may take an appeal as allowed in 10-222 and 10-223 of the State Government Article.

 

 

 

7-501. Administrative head

 

 

(a) There are State residential centers for individuals with mental retardation in the Developmental Disabilities Administration.

 

 

(b) The Director shall appoint an administrative head for each State residential center.

 

 

 

7-502. Approval of admission

 

 


(a) The Secretary shall approve the admission of an individual to a State residential center only if:

 

(1) The findings of the evaluation are that the individual:

(i) Has mental retardation; and

(ii) For adequate habilitation, needs residential services; and

(2) There is no less restrictive setting in which the needed services can be provided and that is available to the individual or will be available to the individual within a reasonable time.

 

(b) The Secretary may not approve the admission of an individual to a State residential center if:

 

(1) The findings of the evaluation are that the individual:

(i) Does not have mental retardation; or

(ii) Has mental retardation but does not need residential services for adequate

habilitation; or

(2) There is a less restrictive setting in which the needed services can be provided that is available to the individual or will be available to the individual within a reasonable time.

 

(c) The Secretary shall provide an individual with the appropriate least restrictive service consistent with the individual's welfare, safety, and plan of habilitation, if the individual:

 

(1) Has an application for services that has been approved under 7-404(c) of this title; or

(2) Is considered eligible for transfer under Subtitle 8 of this title by the Director or the Director's designee.

 

 

7-503. Notice of admission

 

 

(a) Within 21 days after the admission of an individual to a State residential center, a hearing officer of the Department shall hold a hearing on the admission in accordance with the rules and regulations that the Secretary adopts.

 

 

(b) Written notice of the admission of an individual and of the date, time, and place of the individual's hearing on admission shall be given:

 

(1) On admission, to the individual; and

(2) As soon as possible, but not later than 5 days after the admission, to legal counsel for the individual and to the proponent of admission.

 

(c) The notice also shall state:

 

(1) The name of each proponent of the admission;

 

(2) The right of the individual who has been admitted:

(i) To consult with and be represented by a lawyer; and

(ii) To call witnesses and offer evidence at the hearing on admission;


(3) The availability of the services of the legal aid bureaus, lawyer referral services, and other agencies that exist for the referral of individuals who need legal counsel;

(4) The rights of individuals with developmental disability under Subtitle 10 and 7-1102 of this title; and

(5) The rights of individuals to release under 7-506, 7-507, and 7- 508 of this title.

 

(d) The Department shall prepare and provide each State residential center with standard forms that set forth, in clear and simple words, the notice provisions of this section.

 

 

(e)(1) At the hearing, in order to certify the admission of the individual, it must be affirmatively shown by clear and convincing evidence that the conclusions leading to the decision to admit the individual are supported by the following findings:

 

 

(i) The individual has mental retardation;

(ii) The individual needs residential services for the individual's adequate habilitation; and

(iii) There is no less restrictive setting in which the needed services can be provided that is available to the individual or will be available to the individual within a reasonable time after the hearing.

(2) If the hearing officer shall find from the admissible evidence that the conclusions leading to the admission are not proved, the hearing officer shall so certify and the individual shall be released from the State residential center.

(3) If the hearing officer shall find from clear and convincing evidence that all of the admission requirements have been proved, the hearing officer shall so certify and the individual's admission shall be considered approved.

(4) If the hearing officer certifies the admission of an individual to a State residential center, the hearing officer shall, at the conclusion of the hearing, write on the certification form any additional services of habilitation that are not included in the evaluation report, but that the hearing officer finds from the evidence are needed by the individual.

(5) If the hearing officer certifies the admission of an individual to a State

residential center, the hearing officer shall, at the conclusion of the hearing, advise that individual and the legal counsel of the individual's right to seek judicial release from the State residential center under 7-507 of this subtitle. The hearing officer shall also advise that individual and the legal counsel of:

(i) The individual's rights under the appeal provisions of 10-222 and 10-223 of the State Government Article; and

(ii) The individual's right to file a petition for habeas corpus under 7- 506 of this subtitle.

 

 

7-504. Review of determination

 

 

(a) The Board of Review of the Department does not have jurisdiction to review the determination of a hearing officer on an admission under this subtitle.

 

 


(b) The determination of the hearing officer is a final decision of the Department for the purpose of judicial review of final decisions under Title 10, Subtitle 2 of the State Government Article.

 

 

 

7-505. Annual reevaluations

 

 

(a) At least once a year, each individual with mental retardation who is admitted to a State residential center shall be reevaluated to determine:

 

(1) Whether the individual continues to meet the requirements of this subtitle for admission to a State residential center;

(2) Whether the services which the individual requires can be provided in a less restrictive setting;

(3) Whether the individual's plan of habilitation as required by 7-1006 of this title is adequate and suitable; and

(4) Whether the State residential center has complied with and executed the individual's plan of habilitation in accordance with the rules, regulations, and standards that the Secretary adopts.

 

(b) If the Secretary finds that any individual no longer meets the admission requirements of this subtitle, the Secretary shall begin appropriate proceedings for release or transfer of that individual.

 

 

 

 

 

 

 

 

7-506. Writ of habeas corpus

 

 

Any individual who has been admitted to a State residential center or any person on behalf of the individual may apply at any time to a court of competent jurisdiction for a writ of habeas corpus to determine the cause and the legality of the detention.

 

 

 

7-507. Release petition

 

 

(a) Subject to the limitations in this section, a petition for the release of an individual who is held under this subtitle from a State residential center may be filed, at any time, by:

 

(1) The individual; or

(2) Any person who has a legitimate interest in the welfare of the individual.

 

(b) The petition shall be filed in a circuit court for the county:

 

(1) Where the individual resides or resided at the time of the admission; or

(2) Where the State residential center is located.


 

(c) The Administration shall be the respondent in a petition under this section.

 

 

 

(d) The petition shall be in the form and contain the information that the Maryland Rules require.

 

 

(e) If the petitioner requests trial by jury, the trial shall be held with a jury as in a civil action at law.

 

 

(f) The trier of fact shall determine:

 

(1) Whether the individual has mental retardation;

(2) Whether for adequate habilitation, the individual needs residential services; and

(3) Whether there is a less restrictive setting in which the needed services can be provided that is available to the individual or will be available to the individual within a reasonable time.

 

(g)(1) The court shall remand the individual to the custody of the State residential center, if the trier of fact determines that:

 

 

(i) The individual has mental retardation;

(ii) For adequate habilitation the individual needs residential services; and

(iii) There is no less restrictive setting in which those services needed can be provided and which is available to the individual or will be available to the individual within a reasonable time.

(2) The court shall order that appropriate less restrictive services be offered to an individual, if the trier of fact determines that:

(i) The individual has mental retardation;

(ii) For adequate habilitation the individual needs residential services; and

(iii) There is a less restrictive setting in which the service can be provided, and which from evidence submitted by the Director is available or will be available to the individual within a reasonable time.

(3) The individual shall be released from the State residential center, if the trier of fact determines that:

(i) The individual does not have mental retardation;

(ii) For adequate habilitation the individual does not need residential services; or

(iii) There is a less restrictive setting in which the needed services can be provided that is available to the individual or will be available to the individual within a reasonable time.

 

 

(h) Any party may appeal from a decision on the petition as in any other civil case.

 

 

(i) Appropriate records of the proceeding under this section shall be made a permanent part of the individual's record.

 

 


(j)(1) After a determination on the merits of a petition under this section, a court may not hear a later petition for the individual within 1 year after that determination, unless:

 

(i) The petition is verified, and alleges an improvement in the condition of the individual with mental retardation after the determination; and

(ii) The court, after review of the verified petition, determines that the matter should be reopened.

(2) If the matter is reopened, the petition shall be heard as provided in this section.

 

 

7-508. Conditions for release

 

 

(a) At the direction of the Secretary, an individual who has been admitted under this subtitle shall be released from a State residential center if:

 

(1) The individual is not an individual with mental retardation;

(2) The individual is an individual with mental retardation but does not need residential services; or

(3) There is an available, less restrictive kind of service that is consistent with the welfare and safety of the individual.

 

(b)(1) At the direction of the Secretary, any individual who has been admitted under this subtitle may be released conditionally from a State residential center for individuals with mental retardation, if, in the judgment of the Secretary, the individual:

 

(i) Would be cared for properly by the individual or another person; and

(ii) Would not endanger the individual or the person or property of another.

 

(2) The Secretary may set the conditions for release that the Secretary considers reasonable. The conditions may relate to:

(i) The duration of the release;

(ii) Treatment during release; or

(iii) Placement under supervised care in an approved setting.

(3) An individual with mental retardation released conditionally is considered to be held by the State residential center from which the individual was released.

 

(c) Each determination of any release of an individual, whether full or conditional, including a summary of the reasons for the determination, shall be made a permanent part of the individual's record.

 

 

 

7-509. Availability of respite care

 

 

(a) In this section, "respite care" means care that is made available for an individual with mental retardation in a State residential center to provide relief for the person with whom the individual ordinarily lives.

 

 

(b) Under regulations that the Department adopts, each State residential center shall reserve at least 2 percent, but not more than 4 percent, of its total beds for respite care.


 

(c) Respite care for an individual may not exceed 45 days within any 1-year period or 28 consecutive days.

 

 

 

 

 

 

7-601. Recognition of residential programs

 

 

There are community-based residential programs that provide residential services in public group homes, private group homes, and alternative living units.

 

 

 

7-602. Definitions

 

 

(a) In this subtitle the following words have the meanings indicated.

 

 

(b) "Private group home" means a group home that is not a public group home, whether or not public funds are used to finance, wholly or partly, the acquisition, construction, improvement, rehabilitation, maintenance, or operation of the group home.

 

 

(c) "Public group home" means a group home that is owned by or leased to this State or a political subdivision of this State, whether or not this group home is maintained and operated by a private, nonprofit person.

 

 

 

7-603. Deemed single family dwelling

 

 

(a) This section applies only to public group homes, nonprofit private group homes, and alternative living units.

 

 

(b)(1) To avoid discrimination in housing and to afford a natural, residential setting, a group home or an alternative living unit for individuals with developmental disability:

 

(i) Is deemed conclusively a single-family dwelling;

(ii) Is permitted to locate in all residential zones; and

(iii) May not be subject to any special exception, conditional use permit, or procedure that differs from that required for a single-family dwelling.

(2) The provision of separately identified living quarters for staff may not affect the conclusive designation as a single-family dwelling under paragraph (1)(i) of this subsection.

(3) A general zoning ordinance, rule, or regulation of any political

subdivision that conflicts with the provisions of this section or any rule or any regulation that carries out the purpose of this section is superseded by this section to the extent of any conflict.


 

 

7-604. Making determination of needs

 

 

(a) The Secretary shall, in accordance with the State plan established under Subtitle 3 of this title, determine the need, if any, for 1 or more public group homes for individuals with developmental disability in each county or multicounty region of this State.

 

 

(b) In making the determination, the Secretary shall consult with the following:

 

(1) The governing body of each county;

(2) The State Board of Education;

(3) County boards of education;

(4) Consumer groups; and

(5) Other public and private agencies.

 

(c) The part of the State plan that relates to the need for public group homes

shall be sent to each county.

 

 

 

7-605. Suitable sites

 

 

(a)(1) If the Secretary certifies that a public group home is needed in a county or multicounty region, the county or counties of the region, in consultation with the local consumer groups, promptly shall choose a site that meets the requirements of the State plan.

 

(2) Before submitting a proposed site to the Secretary, the governing body of the county where the site is located shall hold at least 1 public hearing in that county.

 

(b) The Secretary shall cooperate with and help the county or counties to choose a suitable site.

 

 

(c) If within 6 months after the Secretary certifies a need for a public group home, a suitable site is not submitted to the Secretary, the Secretary shall declare the county or counties to be in default. However, for good cause

shown, the Secretary may extend the 6-month period not more than another 3 months.

 

 

(d) Within 3 months after the default by a county or counties, the Secretary shall:

 

(1) Choose a suitable site; and

(2) After holding a public hearing in the county where the site is located, recommend the site to the Board of Public Works.

 

 

7-609. Qualifications for approval

 

 

To qualify for a certificate of approval, an applicant shall satisfy the Secretary that:


(1) The proposed private group home is consistent with the State plan;

(2) The applicant is a proper person to receive a certificate of approval;

(3) The proposed private group home is appropriate for the stated purpose;

(4) The proposed private group home meets or, on completion, will meet the licensing requirements of Subtitle 9 of this title;

(5) The proposed private group home meets or, on completion, will meet all of the general zoning requirements that apply to the site and that relate to:

(i) The height and size of any buildings that are involved;

(ii) The land that may be covered or occupied;

(iii) The open space requirements;

(iv) The density requirements; and

(v) The use of any land or buildings; and

(6) The applicant's facilities meet the federal regulation requirements on

program accessibility (45 C.F.R. 84.21 through 84.23).

 

 

7-610. Application for certificate of approval

 

 

(a) An applicant for certificate of approval shall submit an application to the Department on the form that the Secretary requires.

 

 

(b) The application shall:

 

(1) Be signed and verified by the applicant; and

(2) Provide the information that the Secretary requires, including:

(i) The name and address of the applicant;

(ii) The street address of the property where the private group home is to be located or, if no address, a description which identifies the property;

(iii) If the applicant does not own the property, the name of the owner;

(iv) A statement that the applicant will comply with the laws, rules, and regulations that relate to the establishing and operating of private group homes under this subtitle;

(v) A statement that the applicant has sufficient resources to establish a

private group home, or that those resources are available to the applicant; and

(vi) A statement that the applicant's facilities meet the federal regulation requirements on program accessibility (45 C.F.R. 84.21 through 84.23).

 

 

7-611. Investigation of application

 

 

(a) When an application for certificate of approval is filed, the Department shall have an investigation made of:

 

(1) The applicant;

(2) The private group home for which approval is sought;

(3) The facts stated in the application;

(4) The number of other group homes or alternative living units in the neighborhood;


(5) The public utilities and services available; and

(6) The access to transportation, shopping and recreational facilities, and health-related services.

 

(b) When an application for certificate of approval is filed, the Secretary shall hold a public hearing on the application.

 

 

 

(c)(1) The Secretary shall publish a notice of the hearing within 60 days of receipt of the completed application.

 

(2) The notice shall state:

(i) The name of the applicant;

(ii) The type of approval that is sought;

(iii) The location of the proposed private group home; and

(iv) The time and place that the Secretary sets for the hearing, which shall be at least 7 but not more than 15 days after the last publication of the notice.

 

(d) The notice shall be published at least twice in 1 week:

 

(1) In 2 newspapers published in the county where the private group home is to be located;

(2) If only 1 newspaper is published in that county, in that newspaper; or

(3) If a newspaper is not published in that county, any newspaper with substantial circulation in that county.

 

 

 

 

 

 

7-612. Time for approval

 

 

(a) The Secretary shall issue a certificate of approval to any applicant who meets the requirements under this Part III of this subtitle.

 

 

(b) Unless an applicant agrees to extend the time, the Secretary shall approve or deny an application for certificate of approval within 30 days after the hearing required by 7-611 of this subtitle.

 

 

(c) If the Secretary fails to approve or deny the application within that time, the application shall be deemed to be approved, and the Administration shall issue a certificate of approval.

 

 

 

7-701. Definitions

 

 

(a) In this subtitle the following words have the meanings indicated.

 


(b) "Eligible child" means an individual with developmental disability under the age of 22 years who is:

 

(1) In an out-of-home placement; or

(2) At immediate risk of out-of-home placement.

 

(c)(1) "Family" means an eligible child's natural, adoptive, or foster parents.

 

(2) "Family" includes:

(i) A guardian;

(ii) A person acting as a parent of a child; or

(iii) A relative or stepparent with whom a child lives.

 

 

(d)(1) "Family support services" means a program designed to enable a family to provide for the needs of a child with developmental disability living in the home.

 

(2) "Family support services" includes:

(i) Individual and family counseling;

(ii) Personal care;

(iii) Day care;

(iv) Specialized equipment;

(v) Health services;

(vi) Respite care;

(vii) Housing adaptations;

(viii) Transportation; and

(ix) Other necessary services.

 

(e) "Program" means the Family Support Services Program.