25 TAC §§415.301 - 415.316
The Texas Department of Mental Health and Mental Retardation
(TDMHMR) adopts new §§415.301-415.316 of Chapter 415, Subchapter
G, concerning determination of manifest dangerousness. Sections 415.301-415.313
and 415.316 are adopted with changes to the proposed text as published in
the April 5, 2002, issue of the
Texas Register
(27 TexReg 2729-2737). Sections 415.314 and 415.315 are adopted without changes.
The repeals of existing §§402.71 - 402.83 of Chapter 402, Subchapter
C, concerning the same, which the new sections replace, are contemporaneously
adopted in this issue of the
Texas Register.
The new subchapter establishes the two types of review boards that conduct
hearings to determine whether an individual is manifestly dangerous. Additionally,
the subchapter defines the elements to be considered in the determination
of manifest dangerousness by review boards and establishes the due process
procedures for individuals who have been determined manifestly dangerous.
Although the new subchapter modifies certain provisions and procedures
related to review board hearings, the overall policies for determining manifest
dangerousness in this subchapter are not significantly different from the
policy contained in the repealed subchapter. A substantive new policy is that
the new rules address adolescents in the same manner as adults (i.e., adolescents
may be the subject of a hearing to determine manifest dangerousness), except
that an adolescent who is determined to be manifestly dangerous would be transferred
to the secure adolescent unit, rather than the maximum security unit. In the
new rules, if a facility review board determines that an individual is not
manifestly dangerous, then the individual may not be made the subject to another
hearing by the facility review board unless the facility CEO has reason to
believe that there has been sufficient change in the individual's condition
to indicate that the individual may be manifestly dangerous. The new rules
also require that the individual, his/her legally authorized representative
(LAR), and their spokesperson(s) be provided a copy of the hearing documentation
that will be considered by the TDMHMR Review Board, as well as a copy of the
TDMHMR Review Board's written report. If the individual or LAR disagrees with
the determination of the TDMHMR Review Board, the new rules permit the individual
or LAR to request that the CEO of the maximum security unit/secure adolescent
unit refer the matter to the commissioner for resolution.
Clarifying language has been added and minor grammatical changes made throughout
the subchapter. A definition of "child" has been added to mean a person who
is 12 years of age or younger. The term "state mental health facility" has
been replaced with the term "facility." The definition of "state mental health
facility" has been deleted and the definition of "facility" has been modified
to incorporate language from the proposed definition of "state mental health
facility" and to not exclude the facility at which the MSU/SAU is located.
The definition of "mental health professional" has been modified to include
a licensed psychological associate and to delete the requirement for a licensed
master social worker to be an advanced clinical practitioner (ACP). The definition
of "MSU/SAU facility" has been deleted and a definition of "MSU/SAU CEO" added.
Language has been added to §415.304 to state who may be subject to
a hearing to determine manifest dangerousness (i.e., only an adult or adolescent
who is committed by a court of law to a facility) as well as who may not be
subject to a hearing (e.g., a child who is committed by a court of law to
a facility). The title of §415.304 has been modified to reflect changes
to the text of the section.
Language has been added to §415.305(c) requiring at least one review
board member to have training and experience in the care of persons with mental
retardation if the individual who is the subject of the hearing has mental
retardation. Proposed language in §415.305(d)(3)(B) has been deleted
because the provision is redundant to §415.305(d)(1)(A). Language has
been modified in §415.305(g)(3) to clarify that persons may provide testimony
at a hearing as permitted by the subchapter and to delete reference to the
chair having the discretion of allowing a person to provide testimony. Language
has been added to §415.305(g)(4) in which the review board chair will
require each witness to provide his/her testimony without other witnesses
being present if requested by the individual or LAR, or at the chair's discretion.
The paragraph also provides for certain restrictions.
The requirement in §415.305(i)(1)(A) that there be
sufficient evidence
to indicate an individual is manifestly dangerous
has been changed to require
sufficient clinical justification
. Language has been modified in §415.305(j)(1) requiring the review
board chair to provide copies of the written report to the individual, LAR,
and spokesperson(s) at the same time the chair submits the report to the facility
CEO. Language relating to the individual's or LAR's right to have each witness
provide his/her testimony without other witnesses being present has been added
as new §415.306(d). The activities required of the facility rights officer
described in proposed §415.305(j)(2), §415.307(2), and §415.310(3)
and (7) have been reassigned to the facility CEO or MSU/SAU CEO (as appropriate)
or his/her designee. The reassignment allows the CEO to designate staff who
are most qualified to perform the activities.
Language in §415.307(2)(A)(i) and §415.310(3)(A)(i) relating
to the responsibility to make a reasonable effort to communicate the content
of the notice of hearing to the individual and LAR in a language and manner
understandable to the recipients has been deleted. New language requires ensuring
that the content of the notice is communicated in a language and format likely
to be understandable to the recipients. Proposed language in §415.307(2)(A)(i)
and §415.310(3)(A)(i) which directs the facility rights officer to serve
as an individual's spokesperson if the individual lacks capacity and does
not request a spokesperson has been modified. Revised language states that
the facility CEO or MSU/SAU CEO (as appropriate) must first make a reasonable
effort to identify and secure a spokesperson before the facility rights protection
officer serves as the spokesperson. Language has been added, modified, or
deleted in §415.307(5(A)(ii), §415.309, §415.310(7)(A)(ii),
and §415.311(c) to clarify that only the individual and LAR have the
right to request an appeal of a determination.
Regarding communication between the individual's current treating physician
and the physician who will treat the individual at the MSU/SAU in §415.308(a)(2),
language has been added permitting the required communication to occur between
the individual's treating physician and another physician at the MSU/SAU if
the other physician at the MSU/SAU is the designee of MSU/SAU physician who
will treat the individual. Language has also been added to §415.308(b)
stating that transfer of the individual to the MSU/SAU will occur as soon
as clinically and practicably feasible. Language has been added to §415.309
permitting the individual, LAR, or facility CEO to appeal the facility review
board's determination that the individual is manifestly dangerous on the grounds
that the determination is substantially flawed.
The time frame for the individual to request that the MSU/SAU CEO refer
a determination by the TDMHMR Review Board to the commissioner in §415.311(c)
has been changed from within five days after the determination is made to
within five days
after receipt of the written report
. Language related to responsibility for providing initial orientation
and conducting annual training in §415.313(a) has been modified. The
chair of each review board is responsible for conducting initial orientation
and the MSU/SAU CEO and chair of the TDMHMR Review Board are responsible for
conducting annual training. The requirement for review board members to be
knowledgeable about the
management and treatment
of risk for manifest dangerousness as well as assessment of risk has
been added to §415.313(b)(5). Language has been modified in §415.313(d)
to permit waiver of only the requirement to attend initial orientation and
annual training.
Written comments on the proposal were received from Advocacy, Incorporated
in Austin and the Texas Council for Developmental Disabilities in Austin.
Two commenters expressed confusion as to whether the new rules apply to
persons with mental retardation because §415.302(b) mentions state mental
retardation facilities. The commenters asked that the rules explicitly state
whether or not they apply to persons with mental retardation. One of the commenters
stated that, if the rules do apply to persons with mental retardation, then
language should be added indicating the due process provisions apply to those
persons as well. TDMHMR responds that the rules' application is not associated
with a person's diagnosis of mental retardation or mental illness. The rules
apply to
any
person who meets the definition
of "individual" as proposed in §415.303(10) (i.e., an adult or adolescent
committed to a state mental health facility who is to be the subject of a
hearing to determine manifest dangerousness or who has been determined manifestly
dangerousness in accordance with this subchapter), regardless of the person's
diagnosis. TDMHMR notes that a state mental retardation facility would be
identified as the receiving facility for an individual being transferred from
the maximum security unit/secure adolescent unit (MSU/ASU) only if the individual
met the criteria for admission to a state mental retardation facility. One
criterion for admission to a state mental retardation facility is that the
individual have a diagnosis of mental retardation. TDMHMR declines to add
language as requested by the commenters because the rules do not apply to
certain groups of persons based on a shared diagnosis and the due process
provisions are not limited to a specific group of persons who share a common
diagnosis.
Regarding the abbreviated term "MSU/SAU" in §415.301(5), one commenter
suggested using the full term instead of the abbreviated term to avoid confusion.
TDMHMR responds by modifying language as suggested.
Regarding the definition of "facility" in proposed §415.303(5), one
commenter suggested adding language to clarify that the term includes Waco
Center for Youth. TDMHMR responds that the rules do not apply to Waco Center
for Youth. The definition of "facility" has been modified to clarify that
the term
does not include
Waco Center for
Youth.
Regarding definitions in §415.303, another commenter stated that the
definitions of "facility," "state mental health facility," and "state mental
retardation facility" were confusing. The commenter suggested either deleting
the definition of "facility" or amending it to include state mental retardation
facilities. TDMHMR declines to amend the definition as suggested because the
term "facility" is not intended to include a state mental retardation facility.
For clarification, the definition of "state mental health facility" has been
deleted and the definition of "facility" has been modified to incorporate
language from the proposed definition of state mental health facility.
Regarding the definition of "facility review board" in proposed §415.303(7),
one commenter suggested revising the definition to require one of the mental
health professionals to have experience dealing with individuals with mental
retardation if the individual under consideration has a dual diagnosis of
mental retardation and mental illness. TDMHMR responds that, to address the
commenter's concern, language has been added to §415.305(c), which relates
to qualifications of certain review board members.
Regarding the definition of "independent evaluator" in proposed §415.303(9),
one commenter suggested revising the definition to include a mental health
professional with experience in working with individuals who have a dual diagnosis
of mental retardation and mental illness. TDMHMR declines to revise the definition
of "independent evaluator" because the proposed definition does not preclude
an independent evaluator from having experience in working with individuals
who have a dual diagnosis. TDMHMR notes that the individual or LAR is responsible
for choosing the independent evaluator and it is reasonable to expect that
the evaluator chosen would have experience relative to the individual's diagnosis.
Regarding the definition of "individual" in proposed §415.303(10),
one commenter asked whether the definition included an adult or adolescent
who is committed to a state mental retardation facility. The commenter suggested
that the rules "clearly define the circumstances under which a person with
mental retardation (probably also a dual diagnosis of mental illness), is
subject to the provisions of this rule." TDMHMR responds that the definition
of "individual" is clearly limited to an adult or adolescent who is committed
to a state mental health facility. TDMHMR notes that the rules do not provide
for a state mental retardation facility to convene a facility review board
and conduct a hearing to determine if a person committed to that state mental
retardation facility were manifestly dangerous.
Regarding who may not be subject to a hearing by a review board in §415.304(1),
one commenter expressed confusion because the section did not provide an explanation
as to why the persons listed could not be subject to a hearing by a review
board. The commenter recommended adding explanatory language. TDMHMR responds
that the rules exempt persons voluntarily admitted for several reasons, but
primarily to protect their interests. Persons who may be transferred to the
MSU/SAU (the most restrictive treatment setting) should be allowed the benefit
of a court commitment proceeding to determine if he/she is in need of court-ordered
mental health services. Additionally, the court hearing process includes the
right to a jury and due process. Secondarily, if a voluntarily admitted person
exhibited behavior indicating he/she may be manifest dangerousness, then TDMHMR
would not be willing to rely on the person's voluntary status to ensure he/she
received services in the MSU/SAU or to protect public safety. Regarding persons
who are under an order of protective custody (OPC), TDMHMR notes that the
purpose of an OPC is to evaluate the person to determine whether he/she requires
court-ordered mental health services. TDMHMR declines to add explanatory language
as requested by the commenter because it is not germane to the section.
Regarding voluntarily admitted persons not being subject to a hearing by
a review board to determine manifest dangerousness in §415.304(1), one
commenter expressed concern that the provision would not apply to children
age 13 through 16 years who were voluntarily admitted by their parents. The
commenter requested that language be added clarifying that minors who are
voluntarily admitted by their parents cannot be subject to a hearing by a
review board. TDMHMR responds that children age 13, 14, or 15 years who are
voluntarily admitted by their parents are considered voluntary patients. TDMHMR
notes that clarifying language has been added to the section.
Regarding the pool of mental health professionals in §415.305(a) and
the qualifications of review board members in §415.305(c), two commenters
stated that, if an individual with mental retardation is the subject of a
hearing, then the rule should require a review board member to have experience
working with persons with mental retardation. TDMHMR responds by adding language
to address the commenters' concerns.
Regarding the pool of mental health professionals in §415.305(a),
one commenter stated that her organization strongly supports a requirement
that the pool of mental health professionals include an independent contractor
(i.e., a mental health professional who contracts with TDMHMR). TDMHMR responds
that the rules do not preclude an independent contractor from being included
in a pool or from serving on a review board. Additionally, TDMHMR is not opposed
to such an arrangement; however, it declines to
require
an independent contractor. If objectivity is the commenter's
reason for requesting an independent contractor, TDMHMR notes that the rules
contain multiple provisions to ensure review board members determine manifest
dangerousness objectively. A requirement to include an independent contractor
would not necessarily result in increased objectivity.
Regarding disqualification in §415.305(d), one commenter expressed
confusion as to how disqualification would occur, asking if members were expected
to self-disclose. The commenter requested that the rule address the disqualification
process and include consequences for not complying with the process. Another
commenter asked who would be responsible for determining whether or not a
member should be disqualified. TDMHMR responds that mental health professionals
are expected to self-disclose and refers the commenter to §415.313(b)(3),
which states that each mental health professional in a pool is responsible
for immediately informing the review board chair of any disqualifying factor.
TDMHMR declines to prescribe disqualification procedures by rule as requested
by the commenter because each review board is responsible for developing and
implementing its own procedures that ensures the board's compliance with the
subchapter. Additionally, TDMHMR declines to prescribe in this rule any consequences
for noncompliance, noting that adverse personnel action related to an employee's
noncompliance with rules is addressed in the TDMHMR Human Resources Operating
Instruction.
Regarding tape recording or transcribing the hearing in §415.305(g)(1),
one commenter recommended that the rule require all hearings to be transcribed
as well as tape recorded; inferring many of the recordings were of poor quality
and, therefore, meaningless without a transcription. TDMHMR declines to add
the requirement as suggested because problems related to poor recording quality
can be corrected without the rule requiring a transcription of every hearing.
TDMHMR notes that the requirement to tape record the hearing indicates the
expectation that meaningful evidence of the hearing will be created, i.e.,
a recording which permits an audible review of the hearing that is understandable
to the listener. Concerns about poor recording should be referred to the facility
CEO or review board chair.
Regarding §415.305(g)(4), one commenter asked what was meant by a
person who provides technical assistance. The commenter stated that if such
a person will be testifying about the individual's treatment, then the person
should be excluded from attending the hearing, except for purposes of testifying.
TDMHMR responds that a person who provides technical assistance does not include
a witness who will provide testimony. The phrase "a person who provides technical
assistance" is meant to address persons who are not personally associated
with the hearing, such as, for example, an audio recording technician, a maintenance
worker who adjusts the room's thermostat, a court reporter, or an interpreter.
Regarding the review board determination in §415.305(i)(1)(A), one
commenter stated the standard of "sufficient evidence" for determining that
an individual is manifestly dangerous was confusing and broad. The commenter
requested that language be changed to "clear and convincing evidence," which
the commenter's organization believed to be a more precise standard. TDMHMR
responds that the commenter's suggested phrase "clear and convincing evidence"
seems to emphasize a legal judgment, rather than a clinical judgment. The
term "sufficient evidence" has been changed to "sufficient clinical justification"
to reflect and emphasize the clinical nature of the determination. Additionally,
TDMHMR notes the highest standard for determining that an individual is manifestly
dangerous is the requirement for a unanimous vote by all review board members.
Regarding providing a copy of the written report to the individual, LAR,
and spokesperson in §415.305(j)(2), two commenters requested that the
rule prescribe a time frame for providing the report. TDMHMR responds by adding
a time frame as requested by the commenters.
Regarding the right of the individual, LAR, and spokesperson to examine
the hearing documentation before the hearing in §415.306(b)(2), one commenter
stated that the rule should state how many days before the hearing the information
will be provided to the individual. The commenter recommended that the information
be provided at least two days prior to the hearing. TDMHMR responds that §415.306(b)(2)
references the two other sections that describe how soon before the hearing
the information will be provided to the individual. For a facility review
board hearing, §415.307(3)(A) states
at least
one day before the hearing
. For a TDMHMR Review Board hearing, §415.310(4)(A)
states
at least seven days before the hearing
.
TDMHMR notes that the short time frame for the facility review board hearing
reflects the emergent nature of the situation.
Regarding rights of the individual in §415.306, one commenter expressed
concern that, unlike earlier draft revisions to the subchapter, the proposed
rules did not include a process by which the individual could "invoke the
rule." The commenter stated that the "plaintiff is allowed to invoke the rule
and should be able to present evidence, call witnesses and cut off testimony."
The commenter strongly recommended that the rule include language permitting
this process. TDMHMR responds §415.306(c)(1) and (2) states that the
individual and LAR or their spokesperson(s) have the right to present witnesses
and evidence. TDMHMR notes that in earlier discussions with the commenter,
the term "invoking the rule" meant that each witness would provide his/her
testimony without other witnesses being present. Language relating to the
individual's or LAR's right to have each witness provide his/her testimony
without other witnesses being present has been added as new §415.306(d).
Section 415.306(d) also references new language in §415.305(g)(4), which
provides for certain restrictions.
Regarding communicating notice of the hearing to the individual in §415.307(2)(A)(i)
and §415.310(3)(A)(i), one commenter objected to the term "reasonable
effort" as the standard for communicating notice of the hearing to the individual.
The commenter recommended using language similar to that in rules governing
rights of persons receiving mental health services. TDMHMR responds by adding
language to address the commenter's concern.
Regarding an individual who lacks capacity and does not request a spokesperson
in §415.307(2)(A)(i) and §415.310(3)(A)(i), one commenter objected
to the facility rights officer taking on the role of spokesperson without
first attempting to identify and secure a spokesperson from outside the facility.
The commenter suggested that language be modified to state, "If an individual
who lacks capacity does not request a spokesperson, then the rights officer
will make reasonable efforts to identify and secure a spokesperson. If after
making reasonable efforts, no spokesperson is available, then the [rights
officer] will serve as the individual's spokesperson." TDMHMR responds by
adding language to address the commenter's concern.
Regarding providing the hearing documentation to the individual in §415.307(3)(A),
one commenter objected to the individual being provided the information just
one day before the hearing. The commenter recommended that the rule require
the information to be provided to the individual at least at least two days
prior to the hearing. TDMHMR declines to modify the time frame as requested
because the shorter time frame is in response to the emergent nature of the
situation.
Regarding not delaying the hearing even if the hearing documentation was
not received by the individual or LAR or spokesperson if a reasonable effort
was made to deliver it in §415.307(3)(B), one commenter stated that the
term "reasonable effort" is not clear. The commenter also stated that "more
than a reasonable effort needs to shown" since the person risks being removed
from the least restrictive environment. TDMHMR responds that the provision
which permits the hearing to proceed without the hearing documentation being
received by the individual, LAR, or spokesperson is not limited to merely
a reasonable effort being made to deliver it. The facility CEO must also determine
that the safety of the individual and others will be compromised by delaying
the hearing. TDMHMR notes that the provision reflects the emergent nature
of the situation and the facility CEO's responsibility to protect the safety
of other persons receiving services and its employees. TDMHMR also notes that
language referring to the individual not receiving the hearing documentation
has been deleted.
Regarding "a chronology of aggressive behaviors with emphasis upon those
that have occurred since the last admission" as part of the hearing documentation
in §415.307(3)(A)(i)(III), one commenter stated that "there should be
a distinction between the information needed and considered to determine if
a person is manifestly dangerous at that point in time, and information needed
and considered to develop a treatment plan." The commenter also stated that
"only the behaviors that have occurred since the last admission are necessary
to determine the person's dangerousness at that point in time" and recommended
deleting the phrase "with emphasis upon those." TDMHMR declines to delete
language as requested, noting that it is not clinically viable to limit the
information available to review boards because assessment of dangerousness
requires identifying patterns of circumstance and behavior that are associated
with physical aggression. Individuals can and do change patterns of behavior,
but this can only be determined by reviewing all the information available
for that individual relating to both current and past patterns. Also, individuals
in secure treatment environments are generally not exposed to all the stressors
they will encounter in less restrictive environments. This means that review
boards must weigh patterns exhibited in those less restrictive, less stressful
environments against the changes made in the secure treatment environment
and, using their clinical knowledge, experience, and training in human behavior,
make a determination of current dangerousness.
Regarding "any additional pertinent information considered appropriate"
as part of the hearing documentation in §415.307(3)(A)(iii), two commenters
asked who decides whether the information is appropriate and what criteria
are used to make the decision. TDMHMR responds that the decision is made by
the individual's treatment team as stated in proposed §415.307(3)(A)(iii).
The decision is made based on the treatment team's clinical training and expertise.
Regarding the transfer of adolescents to a secure adolescent unit (SAU)
in §415.308, one commenter questioned the appropriateness of sending
adolescents to a unit so far away from their community schools and support
system. The commenter noted that such a transfer circumvents benefits provided
through other agencies via the Community Resource Coordination Group (CRCG).
Additionally, the commenter expressed concern about adolescents being transferred
to the adolescent unit at the Vernon campus of North Texas State Hospital,
and asked about the care and living environment of adolescents who were not
integrated into the substance abuse program. The commenter stated that the
rules should not become effective until the issues regarding transfer to and
treatment of adolescents in a secure unit are resolved. TDMHMR responds that
any secure unit designed to treat manifestly dangerous adolescents would be
extremely specialized, requiring a unique physical plant as well as staff
with specialized education, training, and experience. It would be fiscally
prohibitive to replicate such a unit in various parts of the state. Additionally,
TDMHMR does not anticipate the need to transfer a large number adolescents
to the SAU. TDMHMR notes that, currently, staff at the adolescent forensic
program at Vernon actively involve each adolescent's CRCG. Regarding the commenter's
concern about adolescents not integrated into the adolescent substance abuse
program at Vernon, TDMHMR acknowledges that proper implementation of the rules
will require programmatic changes in the adolescent program in Vernon to accommodate
the treatment needs of adolescents transferred there. TDMHMR notes that staff
at North Texas State Hospital have been anticipating the subchapter's adoption
and are currently addressing treatment issues for adolescents in the secure
unit. TDMHMR does not foresee the need to delay the effective date of the
rules.
Regarding notice of an individual's transfer to the MSU/SAU in §415.308(c),
two commenters expressed concern that the proposed rule did not address notifying
an adolescent's school about the adolescent's transfer to the SAU. The commenters
recommended that the rule require notification of the adolescent's school
to ensure educational services at the SAU. TDMHMR declines to add language
relating to the educational needs of adolescents who are transferred to the
SAU because the issue is outside the scope of the rules. TDMHMR notes that
state and federal law requires all facilities to address the educational needs
of the minor children they serve; transfer to the SAU does not affect that
responsibility.
Regarding transfer of an individual to the MSU/SAU in §415.308, one
commenter requested that the rules provide a time frame for transferring the
individual. TDMHMR responds by adding language to state that transfer will
occur as soon as clinically and practicably feasible.
Regarding appeal of a facility review board determination in §415.309,
one commenter expressed concern that the grounds for appealing a facility
review board's determination are limited to an identified procedural error
that may have affected the review board's determination. The commenter asked
the purpose of requiring a written report that included findings of facts
and reasons for the review board's decision if the individual couldn't challenge
the substance of those findings. The commenter noted that if an individual
was transferred to the MSU/SAU inappropriately, then it would be a violation
of the American with Disabilities Act, which requires services to be provided
in the least restrictive environment. The commenter requested that the rule
permit an individual to appeal a determination that is substantively flawed.
The commenter offered sample language and suggested that the facility CEO
determine whether the appeal was valid. TDMHMR responds by modifying language
to reflect the commenter's concern.
Regarding the requirement for the individual or LAR to request an appeal
within 10 days after receipt of the written report in §415.309(1), one
commenter expressed confusion as to which report was being referenced. The
commenter asked if the reference was to the notice of the determination or
to the actual report that includes the findings. TDMHMR responds that the
rule is referencing the written report that includes the findings of fact,
as described in §415.305(j). Clarifying language has been added to §415.309(1).
Regarding the facility CEO disagreeing with the person who requested an
appeal that a procedural error may have affected the determination in §415.309(3),
one commenter stated that the facility CEO often has a conflict of interest
and suggested that the person be able to appeal this decision to someone at
TDMHMR. TDMHMR responds it does not agree with the commenter that the facility
CEO often has a conflict of interest. Facility CEOs are ultimately responsible
for individuals' care and treatment and for protecting their rights. TDMHMR
is confident that CEOs are capable of making appropriate decisions regarding
the validity of an appeal.
Regarding scheduling an initial hearing in §415.310(1)(A)(ii), one
commenter requested language be added clarifying that commitment to the MSU/SAU
is in accordance with the Texas Code of Criminal Procedure. TDMHMR responds
by adding language as requested.
Regarding the TDMHMR Review Board in §415.310, one commenter expressed
concern that language was missing which would require the TDMHMR Review Board
to create a written report that included findings of fact and specific reasons
for the determination. The commenter requested that such language be added
to the rule. TDMHMR responds that §415.305(j) requires each review board
to prepare a written report that includes findings of fact, the determination
of whether or not the individual is manifestly dangerous, the rationale for
the determination, and any written dissents.
Regarding the MSU/SAU CEO denying a individual's or LAR's request to schedule
a hearing in §415.310(1)(C)(ii)(II), one commenter stated that the CEO
may have a conflict of interest and suggested that the individual be able
to appeal the CEO's decision to someone at TDMHMR. TDMHMR responds that the
MSU/SAU CEO's interest is in providing appropriate care and treatment to individuals
who are manifestly dangerous. There is no incentive for the CEO to continue
targeting treatment to an individual's dangerousness if the individual is
no longer manifestly dangerous.
Regarding providing the hearing documentation to the individual in §415.310(4)(A),
one commenter cited her earlier comment and reiterated that the rule should
require the information to be provided to the individual at least at least
two days prior to the hearing. TDMHMR responds that §415.310(4)(A) requires
the information to be provided to the individual at least
seven days prior to the hearing
.
Regarding statements in §415.310(3)(B), one commenter stated that
an individual should not be asked to give a statement if the individual has
requested a spokesperson. The commenter requested that language be added stating
that if the individual requests a spokesperson, then the individual must first
be able to consult with the spokesperson before deciding whether or not to
provide a statement. TDMHMR responds that whether the individual has requested
a spokesperson or not, the individual is free to choose to provide or not
provide a statement. Further, if the individual elects to provide a statement,
then the individual may also choose to wait to provide the statement until
after first consulting with his/her spokesperson.
Regarding §415.311(a), one commenter questioned the absence of a time
frame for the MSU/SAU CEO to refer a determination to the commissioner. The
commenter suggested the time frame be the same as for the individual, which
is five days after the determination in made. TDMHMR declines to include a
time frame for the MSU/SAU CEO to refer a determination to the commissioner,
noting that the Texas Code of Criminal Procedure, which permits the CEO to
refer a determination to the commissioner, does not require a time frame for
the referral. TDMHMR notes that it has changed the time frame for the individual
to request that the CEO refer the matter to the commissioner to be within
five days
after receipt of the written report
,
rather than within five days after the determination is made.
Regarding transfer from the MSU/SAU in §415.312, one commenter expressed
concern that the rule seemed to preclude an individual's transfer from the
MSU/SAU directly into the community. The commenter noted the Texas Code of
Criminal Procedure, Articles 46.02 and 46.03, suggests that the potential
for such a transfer exists. The commenter recommended that the rule include
an option for individuals to be transferred from the MSU/SAU directly to the
community, if appropriate. TDMHMR responds that prudent risk management dictates
a gradual move from a highly secure environment to a non-secure environment.
Observations of an individual's behavior while in the very structured MSU/SAU
environment does not have as much predictive value for future dangerousness
as observations made in environments that more closely approximate the stressors
found in less secure environments. Transfer from the MSU/SAU to a receiving
facility provides a graduated step towards a less restrictive environment,
which increases the probability of the individual successfully managing his/her
behavior without aggression. TDMHMR notes that state statute (Texas Code of
Criminal Procedure, Article 46.02, §8(a)) prohibits the TDMHMR Review
Board from making a determination "as to the person's need for treatment,"
including whether the person requires continued inpatient mental health services.
Regarding the CEO's performance evaluation of mental health professionals
who are employed at the facility and appointed to a pool in §415.313(c),
one commenter asked what criteria the CEO will use in the evaluation process.
TDMHMR responds that each employee is required to have a position description
that includes a description of work behaviors and performance standards. The
position description for each mental health professional appointed to a pool
would include the work behaviors described in §415.313(b)(1)-(6) as well
as a performance standard for each behavior. The performance standards for
the work behaviors are the criteria used by the CEO in the evaluation process.
Regarding the requirement for each mental health professional to be knowledgeable
about current clinical and scientific information relevant to the assessment
of risk for manifest dangerousness and determination of manifest dangerousness
in §415.313(b)(5), one commenter stated that the mental health professionals
should also be knowledgeable about appropriate treatment modalities in order
to discern whether the behaviors continued despite "appropriate treatment,"
as stated in the definition of "manifestly dangerous." TDMHMR responds by
adding language to address the commenter's concern.
Regarding the commissioner's ability to waive any requirement in the section
in §415.313(d), one commenter asked if the provision would allow the
commissioner to waive the requirement for a review board member to have training
and experience in the care of adolescents when an adolescent is the subject
of the hearing. The commenter recommended that the rule not permit waiving
such a requirement when an adolescent is the subject of the hearing. TDMHMR
responds that the proposed rule limited waiver to any requirement contained
in that section; it did not permit waiver of any requirement in the entire
subchapter. Language has been modified to permit waiver of only the requirement
to attend initial orientation and annual training.
These sections are adopted under the Texas Health and Safety
Code, §532.015(a), which provides the Texas Mental Health and Mental
Retardation Board with broad rulemaking authority, and the Texas Code of Criminal
Procedure, Articles 46.02 and 46.03, which require the TDMHMR commissioner
to appoint a review board to determine whether a person committed to the maximum
security unit is manifestly dangerous.
§415.301.Purpose.
The purpose of this subchapter is to:
(1)
establish the two types of review boards that conduct hearings
to determine whether an individual is manifestly dangerous;
(2)
define the elements to be considered in the determination
of manifest dangerousness by review boards;
(3)
describe which persons may and may not be subject to a
hearing to determine manifest dangerousness;
(4)
enumerate the rights of an individual who is subject to
a hearing to determine manifest dangerousness;
(5)
provide due process for individuals who have been determined
manifestly dangerous; and
(6)
provide procedures governing the transfer of an individual
to the maximum security unit/secure adolescent unit (MSU/SAU) and from the
MSU/SAU.
§415.302.Application.
(a)
This subchapter applies to facilities, as defined in §415.303(6)
of this title (relating to Definitions).
(b)
Sections 415.312 and 415.310(5) of this subchapter apply
to a state mental retardation facility that is identified as the receiving
facility, as defined in §415.303(19) of this title (relating to Definitions).
§415.303.Definitions.
The following words and terms, when used in this subchapter, have the
following meanings, unless the context clearly indicates otherwise:
(1)
Adolescent -- A person who is 13, 14, 15, 16, or 17 years
of age.
(2)
Adult -- A person who is 18 years of age or older.
(3)
Assessment of risk for manifest dangerousness -- An age
and developmentally appropriate comprehensive evaluation of behavioral and
social factors that may indicate an individual is manifestly dangerous, including:
(A)
past history of violence including:
(i)
history of violence in family of origin;
(ii)
past use of violence;
(iii)
at risk behavioral traits;
(iv)
organic brain disease affecting perception;
(v)
impulse control or arousal thresholds; and
(vi)
history of violent behavior when chronically institutionalized;
(B)
situational factors related to violent acts;
(C)
environmental factors related to risk for violence;
(D)
factors identified in the current mental status examination
related to risk for violence;
(E)
analysis of the level of external controls needed to ensure
the continuity of safe and effective treatment; and
(F)
summary and formulation of the elements contained in subparagraphs
(A)-(E) of this paragraph.
(4)
Child -- A person who is 12 years of age or younger.
(5)
Commissioner -- The commissioner of the Texas Department
of Mental Health and Mental Retardation or designee.
(6)
Facility -- Any state hospital, or a state center with
an inpatient component, that is operated by TDMHMR, excluding Waco Center
for Youth.
(7)
Facility CEO (chief executive officer) -- The superintendent
or director of a facility or his/her designee.
(8)
Facility review board -- Five mental health professionals
impaneled in accordance with §415.305(e) of this title (relating to Procedures
and Requirements for All Review Boards) to conduct a hearing to determine
whether or not an individual served in a facility is manifestly dangerous.
(9)
Hearing -- An oral proceeding conducted by a review board
in accordance with §415.305(g) of this title (relating to Procedures
and Requirements for All Review Boards) in which evidence relating to an individual's
possible manifest dangerousness is heard.
(10)
Independent evaluator -- A licensed physician or mental
health professional (as defined) retained by an individual or LAR who conducts
an evaluation or examination of the individual.
(11)
Individual -- An adult or adolescent committed to a facility
(as defined) who is to be the subject of a hearing to determine manifest dangerousness
or who has been determined manifestly dangerousness in accordance with this
subchapter.
(12)
LAR or legally authorized representative -- A person authorized
by law to act on behalf of an individual with regard to a matter described
in this subchapter, and who may include a parent, guardian, or managing conservator
of a minor individual, or a guardian of an adult individual.
(13)
Local authority -- An entity designated by the commissioner
in accordance with the Texas Health and Safety Code, §533.035(a).
(14)
Manifestly dangerous -- The term used to describe an individual
who, despite receiving appropriate treatment, including treatment targeted
to the individual's dangerousness, remains likely to endanger others and requires
a maximum security environment in order to continue treatment and protect
public safety.
(15)
Mental health professional -- A person, licensed in the
State of Texas, who has at least one year of experience as a provider of mental
health services within the past five years and who is:
(A)
a licensed physician who has successfully completed a psychiatric
residency;
(B)
a licensed psychologist or licensed psychological associate;
(C)
a licensed master social worker (LMSW);
(D)
a licensed registered nurse with a bachelor's degree in
nursing with American Nurses Credentialing Center (ANCC) certification in
psychiatric/mental health nursing; or
(E)
a licensed registered nurse with a master's degree in psychiatric/mental
health nursing.
(16)
Maximum security unit -- A facility unit designated by
the commissioner to treat adults who are determined manifestly dangerous in
accordance with this subchapter and persons who have been committed pursuant
to the Texas Code of Criminal Procedure, Article 46.02 or 46.03.
(17)
MSU/SAU (maximum security unit/secure adolescent unit)
-- Either the maximum security unit or the secure adolescent unit, as appropriate
to the individual.
(18)
MSU/SAU CEO (chief executive officer) -- The superintendent
or director, or his/her designee, of the facility at which the MSU/SAU is
located.
(19)
Receiving facility --
(A)
For an individual who was transferred to the MSU/SAU --
The receiving facility is the facility that transferred the individual to
the MSU/SAU unless another facility is identified as the receiving facility.
(B)
For an individual who was committed to the MSU/SAU pursuant
to the Texas Code of Criminal Procedure -- The receiving facility is the facility
in the service area of the local authority that serves the individual's county
of residence unless another facility or state mental retardation facility
is identified as the receiving facility.
(20)
Risk management plan -- A plan for managing the factors
contributing to an individual's potential for dangerousness that is implemented
following transfer from the MSU/SAU and which includes a description of the
level of external controls needed to ensure the safety of others and effective
treatment for the individual, the type of commitment needed to support these
controls, and recommendations for continuing care.
(21)
Secure adolescent unit -- A facility unit designated by
the commissioner to treat adolescents who are determined manifestly dangerous
in accordance with this subchapter.
(22)
Spokesperson -- A person appointed by an individual or
LAR to represent the individual or LAR at a hearing. A spokesperson may be
an attorney, a relative, a friend, or advocate.
(23)
State mental retardation facility -- A state school, or
a state center with a mental retardation residential component, that is operated
by TDMHMR.
(24)
TDMHMR -- The Texas Department of Mental Health and Mental
Retardation.
(25)
TDMHMR Review Board -- Five mental health professionals
impaneled in accordance with §415.305(e) of this title (relating to Procedures
and Requirements for All Review Boards) to conduct a hearing to determine
whether or not an individual served in the MSU/SAU is manifestly dangerous.
§415.304.Persons Who May and May Not Be Subject to a Hearing to Determine Manifest Dangerousness.
(a)
Only an adult or adolescent who is committed by a court
of law to a facility (as defined) may be subject to a hearing to determine
manifest dangerousness.
(b)
The following persons may not be subject to a hearing to
determine manifest dangerousness:
(1)
an adult, adolescent, or child who is voluntarily admitted
to a facility (as defined) or who is under an order of protective custody
in accordance with the Texas Health and Safety Code, §574.022 or §593.044;
and
(2)
a child who is committed by a court of law to a facility
(as defined).
§415.305.Procedures and Requirements for All Review Boards.
(a)
Pool of mental health professionals.
(1)
Facility review board. Each facility CEO is responsible
for having access to a pool of mental health professionals who will be available
to be impaneled as members on the facility review board. A CEO may appoint
a pool of professionals or may arrange to have access to a pool of professionals
appointed by another facility CEO.
(2)
TDMHMR Review Board. The commissioner will appoint a pool
of at least 16 mental health professionals who will be available to be impaneled
as members on the TDMHMR Review Board.
(b)
Chair.
(1)
Facility review board. The facility CEO will appoint the
chair of the facility review board from the pool of mental health professionals
described in subsection (a)(1) of this section. If the chair is unable to
serve on the review board for a particular hearing, then the chair will appoint
another review board member to act as chair for the hearing. If the chair
is unable to appoint an acting chair, then the facility CEO will make the
appointment.
(2)
TDMHMR Review Board. The commissioner will appoint the
chair of the TDMHMR Review Board from the pool of mental health professionals
described in subsection (a)(2) of this section. If the chair is unable to
serve on the review board during a convening date of the board or for a particular
hearing, then the chair will appoint another review board member to act as
chair for the convening date or the particular hearing, as appropriate. If
the chair is unable to appoint an acting chair, then the commissioner will
make the appointment.
(c)
Qualification of certain members impaneled for a hearing.
(1)
If the individual who is the subject of the hearing is
an adolescent, then:
(A)
at least one member must be a psychiatrist with training
and experience in the care of adolescents; and
(B)
at least two members must have training and experience
in the care of adolescents as a provider of mental health services.
(2)
If the individual who is the subject of the hearing is
an adult, then:
(A)
at least one member must be a psychiatrist with training
and experience in the care of adults; and
(B)
at least two members must have training and experience
in the care of adults as a provider of mental health services.
(3)
If the individual who is the subject of the hearing has
mental retardation, then at least one member must have training and experience
in the care of persons with mental retardation.
(d)
Disqualification from being impaneled as a review board
member for a hearing.
(1)
A mental health professional in a pool may not be impaneled
as a facility review board member or as a TDMHMR Review Board member for the
hearing of an individual if:
(A)
the professional has been a staff member on the individual's
unit or a member of the individual's treatment team within the past 12 months
or during the individual's current admission, whichever is longer; or
(B)
the review board chair and the individual or LAR agree
that the participation of the professional would constitute a conflict of
interest.
(2)
A mental health professional in a pool may not be impaneled
as a facility review board member for the hearing of an individual if the
professional has had personal or professional involvement with the individual's
behavior or incident that precipitated the hearing.
(3)
A mental health professional in a pool may not be impaneled
as a TDMHMR Review Board member for the hearing of an individual if the professional
served on the facility review board that determined the individual to be manifestly
dangerous and which resulted in the individual's transfer to the MSU/SAU.
(e)
Impaneling review board members for a hearing. For each
hearing, the chair will select five mental health professionals from the pool
to be impaneled as review board members.
(1)
For each hearing, at least three of the five review board
members must meet the qualifications described in subsection (c) of this section.
(2)
For each hearing, none of the five review board members
may be disqualified as described in subsection (d) of this section.
(f)
Legal assistance. An attorney from the TDMHMR Legal Services
Division will provide legal assistance to a review board as needed.
(g)
Conduct of hearings.
(1)
Each hearing must be tape-recorded or transcribed, with
the recording or transcription made a part of the individual's medical record.
(2)
The review board must consider all pertinent and relevant
information including the hearing documentation submitted in accordance with §415.307(3)(A)
of this title (relating to Procedures and Requirements Specific to a Facility
Review Board) or §415.310(4)(A) of this title (relating to Procedures
and Requirements Specific to the TDMHMR Review Board) and the source documents
that correspond to the hearing documentation.
(3)
Only review board members, the individual, LAR, and spokesperson(s)
may participate in the hearing, except that other persons may provide testimony
as permitted under this subchapter.
(4)
If requested by the individual or LAR, or at the chair's
discretion, the chair will require each witness to provide his/her testimony
without other witnesses being present. The chair is not required to exclude
any person whose presence is determined by the chair to be essential to the
hearing. The individual and LAR are not subject to being excluded from the
hearing room under this paragraph.
(5)
The review board will assure that, prior to providing testimony
to the review board, each witness will swear or affirm that his/her testimony
will be the truth, the whole truth, and nothing but the truth.
(6)
The chair or the facility CEO may permit persons to attend
the hearing to provide technical assistance or for professional training purposes.
(7)
All persons attending and participating in an hearing must
conduct themselves with proper dignity, courtesy, and respect for the hearing.
Disorderly conduct will not be tolerated. Attorneys must observe and practice
the standards of ethical behavior prescribed for attorneys at law by the State
Bar of Texas.
(8)
The chair must provide the individual with an opportunity
to be interviewed by the review board. The individual may decline to be interviewed.
(9)
The chair is responsible for ensuring that hearings are
conducted according to the provisions in this subchapter and that a safe environment
is maintained during the hearing.
(h)
Deliberations.
(1)
After all evidence has been heard, the review board chair
will adjourn the hearing and the review board members will begin deliberations.
(2)
Only review board members may be present and participate
in deliberations.
(3)
The review board may cease deliberating in order to reopen
the hearing if the board decides that additional information is necessary.
If the board reopens the hearing, then the board must allow all persons who
participated in the hearing before it was adjourned to attend and participate
in the reopened hearing.
(4)
A review board may not view the mere fact that an individual
chooses not to participate in the hearing as evidence that the individual
is manifestly dangerous.
(i)
Review board determination.
(1)
A review board may determine that an individual is manifestly
dangerous only if:
(A)
there is sufficient clinical justification that the individual
is manifestly dangerous (as defined); and
(B)
the vote by review board members is unanimous.
(2)
If the vote by review board members is not unanimous, then
any member may prepare a written dissent, stating the reason for such dissent.
(j)
Written report.
(1)
Within 14 days after the review board's determination,
the chair of the review board or designee shall prepare a written report and
submit it to the facility CEO or MSU/SAU CEO (as appropriate), along with
copies to the individual, LAR, and spokesperson(s). The report must include:
(A)
findings of fact;
(B)
the determination of whether or not the individual is manifestly
dangerous;
(C)
the rationale for the determination; and
(D)
written dissents, if any.
(2)
The facility CEO shall ensure a copy of the report is filed
in the individual's medical record.
§415.306.Rights of the Individual.
(a)
The individual and LAR have the right to represent themselves
at the hearing or to be represented by a spokesperson of their choice.
(b)
The individual and LAR and their spokesperson(s) have the
right to:
(1)
be present at the hearing; and
(2)
examine before the date of the hearing:
(A)
the hearing documentation referenced as §415.307(3)(A)
of this title (relating to Procedures and Requirements Specific to a Facility
Review Board) unless an exception exists as provided by §415.307(3)(B);
or
(B)
the hearing documentation referenced as §415.310(4)(A)
of this title (relating to Procedures and Requirements Specific to the TDMHMR
Review Board).
(c)
The individual and LAR or their spokesperson(s) have the
right to:
(1)
present witnesses on the individual's behalf;
(2)
present evidence and establish all pertinent facts and
circumstances;
(3)
present an argument on any issue involved;
(4)
cross-examine witnesses; and
(5)
respond to or refute any testimony or evidence.
(d)
The individual and LAR have the right to have each witness
provide his/her testimony without other witnesses being present as described
in §415.305(g)(4) of this title (relating to Procedures and Requirements
for All Review Boards).
§415.307.Procedures and Requirements Specific to a Facility Review Board.
If the facility CEO has reason to believe that a person receiving services
in the facility may be manifestly dangerous and in need of transfer to the
MSU/SAU, then the facility CEO may convene the facility review board to conduct
a hearing to determine whether the person is manifestly dangerous in accordance
with this section.
(1)
Convening the board. The facility CEO will inform the chair
of the facility review board of the need to convene the board. The chair will
impanel a review board in accordance with §415.305(e) of this title (relating
to Procedures and Requirements for All Review Boards) and identify the time
and location of the hearing. The chair will serve as one of the five members
unless the chair is disqualified as described in §415.305(d). If the
chair is disqualified, then the chair will appoint one of the five impaneled
members to act as chair for the hearing.
(2)
Notice and statement(s). The facility CEO will provide
notice of the hearing and receive statement(s) in accordance with this paragraph.
(A)
Notice. At least three days before the hearing, the facility
CEO will complete the Notice of Hearing by Facility Review Board, referenced
as Exhibit A in §415.314 of this title (relating to Exhibits), and deliver
it to the individual and LAR, if any, for signature.
(i)
The facility CEO must ensure that the content of the notice
is communicated in a language and format likely to be understandable to the
recipient(s) and initiating a discussion with the individual and LAR regarding
the right to be represented by a spokesperson. If the individual or LAR requests
a spokesperson, then the CEO will assist him/her with identifying and securing
a spokesperson. If an individual who lacks capacity does not request a spokesperson,
then the CEO will make a reasonable effort to identify and secure a spokesperson.
If the CEO is unable to secure a spokesperson, then the facility rights protection
officer will serve as the individual's spokesperson to ensure the individual's
rights are protected during the hearing.
(ii)
The facility CEO will provide a copy of the signed notice
to the individual, LAR, and spokesperson(s) and will file a copy of the signed
notice in the individual's medical record.
(B)
Statement(s). At least three days before the hearing, the
facility CEO will provide the individual and LAR with an opportunity to submit
a statement concerning the possible manifest dangerousness of the individual.
The CEO will offer assistance to the individual or LAR in preparing a statement,
and will provide assistance if requested. The individual or LAR may decline
to submit a statement.
(3)
Hearing documentation.
(A)
At least one day before the hearing the facility CEO will
ensure the following documentation is distributed to each impaneled review
board member, the individual, LAR, and spokesperson(s):
(i)
a written summary, prepared by the individual's treatment
team, of all pertinent background information, including:
(I)
a legal history, including current legal status;
(II)
a clinical history and assessments, including identified
strengths that may contribute to success in treatment;
(III)
a chronology of aggressive behaviors with emphasis upon
those that have occurred since the last admission;
(IV)
the treatment interventions used to address the aggressive
behaviors and behavioral responses of the individual to the interventions;
(V)
an assessment of risk for manifest dangerousness; and
(VI)
a description of the alleged behavior or incident believed
to indicate manifest dangerousness and the rationale for making the individual
the subject of a hearing;
(ii)
statement(s) from the individual and LAR, as described
in paragraph (2)(B) of this section, if submitted; and
(iii)
any other pertinent information considered appropriate
by the individual's treatment team.
(B)
The hearing will not be delayed solely as a result of the
hearing documentation not being received by the LAR or spokesperson(s) if
a reasonable effort was made to deliver the documentation and the facility
CEO determines that the safety of the individual and others will be compromised
by delaying the hearing.
(4)
Hearing, deliberations, and determination. The chair will
ensure the hearing, deliberations, and determination are conducted in accordance
with §415.305(g)-(i) of this title (relating to Procedures and Requirements
for All Review Boards).
(5)
Action taken upon determination.
(A)
Notification. Within 24 hours after the facility review
board's determination, the facility CEO will provide written notification
to the individual, LAR, and spokesperson(s) of:
(i)
the facility review board's determination; and
(ii)
if the review board determines that the individual is
manifestly dangerous, the right of the individual or LAR to appeal the determination
and the procedures for requesting an appeal as described in §415.309
of this title (relating to Appeal of a Facility Review Board Determination
of Manifest Dangerousness).
(B)
Determined manifestly dangerous.
(i)
If the facility review board determines that an individual
is manifestly dangerous, then the facility CEO will ensure compliance with §415.308
of this title (relating to Transferring an Individual to the MSU/SAU).
(ii)
If, prior to being transferred to the MSU/SAU, the facility
CEO believes that the individual is no longer manifestly dangerous, then the
CEO must reconvene the facility review board to conduct another hearing in
accordance with paragraphs (1)-(4) of this section. Transfer of the individual
to the MSU/SAU is stayed pending the hearing.
(C)
Determined not manifestly dangerous. If the facility review
board determines that an individual is not manifestly dangerous, then the
individual will remain at the facility. The facility CEO may not convene the
facility review board to conduct another hearing to determine whether the
individual is manifestly dangerous unless the CEO has reason to believe that
there has been sufficient change in the individual's condition to indicate
that the individual may be manifestly dangerous.
§415.308.Transferring an Individual to the MSU/SAU.
(a)
Prior to the transfer of an individual who has been determined
manifestly dangerous by a facility review board, the facility CEO will ensure:
(1)
the hearing documentation described in §415.307(3)(A)
of this title (relating to Procedures and Requirements Specific to a Facility
Review Board) is submitted to the MSU/SAU CEO; and
(2)
the individual's treating physician communicates with the
MSU/SAU physician who will treat the individual regarding the characteristics
of the individual. The individual's treating physician may communicate with
another physician at the MSU/SAU if the other physician at the MSU/SAU is
the designee of MSU/SAU physician who will treat the individual.
(b)
The facility is responsible for the individual's transportation
to the MSU/SAU, which will occur as soon as clinically and practicably feasible.
(c)
The facility CEO will ensure the following are informed
of the individual's transfer to the MSU/SAU when it occurs:
(1)
the committing court;
(2)
the individual's LAR, if any; and
(3)
the local authority that serves the individual's county
of residence.
§415.309.Appeal of a Facility Review Board's Determination of Manifest Dangerousness.
The individual, LAR, or facility CEO may appeal a facility review board's
determination that the individual is manifestly dangerous on the grounds that
the determination was substantively flawed or on the grounds that the determination
was affected by an error in a procedure specified in this subchapter. Transfer
of the individual to the MSU/SAU is not stayed pending appeal.
(1)
A request for an appeal from the individual or LAR must
be in writing and received by the facility CEO within 10 days after receipt
of the written report as described in §415.305(j) of this title (relating
to Procedures and Requirements for All Review Boards). The request must include:
(A)
the reason(s) why the requestor believes the review board's
determination was substantively flawed; or
(B)
the reason(s) why the requestor believes the review board's
determination was affected by an alleged procedural error, including a description
of the procedure specified in this subchapter and the alleged error.
(2)
If the facility CEO believes that the determination was
substantively flawed or that a procedural error may have affected the determination
or if the CEO agrees with the person who requested an appeal that the determination
was substantively flawed or that a procedural error may have affected the
determination, then the facility CEO will convene the facility review board
to conduct a new hearing in accordance with §415.307(1)-(4) of this title
(relating to Procedures and Requirements Specific to a Facility Review Board),
except that the facility review board members who were impaneled for the original
hearing may not be impaneled on the facility review board that convenes for
the new hearing. If the individual has already been transferred to the MSU/SAU,
then the facility is responsible for returning the individual to the facility
for the new hearing. A determination that the individual is manifestly dangerous
by the facility review board in accordance with this paragraph may not be
appealed.
(3)
If the facility CEO does not agree with the person who
requested an appeal that the determination was substantively flawed or that
a procedural error may have affected the determination, then the facility
CEO will notify the person in writing that the appeal has been denied.
§415.310.Procedures and Requirements Specific to the TDMHMR Review Board.
The TDMHMR Review Board must convene at least once every month in accordance
with this section.
(1)
Schedule of hearings. The TDMHMR Review Board chair, in
consultation with the MSU/SAU CEO, is responsible for scheduling hearings
in accordance with this paragraph.
(A)
Initial hearing.
(i)
A hearing for an individual committed to the MSU/SAU under
the Texas Code of Criminal Procedure must be scheduled to occur on such a
date so as to ensure the individual, if determined not manifestly dangerous,
will be transferred from the MSU/SAU within 60 days after arrival at the MSU/SAU,
as required by the Texas Code of Criminal Procedure, Article 46.02§8(a)
or 46.03§4(b).
(ii)
A hearing for an individual transferred to the MSU/SAU
from a facility must be scheduled within 60 days after transfer.
(B)
Regularly scheduled hearing(s). If an individual is determined
manifestly dangerous at the initial hearing, then another hearing must be
scheduled no later than six months after the initial hearing. If the individual
continues to be determined manifestly dangerous, then another hearing must
be scheduled no later than every six months after the previous hearing for
as long as the individual remains at the MSU/SAU.
(C)
Hearings scheduled upon request.
(i)
If, between regularly scheduled hearings, an individual's
treating physician or treatment team determines that there has been sufficient
change in the individual's condition to indicate that the individual may no
longer be manifestly dangerous, then the physician or team will request that
a hearing be scheduled. The request must be in writing, submitted to the MSU/SAU
CEO, and include the individual's name, the reason(s) for the request, and
supporting documentation.
(I)
If the MSU/SAU CEO concurs with the request, then a hearing
must be scheduled for the next convening date of the board that will enable
adequate notice as described in paragraph (3) of this section.
(II)
If the MSU/SAU CEO does not concur with the request, then
the CEO will notify the physician or team that the request has been denied.
(ii)
If, between regularly scheduled hearings, an independent
evaluator (as defined) determines that there is sufficient evidence that the
individual may no longer be manifestly dangerous, then the individual or LAR
may request that a hearing be scheduled. The request must be in writing, submitted
to the MSU/SAU CEO, and include the individual's name, the reason(s) for the
request, and supporting documentation.
(I)
If the MSU/SAU CEO concurs with the request, then a hearing
must be scheduled for the next convening date of the board that will enable
adequate notice as described in paragraph (3) of this section.
(II)
If the MSU/SAU CEO does not concur with the request, then
the CEO will notify the individual or LAR that the request has been denied.
(2)
Convening the board. The chair will convene the review
board by impaneling review board members for each hearing that is scheduled
for the convening date in accordance with §415.305(e) of this title (relating
to Procedures and Requirements for All Review Boards). If the chair does not
select him/herself to serve as one of the five members for a hearing, then
the chair will appoint one of the five impaneled members to act as chair for
the hearing.
(3)
Notice and statement(s). The MSU/SAU CEO will provide notice
of a hearing and receive statement(s) in accordance with this paragraph.
(A)
Notice. At least 10 days before the hearing, the MSU/SAU
CEO will complete the Notice of Hearing by TDMHMR Review Board, referenced
as Exhibit B in §415.314 of this title (relating to Exhibits), and deliver
it to the individual and LAR, if any, for signature.
(i)
The MSU/SAU CEO must ensure that the content of the notice
is communicated in a language and format likely to be understandable to the
recipient(s) and initiating a discussion with the individual and LAR regarding
the right to be represented by a spokesperson. If the individual or LAR requests
a spokesperson, then the CEO will assist him/her with identifying and securing
a spokesperson. If an individual who lacks capacity does not request a spokesperson,
then the CEO will make a reasonable effort to identify and secure a spokesperson.
If the CEO is unable to secure a spokesperson, then the facility rights protection
officer will serve as the individual's spokesperson to ensure the individual's
rights are protected during the hearing.
(ii)
The MSU/SAU CEO will provide a copy of the signed notice
to the individual, LAR, and spokesperson(s) and will file a copy of the signed
notice in the individual's medical record.
(B)
Statement(s). At least 10 days before the hearing, the
MSU/SAU CEO will provide the individual and LAR with an opportunity to submit
a statement concerning the possible manifest dangerousness of the individual.
The CEO will offer assistance to the individual or LAR in preparing a statement,
and will provide assistance if requested. The individual or LAR may decline
to submit a statement.
(4)
Hearing documentation.
(A)
At least seven days before the hearing the MSU/SAU CEO
will ensure the following documentation is distributed to each review board
member impaneled for the hearing, the individual, LAR, and spokesperson(s):
(i)
a written summary, prepared by the individual's MSU/SAU
treatment team, of all pertinent background information, including:
(I)
a legal history, including current legal status;
(II)
a clinical history and assessments, including identified
strengths that may contribute to success in treatment;
(III)
a chronology of aggressive behaviors with emphasis upon
those that have occurred since the last admission;
(IV)
the treatment interventions used to address the aggressive
behaviors and behavioral responses of the individual to the interventions;
(V)
an assessment of risk for manifest dangerousness; and
(VI)
a description of the behavior or incident that resulted
in the individual's transfer or commitment to the MSU/SAU;
(ii)
statement(s) from the individual and LAR, as described
in paragraph (3)(B) of this section, if submitted;
(iii)
if an independent evaluator requested the hearing, the
request, including the reason(s) for the request and the supporting documentation;
and
(iv)
any other pertinent information considered appropriate
by the individual's MSU/SAU treatment team.
(B)
Any additional relevant documentation that becomes available
after the hearing documentation has been distributed shall be submitted to
the MSU/SAU CEO. The CEO will ensure the chair receives a copy of the additional
documentation as soon as possible before the hearing.
(C)
With the approval of the chair, the individual or LAR may
agree to receive the hearing documentation less than seven days before the
hearing.
(5)
Preparing for possible transfer from the MSU/SAU. At least
seven days prior to the hearing, the MSU/SAU CEO must ensure:
(A)
that a Letter of Attestation (referenced as Exhibit C in §415.314
of this title (relating to Exhibits)), with a copy of the hearing documentation
(referenced in paragraph (4)(A) of this section), is sent to the receiving
facility CEO; and
(B)
that the individual's MSU/SAU treating physician consults
with the identified receiving facility physician regarding the individual's
characteristics, including those with implications for risk management, to
facilitate the development of an appropriate risk management plan by the receiving
facility.
(6)
Hearing, deliberations, and determination. The chair will
ensure the hearing, deliberations, and determination are conducted in accordance
with §415.305(g)-(i) of this title (relating to Procedures and Requirements
for All Review Boards).
(7)
Action taken upon determination.
(A)
Notification. Within 24 hours after the TDMHMR Review Board's
determination, the MSU/SAU CEO will provide written notification to the individual,
LAR, and spokesperson(s) of:
(i)
the review board's determination; and
(ii)
the right of the individual or LAR to request that the
MSU/SAU CEO refer the matter to the commissioner and the procedures for requesting
a referral as described in §415.311 of this title (relating to Disagreement
with TDMHMR Review Board Determination and Referral to Commissioner) if the
individual or LAR disagrees with the determination.
(B)
Determined manifestly dangerous. If the TDMHMR Review Board
determines that an individual is manifestly dangerous, then the individual
will remain at the MSU/SAU and the MSU/SAU CEO will rescind the Letter of
Attestation that was sent in accordance with paragraph (5)(A) of this section.
A subsequent hearing will be scheduled for the individual in accordance with
paragraph (1) of this section.
(C)
Determined not manifestly dangerous. If the TDMHMR Review
Board determines that an individual is not manifestly dangerous, then the
MSU/SAU CEO will:
(i)
notify the receiving facility CEO of the determination;
and
(ii)
ensure compliance with §415.312 of this title (relating
to Transferring an Individual from the MSU/SAU).
(D)
New hearing. The TDMHMR Review Board may conduct a new
hearing at any time upon request by the MSU/SAU CEO or upon its own motion.
The new hearing must be conducted in accordance with paragraphs (2)-(6) of
this section.
§415.311.Disagreement with TDMHMR Review Board Determination and Referral to Commissioner.
(a)
If the MSU/SAU CEO disagrees with the TDMHMR Review Board's
determination, then the CEO will refer the matter to the commissioner for
resolution. The referral must be in writing and include the CEO's reason(s)
for disagreeing with the determination and documentation supporting the reason(s).
Transfer of the individual from the MSU/SAU is stayed pending resolution.
(b)
The commissioner will resolve the disagreement by deciding
whether or not the individual is manifestly dangerous. The commissioner will
inform the MSU/SAU CEO of the decision within 21 days after receipt of the
referral.
(c)
If the individual, LAR, or treatment team member disagrees
with the TDMHMR Review Board's determination, then he/she may request that
the MSU/SAU CEO refer the matter to the commissioner for resolution. The request
must be in writing and received by the CEO within five days after receipt
of the written report as described in §415.305(j) of this title (relating
to Procedures and Requirements for All Review Boards). The request must include
the reason(s) for disagreeing with the determination and documentation supporting
the reason(s). Upon receipt, the CEO will review the request and decide whether
to refer the matter to the commissioner in accordance with subsection (a)
of this section.
§415.312.Transferring an Individual from the MSU/SAU.
(a)
An individual committed to the MSU/SAU pursuant to the
Texas Code of Criminal Procedure, Article 46.02 or 46.03, who has been determined
not manifestly dangerous by the TDMHMR Review Board or the commissioner at
the initial hearing (described in §415.310(1)(A)(i) of this title (relating
to Procedures and Requirements Specific to the TDMHMR Review Board)) must
be transferred from the MSU/SAU within 60 days following his/her arrival at
the MSU/SAU.
(b)
In addition to the timeframe for transfer described in
subsection (a) of this section, an individual must be transferred from the
MSU/SAU within 14 days after being determined not manifestly dangerous by
the TDMHMR Review Board or the commissioner.
(c)
As soon as possible after an individual has been determined
not manifestly dangerous by the TDMHMR Review Board or the commissioner:
(1)
the MSU/SAU staff will notify the committing court of the
pending transfer; and
(2)
the receiving facility CEO will complete the Letter of
Attestation (referenced as Exhibit C in §415.314 of this title (relating
to Exhibits)), if it has not already been completed.
(d)
Prior to the individual's transfer from the MSU/SAU, the
MSU/SAU CEO will ensure the following documents become a part of the individual's
medical record:
(1)
the hearing documentation described in §415.310(4)(A)
of this title (relating to Procedures and Requirements Specific to the TDMHMR
Review Board); and
(2)
a copy of the completed Letter of Attestation.
(e)
The MSU/SAU is responsible for the individual's transportation
from the MSU/SAU to the receiving facility.
(f)
Upon completion of the transfer, the receiving facility
must contact the committing court to establish communication between the receiving
facility and the court (e.g., inform court of new contact concerning the individual).
(g)
The receiving facility CEO may not convene the facility
review board to conduct a hearing to determine whether the individual is manifestly
dangerous unless the CEO has reason to believe that there has been sufficient
change in the individual's condition to indicate that the individual may be
manifestly dangerous.
(h)
A continuing care plan for an individual who has received
treatment at the MSU/SAU must include an assessment of risk for manifest dangerousness.
§415.313.Competency of Review Board Members.
(a)
Using a TDMHMR-approved orientation and training program:
(1)
the chair of each review board is responsible for providing
initial orientation to each mental health professional appointed in the pool
from which the chair selects review board members; and
(2)
the MSU/SAU CEO and the chair of the TDMHMR Review Board
are responsible for conducting annual training for all mental health professionals
appointed in all pools.
(b)
Each mental health professional appointed in a pool is
responsible for:
(1)
maintaining a current professional license;
(2)
preparing for and attending each review board hearing for
which the professional is impaneled;
(3)
immediately informing the chair of the review board of
any disqualifying factor as described in §415.305(d) of this title (relating
to Procedures and Requirements for All Review Boards);
(4)
attending initial orientation and annual training;
(5)
being knowledgeable about current clinical and scientific
information relevant to the assessment, management, and treatment of risk
for manifest dangerousness and determination of manifest dangerousness; and
(6)
complying with this subchapter.
(c)
On an annual basis, each facility CEO will evaluate the
performance of the mental health professionals employed at the facility who
are appointed to a pool. In order to remain in a pool, a professional must
achieve a rating of at least competent in his/her performance of the work
behaviors described in subsection (b) of this section.
(d)
The commissioner may waive, as minimally necessary to assure
the efficient operation of a review board, the responsibility for a mental
health professional appointed to a pool to attend initial orientation and
annual training.
§415.316.Distribution.
(a)
This subchapter will be distributed to:
(1)
all members of the Texas Board of Mental Health and Mental
Retardation;
(2)
executive, management, and program staff at TDMHMR Central
Office;
(3)
all facility CEOs; and
(4)
executive directors at all local authorities.
(b)
Each facility CEO is responsible for disseminating the
information contained in this subchapter to the facility rights protection
officer and all mental health professionals employed at the facility who are
appointed to a pool.
(c)
The MSU/SAU CEO is responsible disseminating the information
contained in this subchapter to the facility rights protection officer and
all MSU/SAU staff who provide mental health services.
(d)
A copy of this subchapter will be provided to each individual
subject to its provisions.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on June 27, 2002.
TRD-200204046
Andrew Hardin
Chairman, Texas MHMR Board
Texas Department of Mental Health and Mental Retardation
Effective date: July 17, 2002
Proposal publication date: April 5, 2002
For further information, please call: (512) 206-5216