Texas Administrative Code
Title 25 - HEALTH SERVICES
Part 1 - DEPARTMENT OF STATE HEALTH SERVICES
Chapter 415 - PROVIDER CLINICAL RESPONSIBILITIES-MENTAL HEALTH SERVICES
Subchapter G - DETERMINATION OF MANIFEST DANGEROUSNESS
Section 415.305 - Procedures and Requirements for All Review Boards
Universal Citation: 25 TX Admin Code ยง 415.305
Current through Reg. 49, No. 38; September 20, 2024
(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) DSHS Dangerousness 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 DSHS Dangerousness 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) DSHS
Dangerousness Review Board. The commissioner will appoint the chair of the DSHS
Dangerousness 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 DSHS
Dangerousness 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 DSHS Dangerousness 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 DSHS Office of General Counsel 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 DSHS
Dangerousness 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 a 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 there is sufficient clinical
justification that the individual is manifestly dangerous (as
defined).
(2) A facility review
board may determine that an individual is manifestly dangerous only if the vote
by review board members is unanimous.
(3) The DSHS Dangerousness Review Board may
determine that an individual is not manifestly dangerous only if the vote by
review board members is unanimous.
(4) 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.
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