Section He-M 611.08 - Notices and Hearings(a) If a person objects to a proposed or actual transfer in accordance with He-M 611.05(g) or He-M 611.06(h), or a denial of transfer from the unit to New Hampshire hospital in accordance with He-M 611.07(c), he or she may request a hearing, on the decision to transfer or the decision to deny a transfer from the unit to New Hampshire hospital, by the commissioner. A person being transferred or denied a transfer from the unit to New Hampshire hospital, and his or her guardian if applicable, shall be provided verbal and written notice of his or her rights including his or her right to appeal. Such notice shall specify that the person has the right to a hearing in which the person may explain why he or she objects, in which witnesses may be called and asked questions, and in which he or she may be represented by a lawyer provided free of charge if he or she chooses.(b) A hearing on the decision to transfer or a denial of transfer from the unit to New Hampshire hospital shall be held in accordance with He-C 200.(c) The hearing shall be scheduled by the commissioner within 5 days of receipt of the request for a hearing by the administrative appeals unit (AAU) excluding Saturdays, Sundays, and holidays. Any request received after close of business shall be considered received on the next business day.(d) If a person objects to a transfer or denial of a transfer from the unit to New Hampshire hospital, requests a hearing, and requests legal counsel, he or she shall be provided with legal counsel at no cost.(e) If the person does not object to the transfer or denial of a transfer from the unit to New Hampshire hospital, does not request a hearing, or does not request legal counsel, within 72 hours of the transfer, excluding Saturdays, Sundays, and holidays, there shall be provided, at no cost to the person, a private attorney not employed by the department of health and human services, department of corrections, or a designated receiving facility. The attorney shall be authorized to schedule a meeting with the person to discuss the person's procedural rights and either, obtain an informed waiver of one or more of those rights signed by the person, or revoke the person's initial waiver of any such rights so that a hearing may be scheduled by the department on the person's objection to the transfer. A waiver revocation shall effectively invalidate the initial waiver.(f) In the case of a proposed transfer, within 15 days following a hearing the commissioner shall issue a written decision and:(1) If the evidence presented is clear and convincing that the criteria set forth in He-M 611.05(a)(1)-(4) are met, the transfer shall be made in accordance with He-M 611.08; or(2) If the evidence presented is not clear and convincing that the criteria set forth in He-M 611.05(a)(1)-(4) are met, the transfer shall not be made.(g) In the case of an emergency transfer, within 10 days following a hearing the commissioner shall issue a written decision and, if the evidence presented does not support a conclusion that the criteria set forth in He-M 611.06(a)-(d) are met, the objection to transfer shall be upheld and the person shall be returned within 72 hours to either New Hampshire hospital or the developmental services DRF from which he or she was transferred.(h) In the case of a denial of transfer from the unit to New Hampshire hospital, the commissioner shall issue a written decision within 15 days following a hearing and: (1) If the criteria set forth in Cor 504.11 are met, the denial of transfer from the unit to the New Hampshire hospital shall be overturned; or(2) If the criteria set forth in Cor 504.11 are not met, the denial of transfer from the unit to the New Hampshire hospital shall be upheld.N.H. Code Admin. R. He-M 611.08
#7299, eff 5-25-00, EXPIRED: 5-25-08
New. #9229, EMERGENCY, eff 8-5-08, EXPIRES: 2-1-09; ss by #9371, eff 2-1-09
Amended by Volume XXXVII Number 10, Filed March 9, 2017, Proposed by #12104, Effective 2/14/2017, Expires 8/13/2017.Amended by Volume XXXVII Number 32, Filed August 10, 2017, Proposed by #12341, Effective 7/25/2017, Expires 7/25/2027.Amended by Volume XLI Number 36, Filed September 9, 2021, Proposed by #13255, Effective 8/21/2021, Expires 8/21/2031.