Current through Reg. 49, No. 38; September 20, 2024
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)
of this title. 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 in §
415.314
of this title (relating to Notice of Hearing Forms), 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, including the results of any
applicable standardized assessment tools; 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.
(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 Appealing a Facility Review Board's 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 Transfer of 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.
