(1) Appeal of Denied Request. A family member
or other person who has requested information and whose request has been denied
because the client does not consent to the disclosure, may appeal the denial to
the Commissioner of the Department of Mental Health and Mental Retardation by
filing an written letter of appeal with the Commissioner.
(2) Submission of Copy of Request. If the
appeal does not include a copy of the original request, the Commissioner shall
request that the family member or other person submit a copy. If the person
requesting the appeal fails to submit a copy of the request within 30 days, the
Commissioner shall dismiss the appeal and notify the individual and the client
of the dismissal.
Commissioner's Designee. An appeal shall be heard by a designee of the
Commissioner who is a licensed mental health professional, although not
necessarily in the employ of an agency funded, licensed or operated by the
Department of Mental Health and Mental Retardation. The designee shall have no
interests in the matter or information regarding the parties that may affect
his or her impartiality.
Commissioner's Actions Upon receipt of an appeal under these rules, the
Commissioner shall take the following actions immediately:
a. Assign a qualified designee to adjudicate
b. Set a date and place
for hearing the appeal. The date shall be within 10 working days of receipt of
the appeal, unless the person filing the appeal and the dint agree to a delay.
The location for the hearing shall be at a place convenient to both the client
and to the person filing the appeal. If convenience is in dispute, the hearing
officer will use his or her discretion in deciding upon a place that the
officer believes affords the utmost convenience to all parties to the
c. Notify the client and
the agency licensed mental health professional that an appeal has been filed.
The notice to the client shall include a copy of the appeal, a description of
the appeal process, notice of the right to be represented in the proceedings
and to appear at a hearing and/or to have a representative appear, a listing of
agencies that may be able to provide representational assistance, the date and
location of the hearing and notice that they may waive formal hearing in
accordance with the provisions of C.7. below.
d. Notify the licensed mental health
professional that an appeal has been filed and request that the professional
inform the Commissioner immediately if he or she has reason to believe that
disclosure would cause an imminent risk of serious physical harm to the client
and, if so, the basis for the belief. The Commissioner and the Commissioner's
designee shall not disclose this information to the person filing the
e. Notify the person filing
the appeal of the date and location of the hearing, provide a description of
the appeal process and include notice of their right to waive a formal hearing
in accordance with the provisions of C.7. below.
(5) Dismissal of Appeal Without Hearing. If,
upon examination of the appeal and the original request, it appears on the face
of the documents that the appeal is without merit, that there has been a prior
appeal resulting in denial of disclosure of information, or that the licensed
mental health professional has reason to believe that disclosure would cause an
imminent risk of serious physical harm to the client, the Commissioner or the
Commissioner's designee shall dismiss the appeal and simply note the dismissal
in a notice to the client and to the person filing the appeal.
(6) Hearing and Written Submissions. A
hearing on the appeal shall be held unless both the client and the person
filing the appeal request that the hearing requirement be waived and that the
issue be decided on the basis of written submissions, including the original
request, the request for appeal and any other relevant written materials the
client or the person filing the appeal submit for consideration. If the appeal
is to be decided in this manner, the Commissioner or the Commissioner's
designee shall require that any additional written information be submitted
within 10 working days. After considering the written submissions, the
Commissioner's designee shall issue a decision in accordance with the
provisions of C.9. through C.1.3. below.
Hearing Requirements. If the requirement
of hearing has not been waived, the Commissioner's designee shall convene a
hearing that meets the requirements below:
The hearing shall be as informal as possible while assuring that the rights of
the client and the person filing the appeal, as set out herein, are
b. The Commissioner or
the designee shall open the hearing by exploring whether any agreement to
disclosure of information may be obtained, whether to some or all of the
client and the person filing the appeal may be represented by an individual of
his or her choice in the proceedings.
d. The client and the person filing the
appeal may present evidence in writing, through their own testimony or through
that of witnesses.
e. The client
and/or the client's representative may examine all evidence presented and may
pose questions of any person who offers testimony.
f. The person filing the appeal and that
person's representative, if any, may examine the evidence of the client, and be
present during the presentation of any oral testimony presented by the client,
only upon the client's consent.
Written Decision. Upon conclusion of the
hearing, the Commissioner or designee shall issue a written decision on whether
disclosure of information may be authorized. The decision shall be rendered
within 3 days of the hearing, or of the date on which all written material was
to be submitted. Disclosure may be allowed only upon a finding, based upon
clear and convincing evidence, that the request for information meets each of
the following requirements:
a. The person
requesting the information is a family member or other person who either "lives
with" or "provides direct care" to the client as these terms are defined by
b. The individual who
is the subject of the request is a client as that term is defined by these
c. The person from whom the
information was requested is a licensed mental health professional as that term
is defined by these rules.
Disclosure of the information is in the best interest of the client.
e. A denial of the disclosure would result in
significant deterioration of the client's daily functioning.
(9) Written Findings and
Conclusions. The decision shall include written findings and conclusions with
respect to each of the requirements set out above at 9.a. through e. and may
include a discussion of the evidence presented by the client only if the client
consented to allow the person filing the appeal to hear and examine the
(10) Information to be
Disclosed. If the Commissioner or designee decides that information may be
disclosed, he or she shall state with particularity what information shall be
disclosed. The information shall be limited to that which is necessary to avoid
the client's significant deterioration, was specified in the person's request
and is within the limitations as set out at B.4. above. The manner of
disclosure shall be stated in the decision. It may be oral disclosure of the
licensed mental health professional to the person requesting the information of
through a writing generated in response to the request, but the disclosure may
not include documents from the client's file.
(11) Authorized Disclosure. The decision
shall specify that the authorization of disclosure of information, if such
authorization is given, is not a continuing authorization, but shall be for the
limited purpose of responding to the pending request for information.
(12) Copies of Decision Provided. A copy of
the decision shall be sent to the client and the person filing the appeal and
their representatives, if any. A certified copy of the decision shall also be
sent to the licensed mental health professional to whom the original request
(13) Final Agency Action.
The decision of the Commissioner or designee shall constitute final agency