SECTION 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) 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.

Source Note: The provisions of this §415.307 adopted to be effective July 17, 2002, 27 TexReg 6297; amended to be effective July 19, 2011, 36 TexReg 4567