34-B §5475. Judicial certification procedures - Maine Statutes

Title 34-B: BEHAVIORAL AND DEVELOPMENTAL SERVICES HEADING: PL 1995, C. 560, PT. K, §7 (RPR); 2001, C. 354, §3 (AMD)

Chapter 5: MENTAL RETARDATION

Subchapter 3: SERVICES FOR MENTALLY RETARDED PERSONS

Article 3: PROCEDURES

§5475. Judicial certification procedures

If the chief administrative officer of a facility or the chief administrative officer's designee, or the commissioner or the commissioner's designee, has determined that a client is not capable of giving informed consent to admission, the client may be admitted for extended care and treatment only after judicial certification pursuant to the following procedures. [2007, c. 539, Pt. N, §68 (AMD).]

1. Petition. A petition to admit a client by judicial certification may be filed in the District Court with jurisdiction over the place where the client is residing.

A. Only a chief administrative officer of a regional office or facility may file the petition. [1983, c. 459, §7 (NEW).]

B. The petition may not be filed by the chief administrative officer of a regional office until the chief administrative officer of the regional office has obtained approval for the admission by the chief administrative officer of the facility under rules adopted by the commissioner . [2007, c. 539, Pt. N, §69 (AMD).]

C. Any party may file a motion with the court where the petition is filed alleging that a court in another location would be more convenient, and the court may order a change in venue if justice so requires. [1983, c. 459, §7 (NEW).]

[ 2007, c. 539, Pt. N, §69 (AMD) .]

2. Prehearing duties of the court. Upon receipt by the District Court of the petition, the court shall:

A. Schedule a certification hearing to be held as soon as practicable, except that if the client is being detained under section 5477, subsection 4, the hearing shall be held no later than 15 days from the day the petition was filed, unless the court, for cause shown, grants a continuance of not more than 10 additional days; [1983, c. 459, §7 (NEW).]

B. Cause written notice of the petition and hearing to be given personally or by mail to the client who is the subject of the proceeding and to the client's guardian, spouse, parent or adult child, if any is known.

(1) If none of these persons is known or if none can be located, the notice shall be given to one of the client's next of kin or to a next friend.

(2) A docket entry is sufficient evidence that the notice has been given; [1983, c. 459, §7 (NEW).]

C. Unless waived by a client and the client's counsel, cause the client who is the subject of the proceeding to be examined by a professional.

(1) The client or the client's counsel may choose the professional, if the professional the client chooses is reasonably available.

(2) The professional may not be the same one who performed any part of the evaluation required under section 5468 or who participated in the development of the personal plan or service plan.

(3) Upon completion of the examination, the professional shall report to the court the professional's opinion whether the client is mentally retarded and requires treatment, stating the professional's reasons for the professional's opinion; [2003, c. 389, §18 (AMD).]

D. Appoint counsel for any indigent client not already represented; [1983, c. 459, §7 (NEW).]

E. Furnish counsel with copies of the petition and the reports of the court-appointed examiner; and [1983, c. 459, §7 (NEW).]

F. Cancel the certification hearing if a parent or guardian having legal custody of the person of the client so requests. [1983, c. 459, §7 (NEW).]

[ 2003, c. 389, §18 (AMD) .]

3. Certification hearing. The certification hearing shall be governed as follows.

A. The certification hearing shall be conducted in accordance with the Maine Rules of Evidence and in an informal manner consistent with orderly procedure. [1983, c. 459, §7 (NEW).]

B. The certification hearing shall be confidential and shall be electronically or stenographically recorded. [1983, c. 459, §7 (NEW).]

C. No report of the certification hearing proceedings may be released to the public or press, except by permission of the client or his counsel and with the approval of the court. [1983, c. 459, §7 (NEW).]

D. The court may order a public hearing at the request of the client or his counsel. [1983, c. 459, §7 (NEW).]

[ 1983, c. 459, §7 (NEW) .]

4. Certification. The court shall certify the client's eligibility for admission only if the petitioner proves, by clear and convincing evidence, that:

A. The client is a person in need of institutionalized services; [1983, c. 459, §7 (NEW).]

B. The needed services are available at the facility named in the application; and [1983, c. 459, §7 (NEW).]

C. Either:

(1) There is no less restrictive alternative to the care provided by the facility, consistent with the best interest of the client; or

(2) There is not currently available a less restrictive alternative to the care provided by the facility, consistent with the best interest of the client. [1985, c. 397, §1 (RPR).]

[ 1985, c. 397, §1 (AMD) .]

5. Effect of certification. The certification of a client's eligibility for admission may not be construed as a judicial commitment of the client, but only empowers the chief administrative officer of the facility to admit the client as a resident for treatment, education or habilitation, subject to the provisions for discharge of section 5480.

[ 1983, c. 459, §7 (NEW) .]

6. Period of certification. If the court finds that the petitioner has proved eligibility in accordance with subsection 4, paragraph C, subparagraph (1), the court shall order the certification to remain in effect for a period of not more than 2 years from the day the certification order was issued.

If the court finds that the petitioner has proved eligibility in accordance with subsection 4, paragraph C, subparagraph (2), the court shall order the certification to remain in effect only until an opening exists in a facility providing a less restrictive alternative, consistent with the best interest of the client, at which time the client must be placed in that alternative setting or for not more then 6 months from the day the certification order was issued, whichever first occurs. If the client is not placed in such an alternative setting by the time this certification expires, no subsequent petition may be filed unless it contains a written report of the Commissioner of Health and Human Services detailing the actions taken by the department to find or develop an alternative setting for that client.

[ RR 1995, c. 2, §88 (COR); 2001, c. 354, §3 (AMD); 2003, c. 689, Pt. B, §7 (REV) .]

7. Expenses. The District Court is responsible for any expenses incurred under this section, including fees of appointed counsel, witness fees and the expenses resulting from a court-appointed examiner.

[ 1983, c. 459, §7 (NEW) .]

8. Appeals. A client certified under this section may appeal the certification order to the Superior Court.

A. The appeal is limited to questions of law. [1983, c. 459, §7 (NEW).]

B. Any findings of fact of the District Court may not be set aside unless clearly erroneous. [1983, c. 459, §7 (NEW).]

C. The order of the District Court shall remain in effect pending the appeal. [1983, c. 459, §7 (NEW).]

D. The District Court Rules of Civil Procedure and the Maine Civil Rules shall apply to the conduct of the appeals, except as otherwise specified in this subsection. [1983, c. 459, §7 (NEW).]

[ 1983, c. 459, §7 (NEW) .]

9. Exceptions. This section does not apply to the Aroostook Residential Center.

[ 1983, c. 459, §7 (NEW) .]

SECTION HISTORY

1983, c. 459, §7 (NEW). 1983, c. 580, §22 (AMD). 1985, c. 397, §§1-2 (AMD). 1985, c. 503, §10 (AMD). RR 1995, c. 2, §88 (COR). 2001, c. 354, §3 (AMD). 2003, c. 389, §18 (AMD). 2003, c. 689, §B7 (REV). 2007, c. 539, Pt. N, §§68, 69 (AMD).