(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.

Source Note: The provisions of this §415.305 adopted to be effective July 17, 2002, 27 TexReg 6297; amended to be effective February 4, 2004, 29 TexReg 999; amended to be effective July 19, 2011, 36 TexReg 4567