One Click Case Law for § 37-4-40
O.C.G.A. § 37-4-40-5 <-- --> O.C.G.A. §37-4-41

2010 Georgia Code

TITLE 37 - MENTAL HEALTH

CHAPTER 4 - HABILITATION OF THE DEVELOPMENTALLY DISABLED GENERALLY
ARTICLE 2 - PROCEDURES FOR OBTAINING SERVICES FROM THE DEPARTMENT
PART 2 - COURT ORDERED SERVICES
§ 37-4-40 - Filing petition with court for according of program of services to developmentally disabled person; order for examination of person by comprehensive evaluation team; report by team; petition hearing; procedure upon finding that department services are necessary

O.C.G.A. 37-4-40 (2010)
37-4-40. Filing petition with court for according of program of services to developmentally disabled person; order for examination of person by comprehensive evaluation team; report by team; petition hearing; procedure upon finding that department services are necessary


(a) Any person may file a petition for a court ordered program of services from the department for a developmentally disabled citizen of this state. Such petition shall be executed under oath in the court of the county in which the allegedly developmentally disabled person is a resident or where such person is found. The petition shall assert that the petitioner believes that the client is developmentally disabled and (1) that the petitioner is the parent, guardian, or person standing in loco parentis of the client for whom habilitative services are being sought and that the petitioner is unable to obtain adequate and appropriate programs and services as defined in Code Section 37-5-3 and Code Section 20-2-131 to meet the needs of the client or (2) that the petitioner believes that the parent, guardian, or person acting in loco parentis has failed or is unable to secure adequate and appropriate programs and services as defined in Code Section 37-5-3 and Code Section 20-2-131 to meet the needs of the client. The petition shall set forth the alleged facts upon which the above assertions are based, the names and addresses, if known, of any witnesses who can allege relevant facts, and, if known, the names and addresses of the nearest relatives and the guardian, if any, of the client.

(b) The court shall review the petition filed under subsection (a) of this Code section; and if the court finds reasonable cause to believe that the client might be developmentally disabled and is not receiving adequate and appropriate care, training, education, habilitation, or other specialized services, the court shall issue an order within 72 hours of the filing of the petition that the client be examined by a comprehensive evaluation team. Notice of said order shall be sent to the client and his two representatives, who shall be appointed by the court, as provided in Code Section 37-4-107. If the client and his representatives fail to comply with the order for evaluation within five days, Saturdays, Sundays, and holidays excluded, after the date set by the order for the client to be evaluated, the comprehensive evaluation team shall notify the court of the failure to appear, along with the alleged factual situation which is the cause for noncompliance; and the court may take appropriate action to facilitate the attendance of the client before the comprehensive evaluation team. The evaluation of the client shall be performed in the least restrictive environment possible. The court may issue subpoenas for witnesses to appear before such team; and, on their failure to appear, the court may take the same steps to compel attendance as if the proceedings were before the court.

(c) The comprehensive evaluation team shall file its written report with the court within ten days, Saturdays, Sundays, and legal holidays excluded, after examining the client, with dissenting opinions, if any. If a majority of the team concludes that the client is developmentally disabled and that he should be ordered to receive services from the department because he is in need of appropriate care, training, education, habilitation, or other specialized services other than that which he is then receiving, the report submitted by the evaluation team shall be in the form of an individualized program plan for the allegedly developmentally disabled person.

(d) If a majority of the evaluation team does not find the allegedly developmentally disabled person to be developmentally disabled and in need of being ordered to receive such services from the department or if a majority of the comprehensive evaluation team finds the client to be a developmentally disabled person in need of court ordered services from the department, the court shall set a hearing on the petition and shall serve notice of such hearing on the petitioner, on the prospective client, and on his representatives or guardian as provided in Code Section 37-4-107; and such notice shall be served within 72 hours after the filing of the report by the evaluation team. Such notice shall be accompanied by:

(1) A copy of the petition;

(2) A notice that the client has a right to counsel and that the client or his representatives may apply immediately to the court to have counsel appointed if the client cannot afford counsel and that the court will appoint counsel for the client unless the client either indicates in writing that he will have retained counsel by the time set for hearing or waives his right to counsel;

(3) A copy of the individualized program plan developed by the evaluation team under subsection (c) of this Code section; and

(4) A notice that the client has a right to be examined by a comprehensive evaluation team of his own choice at his own expense and to have that team submit a suggested individualized program plan for the client which conforms with the requirements of paragraph (11) of Code Section 37-4-2.

The hearing shall be held no sooner than ten days and no later than 15 days, Saturdays, Sundays, and holidays excepted, after the date the evaluation team report is filed. The court shall grant a continuance upon application by the client or his representatives, if necessary, to permit preparation for the hearing.

(e) If after a full and fair hearing the court finds that the client is not developmentally disabled or that he is not in need of care, training, education, habilitation, or other specialized services other than that which he is then receiving, the court shall dismiss the petition. If the court finds that the client is developmentally disabled and is in need of such additional services, the department shall recommend a habilitative program for the client, based upon the individualized program plans submitted, which is an alternative to care in a facility. If the court finds that such an alternative program is available and that such program presents a reasonable expectation of accomplishing the stated goals of the individualized program plan adopted by the court, the court shall order the client to comply with the plan and shall issue appropriate orders to implement the plan. If the court concludes from the evidence that the least restrictive available alternative which would accomplish the goals of the plan is for the client to be admitted to a facility, the court shall not order such admission unless it further specifically finds that:

(1) The client requires direct medical services;

(2) The client needs 24 hour training in a residential care facility; and

(3) The court has been notified by the department that a bed appropriate to the specific needs of the client is available and that the services indicated in the individualized program plan submitted to the court by the comprehensive evaluation team or by the client can be provided.

(f) If the court shall find, based upon the evidence and the program plan adopted, that the accomplishment of the goals for the client requires some limited period of residence in a facility followed by a community services program, then the court shall issue appropriate orders. The court may order that any client admitted under this Code section remain in a facility for any period not to exceed six months, subject to the power of the regional state hospital administrator to discharge the client under Code Section 37-4-44. If continued care as a resident in a facility is thought by the person in charge of the client's habilitation to be necessary at the end of such six-month period, the person in charge of that client's habilitation shall apply for an order under Code Section 37-4-42 authorizing such continued care in the facility. In any case in which the court orders the client to receive services from the department, the court shall make findings of fact and conclusions of law in support of and as part of such order.