Effective 28 Aug 2011

633.135. Refusal of consent for placement or discharge, effect — procedure — department director to make final determination — appeal, procedure — burden of proof. — 1. If a resident, or his parent if he is a minor, or his legal guardian refuses to consent to the proposed placement or to discharge from the facility, the head of the developmental disability facility may petition the director of the division to determine whether the proposed placement is appropriate under sections 630.610, 630.615 and 630.620 or whether the proposed discharge is appropriate under sections 633.120, 633.125 and 633.130.

2. The division director shall refer the petition to the chairman of the state advisory council who shall appoint and convene a review panel composed of three members. At least one member of the panel shall be a parent or guardian of a resident who resides in a department developmental disability facility. The remaining members of the panel shall be persons who are from nongovernmental organizations or groups concerned with the prevention of intellectual disability or developmental disability, evaluation, care and habilitation of intellectually disabled or developmentally disabled persons and who are familiar with services and service needs of intellectually disabled or developmentally disabled persons in facilities operated by the department. No member of the panel shall be an officer or employee of the department.

3. After prompt notice and hearing, the panel shall determine whether the proposed placement is appropriate under sections 630.610, 630.615 and 630.620 or whether the proposed discharge is appropriate under sections 633.120, 633.125 and 633.130. The hearing shall be electronically recorded for purposes of obtaining a transcript. The council shall forward the tape recording, recommended findings of fact, conclusions of law and decision to the director who shall enter findings of fact, conclusions of law and the final decision. Notice of the director's decision shall be sent to the resident, or his parent if he is a minor, or his guardian, by registered mail, return receipt requested. The director shall expedite this review in all respects.

4. If the resident, or his parent if he is a minor, or his guardian disagrees with the decision of the director, he may appeal the decision, within thirty days after notice of the decision is sent, to the circuit court of the county where the resident, or his parent if he is a minor, or his guardian resides. The court shall review the record, proceedings and decision of the director not only under the provisions of chapter 536, but also as to whether or not the head of the facility sustained his burden of proof that the proposed placement is appropriate under sections 630.110, 630.115 and 630.120, or the proposed discharge is appropriate under sections 633.120, 633.125 and 633.130. The court shall expedite this review in all respects. Notwithstanding the provisions of section 536.140, a court may, for good cause shown, hear and consider additional competent and material evidence.

5. Any resident of a developmental disability facility who is age eighteen or older and who does not have a legal guardian shall not be discharged unless probate division of the circuit court approval is obtained to confirm that the resident is not in need of the care, treatment or programs now being received in the developmental disability facility.

6. The notice and procedure for the hearing by the panel shall be in accordance with chapter 536.

7. In all proceedings either before the panel or before the circuit court, the burden of proof shall be upon the head of the facility to demonstrate by preponderance of evidence that the proposed placement is appropriate under the criteria set forth in sections 630.610, 630.615, and 630.120, or that the proposed discharge is appropriate under the criteria set forth in sections 633.120, 633.125 and 633.130.

8. Pending a convening of the hearing panel and the final decision of the director or the court, if the director's decision is appealed, the department shall not place or discharge the resident from a facility except that the department may temporarily transfer such resident in the case of a medical emergency.

9. There shall be no disciplinary action against any state employee who in good faith testifies or otherwise provides information or evidence in regard to a proposed placement or discharge.

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(L. 1980 H.B. 1724, A.L. 2011 H.B. 555 merged with H.B. 648)