SECTION 415.310. Procedures and Requirements Specific to the DSHS Dangerousness Review Board

The DSHS Dangerousness Review Board must convene at least once every month in accordance with this section.

(1) Schedule of hearings. The DSHS Dangerousness 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 46B.105 or 46C.260.

(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 DSHS Dangerousness 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 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, including the results of any applicable standardized assessment tools; 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 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 a physician at the identified receiving facility 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 DSHS Dangerousness 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 DSHS Dangerousness Review Board Determination and Referral to Commissioner) if the individual or LAR disagrees with the determination.

(B) Determined manifestly dangerous. If the DSHS Dangerousness Review Board determines that an individual is manifestly dangerous, then the individual will remain at the MSU/SAU. A subsequent hearing will be scheduled for the individual in accordance with paragraph (1) of this section.

(C) Determined not manifestly dangerous. If the DSHS Dangerousness 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 DSHS Dangerousness 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.

Source Note: The provisions of this §415.310 adopted to be effective July 17, 2002, 27 TexReg 6297; amended to be effective July 19, 2011, 36 TexReg 4567