Refusal of consent for placement or discharge,effect--procedure--department director to make finaldetermination--appeal, procedure--burden of proof.
633.135. 1. If a resident, or his parent if he is a minor,or his legal guardian refuses to consent to the proposedplacement or to discharge from the facility, the head of themental retardation facility may petition the director of thedivision to determine whether the proposed placement isappropriate under sections 630.610, 630.615 and 630.620, RSMo, orwhether the proposed discharge is appropriate under sections633.120, 633.125 and 633.130.
2. The division director shall refer the petition to thechairman of the state advisory council who shall appoint andconvene a review panel composed of three members. At least onemember of the panel shall be a parent or guardian of a residentwho resides in a department mental retardation facility. Theremaining members of the panel shall be persons who are fromnongovernmental organizations or groups concerned with theprevention of mental retardation, evaluation, care andhabilitation of mentally retarded persons and who are familiarwith services and service needs of mentally retarded persons infacilities operated by the department. No member of the panelshall be an officer or employee of the department.
3. After prompt notice and hearing, the panel shalldetermine whether the proposed placement is appropriate undersections 630.610, 630.615 and 630.620, RSMo, or whether theproposed discharge is appropriate under sections 633.120, 633.125and 633.130. The hearing shall be electronically recorded forpurposes of obtaining a transcript. The council shall forwardthe tape recording, recommended findings of fact, conclusions oflaw and decision to the director who shall enter findings offact, conclusions of law and the final decision. Notice of thedirector's decision shall be sent to the resident, or his parentif he is a minor, or his guardian, by registered mail, returnreceipt requested. The director shall expedite this review inall respects.
4. If the resident, or his parent if he is a minor, or hisguardian disagrees with the decision of the director, he mayappeal the decision, within thirty days after notice of thedecision is sent, to the circuit court of the county where theresident, or his parent if he is a minor, or his guardianresides. The court shall review the record, proceedings anddecision of the director not only under the provisions of chapter536, RSMo, but also as to whether or not the head of the facilitysustained his burden of proof that the proposed placement isappropriate under sections 630.110, 630.115 and 630.120, RSMo, orthe proposed discharge is appropriate under sections 633.120,633.125 and 633.130. The court shall expedite this review in allrespects. Notwithstanding the provisions of section 536.140,RSMo, a court may, for good cause shown, hear and consideradditional competent and material evidence.
5. Any resident of a mental retardation facility who is ageeighteen or older and who does not have a legal guardian shallnot be discharged unless probate division of the circuit courtapproval is obtained to confirm that the resident is not in needof the care, treatment or programs now being received in themental retardation facility.
6. The notice and procedure for the hearing by the panelshall be in accordance with chapter 536, RSMo.
7. In all proceedings either before the panel or before thecircuit court, the burden of proof shall be upon the head of thefacility to demonstrate by preponderance of evidence that theproposed placement is appropriate under the criteria set forth insections 630.610, 630.615, and 630.120, RSMo, or that theproposed discharge is appropriate under the criteria set forth insections 633.120, 633.125 and 633.130.
8. Pending a convening of the hearing panel and the finaldecision of the director or the court, if the director's decisionis appealed, the department shall not place or discharge theresident from a facility except that the department maytemporarily transfer such resident in the case of a medicalemergency.
9. There shall be no disciplinary action against any stateemployee who in good faith testifies or otherwise providesinformation or evidence in regard to a proposed placement ordischarge.
Refusal of consent for placement or discharge,effect--procedure--department director to make finaldetermination--appeal, procedure--burden of proof.
633.135. 1. If a resident, or his parent if he is a minor,or his legal guardian refuses to consent to the proposedplacement or to discharge from the facility, the head of themental retardation facility may petition the director of thedivision to determine whether the proposed placement isappropriate under sections 630.610, 630.615 and 630.620, RSMo, orwhether the proposed discharge is appropriate under sections633.120, 633.125 and 633.130.
2. The division director shall refer the petition to thechairman of the state advisory council who shall appoint andconvene a review panel composed of three members. At least onemember of the panel shall be a parent or guardian of a residentwho resides in a department mental retardation facility. Theremaining members of the panel shall be persons who are fromnongovernmental organizations or groups concerned with theprevention of mental retardation, evaluation, care andhabilitation of mentally retarded persons and who are familiarwith services and service needs of mentally retarded persons infacilities operated by the department. No member of the panelshall be an officer or employee of the department.
3. After prompt notice and hearing, the panel shalldetermine whether the proposed placement is appropriate undersections 630.610, 630.615 and 630.620, RSMo, or whether theproposed discharge is appropriate under sections 633.120, 633.125and 633.130. The hearing shall be electronically recorded forpurposes of obtaining a transcript. The council shall forwardthe tape recording, recommended findings of fact, conclusions oflaw and decision to the director who shall enter findings offact, conclusions of law and the final decision. Notice of thedirector's decision shall be sent to the resident, or his parentif he is a minor, or his guardian, by registered mail, returnreceipt requested. The director shall expedite this review inall respects.
4. If the resident, or his parent if he is a minor, or hisguardian disagrees with the decision of the director, he mayappeal the decision, within thirty days after notice of thedecision is sent, to the circuit court of the county where theresident, or his parent if he is a minor, or his guardianresides. The court shall review the record, proceedings anddecision of the director not only under the provisions of chapter536, RSMo, but also as to whether or not the head of the facilitysustained his burden of proof that the proposed placement isappropriate under sections 630.110, 630.115 and 630.120, RSMo, orthe proposed discharge is appropriate under sections 633.120,633.125 and 633.130. The court shall expedite this review in allrespects. Notwithstanding the provisions of section 536.140,RSMo, a court may, for good cause shown, hear and consideradditional competent and material evidence.
5. Any resident of a mental retardation facility who is ageeighteen or older and who does not have a legal guardian shallnot be discharged unless probate division of the circuit courtapproval is obtained to confirm that the resident is not in needof the care, treatment or programs now being received in themental retardation facility.
6. The notice and procedure for the hearing by the panelshall be in accordance with chapter 536, RSMo.
7. In all proceedings either before the panel or before thecircuit court, the burden of proof shall be upon the head of thefacility to demonstrate by preponderance of evidence that theproposed placement is appropriate under the criteria set forth insections 630.610, 630.615, and 630.120, RSMo, or that theproposed discharge is appropriate under the criteria set forth insections 633.120, 633.125 and 633.130.
8. Pending a convening of the hearing panel and the finaldecision of the director or the court, if the director's decisionis appealed, the department shall not place or discharge theresident from a facility except that the department maytemporarily transfer such resident in the case of a medicalemergency.
9. There shall be no disciplinary action against any stateemployee who in good faith testifies or otherwise providesinformation or evidence in regard to a proposed placement ordischarge.
Refusal of consent for placement or discharge,effect--procedure--department director to make finaldetermination--appeal, procedure--burden of proof.
633.135. 1. If a resident, or his parent if he is a minor,or his legal guardian refuses to consent to the proposedplacement or to discharge from the facility, the head of themental retardation facility may petition the director of thedivision to determine whether the proposed placement isappropriate under sections 630.610, 630.615 and 630.620, RSMo, orwhether the proposed discharge is appropriate under sections633.120, 633.125 and 633.130.
2. The division director shall refer the petition to thechairman of the state advisory council who shall appoint andconvene a review panel composed of three members. At least onemember of the panel shall be a parent or guardian of a residentwho resides in a department mental retardation facility. Theremaining members of the panel shall be persons who are fromnongovernmental organizations or groups concerned with theprevention of mental retardation, evaluation, care andhabilitation of mentally retarded persons and who are familiarwith services and service needs of mentally retarded persons infacilities operated by the department. No member of the panelshall be an officer or employee of the department.
3. After prompt notice and hearing, the panel shalldetermine whether the proposed placement is appropriate undersections 630.610, 630.615 and 630.620, RSMo, or whether theproposed discharge is appropriate under sections 633.120, 633.125and 633.130. The hearing shall be electronically recorded forpurposes of obtaining a transcript. The council shall forwardthe tape recording, recommended findings of fact, conclusions oflaw and decision to the director who shall enter findings offact, conclusions of law and the final decision. Notice of thedirector's decision shall be sent to the resident, or his parentif he is a minor, or his guardian, by registered mail, returnreceipt requested. The director shall expedite this review inall respects.
4. If the resident, or his parent if he is a minor, or hisguardian disagrees with the decision of the director, he mayappeal the decision, within thirty days after notice of thedecision is sent, to the circuit court of the county where theresident, or his parent if he is a minor, or his guardianresides. The court shall review the record, proceedings anddecision of the director not only under the provisions of chapter536, RSMo, but also as to whether or not the head of the facilitysustained his burden of proof that the proposed placement isappropriate under sections 630.110, 630.115 and 630.120, RSMo, orthe proposed discharge is appropriate under sections 633.120,633.125 and 633.130. The court shall expedite this review in allrespects. Notwithstanding the provisions of section 536.140,RSMo, a court may, for good cause shown, hear and consideradditional competent and material evidence.
5. Any resident of a mental retardation facility who is ageeighteen or older and who does not have a legal guardian shallnot be discharged unless probate division of the circuit courtapproval is obtained to confirm that the resident is not in needof the care, treatment or programs now being received in themental retardation facility.
6. The notice and procedure for the hearing by the panelshall be in accordance with chapter 536, RSMo.
7. In all proceedings either before the panel or before thecircuit court, the burden of proof shall be upon the head of thefacility to demonstrate by preponderance of evidence that theproposed placement is appropriate under the criteria set forth insections 630.610, 630.615, and 630.120, RSMo, or that theproposed discharge is appropriate under the criteria set forth insections 633.120, 633.125 and 633.130.
8. Pending a convening of the hearing panel and the finaldecision of the director or the court, if the director's decisionis appealed, the department shall not place or discharge theresident from a facility except that the department maytemporarily transfer such resident in the case of a medicalemergency.
9. There shall be no disciplinary action against any stateemployee who in good faith testifies or otherwise providesinformation or evidence in regard to a proposed placement ordischarge.
