TNCODE

Chapter 1
General Provisions

Part 1
Definitions

33-1-101. Title definitions.

As used in this title, unless the context otherwise requires:

“Alcohol abuse” means a condition characterized by the continuous or episodic use of alcohol resulting in social impairment, vocational impairment, psychological dependence or pathological patterns of use;
“Alcohol dependence” means alcohol abuse that results in the development of tolerance or manifestations of alcohol abstinence syndrome upon cessation of use;
“Available suitable accommodations” or “suitable available accommodations” means that a state-owned or operated hospital or treatment resource has the capacity, as reasonably determined by the commissioner, and the medical capability, equipment and staffing to provide an appropriate level of care, treatment and physical security to an individual in an unoccupied and unassigned bed;
“Chief officer” means the person with overall authority for a public or private hospital, developmental center, treatment resource, or developmental disabilities service or facility, or the person's designee;
“Child” means a person who is under eighteen (18) years of age;
“Commissioner” means the commissioner of mental health and substance abuse services when the statute at issue relates to mental illness or serious emotional disturbance and means the commissioner of intellectual and developmental disabilities when the statute at issue relates to intellectual and developmental disabilities;
1. “Community mental health center” means an entity that:
  1. Provides outpatient services, including specialized outpatient services for persons of all ages with a serious mental illness, and persons who have been discharged from inpatient treatment at a hospital or treatment resource;
  2. Provides twenty-four hour a day emergency care services;
  3. Provides day treatment or other partial hospitalization services, or psychosocial rehabilitation services;
  4. Provides screening for persons being considered for admission to state mental health facilities to determine the appropriateness of the admission; and
  5. Has community participation in its planning, policy development, and evaluation of services;
2. “Community mental health center” includes for profit corporations and private entities qualified as tax exempt organizations under Internal Revenue Code, § 501(c)(3) (26 U.S.C. § 501(c)(3)), or public entities created by private act of the general assembly that, prior to July 1, 1992, were approved providers in the state under the medicaid clinic option and grantees of the department and the successor or surviving corporation of any such entity that underwent a corporate name change or corporate restructuring after July 1, 1992;
“Consent” means voluntary agreement to what is reasonably well understood regardless of how the agreement is expressed;
“Department” means the department of mental health and substance abuse services when the statute at issue deals with mental illness or serious emotional disturbance and means the department of intellectual and developmental disabilities when the statute at issue deals with intellectual and developmental disabilities;
“Developmental center” means a department of intellectual and developmental disabilities facility or part of it that provides residential and habilitation services to persons with intellectual disabilities;
1. “Developmental disability” in a person over five (5) years of age means a condition that:
  1. Is attributable to a mental or physical impairment or combination of mental and physical impairments;
  2. Manifested before twenty-two (22) years of age;
  3. Likely to continue indefinitely;
  4. Results in substantial functional limitations in three (3) or more of the following major life activities:

Self-care;
Receptive and expressive language;
Learning;
Mobility;
Self-direction;
Capacity for independent living; or
Economic self-sufficiency; and

Reflects the person's need for a combination and sequence of special interdisciplinary or generic services, supports, or other assistance that is likely to continue indefinitely and need to be individually planned and coordinated;

“Developmental disability” in a person up to five (5) years of age means a condition of substantial developmental delay or specific congenital or acquired conditions with a high probability of resulting in developmental disability as defined for persons over five (5) years of age if services and supports are not provided;

“Drug abuse” means a condition characterized by the continuous or episodic use of a drug or drugs resulting in social impairment, vocational impairment, psychological dependence or pathological patterns of use;

“Drug dependence” means drug abuse that results in the development of tolerance or manifestations of drug abstinence syndrome upon cessation of use;

“Hospital” means a public or private hospital or facility or part of a hospital or facility equipped to provide inpatient care and treatment for persons with mental illness or serious emotional disturbance;

“Indigent person” means a service recipient whose resources, including property, assets, and income, are insufficient, under chapter 2, part 11 of this title, to pay for the cost of providing services and supports and who does not have a responsible relative or other legally responsible person who is able to pay for the cost of providing the services and supports;

(A) “Intellectual disability” means, for the purposes of the general functions of the department as set forth in § 4-3-2701(b), substantial limitations in functioning:

As shown by significantly sub-average intellectual functioning that exists concurrently with related limitations in two (2) or more of the following adaptive skill areas: communication, self-care, home living, social skills, community use, self-direction, health and safety, functional academics, leisure, and work; and

That are manifested before eighteen (18) years of age;

References to “mental retardation” in this title shall be deemed to be references to “intellectual disability”;

“Licensed physician” means a graduate of an accredited medical school authorized to confer upon graduates the degree of doctor of medicine (M.D.) who is duly licensed in the state, or an osteopathic physician who is a graduate of a recognized osteopathic college authorized to confer the degree of doctor of osteopathy (D.O.) and who is licensed to practice osteopathic medicine in the state;

“Medical capability” means that a state-owned or operated hospital or treatment resource has the ability to treat an individual's medical needs onsite or that the individual's medical needs do not exceed the onsite capability of the state-owned or operated hospital or treatment resource to treat;

“Mental illness” means a psychiatric disorder, alcohol dependence, or drug dependence, but does not include intellectual disability or other developmental disabilities;

“Qualified mental health professional” means a person who is licensed in the state, if required for the profession, and who is a psychiatrist; physician with expertise in psychiatry as determined by training, education, or experience; psychologist with health service provider designation; psychological examiner or senior psychological examiner; licensed master's social worker with two (2) years of mental health experience or licensed clinical social worker; marital and family therapist; nurse with a master's degree in nursing who functions as a psychiatric nurse; professional counselor; or if the person is providing service to service recipients who are children, any of the above educational credentials plus mental health experience with children;

“Responsible relative” means the parent of an unemancipated child with mental illness, serious emotional disturbance, alcohol dependence, drug dependence, or developmental disabilities who is receiving service in programs of the department or any relative who accepts financial responsibility for the care and service of a service recipient;

“Serious emotional disturbance” means a condition in a child who currently or at any time during the past year has had a diagnosable mental, behavioral, or emotional disorder of sufficient duration to meet psychiatric diagnostic criteria that results in functional impairment that substantially interferes with or limits the child's role or functioning in family, school, or community activities and includes any mental disorder, regardless of whether it is of biological etiology;

“Service recipient” means a person who is receiving service, has applied for service, or for whom someone has applied for or proposed service because the person has mental illness, serious emotional disturbance, or a developmental disability;

“Support” means any activity or resource that enables a service recipient to participate in a service for mental illness, serious emotional disturbance, or developmental disabilities or in community life; and

“Treatment resource” means any public or private facility, service, or program providing treatment or rehabilitation services for mental illness or serious emotional disturbance, including, but not limited to, detoxification centers, hospitals, community mental health centers, clinics or programs, halfway houses, and rehabilitation centers.

Acts 2000, ch. 947, § 1; 2001, ch. 334, § 1; 2002, ch. 730, § 1; 2006, ch. 674, § 1; 2008, ch. 1016, § 3; 2009, ch. 531, §§ 31, 32; 2010, ch. 734, § 1; 2010, ch. 1100, §§ 25–27; 2011, ch. 158, §§ 10-12; 2012, ch. 575, §§ 1, 2.

Code Commission Notes.

Former subdivision (B) of the definition of “intellectual disability” regarding the definition of “mental retardation” until March 1, 2002, was deleted as obsolete by the Code Commission in 2015.

Compiler's Notes. Former chapter 1, §§ 33-1-101, 33-1-201 — 33-1-209, 33-1-301 — 33-1-303 (Acts 1965, ch. 38, §§ 2, 8; 1965, ch. 82, §§ 1-2, 4-7; 1965, ch. 305, § 1; 1971, ch. 247, § 1; 1972, ch. 644, §§ 1, 2; 1973, ch. 85, § 1; 1973, ch. 127, §§ 3, 4; 1973, ch. 341, §§ 1, 2, 5-7; 1974, ch. 802, §§ 3, 5-7, 16, 21; 1975, ch. 248, §§ 1, 4; 1976, ch. 806, § 1(95); 1978, ch. 533, § 2; 1978, ch. 853, § 10; 1981, ch. 98, §§ 3, 4; 1981, ch. 224, § 2; T.C.A., §§ 33-301 - 33-302, 33-104 — 33-107, 33-308; 1984, ch. 794, § 11; 1984, ch. 922, § 1; 1986, ch. 570, § 1; 1987, ch. 98, § 1; 1988, ch. 623, § 1; 1990, ch. 920, § 1; 1990, ch. 1024, §§ 17-18; 1992, ch. 991, § 12; 1994, ch. 861, §§ 1-4; 1996, ch. 993, § 1; 1997, ch. 305, § 1; 1997, ch. 534, § 1; 1999, ch. 466, § 1; 2000, ch. 947, § 6; 2000, ch. 981, § 53) was deleted and replaced in the revision of title 33 by Acts 2000, ch. 947, § 1, effective March 1, 2001.

Acts 2000, ch. 947, § 9 provided that the act does not affect rights and duties that matured, penalties that were incurred, or proceedings that were begun before its effective date.

For the Preamble to the act concerning the operation and funding of state government and to fund the state budget for the fiscal years beginning on July 1, 2008, and July 1, 2009, please refer to Acts 2009, ch. 531.

For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

Acts 2010, ch. 734, § 1 provided that the Tennessee code commission is directed to change all references to “mental retardation”, wherever such references appear in titles 33, 39 and 41, to “intellectual disability”, as supplements are issued and volumes are replaced.

Acts 2010, ch. 734, § 7 provided that for purposes of each provision amended by the act, a reference to intellectual disability shall be considered to refer to mental retardation, as defined by that provision on the day before the date of enactment of the act.

Acts 2010, ch. 734, § 8 provided that nothing in the act shall be construed to alter or otherwise affect the eligibility for services or the rights or responsibilities of individuals covered by the provision on the day before the date of enactment of the act.

Acts 2010, ch. 1100, §§ 25-27 amended the definitions of “commissioner”, “department” and “intellectual disability” effective January 15, 2011. Prior to January 15, 2011, the definitions of “commissioner”, “department” and “intellectual disability” read as set out in the amendment notes. On and after January 15, 2011, the definitions of “commissioner”, “department” and “intellectual disability” read as set out above.

Acts 2010, ch. 1100, § 27(a) purported to amend this section by substituting “Intellectual disability” for “Mental retardation” at the beginning of subdivision (A) of the former definition of “mental retardation”, effective January 15, 2011. Acts 2010, ch. 734, § 1 made the same amendment to the former definition of “mental retardation” effective April 9, 2010; therefore, the amendment by Acts 2010, ch. 1100, § 27(a) was not given effect.

Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health (now commissioner of mental health and substance abuse services), the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Cross-References. Family support programs and services, title 33, ch. 5, part 2.

Medical consultant defined, § 8-42-101.

School drug testing, student assistance program, counseling, § 49-6-4213.

Treatment resource membership in child sexual abuse task force, § 37-1-603.

Rule Reference. This title is referred to in Rules 13 and 15 of the Rules of the Supreme Court of Tennessee.

This title is referred to in Rule 38 of the Tennessee Rules of Juvenile Procedure.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, §§ 1, 2..

Law Reviews.

Balancing Public Safety with the Rights of the Mentally Ill: The Benefit of a Behavioral Approach in Reducing Gun Violence in Tennessee, 45 U. Mem. L. Rev. 671 (2015).

Civil Commitment in Tennessee — What Process is Due? (W. Russell Stambaugh), 8 Mem. St. U.L. Rev. 135 (1978).

Criminal Procedure — Capital Punishment — Motions to Reopen Petitions for Post-Conviction Relief, 81 Tenn. L. Rev. 389 (2014).

To Be or Not To Be in Tennessee: Deciding Surrogate Issues, 34 U. Mem. L. Rev. 333 (2004).

Collateral References.

What constitutes mental illness or disorder, insanity, or the like, within provision limiting or excluding coverage under health or disability policy. 19 A.L.R.5th 533.

Part 2
Policies, Values, and Principles

33-1-201. Responsibilities of department — State policy toward mental health and developmental disabilities.

The department serves as the state's mental health and developmental disabilities authority and is responsible for system planning, setting policy and quality standards, system monitoring and evaluation, disseminating public information and advocacy for persons of all ages who have mental illness, serious emotional disturbance, or developmental disabilities. It is the policy of the state to plan on the basis of and to promote the use of private and public service providers, without regard for funding source, to achieve outcomes and accomplishments that create opportunities for service recipients and potential service recipients to have the greatest possible control of their lives in the least restrictive environment that is appropriate for each person. The department shall plan for and promote the availability of a comprehensive array of high quality prevention, early intervention, treatment, and habilitation services and supports based on the needs and choices of service recipients and families served. The department shall include service recipients and members of service recipients' families in planning, developing, and monitoring the service systems.

Acts 2000, ch. 947, § 1.

Law Reviews.

One Fell Through the Cracks: Why Tennessee Needs an Initial Outpatient Commitment Statute (Lori R. Holyfield), 42 U. Mem. L. Rev. 221 (2011).

33-1-202. Statement of values underlying title.

Values upon which the law is predicated include, but are not limited to, individual rights, promotion of self-determination, respect, optimal health and safety, service recipient inclusion in the community, and service recipient life and service in typical community settings.

Acts 2000, ch. 947, § 1.

33-1-203. Principles of service.

The following service principles are fundamental to carrying out the department's responsibilities:

Stable service systems that provide flexibility, advocacy, effective communication, targeted outcomes, continuous evaluation, and improvement based on best practice and research;
Early identification of needs and the inclusion of both prevention and early intervention services and supports;
Timely response to the needs, rights and desires of those served;
Treating service recipients and families with dignity and respect;
Protection of service recipients from abuse, neglect, and exploitation;
Accurate and responsible accountability for the use of public resources;
Ongoing education and skills development of the workforce; and
Cultural competence of persons providing service.

Acts 2000, ch. 947, § 1.

33-1-204. Unnecessary entitlements not created — Programs subject to funding by general assembly.

This title shall not create entitlement to services and supports from the state except to the extent that services and supports are necessarily attached to deprivation of liberty by placement in facilities operated by the department. Implementation of any service or support at state expense under this title is subject to the availability of funds appropriated for that purpose in the general appropriations act.
While the department of intellectual and developmental disabilities is charged with the planning and development of services for persons with developmental disabilities, such services shall be subject to the availability of funding, and to approval of any waiver amendments which would be required to effectuate such new programs at such time that they are developed. The reassignment of responsibility for developmental disabilities services to the department of intellectual and developmental disabilities does not create an entitlement to services for persons with developmental disabilities. Nor does it expand or affect in any way the population of persons who are currently eligible for programs and services currently available to persons with mental retardation.

Acts 2000, ch. 947, § 1; 2010, ch. 1100, § 28.

Compiler's Notes. Former chapter 1, §§ 33-1-101, 33-1-201 — 33-1-209, 33-1-301 — 33-1-303 (Acts 1965, ch. 38, §§ 2, 8; 1965, ch. 82, §§ 1-2, 4-7; 1965, ch. 305, § 1; 1971, ch. 247, § 1; 1972, ch. 644, §§ 1, 2; 1973, ch. 85, § 1; 1973, ch. 127, §§ 3, 4; 1973, ch. 341, §§ 1, 2, 5-7; 1974, ch. 802, §§ 3, 5-7, 16, 21; 1975, ch. 248, §§ 1, 4; 1976, ch. 806, § 1(95); 1978, ch. 533, § 2; 1978, ch. 853, § 10; 1981, ch. 98, §§ 3, 4; 1981, ch. 224, § 2; T.C.A., §§ 33-301 - 33-302, 33-104 — 33-107, 33-308; 1984, ch. 794, § 11; 1984, ch. 922, § 1; 1986, ch. 570, § 1; 1987, ch. 98, § 1; 1988, ch. 623, § 1; 1990, ch. 920, § 1; 1990, ch. 1024, §§ 17-18; 1992, ch. 991, § 12; 1994, ch. 861, §§ 1-4; 1996, ch. 993, § 1; 1997, ch. 305, § 1; 1997, ch. 534, § 1; 1999, ch. 466, § 1; 2000, ch. 947, § 6; 2000, ch. 981, § 53) is deleted and replaced in the revision of title 33 by Acts 2000, ch. 947, § 1, effective March 1, 2001.

In order to effectuate the purposes of this section, funds were appropriated in Acts 2000, ch. 994.

Part 3
General Powers and Duties of Department

33-1-301. Powers of department — Contracts — Property and monetary grants — Pilot programs.

The department is empowered to enter into contractual agreements in furtherance of its functions.
The department may accept grants and gifts of funds and other property of whatever kind from any source, administer the same according to the terms of the grants or gifts, and enter cooperative programs with private and public instrumentalities, including the federal government, to improve mental health and developmental disabilities services and supports in the state.
The department may enter into contracts with other states, or political subdivisions, or corporations chartered in other states, for the purpose of providing preventive and treatment services and supports for service recipients by establishing or supporting various facilities in cooperation with the political or corporate bodies.
The department may establish or review pilot projects, including, but not limited to, projects to provide, develop, or plan service and support for its service recipients or their families through direct administration or through contracting with service providers. Pilot projects are subject to other state and federal laws.
The department of finance and administration shall furnish to the department sufficient space for the department to carry out the department's duties efficiently.

Acts 1965, ch. 82, § 1; 1974, ch. 802, § 3; 1975, ch. 248, § 1; T.C.A., §§ 33-101, 33-1-201; Acts 2000, ch. 947, §§ 1, 6; 2010, ch. 1100, § 24.

Compiler's Notes. Former chapter 1, §§ 33-1-101, 33-1-201 — 33-1-209, 33-1-301 — 33-1-303 (Acts 1965, ch. 38, §§ 2, 8; 1965, ch. 82, §§ 1-2, 4-7; 1965, ch. 305, § 1; 1971, ch. 247, § 1; 1972, ch. 644, §§ 1, 2; 1973, ch. 85, § 1; 1973, ch. 127, §§ 3, 4; 1973, ch. 341, §§ 1, 2, 5-7; 1974, ch. 802, §§ 3, 5-7, 16, 21; 1975, ch. 248, §§ 1, 4; 1976, ch. 806, § 1(95); 1978, ch. 533, § 2; 1978, ch. 853, § 10; 1981, ch. 98, §§ 3, 4; 1981, ch. 224, § 2; T.C.A., §§ 33-301 - 33-302, 33-104 — 33-107, 33-308; 1984, ch. 794, § 11; 1984, ch. 922, § 1; 1986, ch. 570, § 1; 1987, ch. 98, § 1; 1988, ch. 623, § 1; 1990, ch. 920, § 1; 1990, ch. 1024, §§ 17-18; 1992, ch. 991, § 12; 1994, ch. 861, §§ 1-4; 1996, ch. 993, § 1; 1997, ch. 305, § 1; 1997, ch. 534, § 1; 1999, ch. 466, § 1; 2000, ch. 947, § 6; 2000, ch. 981, § 53) is deleted and replaced in the revision of title 33 by Acts 2000, ch. 947, § 1, effective March 1, 2001.

Acts 2005, ch. 490, § 2 provided that the commissioner of finance and administration shall identify those grant funds that are generated by § 33-1-301, or any similar grant funds that may be appropriately applied to the subject matter of the act, and shall ensure that those grant funds are used to offset the cost of the job tax credit created in § 67-4-2109 by section 1 of the act.

Cross-References. Commissioner, appointment, §§ 4-3-111, 4-3-112.

Establishment of department, § 4-3-101.

Powers and duties of department, § 4-3-1603.

33-1-302. Other powers of department — Power to make grants and contracts — Cooperative programs — Rulemaking — Operation of facilities.

The department may:
1. Make grants and contracts under terms and conditions that the commissioner prescribes to any county, city, or profit or nonprofit corporation or any combination of them for the construction, maintenance or operation of facilities, programs, or an array of high quality prevention, early intervention, treatment, and habilitation services and supports for service recipients and their families;
2. Enter into cooperative programs for the construction, maintenance or operation of facilities, programs or services to provide care, habilitation and treatment for service recipients;
3. Make and enforce rules that are necessary for the efficient financial management and lawful operation of the facilities, programs or services;
4. Construct, maintain and operate the facilities, programs or services; and
5. With the approval of the commissioner of finance and administration and the comptroller of the treasury, establish or cause to be established revolving loan fund programs to assist recipients of publicly funded services under this title to acquire or maintain affordable housing.
1. Each governing body of the facility, program, or service shall have an annual audit made of its accounts and records. The comptroller of the treasury, through the department of audit, shall be responsible for ensuring that the audits are prepared in accordance with generally accepted governmental auditing standards and determining if the audits meet minimum audit standards that shall be prescribed by the comptroller of the treasury. No audit may be accepted as meeting the requirements of this subsection (b) until the audit has been approved by the comptroller of the treasury. The audits may be prepared by the department of audit, or with the prior written approval of the comptroller, by a licensed independent public accountant.
2. All audits performed by the internal audit staff of the facility, program, or service shall be conducted in conformity with the standards established by the comptroller of the treasury under § 4-3-304(9).

Acts 1965, ch. 82, § 2; 1975, ch. 248, § 1; T.C.A., § 33-102; Acts 1984, ch. 794, § 11; 1986, ch. 570, § 1; 1987, ch. 98, § 1; 1988, ch. 623, § 1; T.C.A., § 33-1-202; Acts 2000, ch. 947, §§ 1, 6.

33-1-303. Powers of commissioner.

The commissioner may:

Select and recommend to the appropriate state officials the employment of the chief officers of all facilities of the department, all central office personnel, and all professional, technical and other personnel required for the operation of the department;
Recommend to the appropriate state officials the salaries and compensation of all officers and employees of the department;
Adopt rules and policies for the governance, management, and supervision of the department's facilities; prescribe the powers and duties of officers and employees; and provide for admission, discharge, treatment, habilitation, and support of persons with mental illness, serious emotional disturbance, or developmental disabilities;
Publish a report on the operation of the department and the facilities and programs under its supervision and the department's three-year plan; furnish the report and plan to the governor and members of the general assembly; and further distribute them as the commissioner, with the approval of the governor, may consider proper;
Publish compilations of this title and other relevant statutes to improve public knowledge of the laws by compiling them separately for services to children and adults and mental health and developmental disabilities service recipients and make the compilations available in print and on the Internet;
Prescribe and distribute the forms to be used in connection with the admission, hospitalization or release of service recipients in the department's facilities;
Alter the department's facilities and grounds and name them;
Order the transfer of service recipients between state facilities;
Procure insurance to indemnify full-time or part-time physicians, licensed psychologists designated as health service providers, and non-physician chief officers of all facilities of the department against actions by service recipients and others that are alleged to arise out of acts of omission or commission of those personnel;
Delegate responsibilities as the commissioner deems necessary for the effective conduct of the functions of the department; and
Assume general responsibility for the proper and efficient operation of the department, its facilities, services and supports.

Acts 1965, ch. 82, §§ 4, 7; 1974, ch. 802, §§ 4, 7; 1975, ch. 248, § 1; T.C.A., §§ 33-104, 33-107; Acts 1990, ch. 1024, § 17; 1992, ch. 991, § 12; T.C.A., § 33-1-203, former § 33-1-303; Acts 2000, ch. 947, §§ 1, 6.

NOTES TO DECISIONS

1. Jurisdiction.

The general assembly vested the civil service commission with the power and jurisdiction to have the final word regarding the discipline and termination of civil service employees, and the department of mental health and mental retardation's [department of mental health and developmental disabilities'] dismissal of a civil service employee was subject to the grievance procedure set forth in former T.C.A. § 8-30-328(a)(7) (now appeal procedures in T.C.A. § 8-30-318). Tennessee Dep't of Mental Health & Mental Retardation v. Allison, 833 S.W.2d 82, 1992 Tenn. App. LEXIS 55 (Tenn. Ct. App. 1992).

The department of mental health and mental retardation [department of mental health and developmental disabilities] may have a valid mandatory dismissal regulation subject to review by the civil service commission should the aggrieved employee elect to follow the grievance route, and the commission in no way voids the regulation or prevents the department from terminating its employees thereunder when it grants reinstatement. Tennessee Dep't of Mental Health & Mental Retardation v. Allison, 833 S.W.2d 82, 1992 Tenn. App. LEXIS 55 (Tenn. Ct. App. 1992).

2. Duty of Reasonable Care.

The superintendent of Lakeshore Mental Health Institute and commissioner of department of mental health and retardation are under an obligation, found in common law if not in the statutes, to exercise reasonable care in the performance of their duties. Butler v. Commissioner of Mental Health, 463 F. Supp. 806, 1978 U.S. Dist. LEXIS 15268 (E.D. Tenn. 1978).

3. Judicial Notice.

Rule that requires automatic dismissal of an employee who knowingly threatens to touch, attempt to touch, or actually touch a resident or patient in any manner, that a reasonable person would recognize as likely to be harmful or painful or cause mental anguish, is a proper subject of judicial notice, and has the force and effect of law. Tennessee Dep't of Mental Health & Mental Retardation v. Allison, 833 S.W.2d 82, 1992 Tenn. App. LEXIS 55 (Tenn. Ct. App. 1992).

33-1-304. Duties of commissioner.

The commissioner shall:

Based on best practice and research, assess the needs of service recipients and potential service recipients throughout the state, plan for a system to meet the needs, set standards for services and supports for service recipients, promote the development of services and supports for service recipients in a community-based, family-oriented system, perform the department's duties, and achieve the department's goals;
Collaborate with all relevant state agencies to coordinate the administration of state programs and policies that directly affect service recipients with respect to treatment, habilitation and education;
Advise the governor, general assembly, state, local, and private agencies, and the public in matters affecting service recipients, and advocate meeting their needs; and
Notwithstanding any law to the contrary, assist the council on children's mental health care in developing a plan that will establish demonstration sites in certain geographic areas where children's mental health care is child-centered, family-driven, and culturally and linguistically competent and that provides a coordinated system of care for children's mental health needs in this state.

Acts 2000, ch. 947, § 1; 2008, ch. 1062, § 2.

Compiler's Notes. For the Preamble to the act regarding the mental health needs of Tennessee's children and youth, please refer to Acts 2008, ch. 1062.

Acts 2016, ch. 894, § 1 provided: On or before January 31, 2017, the commissioner of mental health and substance abuse services shall submit a report to the health and welfare committee of the senate and the health committee of the house of representatives concerning the feasibility of a pilot program for one (1) county that seeks to address overcrowding in jails and correction institutions by providing diversionary or transitional services that include mental health services and supports, substance abuse treatment and counseling, health care, and employment and housing supports. The report shall examine, but not be limited to, the following topics:

The costs and benefits of implementing the pilot program;
The number of people the pilot program could expect to serve;
Approaches taken by other states to address prison diversion and prison transition issues where mental health and substance abuse services are involved;
Best practices for this type of pilot program;
Prospects for and barriers to potential expansion of the pilot programstatewide; and
Potential federal funding sources to support the pilot program.

33-1-305. Power of commissioner to adopt rules, prescribe forms and investigate complaints.

The commissioner may:

Adopt rules necessary to fulfill the department's responsibilities;
Prescribe the form of applications, records, reports and certificates provided for in this title and the information that forms shall contain; and
Investigate complaints by a service recipient or anyone on behalf of a service recipient.

Acts 1965, ch. 38, § 8; 1974, ch. 802, § 21; 1975, ch. 248, § 1; T.C.A., §§ 33-308, 33-1-205(b); Acts 2000, ch. 947, § 1.

33-1-306. Designation of administrative law judges or hearing officers.

The commissioner may designate employees as administrative law judges or hearing officers to conduct contested case hearings when cases are required to be held under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, for admission review hearings for admission to department facilities.

Acts 1984, ch. 922, § 1; T.C.A. § 33-1-206; Acts 2000, ch. 947, § 1.

33-1-307. Departmental information systems.

The department shall establish a structured information system to gather all data necessary to carry out its duties with respect to planning, needs assessment, standard setting, evaluation, and promotion of the development of services and supports for the service recipient population, including persons who may become service recipients. The department shall design the system to avoid duplication of information gathering by other public agencies and to minimize acquisition of personally identifiable service recipient information. All public and private providers who serve persons with mental illness, serious emotional disturbance, or developmental disabilities, regardless of whether the provider is licensed under this title or other titles of the code or is unlicensed, shall provide the information required for the information system in a way consistent with this title and other laws.

Acts 2000, ch. 947, § 1.

33-1-308. Interagency agreements.

1. The commissioner shall initiate the development of and enter into interagency agreements on services and supports for children in coordination with the council on children's mental health care, adults, and the elderly to:
  1. Assure accountability for services and supports across all agencies providing services and supports for a person or family whose service is covered by this title;
  2. Clarify responsibilities for the department's service system;
  3. Promote problem resolution at the local levels;
  4. Promote interagency service needs assessment and planning;
  5. Provide a vehicle for interagency policy development without interfering with agency independence;
  6. Promote creation and maintenance of coordinated service systems for service recipients and families;
  7. Provide for interrelated service planning across agency lines;
  8. Promote inclusion of mental health and developmental disabilities issues in crisis and disaster planning; and
  9. Enhance the efficiency and effectiveness of expenditure of public funds.
2. All state agencies shall cooperate with the department in the development of the agreements.
The agreements shall include, without limitation: the intersection of services and supports among all state agencies that have any responsibility for mental health, developmental disabilities, alcohol dependence, drug dependence, education, health, social services, housing, transportation, employment, justice, habilitation, rehabilitation, correction, or public funding of services and supports; transition between services to different age groups; information sharing, including records, data, and service; and interagency training.
Interagency agreements should include at least the following elements:
1. Goals and the expected outcomes against which progress will be measured;
2. Eligible populations;
3. Role responsibilities;
4. Covered services and supports;
5. Procedures for coordination, including local level implementation procedures;
6. Joint monitoring;
7. Data sharing; and
8. How conflict resolution will be achieved.
The commissioner may initiate the development of and enter into similar interagency agreements with local government agencies.

Acts 2000, ch. 947, § 1; 2008, ch. 1062, § 4.

Compiler's Notes. For the Preamble to the act regarding the mental health needs of Tennessee's children and youth, please refer to Acts 2008, ch. 1062.

33-1-309. Adoption of rules.

The department shall adopt all rules in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
All operating guidelines of the department of intellectual and developmental disabilities (sometimes referred to as “DIDD”) and its successors shall be adopted pursuant to the procedure set forth in this subsection (b). For purposes of this section “operating guidelines” means instructions to service providers that the department deems or intends to be mandatory upon such providers. Interpretive instructions, other nonmandatory guidance from the department and rules adopted pursuant to the Uniform Administrative Procedures Act, are not operating guidelines.
1. The adoption of operating guidelines shall be preceded by notice, public meeting, opportunity for comment and responses to such comments from the department; provided, however, in those instances in which the department determines that exigent circumstances require that the operating guideline be implemented prior to a public meeting, the department shall begin the process required by this section as soon as reasonably practicable after its implementation.
2. The department shall provide notice in the Tennessee administrative register which shall include a general description of the subject of the operating guideline, the date, place and time of the public meeting and the opportunity for interested persons to provide oral or written comments. The date of the public meeting shall be no sooner than the first day of the month following the month of publication of the notice. The notice shall also include the name, address and telephone number of a contact person to provide additional information, including, if available, copies of the proposed operating guideline.
3. A representative of DIDD shall be present to hear comments at a hearing required by this section. The representative shall be a person designated by the deputy commissioner of DIDD who is a director level or higher employee. This designee shall be authorized to conduct the meeting in such a manner as to provide reasonable opportunity for all interested persons to provide comments.
4. Within thirty (30) days after the meeting, DIDD shall provide responses to the specific comments received and shall state the reasons for accepting or rejecting the comments. DIDD shall maintain an official record of the meeting, submitted comments and any responses.
Mandatory instructions meeting the definition of operating guidelines set forth in subsection (b) that have been implemented prior to July 1, 2001, shall not be required to be readopted pursuant to subsection (b) unless DIDD receives a petition signed by twenty-five (25) interested persons requesting a public meeting on the instruction. In that case, DIDD shall provide notice, a public meeting, opportunity for comment and responses to comment as set forth in subsection (b). An instruction that is the subject of the petition shall remain in effect. In the event that a proper petition is presented under this subsection (c) and DIDD determines that the same or substantially related issues are under consideration as a proposed operating guideline, the matters may be consolidated to avoid duplication.
All methodology utilized by DIDD for determining payment to service providers shall be adopted as rules in accordance with the Uniform Administrative Procedures Act, which shall be consistent among providers providing substantially the same services.
Intermediate care facilities for persons with mental retardation (ICF/MR) shall comply with rules and operating guidelines made applicable to ICF/MR facilities by DIDD. In order to monitor the care being received by persons in ICF/MR facilities, DIDD shall have reasonable access to the facilities and the medical and other records of the persons occupying the beds.

Acts 2000, ch. 947, § 1; 2001, ch. 337, § 1; 2006, ch. 761, § 2; 2007, ch. 499, § 1; 2009, ch. 477, § 1; 2010, ch. 1100, § 29; 2011, ch. 158, § 13.

Compiler's Notes. Acts 2009, ch. 477, § 1, directed the code commission to change all references from “division of mental retardation services” to “division of intellectual disabilities services” and to include the changes in supplements and replacement volumes for the Tennessee Code Annotated.

Attorney General Opinions. “Operating guidelines” would not be required to be promulgated as rules under the UAPA if T.C.A. §§ 3-1-309(b) and (c) are repealed, OAG 07-042, 2007 Tenn. AG LEXIS 46 (4/4/07).

33-1-310. Power to assume temporary control of facility in event of emergency.

If the department determines that an emergency substantially impairs a service provider agency's capacity to provide service to its service recipients and jeopardizes the health or safety of its service recipients, the department may assume temporary operating responsibility for the agency to assure continuity of care and the health and safety of the service recipients.

Acts 2000, ch. 947, § 1.

33-1-311. Development of interagency projects and programs.

The department shall involve the council on children's mental health care in the development of interagency projects and programs, whether state or federally funded, related to children's mental health care, except where otherwise prohibited by state or federal law.

Acts 2008, ch. 1062, § 3.

Compiler's Notes. For the Preamble to the act regarding the mental health needs of Tennessee's children and youth, please refer to Acts 2008, ch. 1062.

Part 4
Statewide Planning and Policy Council

33-1-401. Statewide planning and policy council created — Chair — Officers — Membership — Expenses — Meetings — Terms of service — Removal.

There is created the statewide planning and policy council for the department of mental health and substance abuse services to assist in planning a comprehensive array of high quality prevention, early intervention, treatment, and habilitation services and supports and to advise the department on policy, budget requests, and developing and evaluating services and supports.
1. The statewide planning and policy council shall be composed of not less than eleven (11) members, not including ex officio members. The governor shall appoint the chair of the council. The speaker of the senate and the speaker of the house of representatives shall each appoint one (1) legislator as a member of the council. The commissioner of mental health and substance abuse services shall serve, ex officio, as secretary to the council and, if the chair is not present at a meeting, shall designate a member to serve as chair for the meeting. The governor is ex officio a member of the council and may appoint representatives of state agencies as ex officio members of the council.
2. The commissioner of mental health and substance abuse services shall appoint five (5) members to represent mental health, of which, two (2) shall be service recipients or members of families of service recipients, one (1) shall be a representative for children, one (1) shall be a mental health service provider, and one (1) shall represent others affected by mental health issues. Additionally, the commissioner of mental health and substance abuse services shall appoint one (1) representative for elderly service recipients, one (1) representative for military veteran recipients, and at least one (1) at-large representative. The commissioner may make additional appointments of advocates to represent children and persons affected by substance abuse.
3. At least a majority of the council's membership shall consist of current or former service recipients and members of service recipient families.
The members of the statewide planning and policy council shall receive no compensation, but shall receive their actual traveling expenses for attendance at meetings of the council. All reimbursement for travel expenses shall be in conformity with the comprehensive travel rules.
The statewide planning and policy council shall meet quarterly at a place designated by the chair and may meet more often upon the call of the chair or a majority of the members.
Terms on the council shall be three (3) years except that the chair and members appointed by the speakers shall have terms of two (2) years. Vacancies of the council shall be filled by appointment for unexpired terms only.
The appointing authority may remove a member for failure to attend at least one half (½) of the scheduled meetings in any one (1) year period or for other good cause.

Acts 2000, ch. 947, § 1; 2010, ch. 1100, § 30; 2012, ch. 575, §§ 1, 2; 2018, ch. 732, § 1.

Compiler's Notes. Former chapter 1, §§ 33-1-101, 33-1-201 — 33-1-209, 33-1-301 — 33-1-303 (Acts 1965, ch. 38, §§ 2, 8; 1965, ch. 82, §§ 1-2, 4-7; 1965, ch. 305, § 1; 1971, ch. 247, § 1; 1972, ch. 644, §§ 1, 2; 1973, ch. 85, § 1; 1973, ch. 127, §§ 3, 4; 1973, ch. 341, §§ 1, 2, 5-7; 1974, ch. 802, §§ 3, 5-7, 16, 21; 1975, ch. 248, §§ 1, 4; 1976, ch. 806, § 1(95); 1978, ch. 533, § 2; 1978, ch. 853, § 10; 1981, ch. 98, §§ 3, 4; 1981, ch. 224, § 2; T.C.A., §§ 33-301 - 33-302, 33-104 — 33-107, 33-308; 1984, ch. 794, § 11; 1984, ch. 922, § 1; 1986, ch. 570, § 1; 1987, ch. 98, § 1; 1988, ch. 623, § 1; 1990, ch. 920, § 1; 1990, ch. 1024, §§ 17-18; 1992, ch. 991, § 12; 1994, ch. 861, §§ 1-4; 1996, ch. 993, § 1; 1997, ch. 305, § 1; 1997, ch. 534, § 1; 1999, ch. 466, § 1; 2000, ch. 947, § 6; 2000, ch. 981, § 53) is deleted and replaced in the revision of title 33 by Acts 2000, ch. 947, § 1, effective March 1, 2001.

The statewide planning and policy council for the department of mental health and substance abuse services, created by this section, terminates June 30, 2021. See §§ 4-29-112, 4-29-242.

Amendments. The 2018 amendment inserted “, one (1) representative for military veteran recipients,” in the second sentence of (b)(2).

Effective Dates. Acts 2018, ch. 732, § 2. April 18, 2018.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

33-1-402. Duties of council.

The statewide planning and policy council shall advise the commissioner of mental health and substance abuse services as to plans and policies to be followed in the service systems and the operation of the department of mental health and substance abuse services programs and facilities, recommend to the general assembly legislation and appropriations for the programs and facilities, advocate for and publicize the recommendations, and publicize generally the situation and needs of persons with mental illness, or serious emotional disturbance and their families.
The statewide planning and policy council shall especially attend to:
1. Identification of common areas of concern to be addressed by the service areas;
2. The needs of service recipients who are children or elderly and of service recipients with combinations of mental illness, serious emotional disturbance, or alcohol or drug abuse or dependence;
3. Evaluation of needs assessment, service, and budget proposals;
4. Reconciliation of policy issues among the service areas; and
5. Annual review of the adequacy of this title to support the service systems.
The statewide planning and policy council, in conjunction with the commissioner of mental health and substance abuse services, shall report annually to the governor on the service systems, including programs, services, supports, and facilities of the department of mental health and substance abuse services, and may furnish copies of the reports to the general assembly with recommendations for legislation. The statewide planning and policy council may make other reports to the governor and to the general assembly as the council deems necessary. The commissioner of mental health and substance abuse services shall make the reports available to the public, including on the Internet and by other appropriate methods.

Acts 2000, ch. 947, § 1; 2010, ch. 1100, § 31; 2012, ch. 575, §§ 1, 2.

Compiler's Notes. Acts 2010, ch. 1100, § 153 provided that the commissioner of mental health and developmental disabilities, the commissioner of mental health (now commissioner of mental health and substance abuse services), the commissioner of intellectual and developmental disabilities, and the commissioner of finance and administration are authorized to promulgate rules and regulations to effectuate the purposes of the act. All such rules and regulations shall be promulgated in accordance with the provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Chapter 2
Services and Facilities

Part 1
Community Service System

33-2-101. Services and support to be community-based system.

The department shall plan, coordinate, administer, monitor, and evaluate state and federally funded services and supports as a community-based system within the total system of services and supports for persons with mental illness, serious emotional disturbance, developmental disabilities, or at risk for those conditions and for their families. All functions shall be carried out in consultation and collaboration with current or former service recipients, their families, guardians or conservators, service recipient advocates, service providers, agencies, and other affected persons and organizations.

Acts 2000, ch. 947, § 1.

Compiler's Notes. Former chapter 2, §§ 33-2-101 — 33-2-108, 33-2-201 — 33-2-202, 33-2-301 — 33-2-311, 33-2-401, 33-2-501 — 33-2-513, 33-2-601 — 33-2-602, 33-2-604, 33-2-701, 33-2-901 — 33-2-909 (Acts 1965, ch. 82, § 8; 1973, ch. 341, §§ 3, 4; 1974, ch. 802, § 8; 1975, ch. 248, §§ 1, 3; 1976, ch. 806, § 1(35); 1978, ch. 617, § 2; 1978, ch. 853, §§ 1-9, 11-13; 1979, ch. 199, § 1; 1979, ch. 369, § 1; 1981, ch. 18, § 1; 1981, ch. 98, § 5; 1981, ch. 436, §§ 1, 4, 5; 1981, ch. 436, § 3; 1982, ch. 584, §§ 2, 4-12; 1983, ch. 323, §§ 25-28, 31; 33-201, T.C.A. § 33-350, 33-1801, T.C.A., §§ 33-1803 — 33-1812, T.C.A., §§ 33-1902 — 33-1911; 1985, ch. 437, § 5, 31-32; 1987, ch. 143, §§ 1, 6; 1987, ch. 248, §§ 1-3; 1987, ch. 320, § 1; 1988, ch. 586, § 1; 1988, ch. 828, §§ 3-8; 1988, ch. 875, §§ 1, 2; 1989, ch. 253, § 3; 1989, ch. 254, § 3; 1989, ch. 255, § 2; 1989, ch. 256, § 2; 1989, ch. 257, § 3; 1989, ch. 259, § 3; 1989, ch. 260, § 3; 1989, ch. 261, § 3; 1989, ch. 271, § 3; 1989, ch. 272, § 3; 1989, ch. 434, § 5; 1989, ch. 513, §§ 1, 14; 1989, ch. 559, §§ 1-4; 1989, ch. 591, § 112; 1991, ch. 459, §§ 9, 10; 1992, ch. 913, § 2; 1993, ch. 234, §§ 22-26; 1994, ch. 760, § 1; 1996, ch. 796, § 1; 1996, ch. 1074, § 1; 1998, ch. 1005, § 1-9; 2000, ch. 947, § 6); § 33-2-603 (Acts 1985, ch. 437, § 31; 1987, ch. 143, § 5), which had been previously repealed by Acts 1988, ch. 586, § 2; § 33-2-801 (Acts 1989, ch. 513, § 4), which had been previously repealed by Acts 1993, ch. 234, § 9; §§ 33-2-802 and 33-2-803 (Acts 1989, ch. 513, § 4), which were transferred to §§ 68-24-602, 68-24-603 in 1993, is deleted and replaced in the revision of title 33 by Acts 2000, ch. 947, § 1, effective March 1, 2001.

Law Reviews.

To Be or Not To Be in Tennessee: Deciding Surrogate Issues, 34 U. Mem. L. Rev. 333 (2004).

33-2-102. Goals and purposes of mental health care system.

Within the limits of available resources, it is the goal of the state to develop and maintain a system of care that provides a comprehensive array of quality prevention, early intervention, treatment, habilitation and rehabilitation services and supports that are geographically available, equitably and efficiently allocated statewide, allowing people to be in their own communities in settings, based on the needs and choices of individuals and families served.
The state's purposes are to:
1. Establish and sustain a broad range and scope of flexible services and supports across the domains of residential living, working, learning, community participation, and family support, including crisis, respite and other emergency services, that help service recipients maintain respected and active positions in the community; and
2. Promote the early identification of children with mental illness, serious emotional disturbance, developmental disabilities, and developmental delay to assure that they receive services and supports appropriate to their developmental level and changing needs.
The general assembly finds as facts that the needs of persons with mental illness, serious emotional disturbance, and developmental disabilities cannot be met by the department in isolation and that those persons need to receive services and supports that are integrated, have linkages between and among other human service agencies and programs, and have mechanisms for planning, developing, coordinating, and monitoring services and supports to meet their needs.

Acts 2000, ch. 947, § 1.

33-2-103. Requirements for community-based systems.

The state will accomplish its purposes through community-based systems that provide:

Access to services and supports that are individualized to the capacities, needs and values of each person;
Accountability of services and supports through statewide standards for monitoring, reporting, and evaluating information;
At least basic quality standards for service delivery;
Priorities for the use of available resources;
Coordination of services and supports within the department, among other state agencies, and other public and private service providers aimed at reducing duplication in service delivery and promoting complementary services and supports among all relevant entities;
Conflict resolution procedures; and
Extensive involvement of service recipients, families, and advocates.

Acts 2000, ch. 947, § 1.

33-2-104. Core values of service system.

The core values of the service system shall include:

The system of care is person-centered and family-focused, with the needs and choices of the individual and family, as appropriate, determining the types and mix of services and supports provided, because, to make good decisions, service recipients and their families need complete information about the availability, alternatives, and costs of services and supports, how the decision-making process works, and how to participate in that process;
The system of care provides individualized services and supports based on an individualized service plan that is comprehensive, coordinated, age appropriate, provides smooth transition through life stages, involves families as appropriate, and is developed by qualified professionals in consultation with service recipients and family members as appropriate;
The system of care is community-based and provides for service in the least restrictive, most appropriate setting;
The system of care is culturally competent with agencies, programs, services, and supports that are responsive to the cultural, racial, and ethnic differences of the populations they serve;
The system of care takes into account the safety and health of service recipients, while respecting their choices and protecting their rights, including their right to be free from abuse, neglect, and exploitation; and
The system of care is continuously improved based on research and best practices.

Acts 2000, ch. 947, § 1.

Law Reviews.

One Fell Through the Cracks: Why Tennessee Needs an Initial Outpatient Commitment Statute (Lori R. Holyfield), 42 U. Mem. L. Rev. 221 (2011).

33-2-105. Geographic area for service systems — Designation of information sources.

The department shall establish areas for planning and resource allocation. The department shall define geographically dispersed and accessible points of access to service systems and designate providers or mechanisms to provide information and referral for services and supports and for eligibility decisions.

Acts 2000, ch. 947, § 1.

33-2-106. Legislative intent — Alleviation of geographical disparities.

It is the intent of the general assembly that the system of care developed to reflect § 33-2-102 provides a comprehensive array of services and supports that are geographically available, equitably and efficiently allocated statewide and in each grand division of the state, that allows people to be in their own community settings, based on the needs and choices of individuals and families served. Services and supports provided to persons generally and as part of the medical assistance program, pursuant to title 71, chapter 5, shall seek to alleviate geographic service and support disparities across the state and its grand divisions. In striving to alleviate the geographic disparities, the state should seek to allocate budget improvements and other new resources in a manner that promotes equitable distribution of services and supports among the grand divisions of the state.
1. In order to implement subsection (a), the state shall strive to avoid gaps in services and endeavor to achieve a delivery system that ensures that services are available to service recipients on a substantially equitable basis, regardless of place of residence within the state. To that end, the commissioner of finance and administration shall report to the health and welfare committee of the senate and the health committee of the house of representatives, no later than January 15, 2008, and annually thereafter, on the following indicators of equity in the service delivery system:
  1. The extent to which special services and programs such as programs for assertive community treatment (PACT), crisis stabilization units, resiliency and recovery programs, etc. are available on a substantially equitable basis throughout the state;
  2. The extent to which psychiatric and medical services of the same level, intensity, and duration are available on a substantially equitable basis throughout the state; and
  3. The extent to which rates of service utilization by service recipients are substantially equitable throughout the state.

Acts 2007, ch. 429, § 1; 2013, ch. 236, § 50.

Cross-References. Grand divisions, title 4, ch. 1, part 2.

Part 2
Service System Assessment and Planning

33-2-201. Three-year plan for services and supports — Annual budget request.

The department, on the basis of the statewide planning and policy council's recommendations, shall prepare and maintain on a continuing basis a three-year plan for all mental health services and supports for the state, including services and supports provided or funded by private service providers of all kinds. The department shall revise the plan annually on the basis of its assessment of the public's need for mental health services and supports.
The department shall base its annual budget request to the governor on that part of the three-year plan that the department proposes to be implemented with public funds during the budget year. The department shall report all service objectives and outcomes annually as a part of its three-year plan on which the budget is based.

Acts 2000, ch. 947, § 1; 2010, ch. 1100, § 33.

33-2-202. Developmental disabilities planning and policy, mental health planning and policy, and regional planning and policy councils established.

The department shall establish a state developmental disabilities planning and policy council, a state mental health planning and policy council, and regional citizen-based planning and policy councils composed of service recipients, family members of service recipients, service recipient advocates for children, adults, and the elderly, service providers, and other affected persons and organizations for the department's service areas. The councils shall:

Advise the statewide planning and policy council on the three-year plan, including the desirable array of prevention, early intervention, treatment, and habilitation services and supports for service recipients and their families, and such other matters as the commissioner or the statewide planning and policy council may request; and
Provide information and advice to the department on policy, formulation of budget requests, and development and evaluation of services and supports.

Acts 2000, ch. 947, § 1.

33-2-203. Councils — Purpose — Membership.

The councils are to provide citizen participation in policy planning and shall be representative of service recipients and their families, service recipient advocates for children, adults, and the elderly, service providers, agencies, and other affected persons and organizations. At least a majority of each council's membership shall consist of current or former service recipients and members of service recipient families.

Acts 2000, ch. 947, § 1.

Part 3
Setting Service Standards

33-2-301. Basic quality standards for services and supports.

The department shall set basic quality standards for services and supports to all persons served on the basis of mental illness, serious emotional disturbance, or developmental disabilities regardless of whether they are served by the department, the department's contractors, private service providers, other state or local public agencies, agencies licensed by the department, or private service providers that are not licensed under this title and regardless of whether the service recipients are in the custody of state or local government.
Basic quality standards shall be the same for all service recipients regardless of where they are served and by whom they are served. Basic quality standards may vary according to the ages of the service recipients to assure appropriate service for children, adults, and the elderly.

Acts 2000, ch. 947, § 1.

33-2-302. Regulation of compliance.

The department shall regulate compliance with basic quality standards to the extent otherwise authorized by this title. The department may monitor compliance with basic quality standards in all settings, including those over which it does not have regulatory authority. The department may monitor by inspections conducted by other state agencies as part of their regular duties.

Acts 2000, ch. 947, § 1.

33-2-303. Contracting for higher standards authorized.

The department may contract for higher performance standards than the basic quality standards or licensure standards.

Acts 2000, ch. 947, § 1.

Cross-References. Licensing of alcohol and drug abuse counselors, title 68, chapter 24, part 6.

Part 4
Mental Health, Alcohol and Drug Abuse Prevention and/or Treatment, Intellectual and Developmental Disabilities, and Personal Support Services Licensure Law

33-2-401. Short title.

This part shall be known and may be cited as the “Mental Health, Alcohol and Drug Abuse Prevention and/or Treatment, Intellectual and Developmental Disabilities, and Personal Support Services Licensure Law.”

Acts 1978, ch. 853, § 1; T.C.A., §§ 33-1801, 33-2-501; Acts 2000, ch. 947, § 1; 2001, ch. 282, § 2; 2012, ch. 1010, § 2.

Cross-References. Licensing of alcohol and drug abuse counselors, title 68, ch. 24, part 6.

33-2-402. Part definitions.

As used in this part, unless the context otherwise requires:

“Abuse” means the knowing infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain, or mental anguish;
“Alcohol and drug prevention and/or treatment facility” means an institution, treatment resource, group residence (boarding home, sheltered workshop, activity center), rehabilitation center, hospital, community mental health center, nonresidential office-based opiate treatment facility, nonresidential substitution-based treatment center for opiate addiction, DUI school, counseling center, clinic, halfway house, or other entity, by these or other names, providing alcohol and drug services; provided, that a DUI school operated by a state institution of higher education shall not be considered an alcohol and drug treatment facility for purposes of this chapter; provided, further, that “alcohol and drug prevention and treatment facility” does not include any facility otherwise licensed by the department or the department of health or approved by the department of education;
“Alcohol and drug services” includes evaluation, treatment, residential personal care, habilitation, rehabilitation, counseling or supervision of persons who abuse or are dependent upon alcohol or drugs, or services to persons designed to prevent alcohol or drug abuse or dependence that either receive funds from the department of health or assess fees for services provided; provided, that a DUI school operated by a state institution of higher education shall not be considered alcohol and drug services for purposes of this part;
“Commissioner” means the commissioner of mental health and substance abuse services, or, when applicable, the commissioner of intellectual and developmental disabilities, the commissioner's authorized representative, or in the event of the commissioner's absence or a vacancy in the office of commissioner, the deputy commissioner of mental health and substance abuse services, or, when applicable, the deputy commissioner of intellectual and developmental disabilities;
“Consumer direction” means a model of service delivery for certain medicaid home and community-based services in which the person receiving the services, family member, or other representative employs and supervises the individual who provides the services;
“Department” means the department of mental health and substance abuse services, or, when applicable, the department of intellectual and developmental disabilities;
“Facility” means a developmental center, treatment resource, group residence, boarding home, sheltered workshop, activity center, rehabilitation center, hospital, community mental health center, counseling center, clinic, group home, halfway house or any other entity that provides a mental health, intellectual or developmental disability service or an alcohol and drug abuse prevention and/or treatment facility;
“Licensee” means a proprietorship, a partnership, an association, a governmental agency, or corporation, that operates a facility or a service and has obtained a license under this part;
“Misappropriation of property” means the deliberate misplacement, exploitation, or wrongful, temporary or permanent use of belongings or money without consent;
“Neglect” means failure to provide goods or services necessary to avoid physical harm, mental anguish, or mental illness, which results in injury or probable risk of serious harm;
1. “Nonresidential office-based opiate treatment facility” includes, but is not limited to, stand-alone clinics, treatment resources, individual physical locations occupied as the professional practice of a prescriber or prescribers licensed pursuant to title 63, or other entities prescribing products containing buprenorphine, or products containing any other controlled substance designed to treat opiate addiction by preventing symptoms of withdrawal to twenty-five percent (25%) or more of its patients or to one hundred fifty (150) or more patients;
2. For the purposes of subdivision (11)(A), “physical location” means real property on which is located a physical structure, whether or not that structure is attached to real property, containing one (1) or more units and includes an individual apartment, office, condominium, cooperative unit, mobile or manufactured home, or trailer, if used as a site for prescribing or dispensing products containing buprenorphine, or products containing any other controlled substance designed to treat opiate addiction by preventing symptoms of withdrawal;
3. “Nonresidential office-based opiate treatment facility” does not include any facility that meets the definition of a nonresidential substitution-based treatment center for opiate addiction;
“Nonresidential substitution-based treatment center for opiate addiction” or “nonresidential opioid treatment program” includes, but is not limited to, stand-alone clinics offering methadone, products containing buprenorphine such as Subutex and Suboxone, or products containing any other formulation designed to treat opiate addiction by preventing symptoms of withdrawal;
“Personal support services” means nursing consultation, education services, and other personal assistance services as defined by rule, which are provided to individuals with substantial limitation in two (2) or more major life activities in either their regular or temporary residences, but does not mean direct nursing services provided in connection with an acute episode of illness or injury;
“Reputable and responsible character” means that the applicant or licensee can be trusted with responsibility for persons who are particularly vulnerable to abuse, neglect, and financial or sexual exploitation; and
“Service” includes any activity to prevent, treat, or ameliorate mental illness, serious emotional disturbance, alcohol and drug use, intellectual or developmental disabilities, which includes diagnosis, evaluation, residential assistance, training, habilitation, rehabilitation, prevention, treatment, counseling, case coordination, or supervision of persons with mental illness, alcohol and drug abuse issues, serious emotional disturbances, and intellectual or developmental disabilities.

Acts 1978, ch. 853, § 2; 1981, ch. 436, § 1; 1983, ch. 323, §§ 25, 26; T.C.A., § 33-1802; Acts 1987, ch. 143, § 1; 1987, ch. 248, § 3; 1988, ch. 828, §§ 3, 4; 1988, ch. 875, §§ 1, 2; 1989, ch. 513, §§ 1, 14; 1993, ch. 234, § 22; 1996, ch. 1074, § 1; T.C.A., § 33-2-502; Acts 2000, ch. 947, §§ 1, 6; 2001, ch. 282, § 1; 2003, ch. 103, § 1; 2003, ch. 242, § 2; 2009, ch. 186, §§ 46, 47; 2010, ch. 1100, §§ 24, 34, 35; 2011, ch. 158, § 14; 2012, ch. 575, §§ 1, 2; 2012, ch. 1010, § 3; 2016, ch. 912, §§ 1, 2; 2018, ch. 978, §§ 1, 2; 2019, ch. 89, § 1.

Acts 2016, ch. 912, § 5 provided that the commissioner of mental health and substance abuse services, upon consultation with the commissioner of health, is authorized to promulgate rules to implement this act in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Medication assisted treatment guidelines, developed by nationally recognized addiction treatment organizations, such as the United States department of health and human services' substance abuse and mental health services agency, the United States department of health and human services' national institute on drug abuse, and the American Society of Addiction Medicine, shall serve as a guide to the development of the rules.

Acts 2016, ch. 912, § 6 provided that notwithstanding this act or the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, any rule promulgated to implement the provisions of this act shall be provided to the chairs of the health committee of the house of representatives and the health and welfare committee of the senate by the secretary of state, after approval by the attorney general and reporter, at the same time the text of the rule is made available to the government operations committees of the senate and the house of representatives for purposes of conducting the review required by § 4-5-226 in order for the health committee of the house of representatives and the health and welfare committee of the senate to be afforded the opportunity to comment on the rule.

Amendments. The 2016 amendment, effective January 1, 2017, inserted “nonresidential office-based opiate treatment facility, nonresidential substitution-based treatment center for opiate addiction,” in the definition of “Alcohol and drug prevention and/or treatment facility”; and added the definitions of “nonresidential office-based opiate treatment facility" and “ ‘nonresidential substitution-based treatment center for opiate addiction’ or ‘nonresidential opioid treatment program’”.

The 2018 amendment, in the definition of “‘Nonresidential office-based opiate treatment facility’”, substituted “twenty-five percent (25%) or more of its patients or to one hundred fifty (150) or more patients” for “to fifty percent (50%) or more of its patients and to one hundred fifty (150) or more patients” at the end of (10)(A) and added (10)(C).

The 2019 amendment added the definition of “consumer direction”.

Effective Dates. Acts 2016, ch. 912, § 7. January 1, 2017; provided that for purposes of rulemaking, the act took effect on April 27, 2016.

Acts 2018, ch. 978, § 15. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Acts 2019, ch. 89, § 5. April 4, 2019.

Cross-References. Definitions applicable throughout title, § 33-1-101.

Peer review committees, confidentiality of information, § 63-11-220.

Regulation of health and related facilities, title 68, ch. 11, part 2.

Attorney General Opinions. Regulation of DUI programs at state universities, OAG 88-08, 1988 Tenn. AG LEXIS 15 (1/11/88).

Private group homes, medication administration by unlicensed staff members, OAG 88-09, 1988 Tenn. AG LEXIS 11 (1/11/88).

33-2-403. Licensure of mental health, substance abuse, and intellectual and developmental disabilities services and facilities — Exemptions — Rules.

The departments have the authority to license services and facilities operated for the provision of mental health services, alcohol and drug abuse prevention or treatment, for the provision of services for intellectual and developmental disabilities, and for personal support services. The department of mental health and substance abuse services shall license services and facilities operated for persons with mental illness or serious emotional disturbance or in need of alcohol and drug abuse prevention or treatment services. Subject to subsection (c), the department of mental health and substance abuse services shall also license personal support services for the aged as well as persons with mental illness. Subject to subsection (c), services and facilities operated for persons with intellectual or developmental disabilities and personal support services for persons with intellectual or developmental disabilities shall be licensed by the department of intellectual and developmental disabilities. A personal support services agency licensed by either department may also serve individuals with physical or other disabilities. Notwithstanding any references in this part to the licensing of “facilities” or “services,” only persons, proprietorships, partnerships, associations, governmental agencies, or corporations may be listed on license applications or licenses as the licensed entity.
The following are exempt from licensing under this part:
1. Private practitioners who are authorized to practice by the boards of healing arts and only in private practice in that capacity. This subdivision (b)(1) shall not apply to a private practitioner, prescriber, or prescribers operating a nonresidential office-based opiate treatment facility, as defined in § 33-2-402;
2. A person providing personal care solely to one (1) person with mental illness, serious emotional disturbance or developmental disability, or other service recipient receiving personal support services and not in a business arrangement with any other service recipient. This exception shall not apply to an individual who holds out to the public as being in the business of personal support services for compensation;
3. An individual providing service or support only to members of the person's own family or relatives;
4. An individual providing service or support that is not subject to licensing under any other title of the code and doing so only on a part-time basis as defined in department rules;
5. Foster homes that accept placements only from agencies of state government or licensed child-placing agencies;
6. Services or facilities providing employee assistance programs;
7. Services or facilities providing only employment placement;
8. Facilities that are appropriately licensed by the department of health as a:
  1. Hospital whose primary purpose is not the provision of mental health or developmental disabilities services; or
  2. Satellite hospital, as defined by rules of the department of health, whose primary purpose is the provision of mental health or developmental disabilities services, and that the department verifies to the department of health as satisfying standards under this chapter;
9. Facilities that are operated by state, county, or municipal departments of education, the department of correction, the department of human services, or the department of children's services and that affirmatively state that the primary purpose of the facility is other than the provision of mental health, alcohol and drug abuse prevention and/or treatment services or intellectual or developmental disabilities services; and
10. A person providing direct care services to no more than three (3) people receiving services through consumer direction in a medicaid home- and community-based services program. This subdivision (b)(10) does not apply to an individual who holds out to the public as being in the business of providing personal support services for compensation.
1. A service or facility that can demonstrate compliance with rules and standards by a current personal support services license from another state agency is considered in compliance with rules and standards under this part so that duplicate licensing is not necessary. Personal support services agencies that provide services for the aged or persons with mental illness and persons with intellectual or developmental disabilities shall not be required to obtain a license from both departments. The departments shall work together to ensure that licensure standards for personal support services agencies are appropriate across all of the populations that may be served and are consistently applied.
2. The licensing entity shall be determined based on the larger population served by the agency as of April 10, 2015, or in the case of new applicants for licensure, the larger population anticipated to be served by the agency at the time of licensure application.
1. The department shall appoint a review panel to review periodically all exclusions and waivers granted under the licensure law and perform other duties under this part. The department's legal counsel shall advise the panel.
2. The panel's membership shall be:
  1. The commissioner or the commissioner's designee;
  2. For the mental health panel, a representative of licensed community mental health services and a representative of licensed alcohol and drug abuse prevention and/or treatment services;
  3. For the intellectual and developmental disabilities panel, a representative of licensed intellectual disability community services and a representative of licensed developmental disability community services;
  4. For the mental health panel, a representative of a licensed residential facility for persons with mental illness or serious emotional disturbance and a representative of a licensed residential facility for alcohol and drug abuse prevention and/or treatment services;
  5. For the intellectual and developmental disabilities panel, a representative of a licensed residential facility for persons with intellectual and developmental disabilities;
  6. For the mental health panel, a representative of a licensed residential mental health facility for children and youth;
  7. Five (5) service recipient representatives; and
  8. A representative of a personal support services agency.
3. The panel shall elect a chair and vice chair and shall report any findings directly to the commissioner.
4. The vote of a majority binds the panel.
5. Travel expenses for panel members shall be reimbursed. All reimbursement for travel expenses shall be in conformity with the comprehensive state travel regulations as promulgated by the commissioner of finance and administration and approved by the attorney general and reporter.
The license holder of a nonresidential office-based opiate treatment facility shall ensure that adequate billing records are maintained, in any format, onsite at the nonresidential office-based opiate treatment facility and shall ensure that adequate billing records are maintained for all patients and for all patient visits. Billing records shall be maintained for a period of three (3) years from the date of the patient's last treatment at the nonresidential office-based opiate treatment facility. Billing records shall be made for all methods of payment. Billing records shall be made available to the department upon request. Billing records shall include, but not be limited to, the following:
1. The amount paid for services;
2. Method of payment;
3. Date of the delivery of services;
4. Date of payment; and
5. Description of services.
The license holder of a nonresidential office-based opiate treatment facility shall ensure that records of all bank deposits of cash payments for services provided at the nonresidential office-based opiate treatment facility are maintained, in any format, at the nonresidential office-based opiate treatment facility for a period of three (3) years.
The license holder of a nonresidential office-based opiate treatment facility shall ensure that patient medical records are maintained, in any format, for a period of ten (10) years from the date of the patient's last treatment at the facility.
By January 1, 2019, the commissioner of mental health and substance abuse services shall revise rules for nonresidential office-based opiate treatment facilities to be consistent with state and federal law and to establish:
1. Standards for determining what constitutes a high dose of the opioid employed in treatment at a nonresidential office-based opiate treatment facility;
2. Protocols for initiating or switching a patient at a nonresidential office-based treatment facility to a high dose of the opioids employed in treatment; and
3. Protocols for initiating periodic prescriber-initiated-and-led discussions with patients regarding patient readiness to taper down or taper off the opioids employed in treatment.
The commissioner is authorized to use emergency rulemaking under § 4-5-208 to promulgate the rules pursuant to subsection (h). The rules must be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
1. Beginning in 2020, the commissioner of mental health and substance abuse services shall review the rules for nonresidential office-based opiate treatment facilities by September 30 of each even-numbered year.
2. The commissioner of mental health and substance abuse services shall submit the rules for nonresidential office-based opiate treatment facilities to each health-related board that licenses any practitioner authorized by the state to prescribe the products for the treatment of an opioid use disorder as defined in the Diagnostic and Statistical Manual of Mental Disorders and to the board of pharmacy.
3. 1. Each board shall review the rules and enforce the rules with respect to that board's licensees.
  2. When a board's licensees are subject to the rules for nonresidential office-based opiate treatment facilities, the definition of “enforce” for purposes of this subdivision (j)(3) means referring any complaints or information regarding those licensees to the department.
4. Each board shall post the rules on the licensing board's website.
1. The commissioner of mental health and substance abuse services shall provide a copy of any emergency rule developed pursuant to subsection (h) or (i) and any revision to a rule developed pursuant to subsection (j) to the chairs of the health committee of the house of representatives and the health and welfare committee of the senate at the same time the rules are submitted to the licensing boards pursuant to subdivision (j)(2).
2. The commissioner of mental health and substance abuse services shall provide a copy of any rule developed pursuant to subsection (h) or (j) and any revision to a rule developed pursuant to subsection (j) to the chairs of the health committee of the house of representatives and the health and welfare committee of the senate at the same time the text of the rule is made available to the government operations committees of the senate and the house of representatives for purposes of conducting the review required by § 4-5-226 in order for the health committee of the house of representatives and the health and welfare committee of the senate to be afforded the opportunity to comment on the rule.
A violation of a rule described in subsections (h) and (j) is grounds for disciplinary action against a practitioner licensed under title 63 by the board that licensed that practitioner.

Acts 1978, ch. 853, §§ 2, 3, 13; 1981, ch. 436, § 1; 1983, ch. 323, §§ 25, 26, 31; T.C.A., § 33-1802; Acts 1987, ch. 143, § 1; T.C.A., § 33-1812; Acts 1987, ch. 248, §§ 2, 3; T.C.A., § 33-1803; Acts 1988, ch. 828, §§ 3-5; 1988, ch. 875, §§ 1, 2; 1989, ch. 513, §§ 1, 14; 1989, ch. 559, § 1; 1993, ch. 234, §§ 22, 23; 1994, ch. 760, § 1; 1996, ch. 1074, § 1; T.C.A., §§ 33-2-502, 33-2-503, 33-2-512; Acts 2000, ch. 947, §§ 1, 6; 2001, ch. 282, § 3; 2002, ch. 730, § 2; 2007, ch. 304, § 1; 2010, ch. 1100, § 24; 2012, ch. 575, § 1; 2012, ch. 1010, §§ 4-6; 2015, ch. 110, §§ 1, 2; 2016, ch. 912, §§ 3, 4; 2018, ch. 978, § 3; 2019, ch. 89, §§ 2-4.

Acts 2016, ch. 912, § 5 provided that the commissioner of mental health and substance abuse services, upon consultation with the commissioner of health, is authorized to promulgate rules to implement the act in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Medication assisted treatment guidelines, developed by nationally recognized addiction treatment organizations, such as the United States department of health and human services' substance abuse and mental health services agency, the United States department of health and human services' national institute on drug abuse, and the American Society of Addiction Medicine, shall serve as a guide to the development of the rules.

Acts 2016, ch. 912, § 6 provided that notwithstanding the act or the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, any rule promulgated to implement the provisions of this act shall be provided to the chairs of the health committee of the house of representatives and the health and welfare committee of the senate by the secretary of state, after approval by the attorney general and reporter, at the same time the text of the rule is made available to the government operations committees of the senate and the house of representatives for purposes of conducting the review required by § 4-5-226 in order for the health committee of the house of representatives and the health and welfare committee of the senate to be afforded the opportunity to comment on the rule.

Amendments. The 2015 amendment, in (a), deleted “and/” preceding “or” preceding “treatment” twice and “serious emotional disturbance” in the first sentence, added “Subject to subsection (c),” in the third sentence, and added the fourth sentence; and rewrote (c), which read: “A service or facility that can demonstrate compliance with rules and standards by a previously acquired license from another state agency is considered in compliance with rules and standards under this part to the extent that duplicate inspection and enforcement are necessary.”

The 2016 amendment, effective January 1, 2017, rewrote (b)(1) which read: “(1) Private practitioners who are both:“(A) Authorized to practice by the boards of healing arts; and“(B) Only in private practice in that capacity;”; and added (e)-(g).

The 2018 amendment added (h) through (l ).

The 2019 amendment added (b)(10).

Effective Dates. Acts 2015, ch. 110, § 3. April 10, 2015.

Acts 2016, ch. 912, § 7. January 1, 2017; provided that for purposes of rulemaking, the act took effect on April 27, 2016.

Acts 2018, ch. 978, § 15. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

Acts 2019, ch. 89, § 5. April 4, 2019.

Attorney General Opinions. Private group homes, medication administration by unlicensed staff members, OAG 88-09, 1988 Tenn. AG LEXIS 11 (1/11/88).

Licensure of providers of mental health or mental retardation services, OAG 95-109, 1995 Tenn. AG LEXIS 124 (10/19/95).

33-2-404. Rules for licensure — Amendment of rules.

Each department shall adopt rules for licensure of services and facilities regarding adequacy of services, qualification of professional staff, and facility conditions. A department shall require for licensure satisfaction of basic quality standards set under part 3 of this chapter, as applicable, and may require higher standards. The rules shall include consideration of the adequacy of environment, life safety, treatment or habilitation services, education and training requirements of the staff, and other considerations that a department deems necessary to determine the adequacy of the provision of mental health, alcohol and drug abuse prevention and/or treatment, and intellectual and developmental disabilities services. Each department may adopt rules for the administration of the licensure program.
Notwithstanding any law to the contrary, each department shall have the authority to amend its rules for licensure as needed to be consistent with the federal home-based and community-based settings final rule, published in the Federal Register at 79 FR 2947 (January 16, 2014), including the authority to differentiate licensure requirements for any entity contracted to provide medicaid-reimbursed home- and community-based services in order to allow the facility or entity to comply with the federal rule and continue to receive medicaid reimbursement for home- and community-based services. Rules adopted by the department under this subsection (b) shall be developed with input from stakeholders and promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5; provided, however, that the department shall not promulgate emergency rules under this subsection (b) as defined in § 4-5-208. Licensure survey and enforcement shall be conducted in a manner consistent with any rule issued under this subsection (b).

Acts 1978, ch. 853, § 4; T.C.A., § 33-1804; Acts 1985, ch. 437, § 5; 1993, ch. 234, § 24; T.C.A., § 33-2-504; Acts 2000, ch. 947, § 1; 2012, ch. 1010, § 7; 2015, ch. 153, § 1.

Amendments. The 2015 amendment added (b).

Effective Dates. Acts 2015, ch. 153, § 4. April 16, 2015.

33-2-405. Operation of unlicensed facility unlawful — Penalty.

It is unlawful for a person, partnership, association or corporation to own or operate a service or facility that provides mental health, alcohol and drug abuse prevention and/or treatment or intellectual or developmental disability services, or personal support services within the meaning of this title without having obtained a license as required by this part.
A violation of this requirement is a Class B misdemeanor.
Each day of operation without a license constitutes a separate offense.

Acts 1978, ch. 853, § 5; 1981, ch. 436, § 2; T.C.A., § 33-1805; Acts 1989, ch. 591, § 112; T.C.A., § 33-2-505; Acts 2000, ch. 947, § 1; 2001, ch. 282, § 4; 2012, ch. 1010, § 8.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

33-2-406. Application for licensure.

A person, proprietorship, partnership, association, corporation, or any state, county or local governmental unit or any division, department, board or agency of government shall obtain a license from a department in order to lawfully establish, conduct, operate, or maintain a service or facility that provides mental health, alcohol and drug abuse prevention and/or treatment, intellectual or developmental disability, or personal support services.
The applicant shall submit an application on a department’s form showing that the applicant is of reputable and responsible character and able to comply with the minimum standards for a service or facility providing mental health, alcohol and drug abuse prevention and/or treatment, intellectual or developmental disability services, or personal support services. The application will also show the applicant is able to comply with the department’s rules adopted under this part. The application shall contain the following additional information:
1. The name of the applicant;
2. The type of facility or service;
3. The location;
4. The name of the person or persons to be in charge; and
5. Any other information as a department may require.
The department may approve the issuance of a license upon the application without further evidence, or, in its discretion, it may conduct its own investigation.
1. Proof that a person or business has a personal or business history in any jurisdiction of:
  1. Operation of substandard services or facilities; or
  2. A felony conviction
    creates a presumption that the applicant or licensee does not have reputable and responsible character.
2. An applicant denied a license on the basis of the presumption may request a hearing for the purpose of rebutting the presumption created by this subsection (d).
A license shall not be issued or renewed if the applicant, or any chief executive officer or director of the applicant, does not have reputable and responsible character.
If the department determines that a license should not be granted, it shall notify the applicant. Within fifteen (15) days of notification of denial, the applicant may file a written request for review by the panel appointed under § 33-2-403(d). The review shall be at the earliest possible date, and recommendations shall be reported to the commissioner. The commissioner shall determine whether the original license denial shall remain effective and shall notify the applicant. Within fifteen (15) days of notification, the applicant may file a written request for a hearing before the department. The hearing shall be conducted under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
If the department determines that the applicant complies with and will in the future comply with this part and rules adopted under this title and has a reputable and responsible character, the department shall issue a license.
1. A license is valid for up to one (1) year from the date of issuance. A license may be issued only for the premises or services named in the application, must be posted in a conspicuous place at the service or facility, and may be renewed from year to year. A license is not assignable or transferable except as permitted by § 33-2-418(b)(3). The department may charge a reasonable fee for processing the application and issuance of licenses.
2. 1. Notwithstanding this part, beginning July 1, 2018, the licensing fee for a nonresidential office-based opiate treatment facility is one thousand five hundred dollars ($1,500) per year. On or after July 1, 2019, the department may revise the fee by rule as otherwise permitted by law.
  2. Notwithstanding this part, beginning July 1, 2018, the department shall apply a reinspection fee of five hundred dollars ($500) to a nonresidential office-based opiate treatment facility. On or after July 1, 2019, the department may revise the fee by rules as otherwise permitted by law.

Acts 1978, ch. 853, §§ 2, 6; 1981, ch. 436, §§ 1, 3; 1983, ch. 323, §§ 25-27; T.C.A., § 33-1802; Acts 1987, ch. 143, § 1; T.C.A., § 33-1806; Acts 1987, ch. 248, §§ 2, 3; 1988, ch. 828, §§ 3, 4, 6, 7; 1988, ch. 875, §§ 1, 2; 1989, ch. 434, § 5; 1989, ch. 513, §§ 1, 14; 1989, ch. 559, § 2; 1991, ch. 459, §§ 9, 10; 1992, ch. 913, § 2; 1993, ch. 234, §§ 22, 25; 1996, ch. 1074, § 1; T.C.A., §§ 33-2-502, 33-2-506; Acts 2000, ch. 947, §§ 1, 6; 2001, ch. 282, § 5; 2002, ch. 730, § 3; 2012, ch. 1010, § 9; 2018, ch. 978, § 4.

Amendments. The 2018 amendment added (h)(2).

Effective Dates. Acts 2018, ch. 978, § 15. July 1, 2018; provided that for purposes of rulemaking, the act took effect on May 21, 2018.

33-2-407. Suspension or revocation of license — Civil penalties.

The department may suspend or revoke a license on the following grounds:
1. A violation of this title or rules adopted under this title;
2. Permitting, aiding or abetting the commission of any illegal act during a licensed service or in a licensed facility;
3. Conduct or practice found by the department to be detrimental to the welfare of the service recipients of a licensed service or facility; or
4. Abuse, misappropriation of property or neglect.
The department may impose a civil penalty on a licensee for a violation of this title or a department rule. Each day of a violation constitutes a separate violation. The department shall establish by rule a schedule designating the minimum and maximum civil penalties within the ranges set in § 33-2-409 that may be assessed under this part for violation of each statute and rule that is subject to violation. The department may exclude a statute or rule from the schedule if it determines that a civil penalty for violation of that statute or rule would not achieve the purposes of licensure. If the department has not adopted a rule designating the minimum and maximum civil penalty that may be assessed for violation of a statute or rule, the maximum civil penalty that may be imposed for violation of that statute or rule shall be the lowest figure set under the appropriate subsection of § 33-2-409 that applies to the violation.
1. The procedure governing the suspension or revocation of a license or imposition of a civil penalty shall be as prescribed in this subsection (c).
2. A complaint shall be filed by the department stating facts constituting a ground or grounds for the proposed action.
3. If the department determines that a license should be suspended or revoked, a civil penalty imposed, or both, it shall so notify the licensee. Within fifteen (15) days of notification, the licensee may file a written request for review by the panel appointed under § 33-2-403(d). The review shall be at the earliest possible date, and the panel shall report its recommendations to the commissioner. The commissioner shall determine whether the original action shall remain effective and shall notify the licensee. Within fifteen (15) days of notification, the licensee may file a written request for a hearing before the department. The hearing shall be conducted under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.
4. The department may determine after the hearing that the license be suspended or revoked, that a civil penalty be imposed, or that no action be taken.
5. If the department determines that a license should be suspended, the department may also set the conditions to be met by the licensee during the period of suspension to entitle the licensee to resume operation of the service or facility.
6. If the department determines that a license should be suspended or revoked, a civil penalty should be imposed, or both, the department shall enter an order stating the grounds for the action.
7. The department may, after a hearing, hold a case under consideration and specify requirements to be met by a licensee to avoid either suspension, revocation, or civil penalty. In those cases, the department shall enter an order accordingly and notify the licensee by certified mail. If the licensee complies with the order and proves that fact to the satisfaction of the department, the department shall enter an order showing satisfactory compliance and dismiss the case because of compliance.
If a civil penalty lawfully imposed under this part is not paid, the penalty shall be recoverable in the name of the state by the attorney general and reporter in the chancery court of Davidson County or by legal counsel for the department in the chancery court of the county in which all or part of the violation occurred.

Acts 1978, ch. 853, § 7; 1981, ch. 436, § 4; T.C.A., § 33-1807; Acts 1989, ch. 559, § 3; T.C.A., § 33-2-507; Acts 2000, ch. 947, § 1; 2003, ch. 103, § 2.

Cross-References. Suspension or revocation of license for abuse in operation of facility, § 33-2-415.

33-2-408. Sanctions against licensed entities.

All proceedings by the department of intellectual and developmental disabilities (DIDD) to impose sanctions against licensed entities under this title shall be conducted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The proceedings shall include notice and opportunity for a hearing before an administrative law judge who shall issue an initial order.
Sanctions shall include any action by DIDD, based upon alleged deficient practices of the licensed entity, to impose financial or contractual penalties, including the following:
1. Financial penalties shall include fines, liquidated damages or denial, withholding or delay of a payment;
2. Imposition of moratoria on admissions when the limitations are unrelated to state budget considerations; or
3. Actions against the entity based upon allegations that the entity is responsible for abuse, neglect, exploitation, misappropriation or mistreatment of an individual for whom the entity is responsible.
Sanctions do not include any action to recoup moneys that are determined by DIDD to be unearned, according to stipulations specified in the provider agreement between DIDD and the provider.
This section shall not prevent termination of any contract with the licensed entity in accordance with the provisions of that contract. In those cases the contractor shall have only the due process rights, if any, otherwise provided by law regarding termination of state contracts.
All sanctions, except for financial sanctions, may be imposed immediately by DIDD. This does not prevent the provider from appealing the decision using the process as provided in the Uniform Administrative Procedures Act.
These requirements shall not prevent the DIDD or the provider from pursuing alternative means of resolving issues related to sanctions while the process as provided in the Uniform Administrative Procedures Act is pending.

Acts 2001, ch. 299, § 1; 2009, ch. 477, § 1; 2010, ch. 1100, § 32; 2011, ch. 158, § 15.

Compiler's Notes. Former § 33-2-408, concerning amount of civil penalties, was transferred to § 33-2-409 by Acts 2001, ch. 299, § 1.

33-2-409. Amount of civil penalties.

A civil penalty of not less than two hundred fifty dollars ($250) and not more than five hundred dollars ($500) may be imposed on a licensee for a violation of a statute or rule.
A civil penalty of not less than five hundred dollars ($500) and not more than five thousand dollars ($5,000) may be imposed on a licensee for a second or subsequent violation of the same kind committed within twelve (12) months of the first penalty being imposed.

Acts 2000, ch. 947, § 1; T.C.A. § 33-2-408; Acts 2001, ch. 299, § 1.

Compiler's Notes. Former § 33-2-409, concerning the service recipient protection trust fund, was transferred to § 33-2-410 by Acts 2001, ch. 299, § 1.

33-2-410. Service recipient protection trust fund.

The commissioner shall establish and maintain a service recipient protection trust fund, created by the deposit of all civil penalty moneys collected under this part.
The trust fund shall be maintained for the purpose of protecting the service recipients of a facility or service, whose noncompliance with the conditions of continued licensure, applicable state and federal statutes, rules, or contractual standards threatens the service recipients' care or property or the facility's or service's continued operation.
Notwithstanding any law to the contrary, trust funds remaining unspent at the end of the fiscal year shall be carried over into the budget of the department for the subsequent fiscal year, and shall continue to be carried over from year to year until expended for the purposes prescribed in this section.

Acts 2000, ch. 947, § 1; T.C.A. § 33-2-409; Acts 2001, ch. 299, § 1.

Compiler's Notes. Former § 33-2-410, concerning surveyor notification to licensee of violations, was transferred to § 33-2-411 by Acts 2001, ch. 299, § 1.

33-2-411. Surveyor to notify licensee of violations.

If a licensure surveyor finds a violation of a statute or rule that may be a ground for a civil penalty, the surveyor shall advise the licensee of the finding orally before concluding the survey.

Acts 2000, ch. 947, § 1; T.C.A. § 33-2-410; Acts 2001, ch. 299, § 1; 2004, ch. 565, § 1.

Compiler's Notes. Former § 33-2-411, concerning suit to enjoin services rendered without license or under suspended or revoked license, was transferred to § 33-2-412 by Acts 2001, ch. 299, § 1.

33-2-412. Suit to enjoin services rendered without license or under suspended or revoked license.

A department may sue to enjoin any person, partnership, association or corporation from establishing, conducting, managing or operating any service or facility providing mental health, alcohol and drug abuse prevention and/or treatment, intellectual or developmental disability services, or personal support services within the meaning of this part without having obtained a license or while its license has been suspended or revoked. Suit may be brought in the name of the state by the attorney general and reporter in the chancery court of Davidson County or by legal counsel for a department in the chancery court of the county in which all or part of the violations occurred.
In charging any defendant in a complaint for injunction, it shall be sufficient to charge that the defendant did, upon a certain day and in a certain county, establish, conduct, manage or operate a service or facility providing mental health, alcohol and drug abuse prevention and/or treatment, intellectual or developmental disability services, or personal support services or that the defendant is about to do so without having a license, without averring any further or more particular facts concerning the case.

Acts 1978, ch. 853, § 8; 1981, ch. 436, § 5; T.C.A., § 33-1808; Acts 1988, ch. 828, § 8; 1993, ch. 234, § 26; T.C.A., § 33-2-508; Acts 2000, ch. 947, § 1; T.C.A. § 33-2-411; Acts 2001, ch. 282, § 6; 2001, ch. 299, § 1; 2012, ch. 1010, § 10.

Compiler's Notes. Former § 33-2-412, concerning inspections of facilities, was transferred to § 33-2-413 by Acts 2001, ch. 299, § 1.

33-2-413. Inspections of facilities.

The department shall make at least one (1) unannounced life safety and environmental inspection of each licensed service or facility yearly. The department shall inspect for quality standards all licensees that contract with the department as part of its contract monitoring. The department shall inspect for quality standards all licensees that do not contract with the department. The department may deem a service or facility in compliance without inspection if the service or facility meets another government agency's certification or accreditation requirements provided for in rules of the department.
With or without giving notice, the department may enter the premises and inspect any applicant or licensee when a complaint is filed with the department against the applicant or licensee or when the department otherwise deems inspection in the interest of service recipients. Inspection may include review of physical plant, program, activities, and applicant or licensee records.
The department may charge a fee for any service or facility inspection in an amount not to exceed fifty dollars ($50.00).
If the department finds noncompliance with life safety or food service standards relating to non-life threatening issues, the department shall refer the findings to the state or local agency responsible for life safety or food service inspection for re-inspection or review in accordance with life safety or food service standards. The department will accept the state or local agency's determination.
The department shall, to the extent practicable, coordinate life safety inspections to avoid duplication without good cause in the same calendar year by other government agencies that apply substantially the same standards.
The department shall include in its annual inspection of each hospital licensed under this title a determination of the hospital's compliance with the reporting requirements of § 33-3-117. The hospital must document its compliance with a record of its communication with local law enforcement with respect to the commitments. A hospital's failure to comply with the reporting requirements shall subject the hospital to civil penalties or other action against the hospital's license under § 33-2-407.

Acts 1978, ch. 853, § 9; 1983, ch. 323, §§ 28, 29; T.C.A., § 33-1809; Acts 1989, ch. 559, § 4; T.C.A., § 33-2-509; Acts 2000, ch. 947, § 1; T.C.A. § 33-2-412; Acts 2001, ch. 299, § 1; 2018, ch. 1015, § 1.

Compiler's Notes. Former § 33-2-413, concerning departmental assistance to applicants and to service recipients affected by license denial, suspension or revocation, was transferred to § 33-2-414 by Acts 2001, ch. 299, § 1.

Amendments. The 2018 amendment added (f).

Effective Dates. Acts 2018, ch. 1015, § 4. July 1, 2018.

33-2-414. Departmental assistance to applicants and to service recipients affected by license denial, suspension or revocation.

The department may provide assistance to applicants for a license under this part. The department shall provide assistance in placing service recipients who are adversely affected by denial, suspension, or revocation of a license under this part.

Acts 1978, ch. 853, § 11; T.C.A., §§ 33-1810; 33-2-510; Acts 2000, ch. 947, § 1; T.C.A. § 33-2-413; Acts 2001, ch. 299, § 1.

Compiler's Notes. Former § 33-2-414, concerning provisional licenses, was transferred to § 33-2-415 by Acts 2001, ch. 299, § 1.

33-2-415. Provisional licenses.

The department may grant a provisional license for up to one (1) year to a service or facility if:
1. The service or facility is making a diligent effort to comply with standards adopted under this part;
2. The continued operation of the service or facility will not endanger the health or safety of its service recipients;
3. The continued operation of the service or facility is necessary because care is not otherwise reasonably available for its service recipients;
4. The service or facility has submitted an acceptable compliance plan specifying how and when deficiencies will be corrected; and
5. The service or facility has substantially met the commitments made in the preceding year's compliance plan, if any.
Failure to meet the commitments made in the compliance plan is a ground for revocation or suspension of the license.
Copies of provisional licenses and compliance plans shall be maintained in a central location and are open to public inspection.

Acts 1978, ch. 853, § 12; 1979, ch. 199, § 1; 1983, ch. 323, § 30; T.C.A., §§ 33-1811, 33-2-511; Acts 2000, ch. 947, § 1; T.C.A. § 33-2-414; Acts 2001, ch. 299, § 1.

Compiler's Notes. Former § 33-2-415, concerning requirement that department investigate reports of abuse, dereliction or deficiency in operation of facility, private cause of action, and departmental remedies, was transferred to § 33-2-416 by Acts 2001, ch. 299, § 1.

33-2-416. Department to investigate reports of abuse, dereliction or deficiency in operation of facility — Private cause of action — Departmental remedies.

The department shall investigate reports of serious abuse, dereliction or deficiency in the operation of a licensed service or facility.
1. A person making any report or investigation pursuant to this part, including representatives of the department in the reasonable performance of their duties and within the scope of their authority, shall be presumed to be acting in good faith and shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed.
2. Any such person shall have the same immunity with respect to participation in any judicial proceeding resulting from the report or investigation.
3. Any person making a report under this part shall have a civil cause of action for appropriate compensatory and punitive damages against any person who causes a detrimental change in the employment status of the reporting party by reason of the report.
1. The commissioner shall suspend or revoke the license of any service or facility if serious abuse, dereliction or deficiency is found and not corrected in a reasonable time.
2. The commissioner, in the commissioner's discretion, may suspend enrollment in a service or facility pending resolution of the investigation or of proceedings to suspend, revoke, or deny the license, or until the service or facility corrects any serious abuse, dereliction, or deficiency found in the course of the investigation. The commissioner may suspend enrollment in a licensed service or facility based on probable cause to believe that serious abuse, dereliction, or deficiency in the operation of the licensed service or facility has occurred or would occur without suspension of enrollment. Suspension of enrollment shall not exceed a period of one hundred twenty (120) days except that, in the discretion of the commissioner, the period may be extended for an additional period not to exceed one hundred twenty (120) days. Nothing in this part takes away from the right of the department to issue an order of summary suspension of the license pursuant to § 4-5-320(c) and (d).

Acts 1978, ch. 853, § 13; 1983, ch. 323, § 31; T.C.A., § 33-1812; Acts 1987, ch. 248, § 2; 1994, ch. 760, § 1; T.C.A., § 33-2-512; Acts 2000, ch. 947, § 1; T.C.A. § 33-2-415; Acts 2001, ch. 299, § 1.

Compiler's Notes. Former § 33-2-416, concerning the provision of services without license, actions by commissioner, and violations, was transferred to § 33-2-417 by Acts 2001, ch. 299, § 1.

Cross-References. Suspension or revocation of license, § 33-2-407.

33-2-417. Provision of services without license — Actions by commissioner — Violations.

If a commissioner finds that a service or facility is providing mental health, alcohol and drug abuse prevention and/or treatment, intellectual or developmental disability services, or personal support services without a license, the commissioner may, without prior notice, order the service or facility immediately to cease and desist from providing mental health, alcohol and drug abuse prevention and/or treatment, intellectual or developmental disability services, or personal support services. Before issuing a cease and desist order, the commissioner shall find that entering the order is in the public interest; necessary for the protection of the health, safety, or welfare of the service recipients of the service or facility; and consistent with the purposes fairly intended by this part.
The order shall state the relevant findings of fact and conclusions of law that support the commissioner's finding that entering the order without prior notice is in the public interest, necessary for the protection of the service recipients of the service or facility, and consistent with this part. The order shall provide notice to the respondent of the respondent's rights and responsibilities concerning review of the order.
1. The owner of the service or facility ordered to cease and desist operation may seek review of the order before the commissioner or the commissioner's designee under this subsection (c).
2. The owner or legal representative of the service or facility may request an informal conference before the commissioner or the commissioner's designee. The request shall be filed with the commissioner within thirty (30) days of entry of the order. The commissioner or the commissioner's designee shall convene the requested informal conference within seven (7) days of the date of receipt of the request. The conference is informal and the service or facility has the right to be represented by counsel at all stages of the informal conference.
3. The sole issue to be determined at the informal conference is whether the service or facility was operating without a license as required by this part prior to or concurrently with the date of the entry of the order. This part and its rules control this determination. At the conference the commissioner may uphold, amend, or rescind the cease and desist order. Unless contested under subdivision (c)(4), the original or amended cease and desist order becomes a final order within seven (7) days.
4. If the commissioner or the commissioner's designee determines, as a result of the informal conference, that the cease and desist order should be amended or should not be rescinded, the owner or legal representative of the service or facility may seek review of the order under the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, part 3. The request shall be made in writing to the commissioner within seven (7) days of receipt of written notice of the commissioner's decision. Upon receipt of the request, the commissioner shall immediately refer the matter to the department of state for initiation of contested case proceedings.
5. If the respondent fails to request an informal conference under subdivision (c)(1), then the cease and desist order becomes a final order of the commissioner within thirty (30) days of its entry. The service or facility may obtain judicial review of this final order in the chancery court of Davidson County under the Uniform Administrative Procedures Act.
It is a Class B misdemeanor to violate a cease and desist order lawfully entered by the commissioner. Each day of operation in violation of the commissioner's cease and desist order, calculated from the date of its service upon the owner or operator of the service or facility, is a separate offense.
Nothing in this part precludes any person, including the department, who is aggrieved by the operation of an unlicensed service or facility from pursuing other remedies and sanctions, including those provided by §§ 33-2-405 and 33-2-412.

Acts 1996, ch. 796, § 1; T.C.A., § 33-2-513; Acts 2000, ch. 947, § 1; T.C.A. § 33-2-416; Acts 2001, ch. 282, § 7; 2001, ch. 299, § 1; 2012, ch. 1010, § 11.

Compiler's Notes. Former § 33-2-417, concerning residential facilities, was transferred to § 33-2-418 by Acts 2001, ch. 299, § 1.

Cross-References. Penalty for Class B misdemeanor, § 40-35-111.

33-2-418. Residential facilities.

Any residential facility that houses persons with intellectual or developmental disabilities and is required by law to be licensed by the department shall not receive a license if the facility houses more than four (4) persons served and is not licensed on June 23, 2000. The department shall not license more than two (2) such residential facilities within five hundred yards (500 yds.) in any direction from other such facilities housing persons served. All set-back requirements applicable to lots where such facilities are located shall apply to such residential facilities.
This section does not apply to:
1. Housing for persons with mental illness or serious emotional disturbance;
2. Housing for residents on property owned or leased by the state or a corporation that provides that housing if the property was recorded in the corporate or state name before January 1, 1989;
3. Housing for service recipients when the commissioner authorizes the transfer of a license at the same site to a successor provider, if, and only if, the license holder's contract with the department is terminated, the transfer of license is necessary to sustain the quality of life of the service recipients, and the successor provider does not increase the number of service recipients at the site; or
4. Housing for persons on a temporary or transitional basis, such as boarding facilities provided by residential schools or facilities providing services through a specialized court program addressing the needs of individuals both in court custody and dually diagnosed with an intellectual or developmental disability and mental illness.
Notwithstanding any law or rule to the contrary, a residential facility or provider licensed by the department of intellectual and developmental disabilities to provide residential services to persons with intellectual or developmental disabilities shall not be prohibited from providing residential services to the elderly or adults with physical disabilities, so long as the services are adequate to ensure the health, safety and welfare of each resident.

Acts 1989, ch. 504, § 1; T.C.A., § 33-5-105; Acts 2000, ch. 947, §§ 1, 6; T.C.A. § 33-2-417; Acts 2002, ch. 730, § 4; 2009, ch. 426, § 1; 2012, ch. 1010, §§ 12-14.

Cross-References. Residences of retarded or handicapped persons, title 13, ch. 24, part 1.

Attorney General Opinions. Validity of restrictions on licensure of facilities housing persons with disabilities. OAG 14-85, 2014 Tenn. AG LEXIS 91 (9/18/14).

House Bill 604/Senate Bill 567, 109th Gen. Assemb. (Tenn. 2015) [not passed], and House Bill 413/Senate Bill 583, 109th Gen. Assemb. (Tenn. 2015) [not passed] - Licensure Standards for Facilities Providing Services to Disabled Persons. OAG 15-15, 2015 Tenn. AG LEXIS 16 (3/2/2015).

33-2-419. Standardized training and continuing education required — Classifications.

Any individual employed by a personal support services agency to provide personal support services must complete standardized training and continuing education under department rules.
The department may create classifications for personal support services agencies specializing in a type of service or care and may require additional training and continuing education for those classifications.

Acts 2001, ch. 282, § 8.

33-2-420. Dual licensing not required.

If an agency is licensed as a personal support services agency under this title, it does not have to be licensed under title 68, chapter 11, part 2, as a home care organization to provide personal support services. If an agency is licensed under title 68, chapter 11, part 2, as a home care organization, it does not have to be licensed under this title to provide personal support services.

Acts 2001, ch. 282, § 9.

Compiler's Notes. Acts 2001, ch. 299, effective May 29, 2001, added a new section designated as § 33-2-408 and renumbered existing §§ 33-2-408 through 33-2-417 as §§ 33-2-409 through 33-2-418. Accordingly, §§ 33-2-418 and 33-2-419 added by Acts 2001, ch. 282, have been renumbered as §§ 33-2-419 and 420.

33-2-421. Providers of personal support services.

As used in this section, unless the context otherwise requires:
1. “Personal support services agency” means a sole proprietorship, partnership, corporation, limited liability company, or a limited partnership that provides personal support services as defined in this part. “Personal support services agency” includes an entity that employs or subcontracts with individuals who provide personal support services to service recipients; and
2. “Personal support services worker” means a person licensed as a personal support services agency, or an employee or an individual subcontracted by a personal support services agency who is providing personal support services pursuant to an arrangement between a service recipient and a personal support services agency.
In addition to the standards and requirements for personal support services as established by rules adopted by the department, personal support services agencies shall comply with the requirements in this section.
A personal support services agency shall provide to each service recipient a consumer notice before beginning service, which shall include, at a minimum, the following:
1. The duties, responsibilities, obligations and legal liabilities of the personal support services agency, the personal support services worker, and the personal support services recipient. The description shall clearly set forth the service recipient’s responsibility, if any, for:
  1. Day-to-day supervision of the personal support services workers;
  2. Assigning duties to the personal support services worker;
  3. Hiring, firing and discipline of the personal support services worker;
  4. Provision of equipment or materials for use by the personal support services worker;
  5. Performing a criminal background check on the personal support services worker;
  6. Checking the personal support services worker's references; and
  7. Ensuring credentials and appropriate licensure/certification of a personal support services worker; and
2. A statement identifying the personal support services agency as an employer, or contractor, as applicable, of the personal support services worker along with the responsibility the personal support services agency will assume for the payment of the personal support services worker's wages, including overtime pay for hours worked in excess of forty (40) hours in a workweek, taxes, social security, workers' compensation and unemployment compensation payments.
A personal support services agency shall provide a notice to each personal support services worker who is placed with a service recipient before the worker provides any service to the service recipient. The worker notice shall contain the following information:
1. The relationship between the personal support services agency and the personal support services workers; and
2. A description of the duties, responsibilities, obligations and legal liabilities of the personal support services agency, the service recipient, and the personal support services worker. That description shall include the following information:
  1. A statement identifying the employing or contracting personal support services agency as responsible for the payment of the personal support services worker's wages, including overtime pay for hours worked in excess of forty (40) hours in a workweek, taxes, social security, unemployment and workers' compensation insurance as prescribed by state and federal law; and
  2. A statement identifying which party will be responsible for the personal support services worker's hiring, firing, discipline, day-to-day supervision, assignment of duties and provision of equipment or materials for use by the personal support services worker.
The notices required under subsection (c) shall be signed by the service recipient or authorized representative and retained by the personal support services agency at its office for not less than two (2) years following termination of service.

Acts 2007, ch. 408, § 1.

33-2-422. Differentiation between licensed physicians based on maintenance of certification.

For purposes of this section:
1. “Maintenance of certification” means any process requiring periodic recertification examinations or other activities to maintain specialty medical board certification; and
2. “Organized medical staff” means an organized body composed of individuals appointed by a facility's governing board that operates under bylaws approved by the governing body and is responsible for the quality of medical care provided to patients by the facility.
Except as otherwise provided by this section, facilities licensed under this title may only differentiate between licensed physicians based on a physician's maintenance of certification in medical staff privileging and credentialing when authorized through the following process:
1. The voting members of the facility's organized medical staff vote to adopt the differentiation; and
2. The facility's governing body reviews and approves the action of the medical staff.
An authorization described by subsection (b) may:
1. Establish terms applicable to the facility's differentiation, including:
  1. Appropriate grandfathering provisions; and
  2. Limiting the differentiation to certain medical specialties; and
2. Be rescinded at any time when:
  1. The voting members of the facility's organized medical staff vote to rescind the differentiating action; and
  2. The facility's governing body reviews and approves the rescinding action of the organized medical staff.
Nothing in this section restricts a facility's ability to differentiate between physicians in medical staff privileging and credentialing based on a physician's maintenance of certification when:
1. The facility's designation under law or certification or accreditation by a national certifying or accrediting organization is contingent on the facility requiring a specific maintenance of certification by physicians seeking staff privileges or credentialing at the facility; and
2. The differentiation is limited to those physicians whose maintenance of certification is required for the facility's designation, certification, or accreditation as described by subdivision (d)(1).
Nothing in this section requires a facility's organized medical staff or governing body to reconsider or vote to reconsider maintenance of certification differentiation or requirements made prior to July 1, 2018.

Acts 2018, ch. 694, § 1.

Effective Dates. Acts 2018, ch. 694 § 4. July 1, 2018.

33-2-423. Prohibited marketing practices.

The general assembly recognizes that consumers of substance abuse treatment have disabling conditions and that consumers and their families are vulnerable and at risk of being easily victimized by fraudulent marketing practices that adversely impact the delivery of health care. To protect the health, safety, and welfare of this vulnerable population, a service provider of alcohol and drug services or an operator of an alcohol and drug treatment facility (ADTF) shall not engage in any of the following marketing practices:
1. Making a materially false or misleading statement or providing materially false or misleading information about the provider's or operator's identity, products, goods, services, or geographical locations in its marketing, advertising materials, or media or on its website;
2. Including on its website false information or electronic links, coding, or activation that provides false information or that surreptitiously directs the reader to another website;
3. Soliciting, receiving, or making an attempt to solicit or receive a commission, benefit, rebate, kickback, or bribe, directly or indirectly, in cash or in kind, or engaging or making an attempt to engage in a split-fee arrangement in return for a referral or an acceptance or acknowledgement of treatment from a service provider of alcohol and drug services or ADTF; or
4. Entering into a contract with a marketing provider who agrees to generate referrals or leads for the placement of patients with a service provider of alcohol and drug services or in an ADTF through a call center or a web-based presence. This subdivision (a)(4) shall not apply if the service provider of alcohol and drug services or the operator of the ADTF discloses to the prospective patient, so that the patient can make an informed healthcare decision, in clear and concise language and instructions that allow the prospective patient to easily determine whether the marketing provider represents specific service providers or recovery residences that pay a fee to the marketing provider, and the identity of such service providers of alcohol and drug services or ADTF.
In addition to any other punishment authorized by law, a person or entity that knowingly violates this section is subject to suspension or revocation of the person's or entity's license pursuant to § 33-2-407 and the imposition of civil penalties under § 33-2-409.

Acts 2018, ch. 855, § 1.

Effective Dates. Acts 2018, ch. 855, § 4. July 1, 2018.

Part 5
Transportation

33-2-501. Transportation options.

The department shall develop an array of options for transportation for all regions of the state that shall include, but not be limited to, willing family members, transportation agents that are available twenty-four (24) hours per day, ambulance or other medically appropriate vehicles, law enforcement, and public and private service providers.

Acts 2000, ch. 947, § 1.

33-2-502. Meeting on transportation services.

The department shall, at least annually, convene a meeting on transportation service for persons with developmental disabilities, mental illness, and serious emotional disturbance. The purpose is to promote development of interagency agreements under § 33-1-308 that assure availability of generic and specialized transportation services to service recipients and their families, coordinate service options, coordinate and maximize utilization of funding mechanisms, and assure training of transportation personnel in best practices for transporting service recipients. Participants shall include affected state agencies, local government, public and private transportation service providers, mental health and developmental disabilities service providers, and service recipients and members of service recipient families. There shall be a sufficient number of service recipients and their family members to assure effective representation in the meeting.

Acts 2000, ch. 947, § 1.

Part 6
Conflict Resolution

33-2-601. Rules for conflict resolution procedures.

The department shall adopt rules for conflict resolution procedures to assure quick resolution, minimize disruption of service and support to service recipients, and minimize the cost of conflicts in providing services and supports.

Acts 2000, ch. 947, § 1.

NOTES TO DECISIONS

1. State employee — Private Healthcare Providers and Employees.

In a wrongful death action by the widow of the deceased, who was an inmate in a county jail, because the healthcare providers provided crisis response services under a grant of the Tennessee department of mental health and mental retardation to determine who may be suicidal and to determine the form of treatment that would be most effective, the healthcare providers were community-based screening agencies that functioned under T.C.A. §§ 33-2-601 — 33-2-604 (T.C.A. §§ 33-2-603, 33-2-604, repealed), and because healthcare providers who screened incarcerated individuals were not precluded from state employee status under T.C.A. § 8-42-101(3)(D), the employee was an immune state employee pursuant to T.C.A. § 9-8-307 and was not liable to the widow in her wrongful death claim; however, the employee's personal immunity did not prevent the healthcare providers from being held vicariously liable for the employee's negligence under the doctrine of respondeat superior and the trial court improperly granted the healthcare providers' motion for summary judgment under Tenn. R. Civ. P. 56.04. Shelburne v. Frontier Health, 126 S.W.3d 838, 2003 Tenn. LEXIS 367 (Tenn. 2003).

Although the plain language of T.C.A. §§ 8-42-101(3)(D) and 33-2-601 indicates that the statutes were not enacted to apply to healthcare providers only when they admit or discharge an individual from a state-owned psychiatric hospital, T.C.A. § 33-2-601 also provides for a community-based screening process, that does not necessarily result in hospitalization; thus, it is necessary for an individual to be admitted to or discharged from a state-owned mental health institute for a health care provider to meet the requirements of T.C.A. § 8-42-101(3)(D). Shelburne v. Frontier Health, 126 S.W.3d 838, 2003 Tenn. LEXIS 367 (Tenn. 2003).

Healthcare providers who screen incarcerated individuals are not precluded from state employee status under T.C.A. § 8-42-101(3)(D) as T.C.A. § 33-2-601 states that the Tennessee department of mental health and mental retardation must design the state system to promote speedy return to the community, and to maximize the individual's ability to remain in a community setting and community refers to a setting outside of a hospital; thus, an employee of a healthcare provider who screens individuals to make judgments under T.C.A. §§ 33-2-601 to 33-2-604 are entitled to immunity as a state employee under T.C.A. § 8-42-101(3)(D). Shelburne v. Frontier Health, 126 S.W.3d 838, 2003 Tenn. LEXIS 367 (Tenn. 2003).

33-2-602. Licensees to adopt conflict resolution procedures and appeal processes.

Every licensee under this title shall have a clear conflict resolution procedure, including an appeal process, that complies with the department's rules and shall communicate the procedure to each service recipient and family involved in the service. Termination of service or support because a third party payer refuses to continue to fund the service or support is not subject to the conflict resolution procedure. The location where service or support is to be provided is not subject to the conflict resolution procedure unless the location is inaccessible to the service recipient and the service recipient's family, as appropriate. The procedure must include the means to resolve a conflict informally and expeditiously in conformity with the department's rules. A licensee may not cease to provide services and supports to a service recipient with a developmental disability during the pendency of the conflict resolution over the objection of the service recipient.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 5; 2004, ch. 565, § 10.

33-2-603. [Repealed.]

Compiler's Notes. Former § 33-2-603 (Acts 2000, ch. 947, § 1), concerning conflict resolution procedure to include meetings of affected persons, was repealed by Acts 2002, ch. 730, § 6, effective July 1, 2002.

33-2-604. [Repealed.]

Compiler's Notes. Former § 33-2-604 (Acts 2000, ch. 947, § 1), concerning service status not to change during conflict resolution period, was repealed by Acts 2002, ch. 730, § 6, effective July 1, 2002.

33-2-605. Applicability to grievances pertaining to family support program.

This part does not apply to grievances that are to be resolved under § 33-5-209(b)(3) policies and procedures.

Acts 2000, ch. 947, § 1.

Part 7
Community Mental Health Center Cooperation Act

33-2-701. Short title.

This part shall be known and may be cited as the “Community Mental Health Center Cooperation Act of 1998.”

Acts 1998, ch. 1005, § 1; T.C.A., § 33-2-901; Acts 2000, ch. 947, § 1.

33-2-702. Statement of policy.

It is the policy of this state to displace competition among community mental health centers with regulation to the extent set forth in this part and to actively supervise the regulation to the fullest extent required by law, in order to promote cooperation and coordination among community mental health centers in the provision of mental health services to citizens receiving the services under programs funded or administered by departments or agencies of state government, including, but not limited to, the TennCare program.

Acts 1998, ch. 1005, § 2; T.C.A., § 33-2-902; Acts 2000, ch. 947, § 1; 2001, ch. 349, § 2.

33-2-703. Part definitions.

As used in this part, unless the context otherwise requires:

“Community mental health center” includes any parent or corporate affiliate of a community mental health center as defined in § 33-1-101;
“Cooperative agreement” means an agreement among two (2) or more community mental health centers for the offering, provision, operation, coordination, planning, funding, pricing, contracting, utilization review, or management of mental health and related services under programs funded or administered by departments or agencies of state government, including, but not limited to, the TennCare program, or the sharing, allocation, or referral of service recipients, personnel, instructional programs, support services, ancillary services, and facilities, or other services traditionally offered by community mental health centers for the programs; and
“Intervenor” means any hospital, physician, allied health professional, health care provider or other person furnishing goods or services to, or in competition with, community mental health center, insurer, hospital service corporation, medical service corporation, hospital and medical services corporation, preferred provider organization, health maintenance organization, behavioral health organization, or any employer or association that directly or indirectly provides health care benefits to its employees or members.

Acts 1998, ch. 1005, § 3; T.C.A., § 33-2-903; Acts 2000, ch. 947, §§ 1, 6.

33-2-704. Cooperative agreements among community mental health centers — Review by department — Certificate of public advantage.

A community mental health center may negotiate and enter into cooperative agreements with other community mental health centers in the state if the likely benefits resulting from the agreements outweigh any disadvantages attributable to a reduction in competition that may result from the agreements.
Parties to a cooperative agreement may apply to the department for a certificate of public advantage governing that cooperative agreement. The application shall include an executed written copy of the cooperative agreement and describe the nature and scope of the cooperation in the agreement and any consideration passing to any party under the agreement. A copy of the application and copies of all additional related materials shall be submitted to the attorney general and reporter and to the department at the same time.
The department shall review the application in accordance with the standards set forth in subsection (e) and may hold a public hearing in accordance with the rules adopted by the department. The department shall give notice of the application to interested parties by publishing a notice in the state administrative register in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Any intervenor may intervene in the proceeding and shall have standing under the Uniform Administrative Procedures Act. The department shall grant or deny the application within sixty (60) days of the date of filing of the application, and that decision shall be in writing and set forth the basis for the decision. The department shall furnish a copy of the decision to the applicants, the attorney general and reporter, and any intervenor. Should the department determine that additional time is needed to review the application, the department, upon written notice to the applicants, the attorney general and reporter and any intervenor, may extend the time for review for a period of thirty (30) days except that, in the discretion of the commissioner, the period may be extended for an additional thirty (30) days.
If the cooperative agreement primarily relates to a program funded or administered by another department or agency of state government, the department may refer the application to that other department or agency to conduct the review and render the decision required by this part.
The department shall issue a certificate of public advantage for a cooperative agreement if it, or the other department or agency to which the department has referred the application pursuant to subsection (d), determines that the likely benefits resulting from the agreement outweigh any disadvantages attributable to a reduction in competition that may result from the agreement.
In evaluating the potential benefits of a cooperative agreement, the department may consider whether one (1) or more of the following benefits may result from the cooperative agreement:
1. Enhanced quality of mental health and mental health-related care provided to state citizens, especially those receiving the services under programs funded or administered by departments or agencies of state government;
2. Preservation of community mental health facilities in geographical proximity to the communities traditionally served by those facilities;
3. Gains in the cost-efficiency of services provided by the community mental health centers involved;
4. Improvements in the utilization of mental health resources and equipment;
5. Avoidance of duplication of mental health resources; and
6. Enhanced efficiency of the administration of programs of state government to provide mental health services to citizens of this state.
The department's evaluation of any disadvantages attributable to any reduction in competition likely to result from the agreement may include, but need not be limited to, the following factors:
1. The extent of any likely adverse impact on the ability of health maintenance organizations, preferred provider organizations, managed health care organizations or other health care payers to negotiate optimal payment and service arrangements with community mental health centers, or other health care providers;
2. The extent of any reduction in competition among physicians, allied health professionals, other health care providers, or other persons furnishing goods or services to, or in competition with, community mental health centers that is likely to result directly or indirectly from the cooperative agreement;
3. The extent of any likely adverse impact on persons with mental illness or serious emotional disturbance in the quality, availability and price of health care services; and
4. The availability of arrangements that are less restrictive to competition and achieve the same benefits or a more favorable balance of benefits over disadvantages attributable to any reduction in competition likely to result from the agreement.
The department, or other department or agency to which the department has referred the application under subsection (d), shall consult with the attorney general and reporter regarding its evaluation of any potential reduction in competition resulting from a cooperative agreement. The attorney general and reporter may consult with the United States department of justice or the federal trade commission regarding its evaluation of any potential reduction in competition resulting from a cooperative agreement. Should the attorney general and reporter, after consultation with the department, determine that it is necessary to consult with the United States department of justice or the federal trade commission, or determines that further information is needed to review the application, the department, upon written notice to the applicant, attorney general and reporter, and any intervenor, may extend the time for approval or disapproval of an application an additional forty-five (45) days.
If the department, or the other department or agency to which the department has referred the application under subsection (d), determines that the likely benefits resulting from a certified agreement no longer outweigh any disadvantages attributable to any potential reduction in competition resulting from the agreement, the department, or the other department or agency to which the department has referred the application under subsection (d), may initiate contested case proceedings to terminate the certificate of public advantage in accordance with the Uniform Administrative Procedures Act.
The department shall maintain on file all cooperative agreements for which certificates of public advantage remain in effect. Any party to a cooperative agreement who terminates the agreement shall file a notice of termination.
The department, or the other department or agency to which the department has referred the application under subsection (d), shall review, on at least an annual basis, each certificate of public advantage it has granted under this part. The certificate shall be renewed if it is determined that the certificate continues to comply with the standards of subsection (e).
Prior to making an application for a certificate of public advantage, the parties may submit an initial filing at least forty-five (45) days prior to filing the application. The initial filing shall summarize the proposed cooperative agreement, describe the affected geographic market areas and those matters described in subsections (f) and (g). The department shall review the initial filing within thirty (30) days of receipt of the filing, informing the parties of any deficiencies along with a statement of specific remedial measures as to how the deficiencies could be corrected. A review of the initial filing by the department does not constitute approval of the final application.

Acts 1998, ch. 1005, § 4; T.C.A., § 33-2-904; Acts 2000, ch. 947, § 1; 2001, ch. 349, §§ 3-8.

33-2-705. Judicial review of department decision.

Any applicant or intervenor aggrieved by a decision of the department, or the other department or agency of state government to which the department has referred the application under § 33-2-704(d), in granting or denying an application, refusing to act on an application, or terminating a certificate, is entitled to judicial review of the decision in accordance with Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1998, ch. 1005, § 5; T.C.A., § 33-2-905; Acts 2000, ch. 947, § 1.

33-2-706. Effect of grant or denial of certificate of public advantage.

Notwithstanding title 47, chapter 25, or any other law to the contrary, a cooperative agreement for which a certificate of public advantage has been issued is a lawful agreement. Notwithstanding title 47, chapter 25, or any other law to the contrary, if the parties to a cooperative agreement file an application for a certificate of public advantage governing the agreement with the department, the conduct of the parties in negotiating and entering into a cooperative agreement is lawful conduct. Nothing in this subsection (a) immunizes any person for conduct in negotiating and entering into a cooperative agreement for which an application for a certificate of public advantage is not filed.
If the department, or the other department or agency of state government to which the department has referred the application under § 33-2-704(d), determines that the likely benefits resulting from a cooperative agreement do not outweigh any disadvantages attributable to any potential reduction in competition resulting from the agreement, the agreement is invalid and has no further force or effect.
Any dispute among the parties to a cooperative agreement concerning its meaning or terms is governed by principles of contract law.

Acts 1998, ch. 1005, § 6; T.C.A., § 33-2-906; Acts 2000, ch. 947, § 1; 2001, ch. 349, § 9.

Compiler's Notes. Acts 2001, ch. 349, § 10 provided that, notwithstanding any provision of law to the contrary, any increased costs resulting from that act in fiscal year 2001-2002 shall be paid from funds in the indigent defendants' counsel fund.

33-2-707. Application fees.

The department has the authority to establish reasonable application fees to cover the actual costs of administering this part by rules adopted in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. The department is authorized to adopt necessary rules to implement this part in accordance with the Uniform Administrative Procedures Act.

Acts 1998, ch. 1005, § 7; T.C.A., § 33-2-907; Acts 2000, ch. 947, § 1; 2003, ch. 149, § 1.

Code Commission Notes.

Former subsection (b) relating to the date by which the department must have applications available for use was deleted as obsolete by the Code Commission in 2015.

33-2-708. Center not authorized to act as insurer.

Unless otherwise permitted by law, nothing in this part shall be deemed to grant any community mental health center or group of community mental health centers pursuant to a cooperative agreement, the authority to operate as a health maintenance organization, preferred provider organization, or insurer without obtaining an appropriate license from the department of commerce and insurance.

Acts 1998, ch. 1005, § 8; T.C.A., § 33-2-908; Acts 2000, ch. 947, § 1.

33-2-709. Part not deemed to authorize referral to provider-owned facility in violation of law.

Nothing in this part shall be deemed to permit any referral to a provider-owned facility otherwise prohibited by state or federal law.

Acts 1998, ch. 1005, § 9; T.C.A., § 33-2-909; Acts 2000, ch. 947, § 1.

Part 8
State Facilities

33-2-801. Chief officers of hospitals and developmental centers — Appointment — Authority.

The commissioner shall appoint a chief officer for each facility to serve at the pleasure of the commissioner.
The commissioner shall appoint chief officers of facilities without regard to residence on the basis of merit as measured by administrative abilities and a demonstrated quality of leadership. The chief officer shall hold a recognized degree as a psychiatrist, doctor of medicine, behavioral scientist, social scientist, public administrator, hospital administrator, or other profession involved with human development, human welfare, or health administration.
Chief officers have all of the authority conferred upon them by this title and such other authority as is delegated to them by the commissioner. Chief officers have the authority to administer oaths.

Acts 1965, ch. 82, § 10; 1971, ch. 411, § 2; 1974, ch. 802, § 9; 1978, ch. 617, § 3; T.C.A., § 33-203; Acts 1985, ch. 437, § 1; T.C.A., § 33-2-103; Acts 2000, ch. 947, § 1.

33-2-802. Bond of chief officer.

Each chief officer shall give an official bond, in a sum to be fixed by the commissioner of finance and administration, the comptroller of the treasury and the state treasurer, to be executed, conditioned and filed in accordance with title 8, chapter 19. The cost of the bond shall be paid from funds available to the facility.

Acts 1965, ch. 82, § 11; 1974, ch. 802, § 10; T.C.A., §§ 33-204, 33-2-104; Acts 2000, ch. 947, § 1.

33-2-803. Powers and duties of chief officers.

The chief officer shall be under the direction of the commissioner and has the following powers and duties to:
1. Exercise general superintendence over all matters relating to the facility;
2. Perform the duties of a treasurer of the facility without any additional compensation, depositing all moneys coming into the chief officer's hands in some one of the banks designated as state depositories, for safekeeping, until drawn out from time to time for the benefit of the facility; and
3. Make reports as the commissioner may require.
The chief officer shall be authorized to make written application to the governor for issuance of requisition papers for the purpose of returning any person to the state who has left a facility without authorization and fled from the state when the person with mental illness, serious emotional disturbance, or developmental disability had been committed to the facility or the custody of the commissioner. The application shall be in the same form as required for the return of a fugitive from justice.
Chapter 4, part 2 of this title, to the extent that its application would be contrary to other statutes or to federal law, shall not apply to money or funds that are paid to the chief officer of a facility by the veterans' administration.

Acts 1965, ch. 82, § 12; 1969, ch. 107, § 1; 1973, ch. 127, § 2; 1974, ch. 802, § 11; 1975, ch. 248, § 1; 1981, ch. 224, § 1; 1983, ch. 323, §§ 1-3; T.C.A., § 33-205; Acts 1984, ch. 922, § 3; 1985, ch. 437, §§ 2-4; T.C.A., § 33-2-105; Acts 2000, ch. 947, § 1.

33-2-804. Officials prohibited from trafficking in supplies.

Officials connected with management of any of the department's facilities are prohibited from contracting to furnish any supplies or equipment for use in the operation or support of the facility, and any official who violates this section shall forfeit the right to serve as the official.

Acts 1965, ch. 82, § 13; 1974, ch. 802, § 12; T.C.A., §§ 33-206, 33-2-106; Acts 2000, ch. 947, § 1.

33-2-805. Police powers of security guards.

The security guards at all department facilities and other personnel the commissioner may designate are vested with the powers and authority of peace officers and shall exercise the powers and authority on the grounds of facilities under the supervision of the department.

Acts 1965, ch. 82, § 14; 1974, ch. 802, § 13; 1975, ch. 248, § 1; T.C.A., §§ 33-207, 33-2-107; Acts 2000, ch. 947, §§ 1, 6.

33-2-806. Trespassing on hospital or developmental center grounds — Penalty.

The enclosed premises and the adjoining land belonging to or used by and for any of the state facilities, are private grounds. If a person goes on the premises without authority or permission, the person commits a Class C misdemeanor.

Acts 1965, ch. 82, § 15; 1974, ch. 802, § 14; T.C.A., § 33-208; Acts 1989, ch. 591, § 113; T.C.A., § 33-2-108; Acts 2000, ch. 947, § 1.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Part 9
Boards of Trustees for State Facilities

33-2-901. Creation of boards — Members — Appointment — Expenses — Meetings — Term of office.

In order to coordinate the activities of the department's facilities, to advise the chief officer at each facility, and to better acquaint the public with the needs and activities of the facility, there shall be boards of trustees for each facility to be composed of fifteen (15) members each.
1. The commissioner, the appropriate assistant commissioner, and the chief officer at each facility shall be ex officio members of each board of trustees.
2. The fifteen (15) members shall be appointed by the commissioner, and all shall reside in the area served by the facility.
3. State officials are eligible for appointment by the commissioner, but not more than three (3) state officials shall be appointed members of the board at the same time.
The chair and the vice chair of each board shall be designated by the commissioner.
The members of each board shall receive no compensation but shall receive their actual traveling expenses for attendance upon meetings of the boards. All reimbursement for travel expenses shall be in conformity with the comprehensive travel rules.
The chief officer of each facility shall serve as secretary for the respective boards.
The board shall meet at least annually at a place to be designated by the chair and may meet more often upon call of the chair, or a majority of the members.
The term of board members shall be three (3) years. Terms shall be staggered so that five (5) terms expire each year. The terms of members begin on July 1 next following the appointments. Subsequent appointments shall be made for a period of three (3) years, except that vacancies shall be filled by appointment by the commissioner for the unexpired term only. A member may serve no more than two (2) consecutive full terms.
Members may be removed upon their failure to attend at least one half (½) of the scheduled meetings in any one-year period, or for good cause.

Acts 1965, ch. 82, § 8; 1973, ch. 341, §§ 3, 4; 1974, ch. 802, § 8; 1975, ch. 248, §§ 1, 3; 1976, ch. 806, § 1(35); 1978, ch. 617, § 2; 1979, ch. 369, § 1; 1981, ch. 98, § 5; T.C.A., §§ 33-201, 33-2-201; Acts 2000, ch. 947, §§ 1, 6.

33-2-902. Duties of boards.

It is the duty of each board of trustees to advise the chief officer of each facility concerning the formulation of general policies to be followed in the operation of the facility under the chief officer's jurisdiction, to recommend to the department appropriate legislation for resources and other concerns for the facility, and to publicize generally the condition of the facility and its needs.
Each board of trustees in conjunction with its chief officer shall report annually to the commissioner.

Acts 1965, ch. 82, § 8; 1973, ch. 341, §§ 3, 4; 1974, ch. 802, § 8; 1975, ch. 248, §§ 1, 3; 1976, ch. 806, § 1(35); 1978, ch. 617, § 2; 1979, ch. 369, § 1; 1981, ch. 98, § 5; T.C.A., § 33-201; Acts 1989, ch. 253, § 3; 1989, ch. 254, § 3; 1989, ch. 255, § 2; 1989, ch. 256, § 2; 1989, ch. 257, § 3; 1989, ch. 259, § 3; 1989, ch. 260, § 3; 1989, ch. 261, § 3; 1989, ch. 271, § 3; 1989, ch. 272, § 3; T.C.A., § 33-2-202; Acts 2000, ch. 947, §§ 1, 6.

Part 10
Costs in Private Nonprofit Facilities

33-2-1001. Nonprofit service providers — Purchasing arrangements.

Any corporation that is exempted from taxation under 26 U.S.C. § 501(c)(3), and that contracts with the department to provide services or supports to the public shall be authorized to purchase or contract to purchase goods or services at the same terms and conditions as that contracted for by the state under state purchasing contracts. Purchases by and for the corporation shall not be required to be made through the purchasing division of the department of general services.

Acts 1981, ch. 18, § 1; T.C.A., §§ 33-350, 33-2-401; Acts 2000, ch. 947, §§ 1, 6.

Cross-References. Public contracts, title 12, ch. 4.

Public purchases, title 12, ch. 3.

Part 11
Costs in State Facilities

33-2-1101. Calculation of charges for service.

The commissioner, with the approval of the comptroller of the treasury and the commissioner of finance and administration, shall establish by rule a method for determination at least annually of charges for services and supports provided to service recipients in programs operated by the department, including the charges for all institutional or professional services.
Charges shall be calculated using generally accepted accounting principles.

Acts 1983, ch. 323, § 32; 1996, ch. 795, § 1; T.C.A., § 33-4-101; Acts 2000, ch. 947, § 1.

Cross-References. Definitions applicable throughout title, § 33-1-101.

33-2-1102. Determination of indigency — Periodic payments.

The commissioner, with the approval of the comptroller and the commissioner of finance and administration, shall establish rules for determining indigence and payments to be made periodically by nonindigent recipients of service or their responsible relatives.
Periodic payments by the recipient of service or the responsible relative shall be based on ability to pay as determined by factors the commissioner considers relevant.

Acts 1983, ch. 323, § 32; 1996, ch. 795, § 2; T.C.A., § 33-4-102; Acts 2000, ch. 947, § 1.

33-2-1103. Persons liable for charges.

If a person is a service recipient in a program operated by the department or is the parent of an unemancipated child who is a service recipient in a program operated by the department, then the person is liable for the charges for the services and supports provided.

Acts 1983, ch. 323, § 32; T.C.A. (orig. ed.), 33-4-104; Acts 1996, ch. 795, § 3; T.C.A., § 33-4-103; Acts 2000, ch. 947, § 1.

Collateral References.

Constitutionality of statute imposing liability upon estate or relatives of insane person for his support in asylum. 20 A.L.R.3d 363.

Husband's liability for support and care of insane wife. 4 A.L.R. 1109.

Right of state or its political subdivision to maintain action in another state for support and maintenance of defendant's child, parent, or dependent in plaintiff's institution. 67 A.L.R.2d 771.

33-2-1104. Nonindigent recipients.

If a service recipient who is not indigent receives service from a program operated by the department, then the department shall at least annually establish an amount to be paid periodically by the service recipient and each responsible relative.

Acts 1983, ch. 323, § 32; T.C.A. (orig. ed.), § 33-4-106; Acts 1996, ch. 795, § 4; T.C.A., § 33-4-105; Acts 2000, ch. 947, § 1.

33-2-1105. Information from liable parties — Effect of failure to provide information.

The service recipient who receives services and supports, the service recipient's conservator or guardian, and persons who are legally liable for charges for services and supports shall furnish all information that the department deems necessary to determine the person's financial liability.
If a person willfully refuses to provide the information or knowingly provides false information that results in an underassessment of liability, the person is liable for the total charges for services and supports provided and for the amount of the state's expenses incurred in recovering the amounts, including attorney salaries or fees.

Acts 1983, ch. 323, § 32; 1996, ch. 795, § 5; T.C.A., § 33-4-107; Acts 2000, ch. 947, § 1.

33-2-1106. Person receiving services under court order.

If a service recipient obtains services and supports under a court order from a program operated by the department, the department may demand any of the service recipient's money that is in the custody of the court and credit it to the service recipient's account.

Acts 1983, ch. 323, § 32; 1996, ch. 795, § 6; T.C.A., § 33-4-108; Acts 2000, ch. 947, § 1.

33-2-1107. Claims against recipients.

The state has a continuing claim against the recipient of service from a program operated by the department and the recipient's estate and against responsible relatives for any unpaid difference between what the department determines the person owes and what was paid for the service provided. If the recipient of service dies, or a responsible relative of the recipient of service dies, and the commissioner presents a claim for a sum unpaid and owing to the state on account of the recipient of service, then the claim shall be paid from the estate of the deceased person.

Acts 1983, ch. 323, § 32; T.C.A. (orig. ed.), 33-4-110; Acts 1996, ch. 795, § 7; T.C.A., § 33-4-109; Acts 2000, ch. 947, § 1.

Law Reviews.

1985 Tennessee Survey: Selected Developments in Tennessee Law, 53 Tenn. L. Rev. 389 (1986).

33-2-1108. Voluntary contribution of funds.

If a person who is not legally responsible to pay for a service recipient's care contributes funds voluntarily for the service recipient's care, the department may accept the funds.

Acts 1983, ch. 323, § 32; 1996, ch. 795, § 8; T.C.A., § 33-4-111; Acts 2000, ch. 947, § 1.

33-2-1109. Prohibition on maintenance at state's expense.

No service recipient may receive care at the expense of the state in a program operated by the department except:
1. One who is indigent;
2. A person subject to evaluation, diagnosis or treatment under chapter 5, part 5 of this title, or chapter 7, part 3 of this title and charged with a felony, or chapter 7, part 4 of this title;
3. A person whose service is paid for, in part, by state or federal government and the payment is conditioned on the department's acceptance of it as full satisfaction of the person's liability; or
4. A person whose service is paid for by the service recipient or another person or a third party and the department determines, under standards approved by the commissioner of finance and administration and the comptroller of the treasury, that the state's interests are best served by accepting payment offered as full satisfaction of the service recipient's liability.
Subdivision (a)(4) does not apply to any claim for payment for which the state has a suit pending to recover payment.

Acts 1983, ch. 323, § 32; 1996, ch. 795, § 9; T.C.A., § 33-4-112; Acts 2000, ch. 947, § 1; 2002, ch. 730, § 7; 2009, ch. 531, § 33.

Compiler's Notes. For the Preamble to the act concerning the operation and funding of state government and to fund the state budget for the fiscal years beginning on July 1, 2008, and July 1, 2009, please refer to Acts 2009, ch. 531.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 19.

33-2-1110. Discrimination for inability to pay prohibited.

There shall be no discrimination in provision of services or supports based on inability to pay.

Acts 1983, ch. 323, § 32; 1996, ch. 795, § 10; T.C.A., § 33-4-113; Acts 2000, ch. 947, § 1.

Part 12
Personnel and Volunteers

33-2-1201. Department employees, volunteers and applicants to submit to background check and fingerprinting.

To help the department determine the suitability of a person for volunteer services or employment and verify the accuracy of information submitted in support of an application to work for the department, any person who applies to work for the department as an employee, or any volunteer, whose function would include direct contact with or direct responsibility for persons with mental illness, serious emotional disturbance, or developmental disabilities shall:
1. Agree to the release of all investigative records about the person from any source, including federal, state and local governments; and
2. Supply a fingerprint sample for the conduct of a criminal background investigation by the Tennessee bureau of investigation. If no disqualifying record is identified, the bureau shall send the fingerprints to the federal bureau of investigation for a national criminal history record check.
The department shall pay the costs for conducting any investigation under this section.

Acts 1996, ch. 993, § 1; 1997, ch. 305, § 1; 1999, ch. 466, § 1; T.C.A. § 33-1-209(a), (b); Acts 2000, ch. 947, § 1; 2004, ch. 565, § 11.

33-2-1202. Organizations to perform background checks on employees.

As used in this section and § 38-6-109, “organization” means a facility or service licensed under chapter 2, part 4 of this title.
Each organization shall have a criminal background check completed on any employee or volunteer who will be in a position that involves providing direct contact with or direct responsibility for service recipients. The background check shall be completed before allowing the person to have any direct contact with or direct responsibility for service recipients. The persons applying for employment shall:
1. Provide past work history containing a continuous description of activities over the past five (5) years;
2. Identify at least three (3) individuals as personal references, one (1) of whom shall have known the applicant for at least five (5) years;
3. Release all investigative records to the organization for examination for the purpose of verifying the accuracy of criminal violation information contained on an application to work for the organization; and
4. 1. Supply fingerprint samples to be submitted for a criminal history records check to be conducted by the Tennessee bureau of investigation or the federal bureau of investigation; or
  2. Release information for a criminal background investigation by a state licensed private investigation company.
1. The organization shall check past work and personal references prior to employment of applicants. At a minimum the organization shall communicate directly with the most recent employer and each employer identified by the applicant as having employed the applicant for more than six (6) months in the past five (5) years. The organization shall communicate directly with at least two (2) of the personal references identified by the applicant.
2. Subsection (b) and this subsection (c) shall not apply to organizations which contract with the division of intellectual disabilities services for residential services, day services or supported employment services and such organizations shall comply with subsection (e).
3. The organization shall check the registry maintained by the department of health pursuant to § 68-11-1001 prior to employment of applicants or their use as a volunteer in the organization. No individual who is listed on the registry may be hired or otherwise permitted to provide services in the organization.
Any cost incurred by the Tennessee bureau of investigation, the federal bureau of investigation, or a state licensed private investigation company shall be paid by the organization requesting the investigation and information. If the background check is conducted by the Tennessee bureau of investigation or the federal bureau of investigation, the payment of the costs shall be made in the amounts established by § 38-6-103.
1. Notwithstanding subsection (b), only with respect to organizations which contract with the department of intellectual and developmental disabilities for residential services, day services or supported employment services, each such organization shall have a criminal background check completed prior to employing any person who will be in a position that involves providing direct care to a service recipient. If a current employee of such organization has a change of responsibilities that includes direct care to a service recipient, then the organization shall have a criminal background check completed prior to such change. The organization shall inform the employee that it will conduct a background check. The employee shall:
  1. Provide past work history containing a continuous description of activities over the past five (5) years;
  2. Identify at least three (3) individuals as personal references, one (1) of whom shall have known the applicant for at least five (5) years;
  3. Release all investigative records to the organization for examination for the purpose of verifying the accuracy of criminal violation information contained on an application to work for the organization; and
  4. 1. Supply fingerprint samples to be submitted for a criminal history records check to be conducted by the Tennessee bureau of investigation or the federal bureau of investigation; or
    2. Release information for a criminal background investigation by a state licensed private investigation company.
2. An organization which contracts with the division of intellectual disabilities services for residential services, day services or supported employment services shall check past work and personal references prior to employment of applicants. At a minimum such organization shall communicate directly with the most recent employer and each employer identified by the applicant as having employed the applicant for more than six (6) months in the past five (5) years. The organization shall communicate directly with at least two (2) of the personal references identified by the applicant. Prior to employment, the organization shall submit the information required to be provided by this subsection (e) to the entity that will conduct the criminal background check.
3. An organization which contracts with the department of intellectual and developmental disabilities shall check the registry maintained by the department of health pursuant to § 68-11-1001 prior to employment of applicants or their use as volunteers in the organization. No individual who is listed on the registry may be hired or otherwise permitted to provide services in the organization.
Notwithstanding any provision of this section to the contrary, background checks for employees of state-operated intermediate care facilities for individuals with intellectual disabilities shall fully comply with § 33-2-1201.

Acts 1996, ch. 993, § 1; 1997, ch. 305, § 1; 1999, ch. 466, § 1; T.C.A., § 33-1-209(c); Acts 2000, ch. 981, § 53; 2000, ch. 947, § 1; 2010, ch. 1084, §§ 3, 4; 2011, ch. 165, §§ 1, 2; 2014, ch. 668, § 3; 2016, ch. 1044, §§ 9, 10; 2017, ch. 427, § 2.

Compiler's Notes. The division of intellectual disabilities services (DIDS), referred to in this section, was replaced by the department of intellectual and developmental disabilities by Acts 2010, ch. 1100, effective January 15, 2011.

Amendments. The 2016 amendment rewrote the introductory paragraph of (b) which read: “Each organization shall have a criminal background check performed on each employee whose responsibilities include direct contact with or direct responsibility for service recipients. The organization shall inform the employee that it will conduct a background check. Within ten (10) days of employment or within ten (10) days of a change of responsibilities that includes direct contact with or direct responsibility for service recipients, the employee shall:” ; and deleted the former last sentence in (c)(1) which read: “Within or prior to ten (10) days of employment of the person, organizations shall submit the information required to be provided by this subsection (c) to the entity that will conduct the criminal background check.”

The 2017 amendment, in the introductory language of (b), substituted “on any employee or volunteer” for “prior to employing any person” in the first sentence, and added the second sentence.

Effective Dates. Acts 2016, ch. 1044, § 11. April 28, 2016.

Acts 2017, ch. 427, § 4. July 1, 2017.

33-2-1203. Contracting for temporary staffing to maintain suitable available accommodations.

If, in the commissioner's judgment, the occupancy level at a state-owned or operated hospital or treatment resource requires additional staffing for a temporary period in order to maintain suitable available accommodations, the commissioner is authorized to contract for and utilize temporary staffing at the affected location.

Acts 2009, ch. 531, § 34.

33-2-1204. Phasing in of reductions in bed capacity at state-owned or operated facilities.

Reductions in bed capacity at state-owned or operated hospitals or treatment resources pursuant to the fiscal year 2009-2010 budget shall be phased in as determined by the department.

Acts 2009, ch. 531, § 58.

Part 13
Conflict of Interest

33-2-1301. Department officers, employees and licensees to disclose interest in mental health facilities — Conflict of interest.

1. a person is an officer or employee of the department, OR
2. a person is an officer or employee of a licensee of the department, AND
1. the person or the person's spouse, parent, grandparent, brother, sister, or child has an ownership interest in a residential facility that is not publicly held or an ownership interest in a business that is not publicly held that owns or manages a residential facility that provides mental health or developmental disabilities services or supports, OR
2. the person or combination of persons named in subdivision (2)(A) has an ownership interest of at least thirty-five percent (35%) in a residential facility that is publicly held that provides mental health or developmental disabilities services, OR
3. the person or combination of persons named in subdivision (2)(A), has an ownership interest of at least thirty-five percent (35%) in a business that is publicly held that owns or manages a residential facility that provides mental health or developmental disabilities services,
  THEN
the person shall disclose the interest to the department or licensee, AND
the person may not serve in a capacity of decision making or influence or responsibility for the direct referral or placement of persons to any residential facility that provides mental health or developmental disabilities services or supports.

Acts 1996, ch. 669, § 1; T.C.A., § 33-3-112(a); Acts 2000, ch. 947, § 1.

Cross-References. State officers and employees; conflict of interest; rebate, gifts, etc., from contractors prohibited, § 12-4-106.

33-2-1302. Penalty for violation of § 33-2-1301.

If a person violates § 33-2-1301, the commissioner shall assess a civil penalty of one thousand five hundred dollars ($1,500) per incident against the person for each violation.
A penalty shall be assessed only after an informal hearing is held in the same manner as an informal hearing is held prior to the suspension of a license under § 4-5-320(d).
If services or supports to a recipient of mental health or developmental disabilities services or supports have been provided in violation of § 33-2-1301, the commissioner may:
1. Require transfer of the recipient of services or supports to another provider of services or supports as soon as is reasonably practical;
2. Authorize the recipient of services or supports to remain with the provider of services or supports if the commissioner determines it to be in the best interests of the recipient of services or supports to remain with the provider of services or supports;
3. Restrict the referral of other recipients of services or supports to the provider of services or supports;
4. Exercise a combination of the preceding powers; or
5. Impose any other appropriate sanctions in the discretion of the commissioner.

Acts 1996, ch. 669, § 1; T.C.A., § 33-3-112(b); Acts 2000, ch. 947, § 1.

33-2-1303. Contractors to disclose interest in facility.

A person to whom this part applies shall disclose the information required by this part before being hired or as a part of a contract entered into with a provider of mental health or developmental disabilities services or supports. Failure to disclose the information shall subject the person to removal from the position held or the contract to cancellation or renegotiation.

Acts 1996, ch. 669, § 1; T.C.A., § 33-3-112(c); Acts 2000, ch. 947, § 1.

33-2-1304. Personnel records to indicate conflict of interest as reason for relief of duties.

If a person is relieved of decision-making authority or responsibility under this part, the personnel records of the officer or employee shall state that the officer or employee was relieved of authority or responsibility solely to conform to this part.

Acts 1996, ch. 669, § 1; T.C.A., § 33-3-112(d); Acts 2000, ch. 947, § 1.

Chapter 3
General Rules Applicable to Service Recipients

Part 1
General Rights of All Service Recipients

33-3-101. Rights of persons under this title equal to those of other persons except as limited by this title — Records.

No person shall be deprived of liberty on the grounds that the person has or is believed to have a mental illness, a serious emotional disturbance, a developmental disability, or is in need of service for such a condition except in accordance with this title.
A person with mental illness, serious emotional disturbance, or developmental disability has the same rights as all other persons except to the extent that the person's rights are curtailed in accordance with this title or other law.
A person with mental illness, serious emotional disturbance, or developmental disability shall be provided services or supports, to the extent that facilities, equipment and personnel are available, in accordance with community standards.
The chief officer shall keep records detailing services or supports received by each person. Records shall be preserved by the chief officer for not less than ten (10) years after termination of service. The records may be generated, maintained, or transferred in whole or in part to any recording medium that assures accurate preservation of the record. If a record is transferred from one medium to another, the source record may be destroyed upon determination by the chief officer that the reproduced record is true and correct and will be accurately preserved. The reproduced record is deemed to be the original record.

Acts 2000, ch. 947, § 1; T.C.A. § 33-4-102; Acts 2002, ch. 730, § 23.

Compiler's Notes. Former chapter 3, §§ 33-3-101 — 33-3-112, 33-3-201 — 33-3-203, 33-3-301 — 33-3-303, 33-3-401 — 33-3-412, 33-3-501 — 504, 33-3-601 — 33-3-603, 33-3-605 — 33-3-19, 33-3-623, 33-3-701 — 33-3-711, 33-3-801, 33-3-901 — 33-3-908 (Acts 1955, ch. 187, § 1; 1965, ch. 38, §§ 4-7, 16-19, 23-26; 1974, ch. 802, §§ 17-20, 22-25, 29-32; 1975, ch. 248, §§ 1, 5-7, 11; 1976, ch. 489, §§ 1, 2; 1976, ch. 763, §§ 1, 2, 10; 1977, ch. 482, § 11; 1978, ch. 533, §§ 3-5; 1978, ch. 533, § 7; 1978, ch. 877, §§ 1, 2; 1979, ch. 366, § 15; 1980, ch. 838, § 5; 1983, ch. 323, § 4-7, 9, 12, 15, 16; T.C.A. §§ 33-303 — 33-307, 33-309 — 33-312, 33-317 — 33-320, 33-330 — 33-337, 33-345 — 33-347, 33-355, 33-360 — 33-362, 33-364 — 33-378, 33-382, 33-610, 33-1101; Acts 1984, ch. 922, §§ 2-5, 7, 16-23, 34; 1984, ch. 986, §§ 1, 2; 1985, ch. 437, §§ 6-13, 33; 1986, ch. 570, §§ 2-4; 1986, ch. 836, § 3, 5; 1987, ch. 143, §§ 2, 3, 7; 1988, ch. 828, § 1; 1989, ch. 278, §§ 30-33; 1989, ch. 513, §§ 2, 5-13; 1989, ch. 591, §§ 29-31, 113; 1992, ch. 991, § 13; 1993, ch. 66, § 44; 1993, ch. 439, § 1; 1993, ch. 356, § 4; 1994, ch. 630, §§ 1, 2; 1994, ch. 743, § 1; 1995, ch. 320, § 1; 1995, ch. 411, § 1; 1996, ch. 669, § 1; 1996, ch. 675, § 15; 1996, ch. 1079, §§ 31-47, 49-56; 2000, ch. 947, § 6); § 33-3-304 (Acts 1974, ch. 464, § 1; 1975, ch. 248, § 20; T.C.A., § 33-702), which was previously repealed by Acts 1984, ch. 922, § 33; § 33-3-604 (Acts 1983, ch. 323, § 9; T.C.A., § 33-363), which was repealed by Acts 1984, ch. 922, § 33; § 33-3-620, which was previously transferred to § 33-6-104(e) and (f) in 1984; § 33-3-621, which was previously transferred to § 33-6-104(g) in 1984; and § 33-3-622, which was previously transferred to § 33-6-104(h) in 1984, is deleted and replaced in the revision of title 33 by Acts 2000, ch. 947, § 1, effective March 1, 2001.

Former § 33-4-102 was transferred and designated as subsection (c) of this section in 2002. See the Compiler's Notes under former § 33-4-102 for the history of subsection (c) prior to its transfer.

Cross-References. Definitions applicable throughout title, § 33-1-101.

Collateral References.

Liability for malicious prosecution predicated upon institution of, or conduct in connection with, insanity proceedings. 30 A.L.R.3d 455.

33-3-102. Specific rights protected.

No person with mental illness, serious emotional disturbance, or developmental disability hospitalized or admitted, whether voluntarily or involuntarily, or ordered to participate in nonresidential treatment or service under this title, shall, solely by reason of the hospitalization, admission, or order, be denied the right to dispose of property, execute instruments, make purchases, enter into contractual relationships, give informed consent to treatment, and vote, unless;
1. The service recipient has been adjudicated incompetent by a court of competent jurisdiction and has not been restored to legal capacity; or
2. The denial is authorized by state or federal statute.
No person shall make decisions for a service recipient on the basis of a claim to be the service recipient's conservator, legal guardian, guardian ad litem, caregiver under title 34, chapter 6, part 3, or to be acting under a durable power of attorney for health care under title 34, chapter 6, part 2, until the person has presented written evidence of the person's status.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 9; 2004, ch. 565, § 2.

Compiler's Notes. The former last undesignated paragraph of (a) which read: “If the chief officer of a facility in which a service recipient is hospitalized or admitted is of the opinion that the service recipient is unable to exercise any of the aforementioned rights, the chief officer shall notify immediately the service recipient and the service recipient's attorney, parent, legal custodian, spouse or other nearest known adult relative of the fact, and the chief officer may file for the appointment of a conservator and shall notify those persons as to whether the chief officer intends to do so.” was transferred to § 33-4-110 in 2002.

Cross-References. Informing patients of rights, § 33-4-105.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 12.

Law Reviews.

Civil Commitment in Tennessee — What Process is Due? (W. Russell Stambaugh), 8 Mem. St. U.L. Rev. 135 (1978).

33-3-103. Confidentiality of mental health records.

All applications, certificates, records, reports, legal documents, and pleadings made and all information provided or received in connection with services applied for, provided under, or regulated under this title and directly or indirectly identifying a service recipient or former service recipient shall be kept confidential and shall not be disclosed by any person except in compliance with this part.

Acts 2000, ch. 947, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

Attorney General Opinions. Retention of patient's or resident's records, OAG 97-126, 1997 Tenn. AG LEXIS 159 (9/02/97).

NOTES TO DECISIONS

1. In General.

Defendant is not entitled to discovery of psychologist's records on rape victim, from private nonprofit corporation, that are not in the possession of the state and not within the jurisdiction of the court. State v. Fox, 733 S.W.2d 116, 1987 Tenn. Crim. App. LEXIS 2473 (Tenn. Crim. App. 1987).

33-3-104. Persons who may consent to disclosure of confidential information.

Information about a service recipient that is confidential under § 33-3-103 may be disclosed with the consent of:

The service recipient who is sixteen (16) years of age or over;
The conservator of the service recipient;
The attorney in fact under a power of attorney who has the right to make disclosures under the power;
The parent, legal guardian, or legal custodian of a service recipient who is a child;
The service recipient's guardian ad litem for the purposes of the litigation in which the guardian ad litem serves;
The treatment review committee for a service recipient who has been involuntarily committed;
The executor, administrator or personal representative on behalf of a deceased service recipient;
The caregiver under title 34, chapter 6, part 3; or
An individual acting as an agent under the Tennessee Health Care Decisions Act, compiled in title 68, chapter 11, part 18 or a person's surrogate as designated under title 68, chapter 11, part 18.

Acts 2000, ch. 947, § 1; 2004, ch. 565, § 3; 2013, ch. 238, § 4.

Cross-References. Confidentiality of public records, § 10-7-504.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 12.

Attorney General Opinions. A group home is prohibited from releasing information that directly or indirectly identifies a patient or resident or former patient or resident, except under certain limited circumstances, OAG 00-076, 2000 Tenn. AG LEXIS 79 (4/25/00).

33-3-105. Disclosure of confidential information without consent.

Information that is confidential under § 33-3-103 may be disclosed without consent of the service recipient if:

Disclosure is necessary to carry out duties under this title;
Disclosure may be necessary to assure service or care to the service recipient by the least drastic means that are suitable to the service recipient's liberty and interests;
As a court orders, after a hearing, upon its determination that disclosure is necessary for the conduct of proceedings before it and that failure to make the disclosure would be contrary to public interest or to the detriment of a party to the proceedings;
It is solely information as to a residential service recipient's overall medical condition without clinical details and is sought by the service recipient's family members, relatives, conservator, legal guardian, legal custodian, guardian ad litem, foster parents, or friends;
A service recipient moves from one service provider to another and exchange of information is necessary for continuity of service;
A custodial agent for another state agency that has legal custody of the service recipient cannot perform the agent's duties properly without the information; or
Necessary for the preparation of a post-mortem examination report in accordance with § 38-7-110(e) and authorized to be obtained pursuant to § 38-7-117(b).

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 10; 2016, ch. 672, § 1.

Amendments. The 2016 amendment added (7).

Effective Dates. Acts 2016, ch. 672, § 2. March 29, 2016.

Cross-References. Confidentiality of public records, § 10-7-504.

Attorney General Opinions. Obtaining a parent’s mental-health information in child-custody cases. OAG 14-55, 2014 Tenn. AG Lexis 57 (5/14/14)

33-3-106. Disclosure to advocacy agency — Disclosure to organization paying for treatment — Limitations.

If the head of the federally mandated protection and advocacy agency for persons with mental illness, serious emotional disturbance, or developmental disability, or the designated representative of the agency head, requests disclosure of information protected by § 33-3-103 and specifies the personally identifiable service recipient information sought and the federally mandated function for which it is required, the information may be disclosed to the agency without consent. The disclosure of information shall be made solely for use in connection with the federally mandated function. The disclosures are subject to federal confidentiality laws, including the requirement that there be no further disclosure of the personally identifiable information by the agency without consent of the service recipient or conservator or of the parent's or legal guardian's consent in the case of a child. The service provider shall notify the service recipient, a child service recipient's parent or legal guardian, and the service recipient's conservator, if any, of the disclosure. All public and private service providers shall cooperate with the agency in responding to requests, including, but not limited to, those made under the Developmental Disabilities Assistance and Bill of Rights Act of 1975 (42 U.S.C. § 6000 et seq.); the Protection and Advocacy for Mentally Ill Individuals (PAMII) Act of 1986 (42 U.S.C. § 10801 et seq.); and the Protection and Advocacy for Individual Rights Act (29 U.S.C. § 794e).
If an organization may pay for a service provider's service to a service recipient, the service provider may disclose to the organization without service recipient consent only such information about the service recipient as is reasonably necessary to obtain timely payment. Disclosures are on the condition that there be no further disclosure of the personally identifiable information by the agency without service recipient consent.
If the department determines that an emergency substantially impairs a provider's capacity to provide service to its service recipients and the department appoints a receiver for service recipient information, the service recipient's information may be transferred to a new service provider without service recipient consent.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 11.

Compiler's Notes. The Developmental Disabilities Assistance and Bill of Rights Act of 1975, 42 U.S.C. § 6000 et seq., has been replaced by the Developmental Disabilities Assistance and Bill of Rights Act of 2000, compiled as 42 U.S.C. § 15001 et seq.

Cross-References. Confidentiality of public records, § 10-7-504.

33-3-107. Rules relating to disclosure of confidential information.

The department may adopt rules to implement § 33-3-103 — 33-3-114, including rules on the form, content, and means of consent and disclosure, scope of permissible disclosure, and definitions of terms.

Acts 2000, ch. 947, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

33-3-108. Access permitted for reports of harm and granting of access in cases of abuse.

Section 33-3-103 does not preclude making reports of harm or granting access to records if making reports of harm or granting access to records is expressly required by:
1. The Child Abuse Reporting Law, compiled in title 37, chapter 1, part 4;
2. The Child Sexual Abuse Reporting Law, compiled in title 37, chapter 1, part 6; or
3. The Adult Protective Services Law, compiled in title 71, chapter 6.
1. The identity of a person who reports abuse, exploitation, fraud, neglect, misappropriation or mistreatment to the department is confidential and may not be disclosed without the person's consent, except as follows:
  1. As necessary to carry out the laws cited in subsection (a);
  2. To employees of the department as necessary to investigate the report;
  3. To the abuse registry;
  4. To the appropriate district attorney general;
  5. By order of a court with jurisdiction over abuse, exploitation, fraud, neglect, misappropriation or mistreatment; or
  6. By order of a court or administrative law judge in a proceeding involving sanctions or disciplinary actions against a caregiver or an entity accused of abuse, exploitation, fraud, neglect, misappropriation or mistreatment, when it appears to such court or administrative law judge that the person making the report is or may be a witness to facts relevant to the proceeding.
2. The person's identity is irrelevant to any civil proceeding and is not subject to disclosure, except in cases where a caregiver or other person is the subject of a complaint and can make a showing that the complaint was made with malice so that the caregiver or other person may pursue such remedies as may be permitted by law. The person may be subpoenaed if the department or district attorney general deems it necessary to protect the service recipient who is the subject of the report, but the fact that the person made the report may not be disclosed.

T.C.A. § 33-3-104(10)(B); Acts 2000, ch. 947, § 1; 2002, ch. 730, § 12; 2011, ch. 158, § 16.

Cross-References. Confidentiality of public records, § 10-7-504.

33-3-109. Release of information to family members and other designated persons — Acceptance of information from family members of service recipients.

A service recipient for services under chapter 6 of this title shall be given an opportunity to approve and sign an information release that authorizes the facility or program to release certain information concerning the recipient to certain family members and other designated persons. This opportunity shall be offered when the recipient is entering inpatient or outpatient treatment at a facility, admitted in an emergency room, entering in a crisis response setting, or admitted in ongoing treatment with a community mental health care provider. This opportunity shall be offered to the recipient at the time of admission, periodically during treatment, and at discharge.
The service recipient may withdraw authority to release all information previously authorized, withdraw authority to release the information to any individuals previously authorized or modify either the type of information authorized in subsection (c) or the individuals to whom the information may be provided. All such changes must be executed in writing by the service recipient or:
1. The conservator of the service recipient;
2. The attorney in fact under a power of attorney who has the right to make disclosures under the power;
3. The parent, legal guardian, or legal custodian of a service recipient who is a child;
4. The service recipient's guardian ad litem for the purposes of the litigation in which the guardian ad litem serves;
5. The treatment review committee for a service recipient who has been involuntarily committed;
6. The executor, administrator or personal representative on behalf of a deceased service recipient; or
7. The caregiver under title 34, chapter 6, part 3.
The information release shall provide the service recipient options for authorized disclosures to:
1. Specified family members that discloses only location;
2. Specified family members who are to be involved with discharge instructions and linking to other services; and
3. Specified family who are to be involved in and supportive in the treatment process.
The department shall encourage education of mental health care providers regarding accepting information from family members in the course of the treatment process.

Acts 2007, ch. 356, § 1; 2008, ch. 789, § 1.

Compiler's Notes. Former § 33-3-109 (Acts 2000, ch. 947, § 1), concerning adjudications of competence not confidential records that must be kept separate, was repealed by Acts 2002, ch. 735, § 9.

Acts 2002, ch. 730, § 13, purported to amend § 33-3-109; however, that section was repealed by Acts 2002, ch. 735, § 9.

Cross-References. Confidentiality of public records, § 10-7-504.

33-3-110. Disclosure to law enforcement agencies in cases of felony acts of bodily harm or sexual abuse.

Section 33-3-103 does not prohibit disclosure to a law enforcement agency that has jurisdiction over felonious acts of bodily harm or sexual offenses that appear to have been committed on the premises of a facility whose records are made confidential by § 33-3-103.
If the felonious act involves a sexual offense governed by title 37, chapter 1, part 6, and title 71, chapter 6, part 1, in a locality having a sex abuse crime unit, disclosure for law enforcement investigative purposes shall be made only to that unit of the law enforcement agency. This section does not limit the requirements of disclosure of reports of harm and access to records required by title 37, chapter 1, parts 4 and 6, and title 71, chapter 6, part 1, for investigations by the department of human services.
Permissible disclosure of a felonious act for the purpose of conducting a necessary investigation includes:
1. The name of, and providing access to, witnesses or potential witnesses of the offense;
2. The name of, and providing access to, suspects or potential suspects of the offense; and
3. The scene of, and providing access to, where the offense occurred.

Acts 2000, ch. 947, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

33-3-111. Records of child service recipient not available to person accused of abusing recipient — Exceptions and limitations.

In any case where a person is known to have been accused of physically or sexually abusing or neglecting a service recipient who is a child, the service recipient's record shall not be accessible to the person accused of the abuse or neglect, except if:
1. A court orders access under § 33-3-105(3); or
2. 1. The child's qualified mental health professional has determined in the course of the treatment or service, after consultation with the child, the child's guardian ad litem, and others on the child's behalf whom the professional deems appropriate, that the release of the child's record to the accused person would not be harmful to the child; and
  2. The accused person is the parent, legal guardian, or legal custodian of the child.
If the court permits access to the child's record under subsection (a), the court shall have jurisdiction to issue any necessary orders to control access to and use of the information by the person seeking access, including the issuance of injunctive relief.

Acts 2000, ch. 947, § 1.

33-3-112. Disclosure to service recipient of records kept and procedures for accessing records.

Upon request by a service recipient sixteen (16) years of age or older, a service provider shall disclose to the service recipient what records the provider maintains on the service recipient and how the service recipient can obtain access to them. Upon written request by a service recipient, a service provider shall permit the service recipient, within a reasonable time, to review the service recipient's record itself or the part of it that the service recipient requests or a copy of the record or the part except to the extent that:
1. Service recipient access to the record is expressly restricted or prohibited by another statute; or
2. The provider is authorized to deny access under subsection (b).
If a person's qualified mental health professional determines that giving the service recipient, or a person acting for the service recipient, access to part of the service recipient's record poses a substantial risk of serious harm to the health or safety of the service recipient or another person, then the qualified mental health professional may refuse access to that part of the record.

Acts 2000, ch. 947, § 1.

33-3-113. Request by recipient to have record amended.

If a service recipient requests amendment of the service recipient's record by revision, deletion, or addition to correct the record, the service provider shall, within ten (10) working days after receiving the request, either make the amendment to assure that service recipient's records do not contain inaccurate, irrelevant, or otherwise inappropriate information or inform the service recipient of its refusal, of the reason for the refusal, and of the procedure, if any, for further internal review of the decision.
If any provider decides that it will not amend the record in accordance with the request, it shall permit the service recipient to file a concise statement of the reasons for the service recipient's disagreement.
If any provider discloses any of the disputed information, it shall clearly note the disputed information and provide a copy of the statement of disagreement. If the provider wishes, it may also provide a concise statement of its reasons for not making the requested amendments.
The service recipient may not personally alter the record.

Acts 2000, ch. 947, § 1.

33-3-114. Exceptions to evidentiary privilege of mental health professionals.

Notwithstanding any evidentiary privilege a qualified mental health professional may have, including §§ 24-1-207, 63-11-213, 63-22-114, and 63-23-109, the qualified mental health professional may be compelled to testify in:

Judicial proceedings under this title to commit a person with mental illness, serious emotional disturbance, or developmental disability to treatment if the qualified mental health professional decides that the service recipient is in need of compulsory care and treatment;
In proceedings for which the qualified mental health professional was ordered by the court to examine the service recipient if the service recipient was advised that communications to the qualified mental health professional would not be privileged;
Judicial proceedings under chapter 8, part 3 of this title; and
Guardianship, conservatorship, and veterans' guardianship proceedings under title 34.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 14.

Cross-References. Uniform Veterans' Guardianship Law, title 34, ch. 5.

Collateral References.

Waiver of evidentiary privilege by inadvertent disclosure — State law. 51 A.L.R.5th 603.

33-3-115. Information to be collected and reported to the federal bureau of investigation-NICS index and the department of safety by any clerk of court that maintains records of an adjudication as a mental defective or a judicial commitment to a mental institution.

Any clerk of court that maintains records of an adjudication as a mental defective or a judicial commitment to a mental institution pursuant to chapter 6 or chapter 7 shall, in accordance with the procedures outlined in title 16, disclose the following information set out in subsection (b) solely for the purposes of complying with §§ 39-17-1316, 39-17-1351, 39-17-1352, 16-1-117(a)(6) and the NICS Improvement Amendments Act of 2007, Public Law 110-180.
The following information shall be collected and reported to the federal bureau of investigation-NICS Index, and the department of safety, pursuant to this subsection (b):
1. Complete name and all aliases of the individual judicially committed or adjudicated as a mental defective, including, but not limited to, any names that the individual may have had or currently has by reason of marriage or otherwise;
2. Case or docket number of the judicial commitment or the adjudication as a mental defective;
3. Date judicial commitment ordered or adjudication as a mental defective was made;
4. Private or state hospital or treatment resource to which the individual was judicially committed;
5. Date of birth of the individual judicially committed or adjudicated as a mental defective, if such information has been provided to the clerk;
6. Race and sex of the individual judicially committed or adjudicated as a mental defective; and
7. Social security number of the individual judicially committed or adjudicated as a mental defective if available.
The information in subdivisions (b)(1) – (7), the confidentiality of which is protected by other statutes or regulations, shall be maintained as confidential and not subject to public inspection pursuant to such statutes or regulations, except for such use as may be necessary in the conduct of any proceeding pursuant to §§ 38-6-109, 39-17-1316, and 39-17-1352 — 39-17-1354.
For purposes of this section, the following definitions shall apply:
1. “Judicial commitment to a mental institution” means a judicially ordered involuntary admission to a private or state hospital or treatment resource in proceedings conducted pursuant to title 33, chapter 6 or title 33, chapter 7;
2. “Adjudication as a mental defective or adjudicated as a mental defective” means:
  1. A determination by a court in this state that a person, as a result of marked subnormal intelligence, mental illness, incompetency, condition or disease:
    1. Is a danger to such person or to others; or
    2. Lacks the ability to contract or manage such person's own affairs due to mental defect;
  2. A finding of insanity by a court in a criminal proceeding; or
  3. A finding that a person is incompetent to stand trial or is found not guilty by reason of insanity pursuant to 50a and 72b of the Uniform Code of Military Justice (10 U.S.C. §§ 850a, 876b).

Acts 2009, ch. 578, § 5; 2013, ch. 300, § 7; 2019, ch. 262, §§ 1, 2.

Compiler's Notes. The NICS Improvement Amendments Act of 2007, Public Law 110-180, may be found as a note to 18 USCS § 922.

Former § 33-3-115 (T.C.A. § 33-3-104(10)(B); Acts 2000, ch. 947, § 1), concerning penalties for violations of §§ 33-3-103—33-3-114, was transferred to § 33-3-116 by Acts 2009, ch. 578, §§ 5 and 6, effective January 1, 2010.

Amendments. The 2019 amendment added (b)(6) and (b)(7); and, in (c), substituted “subdivisions (b)(1) - (7)” for “subdivisions (b)(1) - (5)” and substituted “proceeding pursuant to §§ 38-6-109, 39-17-1316, and 39-17-1352 — 39-17-1354” for “proceedings pursuant to §§ 39-17-1316, 39-17-1353 and 39-17-1354”.

Effective Dates. Acts 2019, ch. 262, § 7. July 1, 2019.

33-3-116. Penalty for violation.

A violation of §§ 33-3-103—33-3-115 is a Class C misdemeanor.

T.C.A. § 33-3-104(10)(B); Acts 2000, ch. 947, § 1; Acts 2009, ch. 578, § 6; T.C.A. § 33-3-115.

Compiler's Notes. Former § 33-3-115 was transferred to this section by Acts 2009, ch. 578, §§ 5 and 6, effective January 1, 2010.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

33-3-117. Reporting to local law enforcement by inpatient treatment facility of involuntary commitment of service recipient.

If a service recipient is involuntarily committed to an inpatient treatment facility under this title, the inpatient treatment facility shall report the service recipient to local law enforcement as soon as practicable, but no later than the third business day following the date of such commitment, who shall report the service recipient to the federal bureau of investigation-NICS Index and the department of safety as soon as practicable, but no later than the third business day following the date of receiving such notification, for the purposes of complying with the NICS Improvement Amendments Act of 2007, Public Law 110-180, as enacted and as may be amended in the future.
If an inpatient treatment facility is required to report pursuant to subsection (a), the facility shall report the following information:
1. Complete name of the person involuntarily committed;
2. Date involuntary commitment was ordered;
3. Private or state hospital or treatment resource to which the individual was involuntarily committed;
4. Date of birth of the person involuntarily committed;
5. Race and sex of the person involuntarily committed; and
6. Social security number of the person involuntarily committed if available.
The information in subdivisions (b)(1)-(4), the confidentiality of which is protected by other statutes or regulations, shall be maintained as confidential and not subject to public inspection pursuant to such statutes or regulations, except for such use as may be necessary in the conduct of any proceedings pursuant to §§ 39-17-1316, 39-17-1353 and 39-17-1354.

Acts 2013, ch. 300, § 8; 2018, ch. 799, § 3.

Compiler's Notes. The NICS Improvement Amendments Act of 2007, Public Law 110-180, may be found as a note to 18 USCS § 922.

Amendments. The 2018 amendment added (b)(5) and (6).

Effective Dates. Acts 2018, ch. 799, § 7. July 1, 2018.

Cross-References. Confidentiality of public records, § 10-7-504.

33-3-118, 33-3-119. [Reserved.]

Service recipients have the right to be free from isolation and restraints, in any form, imposed as a means of coercion, discipline, convenience or retaliation by staff. Restraints include physical and mechanical restraints and drugs used to control behavior or to restrict freedom of movement if the drug or the dosage of the drug is not a standard treatment for the service recipient's medical or psychiatric condition. Isolation is placement of a person alone in a room from which egress is prevented. Isolation and restraint may be used only while the condition justifying its use exists.
A person with mental illness or serious emotional disturbance may be isolated or restrained only in emergency situations if necessary to assure the physical safety of the person or another person nearby or to prevent significant destruction of property. If a person imposes restraints or isolation, the person shall immediately contact a professional who is permitted under department rules to authorize the isolation or restraint. If the treating physician is not the person who orders isolation or restraint, the treating physician shall be consulted as soon as possible. A professional authorized by department rules shall see and evaluate the person's condition within one (1) hour of the intervention.
A person with developmental disability may be restrained only as part of an approved plan or in emergency situations if necessary to assure the physical safety of the person or another person nearby or to prevent significant destruction of property. Isolation may only be used with a person with developmental disability as part of the person's approved plan. Only psychologists, psychological examiners, senior psychological examiners, physicians, behavior analysts, masters degree social workers, and others authorized to do so under department rules may develop a plan that includes or authorizes isolation or restraint of a person with developmental disability.
Staff shall remain in the physical presence of a person in restraint. Staff shall continuously observe a person in isolation or restraint for the health and well being of the person.
The professional shall record the use of restraint or isolation, the reasons for its use, and the duration of its use in the person's record.
All staff who may have direct contact with a person being restrained or isolated shall receive ongoing education and training in alternative methods for handling behavior and the safe use of isolation and restraint.
The department shall adopt rules as to circumstances under which use of restraint and isolation are permitted. The department shall distribute the rules to all who provide services covered by this title.
The department shall report annually to the statewide planning and policy council on the use of restraint and isolation in the state and its rules on the subject.

Acts 2000, ch. 947, § 1; 2001, ch. 334, § 2; 2002, ch. 730, § 15; 2007, ch. 96, § 1.

33-3-121 — 33-3-124. [Reserved.]

A certificate of need for commitment for care and treatment as a person with mental illness, serious emotional disturbance, or developmental disability that is authorized or required to be made by a physician, psychologist, or other professional under this title is not valid for any purpose if:

It is made by a professional who is a relative by blood, marriage, or adoption, or the legal guardian, conservator, or legal custodian of the person who is the subject of the petition, application or certificate; or
It is made by a professional who has an ownership interest in a private facility in which the person is to be admitted.

Acts 1983, ch. 323, § 16; T.C.A., §§ 33-345, 33-3-108; Acts 2000, ch. 947, § 1.

33-3-126. Right to religious expression.

A licensee or provider under this title may not discourage or preclude a service recipient from exercising the right to religious expression and shall inform each service recipient in a residential environment of this right. A licensee or provider of religious service may provide transportation for a service recipient under this section.

Acts 2002, ch. 730, § 8.

Part 2
Special Liability Rules

33-3-201. Liability of counselor for suicide or attempted suicide of person counseled.

As used in this section, unless the context otherwise requires:
1. “Counseling center” means any nonprofit service operated at least partially with volunteer assistance that provides counseling, assistance or guidance, either in person or by telephone, to persons with mental illness or serious emotional disturbance; and
2. “Counselor” means any psychiatrist, psychologist, licensed psychologist with health service provider designation, certified or licensed marital and family therapist, certified or licensed professional counselor, certified or licensed social worker, or other professional trained in the field of psychiatry or psychology or any nonprofessional person acting under the guidance or supervision of the professionals.
A counselor, while acting within the scope of responsibilities assigned by a counseling center, is not liable civilly or criminally for the suicide or attempted suicide of any person consulting the counselor.

Acts 1978, ch. 632, §§ 1, 2; T.C.A., §§ 33-1701, 33-1702; §§ 33-17-101, 33-17-102; Acts 1984, ch. 710, § 1; 1990, ch. 760, § 3; T.C.A., §§ 33-10-101, 33-10-102; Acts 2000, ch. 947, § 1; 2002, ch. 730, § 16.

Cross-References. Definitions applicable throughout title, § 33-1-101.

Good samaritan law, § 63-6-218.

Immunity from suit of not-for-profit boards, § 48-58-601.

33-3-202. Director of not-for-profit corporation providing service not liable for torts of recipients.

While acting in good faith, the directors of a not for profit corporation that provides community residential services or supports for persons with mental illness, serious emotional disturbance, or developmental disability shall not be held personally liable for tortious acts committed by the corporation's service recipients.
Subsection (a) does not preclude imposition of personal liability on a director who also acts as a paid officer or employee of the corporation.

Acts 1979, ch. 33, § 2; T.C.A., §§ 33-17-202, 33-10-202; Acts 2000, ch. 947, § 1.

33-3-203 — 33-3-205. [Reserved.]

Compiler's Notes. Former § 33-3-203, concerning temporary legal custody of minors, commitment, treatment and discharge, was transferred to § 37-1-175 in 2000.

33-3-206. Duty to predict, warn or take precautions to provide protection — Liability.

IF AND ONLY IF

a service recipient has communicated to a qualified mental health professional or behavior analyst an actual threat of bodily harm against a clearly identified victim, AND
the professional, using the reasonable skill, knowledge, and care ordinarily possessed and exercised by the professional's specialty under similar circumstances, has determined or reasonably should have determined that the service recipient has the apparent ability to commit such an act and is likely to carry out the threat unless prevented from doing so,
THEN
the professional shall take reasonable care to predict, warn of, or take precautions to protect the identified victim from the service recipient's violent behavior.

Acts 1989, ch. 549, § 1; T.C.A., § 33-10-302(a); Acts 2000, ch. 947, § 1; 2001, ch. 334, § 3; 2002, ch. 730, § 17.

Textbooks. Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), §§ 501.7, 501.8.

Law Reviews.

Balancing Public Safety with the Rights of the Mentally Ill: The Benefit of a Behavioral Approach in Reducing Gun Violence in Tennessee, 45 U. Mem. L. Rev. 671 (2015).

NOTES TO DECISIONS

1. “Dangerous Patient” Exception.

There is no “dangerous patient” exception to the federal psychotherapist/patient testimonial privilege. United States v. Hayes, 227 F.3d 578, 2000 FED App. 320P, 2000 U.S. App. LEXIS 23197 (6th Cir. Tenn. 2000).

Collateral References.

Civil Liability of Psychiatrist Arising out of Patient's Violent Conduct Resulting in Injury to or Death of Patient or Third Party Allegedly Caused in Whole or Part by Mental Disorder. 80 A.L.R.6th 469.

33-3-207. Discharge of duty.

The duty imposed by § 33-3-206 may be discharged by the professional or service provider by:

Informing the clearly identified victim of the threat;
Having the service recipient admitted on a voluntary basis to a hospital;
Taking steps to seek admission of the service recipient to a hospital or treatment resource on an involuntary basis pursuant to chapter 6 of this title; or
Pursuing a course of action consistent with current professional standards that will discharge the duty.

Acts 1989, ch. 549, § 1; T.C.A., § 33-10-302(b); Acts 2000, ch. 947, § 1.

33-3-208. Duty of employees who transmit or record patient communications.

IF AND ONLY IF

an employee of a service provider is normally responsible for transmitting or recording communications from a service recipient to a qualified mental health professional or behavior analyst, AND
the employee receives a communication from a service recipient of an actual threat of bodily harm against a clearly identified victim,
THEN
the employee shall communicate the threat to the professional employed by the service provider.

Acts 1989, ch. 549, § 1; T.C.A., § 33-10-303; Acts 2000, ch. 947, § 1; 2001, ch. 334, § 4; 2002, ch. 730, § 17.

33-3-209. Immunity from liability where duty satisfied.

If a professional or an employee has satisfied the person's duty under § 33-3-206, § 33-3-208, or § 33-3-210, no monetary liability and no cause of action may arise against the professional, an employee, or any service provider in whose service the duty arose for the professional or employee not predicting, warning of, or taking precautions to provide protection from violent behavior by the person with mental illness, serious emotional disturbance, or developmental disability.

Acts 1989, ch. 549, § 1; T.C.A., §§ 33-10-302(a), 33-10-303; Acts 2000, ch. 947, § 1; 2013, ch. 300, § 10.

33-3-210. Reporting to local law enforcement by a qualified mental health professional or behavior analyst of an actual threat of serious bodily harm or death against an identifiable victim.

If a service recipient has communicated to a qualified mental health professional or behavior analyst an actual threat of serious bodily harm or death against a reasonably identifiable victim or victims, the qualified mental health professional or behavior analyst, using the reasonable skill, knowledge, and care ordinarily possessed and exercised by the professional's specialty under similar circumstances, who has determined or reasonably should have determined that the service recipient has the apparent ability to commit such an act and is likely to carry out the threat unless prevented from doing so, shall immediately report the service recipient to local law enforcement, who shall take appropriate action based upon the information reported.
If a mental health professional or behavior analyst is required to report pursuant to subsection (a), the professional or analyst shall report the following information:
1. Complete name and all aliases of the service recipient;
2. Name of the mental health professional or behavior analyst and the name of the private or state hospital or treatment resource from which the individual may be receiving services;
3. Date of birth of the service recipient;
4. Race and sex of the service recipient; and
5. Social security number of the service recipient if available.
The information in subdivisions (b)(1)-(3), the confidentiality of which is protected by other statutes or regulations, shall be maintained as confidential and not subject to public inspection pursuant to such statutes or regulations, except for such use as may be necessary in the conduct of any proceedings pursuant to §§ 39-17-1316, 39-17-1353 and 39-17-1354.

Acts 2013, ch. 300, § 9; 2018, ch. 799, § 4.

Amendments. The 2018 amendment added (b)(4) and (5).

Effective Dates. Acts 2018, ch. 799, § 7. July 1, 2018.

Cross-References. Confidentiality of public records, § 10-7-504.

Law Reviews.

Balancing Public Safety with the Rights of the Mentally Ill: The Benefit of a Behavioral Approach in Reducing Gun Violence in Tennessee, 45 U. Mem. L. Rev. 671 (2015).

33-3-211. [Reserved.]

1. a person has refused to perform any act that is prohibited by or is not lawful under this title, OR
2. a person has relinquished authority over a service recipient based on a decision by another to whom this title gives express authority to make the decision,
  THEN
no monetary liability and no cause of action may arise against the person or the service provider in whose service the person was acting for the conduct.

Acts 2000, ch. 947, § 1.

33-3-213 — 33-3-216. [Reserved.]

The department shall by rule prescribe a uniform assessment process by which to determine whether a service recipient lacks capacity to make decisions on issues within the meaning of § 33-3-218.

Acts 2000, ch. 947, § 1.

33-3-218. Decision making capacity of recipient.

1. a service recipient, due to intellectual disability or mental impairment related to a developmental disability, is unable to make an informed decision about application for admission to a developmental center under § 33-5-301, request discharge under § 33-5-303, or a routine medical, dental, or mental health treatment, OR
2. a service recipient, due to a diagnosed mental illness or serious emotional disorder, is unable to make an informed decision about application to a hospital or inpatient treatment resource under § 33-6-201, requesting discharge under § 33-6-206, inpatient mental health treatment, release of information, or getting information, AND
the incapacity is shown by the fact that the person is not able to understand the proposed procedure, its risks and benefits, or the available alternative procedures,
THEN
the person “lacks capacity” under this title for decision about that matter at this time.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 18; 2005, ch. 150, § 1; 2010, ch. 734, § 1.

Compiler's Notes. For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

Law Reviews.

To Be or Not To Be in Tennessee: Deciding Surrogate Issues, 34 U. Mem. L. Rev. 333 (2004).

Attorney General Opinions. There is no conflict between the surrogate decision making provisions of Title 33 and the conservatorship provisions of Title 34 with respect to the standard used to determine whether an individual is able to make his or her life choices, OAG 05-157 (10/14/05), 2005 Tenn. AG LEXIS 159.

33-3-219. Surrogate decision maker for medical decisions — Immunity from liability.

1. an adult with developmental disability that is not based solely on a diagnosis of mental illness or serious emotional disturbance does not have a conservator, OR
2. a child with developmental disability that is not based solely on a diagnosis of mental illness or serious emotional disturbance does not have a parent or legal guardian, AND
1. a licensed dentist determines that the person lacks capacity to make a decision about a routine dental decision, OR
2. a licensed psychologist with health service provider designation determines that the person lacks capacity to make a decision about routine mental health treatment, OR
3. a licensed physician determines that the person lacks capacity to make a decision about routine medical or mental health treatment, AND
the physician, psychologist, or dentist uses the assessment process prescribed by rule under § 33-3-217, AND
the physician, psychologist, or dentist determines that someone is eligible to serve as a surrogate decision maker for the service recipient on the matter in question under § 33-3-220, AND
the service recipient does not reject the proposed surrogate for the decision in any way, AND
the physician, psychologist or dentist provides the surrogate the information necessary to an informed decision,
THEN
the surrogate may decide for the service recipient with respect to the matter in question, AND
the surrogate who acts in good faith, reasonably and without malice in connection with the decision shall be free from all liability, civil or criminal, by reason of the decision.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 19.

33-3-220. Eligibility to serve as surrogate decision maker.

a physician, psychologist, or dentist reasonably determines that an adult:
1. knows about a service recipient's developmental disability and condition as it relates to the matter in question,
2. is actively involved in the service recipient's life,
3. is willing to make a decision for the service recipient on the matter in question,
4. appears to be reasonably capable of making the decision and likely to make it objectively in the service recipient's interest,
5. appears to have no conflict of interest with the service recipient, and
6. is, in order of descending preference for service as a surrogate:
  1. the service recipient's spouse,
  2. the service recipient's adult child,
  3. the service recipient's parent or stepparent,
  4. the service recipient's adult sibling,
  5. any other adult relative of the service recipient, or
  6. any other adult,
  THEN
the adult is eligible to serve as a surrogate decision maker for the service recipient on the matter in question under §§ 33-3-219 — 33-3-221.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 20.

33-3-221. Immunity of medical professional acting in accordance with decision of surrogate decision maker.

the physician, psychologist, or dentist knows of no family member, of the same or higher order of preference as the surrogate under § 33-3-220(1)(F), who objects to the surrogate's decision, AND
the proposed treatment is not solely for behavior control of a service recipient,
THEN
the physician, psychologist, or dentist may act on the surrogate's decision as if the service recipient had the capacity to consent and had consented personally, AND
the physician, psychologist, or dentist who acts in accord with and in good faith reliance on the surrogate's decision is not subject to criminal prosecution, civil liability, or professional disciplinary action based on a subsequent finding of the invalidity of the surrogate's decision.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 20.

Part 3
Transfers of Residential Service Recipients

33-3-301. Transfer between facilities.

The commissioner may authorize the transfer of a person in a facility of the department to another department facility or to a private facility under this section. The commissioner shall give due consideration to the relationship of the person to family, guardian, conservator, and friends so as to maintain relationships and encourage visitation beneficial to the person. If a person whose transfer is authorized has been admitted or committed by court order, a certified copy of the court order shall be sent to the facility to which the person is transferred.
1. If the commissioner determines that a person could more properly be cared for and treated in a facility other than the one in which the person is a service recipient and that the transfer is in the person’s best interest, the commissioner may authorize the person to be transferred for an indefinite period to another department facility. The person may be transferred to a secure facility, if, and only if, in addition, the commissioner determines that the person is substantially likely to injure the person or others if not treated in a secure facility. Notwithstanding any other provisions of this section, any transfer to a developmental center authorized under this section shall not exceed forty-five (45) days unless the transfer complies with department rules.
2. Before a transfer is authorized, the person shall be given a physical examination by a licensed physician and a mental assessment and evaluation by a qualified professional, and complete written reports of the examination, assessment, and evaluation shall be forwarded to the commissioner by the chief officer who recommends the transfer. The reports and the chief officer's recommendation shall each include a certification that the transfer is in the person's best interests and a statement of the reasons for the conclusion.
3. The chief officer, upon recommending transfer, shall immediately give personal notice of the recommendation by telephone or otherwise to the person's spouse, parent, adult child, legal guardian, or conservator, if any, and to the person. No person may be transferred less than twenty-four (24) hours after the notices required by this subdivision (b)(3) have been given, unless the person's spouse, parent, adult child, or legal guardian or conservator, if any, has agreed to the transfer or unless a diligent attempt by the chief officer to give notice is unsuccessful.
4. The commissioner, upon authorizing transfer, shall immediately give to the person's spouse, parent, or adult child, legal guardian or conservator, if any, the committing court, if any, and to the service recipient written notice of the decision and a complaint form for review of transfer in the circuit court under part 7 of this chapter. The person may then be transferred immediately.
1. If the commissioner determines, upon the recommendation of the chief officer who requests a transfer, that:
  1. A person requires emergency care and treatment that cannot be provided by the transferring facility; and
  2. The transfer is in the person’s best interest, the commissioner may authorize the person to be transferred immediately to another department facility. The person may be transferred to a secure facility, if, and only if, in addition, the commissioner determines that the person is substantially likely to injure such person or others if not treated in a secure facility.
2. If the commissioner approves the emergency transfer, the commissioner shall notify the chief officers of the transferring and receiving facilities. The chief officer of the transferring facility shall then have the person transferred immediately. A bed shall remain open at the transferring facility for seventy-two (72) hours after the transfer for the readmission of the person.
3. Within seventy-two (72) hours after the transfer, the chief officer of the receiving facility shall determine whether the transfer was appropriate. If the chief officer determines that the transfer was not appropriate, the chief officer shall return the person to the sending facility. If the chief officer determines that the transfer was appropriate, the chief officer shall immediately give the person written notice of the decision.
4. The transfer shall not exceed thirty (30) days, after which the chief officer shall return the person to the facility from which the person came.
5. If the chief officer of the receiving facility determines that the person requires treatment beyond the thirty-day period, the chief officer shall notify the person in writing and apply for indeterminate transfer under subsection (b). The person shall remain in the receiving facility unless the commissioner denies the application for transfer. If the commissioner denies the application, the chief officer of the receiving facility shall have the person transferred to the sending facility immediately.
A person may be transferred from a state facility to a licensed private facility or from a licensed private facility to a state facility, upon proper application, approval of the sending and receiving facilities, and written notice to the committing court, if the person is committed. Once transferred, the person is lawfully admitted to the receiving facility, and the facility may retain the person under the authority of the admission or order applicable to the facility from which the person was transferred.

Acts 1965, ch. 38, § 4(a); 1974, ch. 802, § 22; 1975, ch. 248, § 7; modified; Acts 1976, ch. 763, § 1; Acts 1978, ch. 533, § 4; T.C.A., § 33-309; Acts 1984, ch. 922, § 4; 2000, ch. 947, §§ 1, 6; 2009, ch. 531, § 35.

Cross-References. Judicial procedures for review of transfers, title 33, ch. 3, part 7.

33-3-302. Transfer to veterans' administration facilities.

Upon receipt of a certificate of the veterans' administration that facilities are available for the care or treatment of a person ordered hospitalized pursuant to chapter 6, part 5 of this title, in any hospital for the care or treatment of persons with mental illness or serious emotional disturbance and that the person is eligible for care or treatment in a veterans' hospital or facility of the agency located in this state, the commissioner may cause the person's transfer to the veterans' hospital or facility of the United States for hospitalization in this state. No person shall be transferred to a veterans' hospital or facility of the United States if the person is confined based on conviction of a criminal offense, or if the person has been acquitted of the charge solely on the ground of mental illness, unless prior to the transfer, the court originally ordering confinement of the person enters an order for the transfer after appropriate motion and hearing. A person transferred to a veterans' hospital or facility shall be considered to be hospitalized by the veterans' administration of the United States under the original order of hospitalization.

Acts 1965, ch. 38, § 4(b); T.C.A., § 33-610; Acts 2000, ch. 947, § 1.

33-3-303. Transfer of nonresident.

The commissioner may provide for and authorize the transportation and transfer from this state to the service recipient's state of residence of a person with mental illness, serious emotional disturbance, or developmental disability who is a resident of a state not party to the Interstate Compact on Mental Health, codified in § 33-9-201, if the nonparty state has reciprocal statutes conferring similar authority and if the service recipient meets the applicable standards for service under this title other than any requirement of being a state resident.
1. Subject to the availability of suitable accommodations, a nonresident person with mental illness, serious emotional disturbance, or developmental disability may be hospitalized or admitted under this title for observation, diagnosis and treatment, but in no case for a period longer than thirty (30) days, pending transfer to the state of residence.
2. However, the commissioner may designate certain nonresident persons with mental illness, serious emotional disturbance, or developmental disabilities, not to exceed a total of one hundred (100), as “commissioner's service recipients,” who because of their nonresident status in Tennessee are not entitled to hospitalization or admission in this state, but who, having families residing in the state, may be eligible for psychiatric hospitalization or admission, care and treatment for compassionate reasons.

Acts 1955, ch. 187, § 1; 1965, ch. 38, § 26; 1965, ch. 295, § 1; 1974, ch. 802, § 32; 1975, ch. 248, § 1; T.C.A., §§ 33-319, 33-1101; Acts 2000, ch. 947, § 1.

Collateral References.

Right of state or its political subdivision to maintain action in another state for support and maintenance of defendant's child, parent, or dependent in plaintiff's institution. 67 A.L.R.2d 771.

Part 4
Transfers from Department of Correction and Department of Children's Services

33-3-401. Mentally ill or intellectually disabled minors in youth development centers.

If the chief officer of a youth development center of the department of children's services determines, on the basis of a written report of a licensed physician or licensed psychologist designated as a health service provider, that a person in the youth development center:
1. Has serious emotional disturbance, mental illness, or intellectual disability; and
2. Is in need of residential care and treatment for the condition that cannot be provided by the department of children's services and that can be provided at a residential facility of the department of mental health and substance abuse services or the department of intellectual and developmental disabilities, the chief officer of the youth development center shall order the person's transfer and shall notify the person of the decision and the reasons in writing not less than twenty-four (24) hours in advance of the proposed transfer.
1. If the person does not object to the transfer within twenty-four (24) hours of notice of the proposed transfer, the person shall be transferred to the appropriate residential program of the department of mental health and substance abuse services or the department of intellectual and developmental disabilities that is designated by the commissioner of mental health and substance abuse services or the commissioner of intellectual and developmental disabilities as having available suitable accommodations. The department of children's services shall retain legal custody of the person after the person has been transferred to an appropriate residential program of the department of mental health and substance abuse services or the department of intellectual and developmental disabilities.
2. If the person objects to the transfer within twenty-four (24) hours of notice of the proposed transfer, the chief officer of the youth development center shall convene a transfer committee not less than seven (7) nor more than fourteen (14) days thereafter, and the person shall remain in the youth development center pending the decision of the transfer committee.

Acts 1984, ch. 922, § 34; 1989, ch. 278, § 30; 1989, ch. 513, § 5; 1992, ch. 991, § 13; 1996, ch. 1079, §§ 40-42; 2000, ch. 947, §§ 1, 6; 2010, ch. 734, § 1; 2010, ch. 1100, § 36; 2012, ch. 575, §§ 1, 2.

For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

Cross-References. Family support programs and services, title 33, ch. 5, part 2.

Judicial review of transfer, § 33-3-701.

Placement of juveniles, title 37, ch. 2.

Law Reviews.

Problem of Age and Jurisdiction in the Juvenile Court (C. William Reiney), 19 Vand. L. Rev. 833 (1966).

33-3-402. Mentally ill or intellectually disabled adult inmates.

If the director of a facility of the department of correction determines, on the basis of a written report of a licensed physician or a licensed psychologist with health service provider designation, that a person in the director's custody:
1. Has mental illness, serious emotional disturbance, or intellectual disability; and
2. Is in need of residential care and treatment for the condition that cannot be provided at an appropriate facility of the department of correction and that can be provided at an appropriate residential program of the department of mental health and substance abuse services or the department of intellectual and developmental disabilities, the director shall order the person's transfer and shall notify the person of the decision and the reasons in writing not less than twenty-four (24) hours in advance of the proposed transfer.
1. If the person is competent and waives in writing the right to a transfer hearing, the person shall be transferred to the custody of the commissioner at a secure facility that is designated by the commissioner as having available suitable accommodations.
2. If the person does not so waive the right to a hearing, the director shall convene a transfer committee not less than seven (7) nor more than fourteen (14) days thereafter, and the person shall remain in the facility of the department of correction pending the decision of the transfer committee.

Acts 1984, ch. 922, § 34; 2000, ch. 947, §§ 1, 6; 2004, ch. 565, § 6; 2010, ch. 734, § 1; 2010, ch. 1100, § 37; 2012, ch. 575, § 1.

Compiler's Notes. For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

33-3-403. Emergency residential care and treatment.

If the director of a facility of the department of correction determines, on the basis of a written report of a licensed physician or a licensed psychologist designated as a health service provider, that a person in the director's custody:
1. Has mental illness or serious emotional disturbance; and
2. Is in need of emergency residential care and treatment for the condition that cannot be provided at an appropriate facility of the department of correction and that can be provided at an appropriate residential program of the department of mental health and substance abuse services, the director shall immediately have the person transferred to the custody of the commissioner at a facility designated by the commissioner.
When a person is transferred from the department of correction to the department of mental health and substance abuse services under this section, the chief officer of the receiving facility shall convene a transfer committee not less than seven (7) nor more than fourteen (14) days thereafter unless the person is returned to the department of correction before the scheduled hearing date.

Acts 1984, ch. 922, § 34; 1989, ch. 278, § 33; 1996, ch. 1079, §§ 43-45; 2000, ch. 947, §§ 1, 6; 2010, ch. 1100, § 38; 2012, ch. 575, § 1.

33-3-404. Transfer committees — Appointment of members.

A transfer committee consists of five (5) persons. If the person to be transferred is in the custody of the department of children's services, the commissioner of children's services shall appoint two (2) members of the committee, neither of whom may be the transferring chief officer. If the person to be transferred is in the custody of the department of correction, the commissioner of correction shall appoint two (2) members of the committee, neither of whom may be the transferring director. The commissioner of mental health and substance abuse services or the commissioner of intellectual and developmental disabilities, as appropriate, shall appoint three (3) members to review transfers of adults and two (2) members to review transfers of children. The executive director of the state commission on children and youth or the director's designee shall be a member of a transfer committee that reviews transfers of children. The committee members shall serve at the pleasure of the appointing commissioners. The commissioners may appoint alternate committee members.

Acts 1984, ch. 922, § 34; 1989, ch. 278, § 31; 1996, ch. 1079, § 47; 2000, ch. 947, § 1; 2010, ch. 1100, § 39; 2012, ch. 575, § 2.

Cross-References. Commission on children and youth, title 37, ch. 3, part 1.

33-3-405. Transfer committee — Chair — Vice chair — Voting — Hearings — Rights of transferees — Evidence.

The committee may elect a chair and a vice chair. The committee shall act by majority vote. No member of the committee is disqualified to participate in a hearing by virtue of prior knowledge of the case. The chair may postpone the hearing for a reasonable time upon request of the person whose transfer is proposed to permit that person to obtain counsel and witnesses. In the hearing, the committee shall receive all relevant evidence. The transferee shall be permitted to speak personally and by counsel and to present witnesses.
Transfer committee proceedings under this part are not governed by the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1984, ch. 922, § 34; 2000, ch. 947, § 1.

33-3-406. Approval or disapproval of transfer.

If the committee determines that the transfer meets the standards for a transfer under this part, it shall approve the transfer. The chair shall immediately give the person written notice of the committee's decision and a summary of the factual basis for the decision and a complaint form for review of the transfer in the circuit court under part 7 of this chapter.
If the transfer committee determines that the transfer does not meet the standards for a transfer under this part, it shall disapprove the transfer, and if the person has already been transferred, shall order the person returned to the transferring facility. The chair shall immediately give the person written notice of the committee's decision and a summary of the factual basis for the decision.

Acts 1984, ch. 922, § 34; 1989, ch. 513, § 6; 2000, ch. 947, § 1.

33-3-407. When person to be transferred.

The person shall be transferred five (5) days after the receipt of the committee's notice if the person has not filed a complaint under part 7 of this chapter.
The person may be transferred immediately after receipt of the notice if the person is competent and consents in writing to the transfer.

Acts 1984, ch. 922, § 34; 2000, ch. 947, § 1.

33-3-408. Determination of appropriateness of transfer.

Within five (5) days, excluding Saturdays, Sundays, and legal holidays, after any transfer made without objection by the transferee under § 33-3-401 or § 33-3-402, or any transfer under § 33-3-403, the chief officer of the receiving facility of the department shall determine whether the transfer was appropriate under this part. If the transfer was based on mental illness or serious emotional disturbance, the chief officer's decision shall be based on the advice of a licensed physician. If the transfer was based on intellectual disability, the chief officer's decision shall be based on the advice of a licensed physician or a licensed psychologist with health service provider designation.
1. If the chief officer determines that the transfer of a person in the custody of the department of correction was not appropriate, the chief officer shall immediately transfer the person back to the custody of the department of correction.
2. If the chief officer of the receiving department facility determines that the transfer of a person in the custody of the department of children's services was not appropriate, the chief officer shall immediately transfer the person back to the youth development center or other appropriate program designated by the commissioner of children's services.
3. If the chief officer determines that the transfer was appropriate, the chief officer shall immediately give the person written notice of the decision.

Acts 1984, ch. 922, § 34; 1987, ch. 143, § 2; 1989, ch. 278, § 33; 1989, ch. 513, § 7; 1996, ch. 1079, §§ 48, 49; 2000, ch. 947, §§ 1, 6; 2004, ch. 565, § 7; 2010, ch. 734, § 1.

Compiler's Notes. For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

33-3-409. Return of transferee from public facility.

If the chief officer of a receiving facility of the department or, upon approval by the commissioner, the chief officer of a private facility that operates a program for the department determines more than five (5) days, excluding Saturdays, Sundays, and legal holidays, after a person has been transferred, that a person no longer meets the standards for a transfer under this part or that residential care and treatment in the facility are no longer advisable or beneficial, the chief officer shall order the person's return to the department of correction or the department of children's services.
The chief officer shall notify the person of the decision in writing not less than seventy-two (72) hours in advance of the proposed transfer. If the person does not object within seventy-two (72) hours of the notice to the proposed return, the person shall be returned to the department of correction or the department of children's services. If the person objects within seventy-two (72) hours of the notice, the chief officer shall convene a transfer committee to review the decision not less than seven (7) days nor more than fourteen (14) days thereafter. The person shall remain at the facility pending the decision of the transfer committee.
If the transfer committee determines that the person no longer meets the standards for a transfer under this part or that residential care and treatment in the facility are no longer advisable or beneficial, it shall approve the transfer.
The decision of a transfer committee approving or disapproving a transfer under this section is final. The judicial remedy and procedures under part 7 of this chapter do not apply to the transfer committee decision.

Acts 1984, ch. 922, § 34; 1988, ch. 828, § 1; 1989, ch. 278, § 33; 1989, ch. 513, §§ 8-12; 1996, ch. 1079, § 50; 2000, ch. 947, §§ 1, 6.

33-3-410. Return of transferee from private facility.

If the chief officer of a private facility that operates a program for the department determines that residential care and treatment of a transferee in the facility are no longer advisable or beneficial, the chief officer shall notify the transferee and the commissioner of the determination and of the basis for it.
If the commissioner, after receipt of the notice, determines that an emergency exists and that the determination appears to be correct, the commissioner shall order the transfer immediately to a facility of the department. Within seven (7) days after the transfer, the commissioner shall have a transfer committee composed only of three (3) persons appointed by the commissioner hold a hearing to determine whether residential care and treatment of a transferee in the transferring facility are no longer advisable or beneficial. If the committee determines that the chief officer was correct, it shall approve the transfer. Otherwise, the committee shall order the person returned to the transferring facility or to another appropriate facility.
If the commissioner, after receipt of the notice, determines that an emergency does not exist and that the determination appears to be correct, the commissioner shall have a transfer committee composed only of three (3) persons appointed by the commissioner hold a hearing not less than seven (7) nor more than fourteen (14) days after receipt of the notice to determine whether residential care and treatment of a transferee in the transferring facility are no longer advisable or beneficial. If the committee determines that the chief officer was correct, it shall approve the transfer. Otherwise, the committee shall disapprove the transfer. The person shall remain in the transferring facility until the committee has made its determination.

Acts 1984, ch. 922, § 34; 2000, ch. 947, §§ 1, 6.

33-3-411. Runaways — Custody.

If a transferee runs away from a department facility or a program that is operated by a private contractor for the department and is taken into custody within thirty (30) days after running away, the transferee shall be returned to the custody of the commissioner at a facility designated by the commissioner. If a transferee runs away from the facility or program and is taken into custody more than thirty (30) days after running away, the department that initiated the transfer shall designate a facility or program at which the transferee shall be returned to the custody of the transferring department.

Acts 1984, ch. 922, § 34; 1989, ch. 278, §§ 32, 33; 1996, ch. 1079, § 51; 2000, ch. 947, §§ 1, 6.

33-3-412. Emergency residential care and treatment for minors in youth development centers.

The chief officer of a youth development center shall immediately have a person transferred to a facility of the department designated by the commissioner, if the chief officer of the youth development center of the department of children’s services determines, on the basis of a written report of a licensed physician or a licensed psychologist designated as a health service provider, that the person in the youth development center:
1. Has a serious emotional disturbance or mental illness; and
2. Is in need of emergency residential care and treatment for the condition that cannot be provided at the youth development center and that can be provided by an appropriate residential program of the department.
When a person in the custody of the department of children's services is transferred to a facility of the department under this section, the chief officer of the receiving facility shall convene a transfer committee not less than seven (7) nor more than fourteen (14) days thereafter, unless the person is returned to the youth development center or other appropriate program of the department of children's services before the scheduled hearing date.

Acts 1996, ch. 1079, § 46; 2000, ch. 947, §§ 1, 6; 2010, ch. 1100, § 24.

Part 5
Judicial Procedures Generally

33-3-501. Patient or resident not released during pendency of proceedings — Exceptions.

Notwithstanding any other provisions of this title, no person with mental illness, serious emotional disturbance, or developmental disability with respect to whom proceedings for hospitalization or admission under a court order have been commenced, shall be released or discharged during the pendency of the proceedings, unless ordered by the court upon application of the person with mental illness, serious emotional disturbance, or developmental disability or of the parent, legal guardian, legal custodian, conservator, spouse or adult next of kin of the person, or upon the report of the chief officer that the person with mental illness, serious emotional disturbance, or developmental disability may be discharged with safety.
This provision does not limit the duties to release persons with mental illness, serious emotional disturbance, or developmental disability imposed by §§ 33-5-302, 33-5-303, and 33-6-207, and chapter 6, parts 3, 4, and 8 of this title.

Acts 1965, ch. 38, § 7; 1974, ch. 802, § 23; 1978, ch. 533, § 5; 1983, ch. 323, § 12; T.C.A., § 33-310; Acts 1985, ch. 437, § 11; 1996, ch. 1079, § 52; 2000, ch. 947, § 1.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 3.

Collateral References.

Liability of one releasing institutionalized mental patient for harm he causes. 38 A.L.R.3d 699.

33-3-502. Record of proceedings — Copy of court order with recipient's history to hospital or developmental center.

In all judicial proceedings under this title the clerk of the court in which the proceedings are held shall keep a careful and accurate record of the proceedings.
1. Whenever, in a judicial proceeding under this title, a person has been ordered hospitalized or admitted, the clerk of the court shall immediately communicate the action of the court to the chief officer of the hospital or developmental center.
2. A copy of the court order shall be forwarded to the hospital or developmental center, together with a personal and family history of the person with mental illness, serious emotional disturbance, or developmental disability that the clerk shall complete, and any other forms or documents required by rules of the department.
3. The department shall furnish a supply of all necessary forms to the clerks of the various courts.
The clerk may communicate to the chief officer of the hospital or developmental center the cost that shall be included in the costs and expenses of the case.

Acts 1965, ch. 38, § 16; 1974, ch. 802, § 24; 1975, ch. 248, § 1; T.C.A., § 33-311; Acts 2000, ch. 947, §§ 1, 6.

33-3-503. Costs of proceedings.

The reasonable costs incurred in judicial proceedings under this title shall be paid by the subject of the proceedings or the subject's estate or by the subject's responsible relatives and shall be a charge upon the estate of those liable.
The reasonable costs incurred in judicial proceedings filed by the chief officer of a department facility to have a guardian or conservator appointed under title 34, shall be paid by the subject of the proceedings in conformity with that law.
1. If a subject of proceedings under this title is indigent and does not have responsible relatives able to pay the costs or if a subject of guardianship or conservatorship proceedings filed by the chief officer of a department facility is indigent under the guardianship or conservatorship law under title 34, the state shall pay the costs.
2. For the purpose of subdivision (c)(1), the supreme court shall prescribe by rule the nature of costs for which reimbursement may be allowed, and limitations on and conditions for reimbursement of costs as it deems appropriate in the public interest, subject to this section. The rules shall also specify the form and content of applications for reimbursement of costs to be filed under this section. The administrative director of the courts shall administer this subsection (c) and rules adopted under this subsection (c), and shall audit and review all applications for reimbursement of costs. Upon finding payment to be in order, the administrative director of the courts shall process the payment from money appropriated for that purpose.
In any case where the subject of the proceedings is judicially determined not to be involuntarily hospitalized, committed, or transferred, the costs may be taxed against the person who seeks hospitalization, commitment, or transfer of the subject of the proceedings.
The court may require any petitioner to file an undertaking with surety to be approved by the court in an amount the court considers proper to assure the payment of costs and expenses and to save harmless the respondent by reason of costs incurred, including attorney's fees, if any, and damages suffered by the respondent as a result of the action.
Witnesses subpoenaed to appear in proceedings held under this title shall be paid fees and mileage as provided by law for witnesses generally.

Acts 1965, ch. 38, § 17; 1974, ch. 802, § 25; 1976, ch. 763, § 2; T.C.A., § 33-312; Acts 1984, ch. 922, § 3; 1985, ch. 437, § 12; 1993, ch. 66, § 44; 2000, ch. 947, § 1; 2001, ch. 349, § 1.

Cross-References. Reimbursement of costs in mental health proceedings, Tenn. R. Sup. Ct. 15.

Rule Reference. This section is referred to in Rule 15 of the Rules of the Supreme Court of Tennessee.

This section is referred to in Rule 21 of the Rules of Procedure for the General Sessions Court of Knox County.

Textbooks. Pritchard on Wills and Administration of Estates (4th ed., Phillips and Robinson), § 691.

Attorney General Opinions. Legislator as court-appointed attorney, OAG 83-302, 1983 Tenn. AG LEXIS 174 (9/7/83).

Reimbursement of fees for limited guardians, OAG 84-038, 1984 Tenn. AG LEXIS 312 (1/31/84).

Fees and costs in indigent proceedings, OAG 85-021, 1985 Tenn. AG LEXIS 274 (1/29/85).

33-3-504. Physician, psychologist, or other person, as witness.

A physician, psychologist, person designated by the commissioner under § 33-6-427(b), or other professional who makes an application or conducts an examination under this title is a competent and compellable witness at any judicial proceeding conducted under it.

Acts 1983, ch. 323, § 15; T.C.A., § 33-355; Acts 1993, ch. 356, § 4; 2000, ch. 947, § 1.

33-3-505. Use of audio visual technology in judicial proceeding.

Any judicial proceeding under this title may be conducted by the use of audio visual technology as set out in this section.
1. For proceedings under chapter 6, part 4 of this title, the use of audio visual technology is permissible at the court's discretion, but the court may grant any reasonable request by counsel, a party, or a guardian ad litem to conduct the proceedings in the physical presence of the court.
2. For any other proceedings under this title, the use of audio visual technology is permissible with the agreement of all parties and at the court's discretion.
Subject to the availability of suitable equipment and notwithstanding any law to the contrary, proceedings may be conducted through two-way electronic audio-video communication without the physical presence of the defendant, plaintiff, witnesses or attorneys before the court. Any such hearing must be conducted so that:
1. The defendant, plaintiff, and judge can see and hear each other throughout the entire hearing, except for the private communications excluded under subdivision (b)(5);
2. The judge, defendant, plaintiff and their attorneys can see and hear all witnesses while they testify orally during the hearing;
3. The judge, defendant, plaintiff and their attorneys can hear all questions asked of witnesses during their testimony;
4. The judge, defendant, plaintiff and their attorneys can hear all questions, statements, objections, motions and arguments of any attorney or party participating in the hearing; and
5. The defendant and defendant's attorney and plaintiff and plaintiff's attorney can communicate privately with each other during the hearing.

Acts 2004, ch. 929, § 1.

33-3-506. Delivery of pleadings and certificates of need for care and treatment by telefax transmission.

Pleadings and any certificates of need for care and treatment that must be filed in proceedings under this chapter, and chapters 5-8 of this title may be delivered to the court by telefax transmission in conformity with the Tennessee Rules of Civil Procedure.

Acts 2004, ch. 929, § 1.

Cross-References. Facsimile filing of pleadings, Tenn. R. Civ. P. 5A.

Electronic filing, signing or verification, Tenn. R. Civ. P. 5B.

Part 6
Judicial Procedures for Residential Treatment

33-3-601. Application of part.

This part governs only proceedings under statutes that designate use of this part.

Acts 1983, ch. 323, § 9; T.C.A., § 33-360; Acts 1987, ch. 143, § 7; 2000, ch. 947, § 1.

Cross-References. Commitment of mentally ill persons, title 33, ch. 6, part 5.

33-3-602. Contents of complaint for commitment.

A complaint for commitment shall be sworn and shall show that the defendant is subject to involuntary care and treatment under the commitment statute on which the complaint is based, and shall be accompanied either by a sworn statement by the plaintiff that the defendant has refused to be examined by certifying professionals or by certificates of need as required by the commitment statute showing:

That the certifying professionals have examined the defendant within three (3) days of the date of the certificate;
That they are of the opinion that the defendant is subject to involuntary care and treatment under the commitment statute; and
The factual foundation for their conclusions on each item of the commitment statute.

Acts 1983, ch. 323, § 9; T.C.A., § 33-361; Acts 1984, ch. 922, § 16; 2000, ch. 947, § 1.

33-3-603. Jurisdiction and venue.

The complaint may be filed in a county in which the defendant resides or may be found. If the defendant is in a developmental center, hospital, or treatment resource, the complaint shall be filed where the person is, and jurisdiction of the proceedings may be transferred for good cause to the court of residence. This venue requirement does not apply to complaints filed in accordance with § 33-7-301 or § 33-7-303.
Except as otherwise expressly provided in this title, only the following courts have jurisdiction over the complaint:
1. Chancery court;
2. Circuit court;
3. Juvenile courts in proceedings held by judges who are lawyers or by referees;
4. Probate court in counties having a population of more than four hundred thousand (400,000) according to the 1980 federal census or any subsequent federal census; and
5. Court of general sessions in counties having a metropolitan form of government and having a population of more than four hundred thousand (400,000) according to the 1990 federal census or any subsequent federal census; provided, that the jurisdiction conferred by this subdivision (b)(5) is conferred only for petitions concerning mandatory outpatient treatment.

Acts 1983, ch. 323, § 9; T.C.A., § 33-362; Acts 1984, ch. 922, § 16; 1985, ch. 437, § 13; 1986, ch. 570, § 4; 1986, ch. 836, § 5; 1994, ch. 743, § 1; 2000, ch. 947, § 1.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 4.

Attorney General Opinions. Salary supplements for mental health commitment jurisdiction, OAG 94-84, 1994 Tenn. AG LEXIS 87 (8/5/94).

Compensation of juvenile court referee in mental health commitment proceedings, OAG 94-121, 1994 Tenn. AG LEXIS 87 (10/10/94).

33-3-604. [Reserved.]

Upon receipt of a complaint, the clerk shall have a copy of the complaint with a notice of the time and place of the hearing, the defendant's right to counsel, and the standards for commitment that apply to the proceeding served on the defendant by personal service if the person is at liberty, or by mail, if the person is not at liberty, and shall send a copy by mail to the defendant's attorney, the chief officer of a facility in which the defendant is, and the defendant's legal guardian, legal custodian, or conservator, if any, and to the spouse, parent, or adult next of kin if there is no guardian or conservator. If mailing addresses are unknown, notice may be given by any other reasonable means.

Acts 1983, ch. 323, § 9; T.C.A., § 33-364; Acts 1984, ch. 922, §§ 16, 17; 1987, ch. 143, § 3; 1996, ch. 1079, § 53; 2000, ch. 947, §§ 1, 6.

Attorney General Opinions. Fees and costs in indigent proceedings, OAG 85-021, 1985 Tenn. AG LEXIS 274 (1/29/85).

33-3-606. Time for hearing.

The hearing shall be held as soon as possible, but not more than twenty (20) days after the complaint was filed, except that the court may continue the hearing for up to ten (10) days for good cause and may continue the hearing for as long as necessary to impanel a jury if the defendant demands a jury trial.

Acts 1983, ch. 323, § 9; T.C.A., § 33-365; Acts 1984, ch. 922, §§ 16, 18; 2000, ch. 947, § 1.

33-3-607. Examination of defendant — Detention and release.

If the complaint includes or is accompanied by a sworn statement by the plaintiff that the defendant has refused to be examined by certifying professionals and the court finds that probable cause exists to believe that the defendant is subject to involuntary care and treatment and has refused to be examined by a certifying professional, the court shall order a law enforcement officer to take the defendant into custody for an examination by two (2) certifying professionals who meet the requirements of the commitment statute. The defendant may be detained for the period required to complete the examinations, but not more than forty-eight (48) hours. Upon completion of the examinations, the person shall be released, and the certifying professionals shall report their findings to the court. For good cause, the court may order further examination, including independent examination, as to the mental condition of the person and may continue the hearing until the report of the examination is made to the court.

Acts 1983, ch. 323, § 9; T.C.A., § 33-366; Acts 1984, ch. 922, §§ 16, 19; 2000, ch. 947, § 1.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 3.

33-3-608. Attorney — Notification of representation - Appointment by court.

The defendant's attorney shall notify the court of the representation immediately after accepting it. If the defendant does not employ an attorney, the court shall appoint an attorney to represent the defendant not less than five (5) days in advance of the hearing. An attorney representing the defendant shall not serve as guardian ad litem. If the court determines that the defendant is not able to understand the nature of the proceedings and cannot communicate with counsel in the conduct of the case, the court may appoint another person to serve as the defendant's guardian ad litem.

Acts 1983, ch. 323, § 9; T.C.A., § 33-367; Acts 1984, ch. 922, §§ 16, 20; 2000, ch. 947, § 1.

33-3-609. Jury trial.

Either party may demand a jury trial on the issues.

Acts 1983, ch. 323, § 9; T.C.A., § 33-368; Acts 2000, ch. 947, § 1.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 3.

33-3-610. Place of hearing.

The hearing shall be conducted in a place where the court is usually held or in a physical setting not likely to have a harmful effect on the mental condition of the defendant. No hearing shall be conducted in a jail or other custodial facility for the detention of persons charged with or convicted of criminal offenses. The court shall determine the place of the hearing and may exclude the public from the hearing on motion of the defendant if the interests of the defendant and the public would best be served by exclusion.

Acts 1983, ch. 323, § 9; T.C.A., § 33-369; Acts 1984, ch. 922, § 16; 2000, ch. 947, § 1.

33-3-611. Transportation to hearing.

The chief officer of a facility in which the defendant is found shall arrange for suitable transportation of the person to the court where the hearing is to be held, except that the sheriff shall provide transportation if the defendant has been committed in connection with criminal charges.

Acts 1983, ch. 323, § 9; T.C.A., § 33-370; Acts 1984, ch. 922, §§ 16, 19; 2000, ch. 947, § 1.

33-3-612. Evidence — Witnesses — Continuances — Presence or exclusion of defendant.

The court shall give the defendant, the plaintiff, and all other persons to whom the clerk is required to give notice of the proceeding, an opportunity to appear at the hearing, to testify, and to present and cross-examine witnesses.
The defendant shall be present at the hearing unless the defendant waives the right to be present in writing. If the defendant's attorney shows that the defendant's physical health would be endangered by being at the hearing, the court may order a continuance until the risk is terminated, and the defendant shall not be discharged during the continuance unless the hospital determines that the defendant no longer meets the commitment standards applicable in the hearing that has been continued. If the court determines that the defendant's conduct at the hearing is so violent or otherwise disruptive that it creates a serious risk of harm to the defendant or others at the hearing or so disrupts the proceedings that they cannot be conducted in a proper manner, the court may order the defendant restrained or excluded to the extent necessary to the proper conduct of the proceedings. If the defendant is not present at or is excluded from the hearing, the court shall make a written finding of fact as to why the hearing is held in defendant's absence.

Acts 1983, ch. 323, § 9; T.C.A., § 33-371; Acts 1984, ch. 922, §§ 16, 21; 1996, ch. 1079, § 54; 2000, ch. 947, § 1.

33-3-613. Conduct of hearing.

The hearing shall be conducted in as informal a manner as may be consistent with orderly procedure.

Acts 1983, ch. 323, § 9; T.C.A., § 33-372; Acts 2000, ch. 947, § 1.

33-3-614. Names of examining professionals — Availability to defendant.

If the names of examining professionals who certified the person's need for care and treatment did not accompany the complaint, they shall be made available to the defendant and counsel prior to the hearing.

Acts 1983, ch. 323, § 9; T.C.A., § 33-373; Acts 1984, ch. 922, § 16; 2000, ch. 947, § 1.

33-3-615. Testimony of professionals — Depositions or affidavits.

The testimony of a certifying professional may be made by deposition or affidavit only with the consent of the defendant's counsel. If the testimony is given by deposition or affidavit, the court shall make a specific finding of fact that the defendant or the defendant's counsel has consented, and the defendant's right of cross-examination of the certifying professional shall be preserved.
If consent is not given for testimony by deposition or affidavit, a professional who would be qualified as a certifying professional under the commitment statute may testify instead of a certifying professional if the person has examined the defendant within ten (10) days of the hearing, and the person shall testify as to each point of the commitment statute.

Acts 1983, ch. 323, § 9; T.C.A., § 33-374; Acts 1984, ch. 922, §§ 16, 22; 2000, ch. 947, § 1.

33-3-616. Place of detention.

No defendant shall be detained at a jail or other custodial facility for the detention of persons charged with or convicted of criminal offenses, unless the defendant is under arrest for the commission of a crime.

Acts 1983, ch. 323, § 9; T.C.A., § 33-375; Acts 1984, ch. 922, § 16; 2000, ch. 947, § 1.

33-3-617. Requisites for commitment.

IF AND ONLY IF

the certificates required by law have been filed with the court showing the need for involuntary care and treatment, AND
the court finds on the basis of clear, unequivocal and convincing evidence that the defendant is subject to involuntary care and treatment under the statute under which the commitment is sought,
THEN
the court shall commit the person under the commitment statute on which the complaint is based.

Acts 1983, ch. 323, § 9; T.C.A., § 33-376; Acts 1984, ch. 922, §§ 16, 23; 2000, ch. 947, § 1.

33-3-618. Dismissal of proceedings — Release of defendant.

If the court does not commit the defendant to involuntary care and treatment, the court shall enter an order dismissing the proceedings for involuntary care and treatment.
If the defendant is being held involuntarily under this title, the court shall order the immediate release of the defendant unless the defendant is in the custody of the chief officer of a facility under another law or is being held on charges of the commission of a criminal offense or of juvenile delinquency.

Acts 1983, ch. 323, § 9; T.C.A., § 33-377; Acts 1984, ch. 922, §§ 16, 19; 2000, ch. 947, § 1.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 4.

33-3-619. Commitment to involuntary care — Disclosure of information.

If a commitment to involuntary care and treatment is entered, the certifying professionals shall disclose to the hospital, treatment resource, or developmental center that admits the person on its request information they have about the person, including diagnosis, past treatment, and anything else relating to the person's condition that may aid the facility in providing appropriate care and treatment.

Acts 1983, ch. 323, § 9; T.C.A., § 33-378; Acts 1984, ch. 922, §§ 16, 19; 2000, ch. 947, § 1.

33-3-620. Appeals.

Appeals from proceedings for involuntary care and treatment shall be taken under the general law governing appeals.

Acts 1983, ch. 323, § 9; T.C.A., §§ 33-382, 33-3-623; Acts 2000, ch. 947, § 1.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 6.

Part 7
Judicial Procedures for Review of Transfers

33-3-701. Commencement of proceedings.

Judicial proceedings for the determination of whether a person may be transferred to a facility or continues to be eligible for treatment in a facility to which that person was transferred under part 3 or 4 of this chapter, may be commenced by filing a complaint in circuit court where the receiving department facility is located. The person or a parent, legal guardian, legal custodian, conservator, spouse or responsible relative of the person may initiate the review proceedings.

Acts 1984, ch. 922, § 5; 1989, ch. 513, § 13; 1996, ch. 1079, § 55; 2000, ch. 947, §§ 1, 6.

Collateral References.

Right to counsel in insanity or incompetency adjudication proceedings. 87 A.L.R.2d 950.

33-3-702. Notice of complaint and hearing.

Upon receipt of a complaint the clerk shall mail notice of the filing and of the time and place of the hearing to the transferee and the plaintiff and shall mail notice and a copy of the complaint to the chief officers of the transferring facility and of the receiving facility and to the transferee's spouse, parent, responsible relative, legal guardian, legal custodian, or conservator. If mailing addresses are unknown, notice may be given by any other reasonable means.

Acts 1984, ch. 922, § 5; 1996, ch. 1079, § 56; 2000, ch. 947, § 1.

33-3-703. When hearings held — Continuances.

The hearing shall be held as soon as possible after the complaint was filed. At the request of counsel for the transferee, the hearing shall be continued for up to ten (10) days for preparation of the case.

Acts 1984, ch. 922, § 5; 2000, ch. 947, § 1.

33-3-704. Transferee's attorney.

The transferee's attorney shall notify the court of the representation immediately after accepting it. If the transferee or others on the transferee's behalf do not employ an attorney for the transferee, the court shall appoint an attorney to represent the transferee. An attorney representing the transferee shall not serve as guardian ad litem. If the court determines that the transferee is not able to understand the nature of the proceedings and cannot communicate with counsel in the conduct of the case, the court may appoint another person to serve as the transferee's guardian ad litem.

Acts 1984, ch. 922, § 5; 2000, ch. 947, § 1.

33-3-705. Jury trial.

Either party may demand a jury trial on the issues.

Acts 1984, ch. 922, § 5; 2000, ch. 947, § 1.

33-3-706. Place of hearings — Exclusion of public.

The hearing shall be conducted in a place where the court is usually held or in a physical setting not likely to have a harmful effect on the mental condition of the transferee. No hearing shall be conducted in a jail or other custodial facility for the detention of persons charged with or convicted of criminal offenses unless the transferee is being held in connection with the offenses. The court shall determine the place of the hearing and may exclude the public from the hearing on motion of the transferee if the interests of the transferee and the public would best be served by exclusion.

Acts 1984, ch. 922, § 5; T.C.A. § 33-3-612; Acts 2000, ch. 947, § 1.

33-3-707. Evidence — Witnesses — Continuances — Presence or exclusion of transferee.

The court shall give the plaintiff, the transferee, and all other persons to whom the clerk is required to give notice of the proceeding an opportunity to appear at the hearing, to testify, and to present and cross-examine witnesses.
The transferee shall be present at the hearing unless the transferee waives the right to be present in writing. If the transferee's attorney shows that the transferee's physical health would be endangered by being at the hearing, the court may order a continuance until the risk is terminated. If the court determines that the transferee's conduct at the hearing is so violent or otherwise disruptive that it creates a serious risk of harm to the transferee or others at the hearing or so disrupts the proceedings that they cannot be conducted in a proper manner, the court may order the transferee restrained or excluded to the extent necessary to the proper conduct of the proceedings. If the transferee is not present at or is excluded from the hearing, the court shall make a written fact finding as to why the hearing is held in the transferee's absence.

Acts 1984, ch. 922, § 5; 2000, ch. 947, § 1.

33-3-708. Hearings informal.

The hearing shall be conducted in as informal a manner as may be consistent with orderly procedure.

Acts 1984, ch. 922, § 5; 2000, ch. 947, § 1.

33-3-709. Testimony of examining professionals — Depositions and affidavits.

The testimony of an examining professional may be made by deposition or affidavit only with the consent of the transferee's counsel. If the testimony is given by deposition or affidavit, the court shall make a specific finding of fact that the transferee's counsel has consented, and the transferee's right of cross-examination of the examining professional shall be preserved. If consent is not given for testimony by deposition or affidavit, a professional who would be qualified as an examining professional under the commitment statute may testify instead of an examining professional, if the person has examined the transferee within ten (10) days of the hearing.

Acts 1984, ch. 922, § 5; 2000, ch. 947, § 1.

33-3-710. Findings by court or jury.

If the court finds by a preponderance of the evidence under the transfer statute that the transferee is subject to transfer or continues to be eligible for care and treatment in a facility to which the person was transferred, the court shall so declare. If the court finds otherwise, the court shall order the person's transfer from the receiving facility to the transferring facility or shall order that the person not be transferred to the proposed facility. Findings of a jury with respect to the transfer criteria shall be reported by special verdict.

Acts 1984, ch. 922, § 5; 2000, ch. 947, § 1.

33-3-711. Limitations on filing complaint.

No complaint under this part may be filed by or on behalf of a transferee within six (6) months after a hearing on a previous complaint under this part.

Acts 1984, ch. 922, § 5; 2000, ch. 947, § 1.

Part 8
Habeas Corpus

33-3-801. Right to file for writ of habeas corpus.

Any person with mental illness, serious emotional disturbance, or developmental disability in a public or private residential facility for persons with mental illness, serious emotional disturbance, or developmental disability is entitled to file for a writ of habeas corpus upon petition by the person with mental illness, serious emotional disturbance, or developmental disability or a friend to any court generally empowered to issue the writ of habeas corpus in the county in which the person with mental illness, serious emotional disturbance, or developmental disability is detained.

Acts 2000, ch. 947, § 1.

Compiler's Notes. Former chapter 3, §§ 33-3-101 — 33-3-112, 33-3-201 — 33-3-203, 33-3-301 — 33-3-303, 33-3-401 — 33-3-412, 33-3-501 — 504, 33-3-601 — 33-3-603, 33-3-605 — 33-3-19, 33-3-623, 33-3-701 — 33-3-711, 33-3-801, 33-3-901 — 33-3-908 (Acts 1955, ch. 187, § 1; 1965, ch. 38, §§ 4-7, 16-19, 23-26; 1974, ch. 802, §§ 17-20, 22-25, 29-32; 1975, ch. 248, §§ 1, 5-7, 11; 1976, ch. 489, §§ 1, 2; 1976, ch. 763, §§ 1, 2, 10; 1977, ch. 482, § 11; 1978, ch. 533, §§ 3-5; 1978, ch. 533, § 7; 1978, ch. 877, §§ 1, 2; 1979, ch. 366, § 15; 1980, ch. 838, § 5; 1983, ch. 323, § 4-7, 9, 12, 15, 16; T.C.A. §§ 33-303 — 33-307, 33-309 — 33-312, 33-317 — 33-320, 33-330 — 33-337, 33-345 — 33-347, 33-355, 33-360 — 33-362, 33-364 — 33-378, 33-382, 33-610, 33-1101; Acts 1984, ch. 922, §§ 2-5, 7, 16-23, 34; 1984, ch. 986, §§ 1, 2; 1985, ch. 437, §§ 6-13, 33; 1986, ch. 570, §§ 2-4; 1986, ch. 836, § 3, 5; 1987, ch. 143, §§ 2, 3, 7; 1988, ch. 828, § 1; 1989, ch. 278, §§ 30-33; 1989, ch. 513, §§ 2, 5-13; 1989, ch. 591, §§ 29-31, 113; 1992, ch. 991, § 13; 1993, ch. 66, § 44; 1993, ch. 439, § 1; 1993, ch. 356, § 4; 1994, ch. 630, §§ 1, 2; 1994, ch. 743, § 1; 1995, ch. 320, § 1; 1995, ch. 411, § 1; 1996, ch. 669, § 1; 1996, ch. 675, § 15; 1996, ch. 1079, §§ 31-47, 49-56; 2000, ch. 947, § 6); § 33-3-304 (Acts 1974, ch. 464, § 1; 1975, ch. 248, § 20; T.C.A., § 33-702), which was was previously repealed by Acts 1984, ch. 922, § 33; § 33-3-604 (Acts 1983, ch. 323, § 9; T.C.A., § 33-363), which was repealed by Acts 1984, ch. 922, § 33; § 33-3-620, which was previously transferred to § 33-6-104(e) and (f) in 1984; § 33-3-621, which was previously transferred to § 33-6-104(g) in 1984; and § 33-3-622, which was previously transferred to § 33-6-104(h) in 1984, is deleted and replaced in the revision of title 33 by Acts 2000, ch. 947, § 1, effective March 1, 2001.

33-3-802. Determination of mental condition of person seeking release.

During any proceeding to determine whether to release a person with mental illness, serious emotional disturbance, or intellectual disability seeking release by means of a writ of habeas corpus under this part or § 33-3-101, or otherwise, the court shall also, if the issue is raised in the responsive pleading, determine whether the person seeking release presently has mental illness, serious emotional disturbance, or intellectual disability and meets the standards for involuntary commitment under chapter 6, part 5 of this title, or §§ 33-5-402 and 33-5-403.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 21; 2010, ch. 734, § 1.

Compiler's Notes. For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

33-3-803. Disposition of case.

If the court determines that the person was not admitted or committed under the governing provisions of this title or was not afforded due process of law, but that the person has a mental illness, serious emotional disturbance, or intellectual disability and because of the condition poses a likelihood of serious harm to the person or others as determined under § 33-6-501, the court may order the person returned to the hospital or developmental center where the person was located on the date of filing the petition for not more than fifteen (15) days, exclusive of Saturdays, Sundays or holidays, if, and only if, a petition under §§ 33-5-402 and 33-5-403, or chapter 6, part 5 of this title is filed immediately and is disposed of within fifteen (15) days of the court's order, exclusive of Saturdays, Sundays or holidays, unless the case is continued on request of petitioner; otherwise the person shall be released.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 22; 2010, ch. 734, § 1.

Compiler's Notes. For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

33-3-804. Order of discharge.

If the court ordering the discharge is not the court that ordered the commitment or admission, the court shall transmit a certified copy of the order to the court that ordered the commitment or admission. Upon receipt of the copy, the court that ordered the commitment or admission shall enter an order finding that the person has been discharged by order of the court that issued the writ of habeas corpus.

Acts 2000, ch. 947, § 1.

Part 9
Violations of Service Recipient Rights

33-3-901. Wrongful hospitalization or admission — Instituting wrongful action — Penalties — Immunity.

A person commits a Class E felony who:
1. Without probable cause to believe a person has developmental disability, mental illness, or serious emotional disturbance, causes or conspires with or assists a third person to cause the hospitalization or admission of the person under this title; or
2. Causes or conspires with or assists another to cause the denial to a person of any right accorded to a person under this title.
A person commits a Class E felony who:
1. Without probable cause to believe a person has developmental disability, mental illness, or serious emotional disturbance executes a petition, application, or certificate under this title, or otherwise secures or attempts to secure the apprehension, detention, hospitalization, admission, or restraint of the person; or
2. Knowingly makes any false certificate or application under this title.
The commissioner or the chief officer of any hospital, developmental center, or treatment resource acting pursuant to this title shall be entitled to rely in good faith upon the representations made for admission by any person or any certification with respect to any person made by a professional authorized to provide certificates under this title or any court.
All persons acting in good faith, reasonably and without negligence in connection with the preparation of petitions, applications, certificates or other documents or the apprehension, detention, discharge, examination, transportation or treatment of a person under this title shall be free from all liability, civil or criminal, by reason of the acts.

Acts 1965, ch. 38, § 6; 1974, ch. 802, § 17; 1975, ch. 248, § 1; T.C.A., § 33-304; Acts 1984, ch. 922, § 2; 1986, ch. 570, § 2; 1989, ch. 591, § 29; T.C.A., § 33-3-102; Acts 2000, ch. 947, § 1.

Cross-References. Penalty for Class E felony, § 40-35-111.

Attorney General Opinions. Detention of mentally ill patients, OAG 07-092 (6/11/07), 2007 Tenn. AG LEXIS 92.

33-3-902. Furnishing false information — Misdemeanor.

It is a Class C misdemeanor for any person knowingly to furnish false information for the purpose of securing the hospitalization or admission of any person to a facility for persons with developmental disability, mental illness, or serious emotional disturbance.

Acts 1965, ch. 38, § 19; 1974, ch. 802, § 18; T.C.A., § 33-305; Acts 1989, ch. 591, § 113; T.C.A., § 33-3-103; Acts 2000, ch. 947, § 1.

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

33-3-903. Sexual relations with service recipient.

Any employee of a service provider who has sexual intercourse with a service recipient of the service provider other than the employee's spouse or commits sexual battery on a service recipient, knowing or having reason to believe that the service recipient is a service recipient of the service provider, is subject to discharge for that conduct.

Acts 1965, ch. 38, § 23; 1974, ch. 802, § 30; 1980, ch. 838, § 5; T.C.A., § 33-317; Acts 1989, ch. 591, §§ 30, 31, 113; T.C.A., § 33-3-106(e); Acts 2000, ch. 947, § 1.

33-3-904. Aiding or abetting escape — Inciting service recipient to violence — Supplying with dangerous or intoxicating substances.

A person commits a Class E felony who:
1. Counsels, causes, influences, aids or assists a service recipient with mental illness, serious emotional disturbance, or developmental disability to leave a hospital or developmental center without authority after the service recipient was admitted under court order;
2. Harbors or conceals a service recipient with mental illness, serious emotional disturbance, or developmental disability who has left a hospital or developmental center without authority;
3. Incites a service recipient with mental illness, serious emotional disturbance, or developmental disability, while the service recipient is admitted to a hospital or developmental center, to hurt or injure another person anywhere; or
4. Gives or sells to a service recipient with mental illness, serious emotional disturbance, or developmental disability in a hospital or developmental center, whether on the premises of the facility or elsewhere, knowing the person to be a person with mental illness, serious emotional disturbance, or developmental disability, any firearms, intoxicating drinks, drugs, or any other harmful articles.
A hospital or developmental center employee or official who receives from a person with mental illness, serious emotional disturbance, or developmental disability anything of value as a gift or for a consideration commits a Class C misdemeanor.
A person, who aids or abets in the commission of any of the foregoing offenses or aids or abets in a prohibited attempt, is guilty as if the person were a principal and shall be punished as a principal.

Acts 1965, ch. 38, § 23; 1974, ch. 802, § 30; 1980, ch. 838, § 5; T.C.A., § 33-317; Acts 1989, ch. 591, §§ 30, 31, 113; T.C.A., § 33-3-106(b)-(d); Acts 2000, ch. 947, § 1.

Code Commission Notes.

This section is similar to former § 33-3-106(b)-(d).

Cross-References. Penalty for Class C misdemeanor, § 40-35-111.

Penalty for Class E felony, § 40-35-111.

33-3-120. Isolation and restraints prohibited — Exceptions and limitations.

33-3-125. Professional not to be related or to have financial interest.

33-3-212. Immunity for refusal to perform act prohibited by this title.

33-3-217. Uniform assessment process for determining recipient's decision making capacity.

33-3-605. Service on defendant.

Chapter 4
Special Rules for Residential Service Recipients

Part 1
Rights of Residential Service Recipients

33-4-101. Right to receive visitors — Right to communicate with family, attorney, physician, minister and courts.

A person with mental illness, serious emotional disturbance, or developmental disability is entitled to:
1. Receive visitors during regular visiting hours; and
2. Communicate, orally or by sending and receiving uncensored mail, with the service recipient's family, attorney, personal physician, minister, and the courts.
All other incoming mail or parcels may be read or opened before being delivered to a service recipient, if the chief officer of the facility believes the action is necessary for the physical or mental health of the service recipient who is the intended recipient. Mail or other communication that is not delivered to the service recipient for whom it is intended shall be returned immediately to the sender.
The chief officer may make reasonable rules regarding visitors, visiting hours, and the use of communication resources.

Acts 2000, ch. 947, § 1.

Compiler's Notes. Former chapter 4, §§ 33-4-101 — 33-4-103, 33-4-105, 33-4-107 — 33-4-109, 33-4-111 — 33-4-113 (Acts 1983, ch. 323, § 32; T.C.A., §§ 33-4-106, 33-4-107, 33-7-110; 1996, ch. 795, §§ 1-10. Former § 33-4-104 was merged with § 33-4-103 by Acts 1996, ch. 795, § 3; § 33-4-106, which was transferred to § 33-4-105 in 1996; and § 33-4-110, which was transferred to the second sentence of § 33-4-109 in 1996, is deleted and replaced in the revision of title 33 by Acts 2000, ch. 947, § 1, effective March 1, 2001.

33-4-102. [Transferred.]

Compiler's Notes. Former § 33-4-102 (Acts 1965, ch. 38, § 5; 1974, ch. 802, § 19; 1975, ch. 248, §§ 1, 5; 1977, ch. 482, § 11; 1978, ch. 533, § 3; 1983, ch. 323, § 7; T.C.A., § 33-306; Acts 1984, ch. 922, § 3; 1985, ch. 437, §§ 6-8; 1986, ch. 570, § 3; 1989, ch. 513, § 2; 1989, ch. 591, § 113; 1993, ch. 439, § 1; 1994, ch. 630, §§ 1, 2; 1995, ch. 411, § 1; 1996, ch. 1079, §§ 31-33; T.C.A., § 33-3-104; Acts 2000, ch. 947, §§ 1, 6.), concerning the services and supports to be provided to persons with a mental illness, serious emotional disturbance, or developmental disability and related record keeping requirements, was transferred to § 33-3-101(c) in 2002.

33-4-103. Notice of admission to guardian or family.

If a person is admitted to a hospital, developmental center, or other residential service on the application of any person other than the person's parent, legal guardian, legal custodian, conservator, spouse or adult next of kin, the chief officer shall immediately notify the person's parent, legal guardian, legal custodian, conservator, spouse, or adult next of kin, if known.

Acts 1965, ch. 38, § 45; T.C.A., § 33-608; Acts 1985, ch. 437, § 17; 1996, ch. 1079, § 62; T.C.A., § 33-6-107; Acts 2000, ch. 947, § 1.

Cross-References. Informing patients of rights, § 33-4-105.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 3.

33-4-104. Treatment for physical disorder prior to admission.

In considering an applicant for admission, if it appears that the person has a physical disorder that requires immediate medical care and the admitting facility cannot appropriately provide the medical care, the person shall be taken first to a physician or hospital for treatment of the medical condition. When the person has received appropriate medical attention and treatment, the person may then be transported to the appropriate facility for treatment of the person's mental illness, serious emotional disturbance, or developmental disability.

Acts 1965, ch. 38, § 18; 1974, ch. 802, § 20; 1975, ch. 248, § 6; 1976, ch. 489, § 2; 1978, ch. 533, § 1; T.C.A., § 33-307; Acts 1985, ch. 437, §§ 9, 10; 1996, ch. 1079, §§ 34, 35; T.C.A., § 33-3-105(b); Acts 2000, ch. 947, § 1.

33-4-105. Written statement of release procedures and other rights.

Upon admission of a person with mental illness, serious emotional disturbance, or developmental disability to a hospital, developmental center, or other residential service, the chief officer shall provide the person a written statement outlining in simple, non-technical language all release procedures and all other rights of persons under this title. The chief officer shall have the service recipient informed in language understood by the service recipient, including the service recipient's native language or sign language, if appropriate. The chief officer also shall provide the written statement to the person's parent, legal guardian, legal custodian, conservator, spouse or other nearest known adult relative. The chief officer shall provide reasonable means and arrangements for assisting the person in making and presenting requests for release, including petitions to the proper court.
The service recipient shall sign on the line for signature to acknowledge having been informed of the service recipient's rights orally and in writing. The service recipient's signature shall be acknowledged in writing by at least one (1) disinterested witness.

Acts 1965, ch. 38, § 5; 1974, ch. 802, § 19; 1975, ch. 248, §§ 1, 5; 1977, ch. 482, § 11; 1978, ch. 533, § 3; 1983, ch. 323, § 7; T.C.A., § 33-306; Acts 1984, ch. 922, § 3; 1985, ch. 437, §§ 6-8, 33; 1986, ch. 570, § 3; 1989, ch. 513, § 2; 1989, ch. 591, § 113; 1993, ch. 439, § 1; 1994, ch. 630, §§ 1, 2; 1995, ch. 411, § 1; 1996, ch. 675, § 15; 1996, ch. 1079, §§ 31-33; T.C.A., §§ 33-3-104(8), 33-3-111; Acts 2000, ch. 947, §§ 1, 6.

33-4-106. Unauthorized leave from facility.

If a person admitted under court order leaves a hospital, developmental center, or other residential service without authority, the chief officer shall immediately notify the court regardless of the length of the person's absence. If the person is taken into custody, the person may be returned to the facility upon an order by the court. After thirty (30) days absence the person may be dropped from the facility's records. A return after thirty (30) days absence is a new admission. A person's absence beyond thirty (30) days does not limit the power of the court to order the person's return to a facility under this section.
The committing court shall be notified of the policy regarding temporary leave, and the court shall be given an opportunity to register its objection to granting temporary leave. An objection by the court does not prohibit authorization of leave. Temporary leave is not a discharge from the facility.

Acts 1965, ch. 38, § 23; 1974, ch. 802, § 30; 1980, ch. 838, § 5; T.C.A., § 33-317; Acts 1989, ch. 591, §§ 30, 31, 113; T.C.A., § 33-3-106(a)(1)-(3); Acts 2000, ch. 947, § 1; 2002, ch. 730, § 24.

33-4-107. Commitment to private facility — Certificate by disinterested professional.

If a person is proposed to be committed to a private facility under this title, at least one (1) of the required certificates of need shall be from a professional who is not an employee of the private facility.
For purposes of this section, employment as a faculty member by a school of medicine at a university or college associated with a hospital shall not constitute employment at a private facility.

Acts 1983, ch. 323, § 16; T.C.A., § 33-346; Acts 1984, ch. 922, § 7; 1995, ch. 320, § 1; T.C.A., § 33-3-109; Acts 2000, ch. 947, § 1.

33-4-108. Certificate of need — Basis — Contents — Violation.

A certificate of need for commitment for care and treatment of a person with mental illness, serious emotional disturbance, or developmental disability is not valid for any purpose unless it is based on personal observation and examination of the person made by the professional not more than three (3) days prior to the making of the certificate. The certificate shall state the facts and reasoning on which the opinions and conclusions are based.
The execution of a certificate concerning the mental condition of a person by a professional who has not personally observed and examined the person is a Class E felony.

Acts 1983, ch. 323, § 16; T.C.A., §§ 33-347, 33-3-110; Acts 2000, ch. 947, § 1.

Cross-References. Penalty for Class E felony, § 40-35-111.

33-4-109. Notice to court, legal custodian and guardian or next of kin of death of patient or resident — Disposal of unclaimed property after discharge or death.

Upon the death of a person admitted to a facility under court order under this title, the chief officer of the facility shall mail written notice of the cause of death to the court that entered the order. Upon the death of a person who was admitted voluntarily, the chief officer shall notify the next of kin of the cause of death. The notice shall be mailed within ten (10) days of the death.
Notice of a death shall also be given promptly to the person's next of kin and legal guardian, legal custodian, or conservator. The administrator, executor or personal representative of the deceased person, or if there is none, one (1) or more of the heirs at law or next of kin, shall be notified by registered mail of the deceased's personal property at the facility at the time of death. Notice to an administrator, executor or personal representative shall be directed to the probate court of the county in which that person is qualified to administer the estate of the deceased.
Property left by the deceased person in the facility shall be disposed of pursuant to subsection (e) if, after diligent search and inquiry, none of the persons required to be notified can be found and notified or if the persons notified do not open the estate or otherwise proceed to dispose of the estate in a lawful manner.
If a person is discharged and leaves personal property in the facility, the chief officer shall promptly notify the person by registered mail addressed to the person's last known address that the property has been left and is subject to sale under subsection (e) if not claimed.
The chief officer shall keep the deceased or discharged person's personal property for six (6) months if it is not claimed. The chief officer shall then sell the property, with the approval of the commissioner, and deposit the proceeds in a fund, maintained under the supervision of the chief officer, for the benefit of needy service recipients.

Acts 1965, ch. 38, § 25; 1974, ch. 802, § 31; 1975, ch. 248, § 1; 1983, ch. 323, §§ 5, 6; T.C.A., § 33-318; Acts 1996, ch. 1079, § 36; T.C.A., § 33-3-107; Acts 2000, ch. 947, §§ 1, 6.

Cross-References. Certified mail instead of registered mail, § 1-3-114.

33-4-110. Inability to exercise rights — Appointment of a conservator.

If the chief officer of a facility in which a service recipient is hospitalized or admitted is of the opinion that the service recipient is unable to exercise any of the rights afforded by this chapter and chapter 3 of this title, the chief officer shall notify immediately the service recipient and the service recipient's attorney, parent, legal custodian, spouse or other nearest known adult relative of the fact, and the chief officer may file for the appointment of a conservator and shall notify those persons as to whether the chief officer intends to do so.

Acts 2002, ch. 730, § 9.

Part 2
Employees as Guardians and Conservators in State Facilities

33-4-201. Designation of employee as legal guardian or conservator.

The commissioner shall designate an employee of the department whom courts may appoint, regardless of whether the employee resides in the same county as the ward, as legal guardian or conservator for a service recipient in a state facility under title 34, if the court determines that no other person or legally qualified organization will serve for the service recipient and that it is for the best interests of the service recipient that the person be appointed.

Acts 1983, ch. 323, § 4; T.C.A., §§ 33-330, 33-3-901; Acts 2000, ch. 947, § 1.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 7.

33-4-202. Qualifications of guardian, conservator or trustee.

An employee appointed under this part as legal guardian, conservator, or trustee for a person shall have sufficient background to understand the person's mental illness, serious emotional disturbance, or developmental disability. Accepting an appointment may not be made a condition of employment unless the duties are a normal part of the employee's duties and there is no conflict of interest. No employee may be appointed as legal guardian, conservator, or trustee of a person who is in the facility in which the employee works.

Acts 1983, ch. 323, § 4; T.C.A., §§ 33-336, 33-3-907; Acts 2000, ch. 947, § 1.

33-4-203. Bond.

If the total value of the assets that are turned over to an employee for a ward does not exceed five thousand dollars ($5,000) exclusive of the burial fund, the court shall not require a bond.

Acts 1983, ch. 323, § 4; T.C.A., §§ 33-331, 33-3-902; Acts 2000, ch. 947, § 1.

33-4-204. Duration of guardianship or conservatorship.

An employee serving as legal guardian or conservator under this part may serve under these provisions only so long as the employee continues to be an employee of the department and for up to ninety (90) days after the ward leaves the state facility.

Acts 1983, ch. 323, § 4; T.C.A., §§ 33-332, 33-3-903; Acts 2000, ch. 947, § 1.

33-4-205. Funds received by guardian or conservator.

All funds received by a legal guardian or conservator appointed under this part shall be handled as state funds, be accountable as all other state funds, and be audited annually by the state. All earnings on the funds shall inure to the benefit of the ward. The department shall file a copy of the annual audit with the appointing court.

Acts 1983, ch. 323, § 4; T.C.A., §§ 33-333, 33-3-904(a); Acts 2000, ch. 947, § 1.

33-4-206. Other assets received by guardian or conservator.

All other assets received by a legal guardian or conservator appointed under this part shall be handled as state property, except that the legal guardian or conservator may dispose of the assets in the exercise of the appointment free of laws governing the disposition of state property and shall keep a record of the disposition of all the property and the reason for the disposition.

Acts 1983, ch. 323, § 4; T.C.A., §§ 33-333, 33-3-904(b); Acts 2000, ch. 947, § 1.

33-4-207. Disposition of assets after termination of guardianship or conservatorship.

Upon termination of the guardianship or conservatorship, all assets remaining in the estate shall be paid to the ward or to the ward's legal representative.

Acts 1983, ch. 323, § 4; T.C.A., §§ 33-333, 33-3-904(c); Acts 2000, ch. 947, § 1.

33-4-208. Annual report.

An employee serving as legal guardian or conservator shall file the annual report required by title 34 with the appointing court on a form approved by the commissioner.

Acts 1983, ch. 323, § 4; T.C.A., §§ 33-334, 33-3-905; Acts 2000, ch. 947, § 1.

33-4-209. Designation of trustees for patients or residents — Audit.

The commissioner may designate employees of the department to serve as trustees for service recipients if the terms of the trust have been approved in writing by the commissioner and the attorney general and reporter.
All assets, funds, and other property held as a part of the corpus of trust and income from the trust shall be audited annually by the state.

Acts 1983, ch. 323, § 4; T.C.A., §§ 33-335, 33-3-906; Acts 2000, ch. 947, § 1.

33-4-210. Coercion of guardian, conservator or trustee — Penalty.

An employee who attempts to coerce a legal guardian, conservator, or trustee serving under this part to take any particular action as legal guardian, conservator, or trustee shall be dismissed.

Acts 1983, ch. 323, § 4; T.C.A, §§ 33-337; 33-3-908; Acts 2000, ch. 947, § 1.

Chapter 5
Intellectual and Developmental Disabilities Services

Part 1
Service System

33-5-101. Application of title to persons with developmental disabilities.

Services to persons with developmental disabilities are governed generally by this title, including chapters 1-4, 7, 8 and 9.

Acts 2000, ch. 947, § 1.

Compiler's Notes. Former chapter 5, §§ 33-5-101, 33-5-105, 33-5-201, 33-5-301 — 33-5-303, 33-5-305 — 33-5-310, 33-5-401 — 33-5-412 (Acts 1971, ch. 289, § 1; 1975, ch. 248, § 13; 1976, ch. 763, § 4; 1976, ch. 764, § 3; 1978, ch. 527, § 3; 1978, ch. 667, § 2; 1980, ch. 822, § 1; 1981, ch. 224, §§ 5, 6, 10; 1982, ch. 862, § 2; 1983, ch. 323, § 10; T.C.A., §§ 33-313, 33-501, 33-505 — 33-507, 33-510, 33-515, 33-516, 33-523, 33-524, 33-1601; Acts 1984, ch. 922, §§ 6, 8-11; 1988, ch. 828, § 2; 1989, ch. 504, § 1; 1992, ch. 981, §§ 2-13, 15; 1992, ch. 991, § 14; 1993, ch. 283, § 1; 1994, ch. 683, § 1; 1995, ch. 468, § 1; 2000, ch. 947, § 6); § 33-5-102 (Acts 1975, ch. 248, § 13; T.C.A. § 33-502), which was repealed by Acts 1993, ch. 283, § 2; § 33-5-103 (Acts 1975, ch. 248, § 13; T.C.A. § 33-503), which was repealed by Acts 1993, ch. 283, § 2; § 33-5-104 (Acts 1975, ch. 248, § 13; 1976, ch. 763, § 3; 1978, ch. 527, § 1; T.C.A. § 33-504), which was repealed by Acts 1993, ch. 283, § 2; and § 33-5-304 (Acts 1975, ch. 248, § 13; 1978, ch. 527, § 2; 1978, ch. 667, § 1; 1981, ch. 224, § 8; T.C.A., § 33-508), which was repealed by Acts 1984, ch. 922, § 33, is deleted and replaced in the revision of title 33 by Acts 2000, ch. 947, § 1, effective March 1, 2001.

33-5-102. Effective date of part.

Persons with developmental disabilities based on conditions other than an intellectual disability are eligible for direct service under this part on March 1, 2002. Persons with an intellectual disability are eligible for direct service under this part on March 1, 2001.

Acts 2000, ch. 947, § 1; 2010, ch. 734, § 1.

Compiler's Notes. For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

33-5-103. Persons with developmental disability based solely on mental illness or serious emotional disturbance.

If a person has a developmental disability solely on the basis of having a mental illness or serious emotional disturbance, the person is not eligible to have services or supports provided for the developmental disability primarily under this chapter.

Acts 2000, ch. 947, § 1.

33-5-104. Developmental disabilities occurring after twenty-two years of age.

Within the limits of available services, the department may serve persons who have conditions that would constitute a developmental disability except that the disability occurred after twenty-two (22) years of age.

Acts 2000, ch. 947, § 1.

33-5-105. Factors in assessing eligibility for service and support under this chapter.

A person is eligible for service and support under this chapter on the basis of an intellectual disability only if the assessment that the person has an intellectual disability takes into account:

Cultural and linguistic diversity as well as differences in communication and behavioral factors;
Whether the person's limitations in adaptive skills occur in the context of community environments typical of the person's age peers and is indexed to the person's individualized needs for supports;
Specific adaptive limitations often coexist with strengths in other adaptive skills or other personal capabilities; and
With appropriate supports over a sustained period, the life functioning of a person with an intellectual disability will generally improve.

Acts 2000, ch. 947, § 1; 2010, ch. 734, § 1.

Compiler's Notes. For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

33-5-106. Application process.

A person with a developmental disability, a parent or legal guardian of a child with a developmental disability, a conservator of a person with a developmental disability, the department of children's services on behalf of a person in its legal custody who has a developmental disability, or the department of human services on behalf of a person in its legal custody who has a developmental disability, referred to as the applicant, may apply to the department through its designated entities for services and supports that they provide directly or by contract. The designated entity shall inform the applicant about all options for services and supports. When services and supports appropriate for the applicant are not available, the designated entity shall notify the applicant in writing of the basis on which the decision was made, possible service options, the prospects for obtaining service, and the time estimated before the service may be available. The applicant shall be notified periodically and in a timely manner of the status of the application. Based upon additional information, change in status may be determined by the designated entity.

Acts 1975, ch. 248, § 13; 1983, ch. 323, § 10; T.C.A., § 33-501; Acts 1984, ch. 922, § 8; 1988, ch. 828, § 2; 1993, ch. 283, § 1; 1995, ch. 468, § 1; T.C.A., § 33-5-101(a); Acts 2000, ch. 947, § 1; 2002, ch. 730, § 25.

Cross-References. Family support programs and services, title 33, ch. 5, part 2.

33-5-107. Types of services available.

If, and only if, no suitable alternative provider is available, the chief officer of a department facility may authorize nonresidential services and supports of the developmental center to persons with developmental disabilities. A person with a developmental disability, a parent or legal guardian of a child with a developmental disability, or the conservator of a person with a developmental disability may request nonresidential services and supports. The chief officer may, in the best interests of the person, discontinue the nonresidential services and supports of a person at any time.

Acts 1975, ch. 248, § 13; 1983, ch. 323, § 10; T.C.A., § 33-501; Acts 1984, ch. 922, § 8; 1988, ch. 828, § 2; 1993, ch. 283, § 1; 1995, ch. 468, § 1; T.C.A., § 33-5-101(b)(4); Acts 2000, ch. 947, § 1.

Cross-References. Genetic testing for the prevention and treatment of mental retardation, title 68, ch. 5, part 5.

Newborn testing for metabolic defects that would result in mental retardation, title 68, ch. 5, part 4.

Voluntary hospitalization, release, § 33-6-201 et seq.

Collateral References.

Liability of one releasing institutionalized mental patient for harm he causes. 38 A.L.R.3d 699.

33-5-108. Determination of fiscal impact on licensees following regulatory or policy changes — Notice.

As used in this section, “fiscal impact” means any increase, decrease, or other change in revenue, expenditures, or fiscal liability. The department of intellectual and developmental disabilities shall assess in writing the fiscal impact on licensees under chapter 2, part 4 of this title, of any change to any rule, regulation, policy or guideline relating to the staffing, physical plant or operating procedures of the licensee for rendering services pursuant to a contract, grant or agreement with the department. Unless exigent circumstances require the change to be implemented sooner, no less than thirty (30) days before the change in the rule, regulation, policy or guideline is to take effect, the department's estimate of fiscal impact shall be transmitted by the commissioner of intellectual and developmental disabilities to the finance, ways and means committee of the house of representatives, the finance, ways and means committee of the senate and the comptroller of the treasury for any appropriate review. If exigent circumstances, such as an unforeseen court order, require a change to be implemented sooner, then the department's statement describing the exigent circumstances that prevented thirty (30) days' notice shall be provided to the finance, ways and means committee of the house of representatives, the finance, ways and means committee of the senate and the comptroller of the treasury not later than five (5) days after implementing the change. In that case the department shall provide the estimate of fiscal impact to the entities above within sixty (60) days after implementing the change.

Acts 2001, ch. 137, § 1; 2002, ch. 730, § 26; 2009, ch. 477, § 1; 2010, ch. 734, § 1; 2010, ch. 1100, § 41; 2016, ch. 797, § 9.

Compiler's Notes. Acts 2001, ch. 137, § 2, provided that this section shall apply to any change to any rule, regulation, policy or guideline relating to the staffing, physical plant or operating procedures of such licensee for rendering services pursuant to a contract, grant or agreement with the division for mental retardation services (now department of developmental disabilities) occurring on and after March 1, 2001. Additionally, it is the “clear and unequivocal intent” of the general assembly that this section has retroactive application to March 1, 2001.

Acts 2009, ch. 477, § 1, directed the code commission to change all references from “division of mental retardation services” to “division of intellectual disabilities services” (now department of intellectual and developmental disabilities) and to include the changes in supplements and replacement volumes for the Tennessee Code Annotated.

For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

Amendments. The 2016 amendment added the first sentence.

Effective Dates. Acts 2016, ch. 797, § 19. April 14, 2016.

33-5-109. Study of issues relating to services provided to persons with developmental disabilities, intellectual disabilities and other disabilities.

There is created a special joint committee to study the issues relating to services provided to persons with developmental disabilities, intellectual disability and other disabilities. This study shall include, but not be limited to:
1. A review of the different agencies in state government providing services;
2. The structure and location of state services to persons with developmental disabilities, intellectual disability and other disabilities;
3. The efficiency of providing services to persons with disabilities and costs associated with providing services;
4. An evaluation of the cost of the division of intellectual disabilities services (DIDS) waiting list and the means to reduce or eliminate it; and
5. A look at the cost structure of services in DIDS and evaluation of differences in cost.
The special joint committee shall consist of:
1. Four (4) members of the senate, to be appointed by the speaker of the senate; and
2. Four (4) members of the house of representatives, to be appointed by the speaker of the house of representatives.
All appropriate agencies of state government shall provide assistance to the special joint committee upon request of the chair.
All legislative members of the special joint committee who are duly elected members of the general assembly shall remain members of the committee until the committee reports its final findings and recommendations.
The special joint committee shall be convened by the member having the greatest number of years of continuous service within the general assembly, and at its first meeting shall elect from among its legislative membership a chair, vice-chair, and other officers the committee deems necessary.
The special joint committee shall timely report its final findings and recommendations to the One Hundred Sixth General Assembly no later than February 1, 2010.

Acts 2008, ch. 1157, §§ 1-6; 2009, ch. 477, § 1; 2010, ch. 734, § 1.

Compiler's Notes. For the Preamble to the act regarding a study of issues relating to services provided to persons with developmental disabilities, mental retardation and other disabilities, please refer to Acts 2008, ch. 1157.

For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

The division of intellectual disabilities services (DIDS), referred to in this section, was replaced by the department of intellectual and developmental disabilities by Acts 2010, ch. 1100, effective January 15, 2011.

33-5-110. Residential and day provider agencies task force.

The speakers of the senate and house of representatives shall jointly appoint a twenty-five-person task force to review the regulations of the residential and day provider agencies contracted by the department of intellectual and developmental disabilities (DIDD) and make initial recommendations with regard to relieving expensive and unnecessary regulations on such providers to the general assembly and governor by January 1, 2011. The task force shall subsequently make annual reports to the governor and the general assembly by January 1 of each year thereafter.
Eleven (11) of the members of the task force shall be appointed from a list of persons provided by DIDD's service providers. Eight (8) members shall be appointed from DIDD, at least one (1) of whom shall be an assistant commissioner with the department. One (1) member shall be an assistant commissioner with the bureau of TennCare, and one (1) member shall be appointed from the department office of licensure. Four (4) members shall be appointed from the DIDD advisory council, or its successor body.
The speakers of the senate and house of representatives shall jointly designate two (2) of the members to serve as co-chairs of the task force. One (1) co-chair shall be a DIDD service provider, and one (1) co-chair shall be a DIDD staff person.
The task force created by this section shall assume the duties and responsibilities of the regulatory relief board.
Members of the task force shall serve without compensation. The task force shall complete its appointed duties and make its final report to the governor and the general assembly by June 30, 2014, at which time the task force shall cease to exist.

Acts 2010, ch. 808, § 1; 2010, ch. 1100, § 24; 2011, ch. 158, §§ 17, 18.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

33-5-111. Eligibility criteria for medical assistance programs and services.

Notwithstanding any state law to the contrary, eligibility criteria for medical assistance programs and services pursuant to title 71, chapter 5, for persons with intellectual or developmental disabilities shall be established by the bureau of TennCare, and set forth in the medicaid state plan, federal waivers, or in rules promulgated by the bureau of TennCare, and shall be subject to the availability of funding in each year's general appropriations act.
Notwithstanding any state law to the contrary, eligibility criteria for state-funded programs and services for persons with intellectual or developmental disabilities shall be established by the department of intellectual and developmental disabilities and set forth in department rules, and shall be subject to the availability of funding in each year's general appropriations act.

Acts 2011, ch. 158, § 45.

33-5-112. Person on waiting list for services to be enrolled in community based services program within six months of custodial parent or caregiver attaining certain age.

An eligible person with an intellectual disability who is on the referral list for services and whose older custodial parent, or custodial caregiver, attains seventy-five (75) years of age shall be enrolled in employment and community first choices Group 5 or a similarly capped home and community based services program within six (6) months of the person's parent or caregiver attaining that age.
An eligible person with a developmental disability other than an intellectual disability who is on the referral list for services and whose older custodial parent, or custodial caregiver, attains eighty (80) years of age shall be enrolled in employment and community first choices Group 5 or a similarly capped home and community based services program within six (6) months of the person's parent or caregiver attaining that age.

Acts 2015, ch. 430, § 1; 2016, ch. 707, § 1; 2018, ch. 986, § 1.

Compiler's Notes. For the Preamble to the act concerning the need for changes to the administration of waiting lists for persons with intellectual disabilities to receive services, see Acts 2015, ch. 430.

For the Preamble to the act concerning services and supports for people with disabilities, see Acts 2018, ch. 986.

Amendments. The 2016 amendment substituted “attains seventy-five (75) years of age” for “attains eighty (80) years of age”.

The 2018 amendment added (b); and, in present (a), substituted “An eligible” for “A” at the beginning, “referral” for “waiting” preceding “list”, employment and community first choices Group S” for “the self-determination waiver” following “enrolled in”, and “home and community based services program” for “medical assistance waiver” preceding “within”.

Effective Dates. Acts 2015, ch. 430, § 2. July 1, 2015.

Acts 2016, ch. 707, § 2, April 6, 2016.

Acts 2018, ch. 986, § 2. May 21, 2018.

Part 2
Family Support

33-5-201. Part definitions.

As used in this part, unless the context otherwise requires:

“Council” means the state family support council appointed under § 33-5-208;
“Family” means a unit that consists of either a person with a severe or developmental disability and the parent, relative, or other care giver who resides in the same household or a person with a severe or developmental disability who lives alone without such support;
“Family support” means goods and services needed by families to care for their family members with a severe or developmental disability and to enjoy a quality of life comparable to other community members;
“Family support program” means a coordinated system of family support services administered by the department directly or through contracts;
“Severe disability” means a disability that is functionally similar to a developmental disability but occurred after the person was twenty-two (22) years of age; and
“State family support council” means the council established by the department to carry out the responsibilities specified in this part.

Acts 1992, ch. 981, § 3; 1994, ch. 683, § 1; T.C.A., § 33-5-402; Acts 2000, ch. 947, §§ 1, 6.

33-5-202. State policy — Principles for developing programs.

The policy of the state is that persons with severe or developmental disabilities and their families be afforded supports that emphasize community living and enable them to enjoy typical lifestyles.
Programs to support families shall be based on the following principles:
1. Families and individuals with severe or developmental disabilities are best able to determine their own needs and should be empowered to make decisions concerning necessary, desirable, and appropriate services and supports;
2. Families should receive the support necessary to care for their relatives at home;
3. Family support is needed throughout the life span of the person who has a severe or developmental disability;
4. Family support services should be sensitive to the unique needs, strengths, and values of the person and the family, and should be responsive to the needs of the entire family;
5. Family support should build on existing social networks and natural sources of support in communities;
6. Family support services should be provided in a manner that develops comprehensive, responsive, and flexible support to families as their needs evolve over time;
7. Family support services should be provided equitably across the state and be coordinated across the numerous agencies likely to provide resources and services and support to families; and
8. Family, individual, and community-based services and supports should be based on sharing ordinary places, developing meaningful relationships, learning things that are useful, and making choices, as well as increasing the status and enhancing the reputation of persons served.

Acts 1992, ch. 981, § 2; T.C.A., § 33-5-401; Acts 2000, ch. 947, §§ 1, 6.

33-5-203. Primary focus.

The primary focus of the family support program is supporting:

Families with children with severe or developmental disabilities, school age and younger;
Adults with severe or developmental disabilities who choose to live with their families; and
Adults with severe or developmental disabilities who are residing in the community in an unsupported setting not a state or federally funded program.

Acts 1992, ch. 981, § 5; T.C.A., § 33-5-404; Acts 2000, ch. 947, § 1.

33-5-204. Duties of contracted agency.

The contracted agency shall be responsible for assisting each family for whom services and support will be provided in assessing each family's needs and shall prepare a written plan with the person and family. The needs and preferences of the family and individual will be the basis for determining what goods and services will be made available within the resources available.

Acts 1992, ch. 981, § 6; T.C.A., § 33-5-405; Acts 2000, ch. 947, § 1.

33-5-205. Scope of family support services.

The family support services included in this program include, but are not limited to, family support services coordination, information, referral, advocacy, educational materials, emergency and outreach services, and other individual and family-centered assistance services, such as:

Respite care;
Personal assistance services;
Child care;
Homemaker services;
Minor home modifications and vehicular modifications;
Specialized equipment and maintenance and repair;
Specialized nutrition and clothing and supplies;
Transportation services;
Health-related costs not otherwise covered;
Licensed nursing and nurses aid services; and
Family counseling, training and support groups.

Acts 1992, ch. 981, § 7; T.C.A., § 33-5-406; Acts 2000, ch. 947, § 1.

33-5-206. Coordination of services.

As a part of the family support program, the contracted agency shall provide service coordination for each family that includes information, coordination, and other assistance as needed by the family.

Acts 1992, ch. 981, § 8; T.C.A., § 33-5-407; Acts 2000, ch. 947, § 1.

33-5-207. Families of adults with disabilities — Services and resources.

The family support program shall assist families of adults with a severe or developmental disabilities in planning and obtaining community living arrangements, employment services, and other resources needed to achieve, to the greatest extent possible, independence, productivity, and integration into the community.

Acts 1992, ch. 981, § 9; T.C.A., § 33-5-408; Acts 2000, ch. 947, § 1.

33-5-208. State family support council.

The commissioner shall appoint a state family support council comprised of fifteen (15) members, of whom at least a majority shall be persons with severe or developmental disabilities or their parents or primary care givers. The council shall have one (1) representative from each development district of the state, one (1) representative of the council on developmental disabilities, one (1) representative of the Tennessee disability coalition, one (1) representative of the Tennessee community organizations, and one (1) representative of a center for independent living. The commissioner shall appoint two (2) at-large members for the department.

Acts 1992, ch. 981, § 10; T.C.A., § 33-5-409; Acts 2000, ch. 947, § 1; 2002, ch. 730, § 27; 2005, ch. 27, § 1.

Compiler's Notes. The state family support council, created by this section, terminates June 30, 2022. See §§ 4-29-112, 4-29-243.

33-5-209. Department to participate with council — Policies and procedures.

The department shall adopt policies and procedures regarding the development of appropriations requested for family support.
Unless the commissioner determines an exigent circumstance exists, the department shall seek input from the state family support council prior to adopting policies and procedures regarding:
1. Program specifications:
  1. Criteria for program services;
  2. Methodology for allocating resources to families within the funds available;
  3. Eligibility determination and admissions; and
  4. Limits on benefits;
2. Coordination of the family support program and the use of its funds equitably throughout the state, with other publicly funded programs, including medicaid;
3. Resolution of grievances filed by families pertaining to actions of the family support program, and an appeals process;
4. Quality assurance; and
5. Annual evaluation of services, including consumer satisfaction.

Acts 1992, ch. 981, § 11; T.C.A., § 33-5-410; Acts 2000, ch. 947, § 1; 2015, ch. 301, § 1.

Amendments. The 2015 amendment designated the former first sentence and (1) as (a) and, in (a), deleted “participate with the state family support council and shall” preceding “adopt policies”; added (b); designated the language “Program specifications:” as (b)(1) and redesignated former (3)-(6) as (2)-(5).

Effective Dates. Acts 2015, ch. 301, § 3. April 24, 2015.

33-5-210. Meetings — Duties — Expenses.

The state family support council shall meet at least quarterly. The council shall participate in the development of program policies and procedures, and perform other duties as are necessary for statewide implementation of the family support program. All reimbursement for travel expenses shall be in conformity with the comprehensive state travel regulations as promulgated by the commissioner of finance and administration and approved by the attorney general and reporter.
1. Any council member who misses more than fifty percent (50%) of the scheduled meetings in a calendar year shall be removed as a member of the council.
2. The chair of the council shall promptly notify, or cause to be notified, the appointing authority of any member who fails to satisfy the attendance requirement as prescribed in subdivision (b)(1).

Acts 1992, ch. 981, § 12; T.C.A., § 33-5-411; Acts 2000, ch. 947, § 1; 2016, ch. 615, § 3.

Amendments. The 2016 amendment added (b).

Effective Dates. Acts 2016, ch. 615, § 4. March 22, 2016.

33-5-211. Administration of program — Funding.

The department shall administer the family support services program and shall establish annual benefit levels per family served. Implementation of this part and the program and annual benefit levels, or any portion of the program or benefits levels, are contingent upon annual line item appropriation of sufficient funding for the programs and benefits.

Acts 1992, ch. 981, §§ 13, 15; T.C.A., § 33-5-412; Acts 2000, ch. 947, § 1.

33-5-212. Provision of information gathered through family support program to DIDD.

In accordance with policies and procedures developed and adopted by the state family support council and the department of intellectual and developmental disabilities (DIDD), information gathered through the family support program on persons with a developmental disability, other than an intellectual disability, for whom services are needed shall be provided to DIDD on at least a quarterly basis.

Acts 2006, ch. 604, § 1; 2009, ch. 477, § 1; 2010, ch. 734, § 1; 2010, ch. 1100, § 42; 2015, ch. 301, § 2.

Compiler's Notes. Acts 2006, ch. 604, § 2 provided that the provisions of the act shall not be construed to be an appropriation of funds and no funds shall be obligated or expended pursuant to the act unless such funds are specifically appropriated by the general appropriations act.

For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

Amendments. The 2015 amendment deleted “comprehensive home and community-based” preceding “services are needed” and added “at least” preceding “a quarterly basis” at the end of the section.

Effective Dates. Acts 2015, ch. 301, § 3. April 24, 2015.

Part 3
Residential Admission

33-5-301. Part definitions — Admission to developmental center — Emergency respite admission — Review.

As used in this part, unless the context otherwise requires:
1. “Emergency respite admission” means an admission for up to forty-five (45) days authorized due to an emergency situation that results in the temporary inability of the person who has the care, custody, and control of a person with intellectual or developmental disability to provide proper care, custody, and control;
2. “Regular voluntary admission” means an admission authorized by a statewide admission review committee for a specified period of time;
3. “Respite admission” means an admission for up to forty-five (45) days authorized solely for the purpose of providing a respite for the person having responsibility for the care, custody, and control of a person with intellectual or developmental disability; and
4. “Short-term training admission” means an admission authorized by a written agreement between a developmental center and an applicant that the center provide services and supports for a person with intellectual or developmental disability to learn how to perform a certain function or functions for a specified period of time, not exceeding six (6) months, at the end of which the center will discharge the person with intellectual or developmental disability to the care, custody, and control of the applicant.
1. Under department rules and pursuant to the direction of the statewide admission review committee, the chief officer or director of a center or the appointed designee of a developmental center, subject to the availability of suitable accommodations and the absence of a less restrictive alternative, may admit for diagnosis, care, training and treatment:
  1. A person with intellectual or developmental disability who applies for voluntary admission and does not lack capacity to apply under § 33-3-218;
  2. A child with intellectual or developmental disability whose parent or legal guardian applies for voluntary admission; or
  3. An adult whose conservator applies for voluntary admission.
2. The departments of human services and children's services may apply for respite and emergency respite admission on behalf of a person with intellectual or developmental disability who is in their custody. Admissions to a developmental center under respite, emergency respite, or short-term training admission, or any combination of these, shall not exceed two hundred twenty-five (225) days within a twelve-month period from the first day of admission in any of the categories. A respite admission, emergency respite admission, short-term training admission, or combination of such admissions shall not be used to circumvent appearance before the statewide admission review committee when regular voluntary admission is actually sought or appropriate. No regular voluntary admission shall be based on the premise that it is for a lifetime.
The statewide admission review committee shall informally review a person's emergency respite admission within seven (7) days after the person is admitted. If the review is not done, then a hearing shall be held by the committee to review the propriety of the admission as in the case of regular voluntary admissions and shall make its decision within twenty-five (25) days after admission.
Upon receipt of an application for admission, the developmental center shall evaluate the person with intellectual or developmental disability to assess the person's need for services and supports and the least restrictive alternative available to provide appropriate services and supports to the person. If the evaluation results in a recommendation for a regular voluntary admission and there is an available suitable accommodation, the developmental center will report its findings and recommendations to the statewide admission review committee.
The department may adopt rules to implement the statewide admissions review committee and to specify its duties and membership.

Acts 1975, ch. 248, § 13; 1983, ch. 323, § 10; T.C.A., § 33-501; Acts 1984, ch. 922, § 8; 1988, ch. 828, § 2; 1993, ch. 283, § 1; 1995, ch. 468, § 1; T.C.A., § 33-5-101(b); Acts 2000, ch. 947, § 1; 2012, ch. 636, §§ 1-5.

Compiler's Notes. Former § 33-5-301 (Acts 1975, ch. 248, § 13; T.C.A., § 33-505), concerning mental health and mental retardation services, was repealed by Acts 2000, ch. 809, § 2, effective May 24, 2000. For present law, see § 33-5-106.

Former chapter 5, §§ 33-5-101, 33-5-105, 33-5-201, 33-5-301 — 33-5-303, 33-5-305 — 33-5-310, 33-5-401 — 33-5-412 (Acts 1971, ch. 289, § 1; 1975, ch. 248, § 13; 1976, ch. 763, § 4; 1976, ch. 764, § 3; 1978, ch. 527, § 3; 1978, ch. 667, § 2; 1980, ch. 822, § 1; 1981, ch. 224, §§ 5, 6, 10; 1982, ch. 862, § 2; 1983, ch. 323, § 10; T.C.A., §§ 33-313, 33-501, 33-505 — 33-507, 33-510, 33-515, 33-516, 33-523, 33-524, 33-1601; Acts 1984, ch. 922, §§ 6, 8-11; 1988, ch. 828, § 2; 1989, ch. 504, § 1; 1992, ch. 981, §§ 2-13, 15; 1992, ch. 991, § 14; 1993, ch. 283, § 1; 1994, ch. 683, § 1; 1995, ch. 468, § 1; 2000, ch. 947, § 6); § 33-5-102 (Acts 1975, ch. 248, § 13; T.C.A. § 33-502), which was repealed by Acts 1993, ch. 283, § 2; § 33-5-103 (Acts 1975, ch. 248, § 13; T.C.A. § 33-503), which was repealed by Acts 1993, ch. 283, § 2; § 33-5-104 (Acts 1975, ch. 248, § 13; 1976, ch. 763, § 3; 1978, ch. 527, § 1; T.C.A. § 33-504), which was repealed by Acts 1993, ch. 283, § 2; and § 33-5-304 (Acts 1975, ch. 248, § 13; 1978, ch. 527, § 2; 1978, ch. 667, § 1; 1981, ch. 224, § 8; T.C.A., § 33-508), which was repealed by Acts 1984, ch. 922, § 33, is deleted and replaced in the revision of title 33 by Acts 2000, ch. 947, § 1, effective March 1, 2001.

Cross-References. Definitions applicable throughout title, § 33-1-101.

Collateral References.

Liability of one releasing institutionalized mental patient for harm he causes. 38 A.L.R.3d 699.

33-5-302. Periodic evaluation of admitted person — Discharge.

The chief officer or director of a center or the appointed designee:

Shall cause each person admitted under § 33-5-301 or transferred under § 33-3-301 or chapter 3, part 4 of this title to be evaluated as often as necessary, but not less often than every six (6) months;
Shall discharge a person admitted under § 33-5-301 when the chief officer, director or designee and the statewide admission review committee determine that the person no longer meets the standards under which the person was admitted; or
May discharge a person admitted under § 33-5-301 at any time when it is in the person’s best interest.

Acts 2000, ch. 947, § 1; 2012, ch. 636, § 6.

Compiler's Notes. Former § 33-5-302 (Acts 1975, ch. 248, § 13; 1981, ch. 224, § 5; T.C.A., § 33-506), concerning mental health and mental retardation services, was repealed by Acts 2000, ch. 809, § 2, effective May 24, 2000. For present law, see § 33-5-106.

33-5-303. Request for discharge by parent or other representative.

In the case of a person admitted under § 33-5-301, a parent or legal guardian of a child with intellectual or development disability on behalf of the child, a conservator of a person with intellectual or development disability on behalf of the person, or a person with intellectual or development disability who was admitted on the person's own application and does not lack capacity under § 33-3-218 may request discharge from a developmental center at any time by filing a request with the chief officer or director of a center or the appointed designee. If the person cannot file a written request, anyone acting on the person's behalf may file the request with the person's consent. The chief officer or director of a center or the appointed designee shall discharge the person with intellectual or development disability within twelve (12) hours after receipt of the request or at the time stated in the request, whichever is later.

Acts 2000, ch. 947, § 1; 2012, ch. 636, §§ 7, 8.

Compiler's Notes. Former § 33-5-303 (Acts 1975, ch. 248, § 13; 1981, ch. 224, § 6; T.C.A., § 33-507), concerning mental health and mental retardation services, was repealed by Acts 2000, ch. 809, § 2, effective May 24, 2000. For present law, see § 33-5-106.

NOTES TO DECISIONS

1. Involuntary Commitment.

Under Fed. R. Civ. P. 60(b)(5), T.C.A. § 33-5-303 did not provide a basis for vacating injunctive relief that had been entered to remedy violations of the substantive due process rights of mentally retarded (MR) residents at a state-operated home. Although Tennessee had amended its laws to guarantee discharge at the request of a resident with capacity, there had been no significant change in the law for purposes of Rule 60(b)(5) because the MR residents remained involuntarily committed given that they depended upon the request of a parent or other legal representative to be discharged. United States v. Tennessee, 615 F.3d 646, 2010 FED App. 2301P, 2010 U.S. App. LEXIS 16103 (6th Cir. Aug. 4, 2010).

33-5-304. Departmental review of admission.

1. The department may review the appropriateness of admission to a privately or publicly funded residential facility for persons with intellectual or developmental disabilities due to mental impairment. The department shall investigate to assess the validity of an allegation of:
  1. Deprivation of liberty without consent;
  2. Abuse, neglect, or exploitation;
  3. Placement that is inappropriate to meet the needs of a service recipient;
  4. Violation of a fiduciary relationship; or
  5. Any other violation of a right.
2. If the department finds probable cause to believe the allegation after an investigation by inspection of records and interviews with personnel, service recipients and their families and there is no suitable remedy under chapter 2, part 4 of this title, the department may require a plan of compliance or may require independent review of admissions under this section for a period of time set by the department.
Within five (5) days after a recommendation is made that a person with intellectual or developmental disability be admitted to a residential facility for which the department requires independent review under subsection (a), an independent reviewer designated by the department shall determine the appropriateness of the recommended residential service for the person on the basis of the interests and welfare of the person. The reviewer's decision shall not be influenced by any benefits flowing from the admission solely to the family, parents, guardian, or conservator of the person. The reviewer's decision shall be written and shall state the reasons for the decision.
The reviewer's decision on publicly funded placements may be appealed to a designee of the commissioner by filing the appeal within seven (7) days after receipt of the decision. The designee of the commissioner shall review and decide the appeal within fourteen (14) days after receipt of the appeal. The only appeal of the reviewer's decision on privately funded placements is a request for reconsideration by the reviewer filed within fourteen (14) days after receipt of the decision, and the reviewer's decision is final administratively. If granted, reconsideration by the reviewer shall occur within five (5) working days after receipt of the request.
The department shall designate persons from among its employees or by contract to serve as independent reviewers. A person designated to serve as the independent reviewer for a case shall have no conflict of interest with any party to the case and shall be trained with respect to the laws, rules, and information required to make competent decisions as an independent reviewer.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 28; 2012, ch. 636, § 9.

Part 4
Forensic Services for Persons with Intellectual Disabilities

33-5-401. Rehabilitation for persons with intellectual disability.

For purposes of this part, unless the context otherwise requires, “commissioner” means the commissioner of intellectual and developmental disabilities or the commissioner's designee.
The commissioner may establish programs, including community-based programs, for training, habilitating, or rehabilitating persons with intellectual disabilities under this part.

Acts 1975, ch. 248, § 13; T.C.A., §§ 33-505, 33-5-301; Acts 2000, ch. 947, § 1; 2006, ch. 1008, § 1; 2010, ch. 734, § 1; 2010, ch. 1100, § 43.

For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

33-5-402. Procedure for commitment of person under this part.

IF AND ONLY IF

1. a juvenile court determines in a delinquency proceeding, on the basis of an evaluation under § 37-1-128(c), that a child has an intellectual disability, OR
2. a circuit, criminal, or general sessions court determines on the basis of an evaluation under § 33-7-301(a) that a criminal defendant is incompetent to stand trial due to an intellectual disability, OR
3. a circuit or criminal court enters a verdict of not guilty by reason of insanity on a capital offense against a defendant with an intellectual disability,
  THEN
the district attorney general may file a complaint to require involuntary care and treatment of the defendant under § 33-5-403, AND
only the juvenile court that has jurisdiction of the child or the circuit or criminal court before which the defendant's criminal case is pending or that would hear the case if the defendant were bound over to the grand jury has jurisdiction to hear a complaint filed under § 33-5-403.

Acts 2000, ch. 947, § 1; 2010, ch. 734, § 1.

Compiler's Notes. For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

Collateral References.

Jurisdiction of court to permit sterilization of mentally defective person in absence of specific statutory authority. 74 A.L.R.3d 1210.

Propriety of transferring patient found not guilty by reason of insanity to less restrictive confinement. 43 A.L.R.5th 777.

Right to counsel in insanity or incompetency adjudication proceedings. 87 A.L.R.2d 950.

33-5-403. Prerequisites to involuntary commitment.

IF AND ONLY IF

a person has an intellectual disability, AND
the person poses a substantial likelihood of serious harm under § 33-6-501 because of the intellectual disability, AND
the person needs care, training, or treatment because of the intellectual disability, AND
all available less drastic alternatives to judicial commitment are unsuitable to meet the needs of the person, AND
the district attorney general files a complaint to require involuntary care and treatment under § 33-5-402,
THEN
the person may be judicially committed to involuntary care and treatment in the custody of the commissioner in proceedings conducted in conformity with chapter 3, part 6 of this title.

Acts 2000, ch. 947, § 1; 2010, ch. 734, § 1.

Compiler's Notes. For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

Attorney General Opinions. Constitutionality of involuntary commitment criteria deletion, OAG 85-082, 1985 Tenn. AG LEXIS 212 (3/18/85).

33-5-404. Finding of need for involuntary commitment by designated psychologists.

No defendant may be judicially committed under § 33-5-403 unless the commissioner designates licensed physicians or licensed psychologists designated as health service providers who file in the commitment proceeding two (2) certificates of need for training and treatment certifying that the defendant satisfies the requirements of subdivisions § 33-5-403(1)-(4) and showing the factual foundation for the conclusions on each item.

Acts 1975, ch. 248, § 13; 1976, ch. 764, § 1; 1978, ch. 527, § 3; 1978, ch. 667, § 2; 1981, ch. 449, § 2(20); 1982, ch. 862, § 13; T.C.A., § 33-510; Acts 1984, ch. 922, § 9; 1992, ch. 991, § 14; T.C.A., § 33-5-305(c); Acts 2000, ch. 947, § 1.

33-5-405. Admission subject to availability of accommodation.

A judicially committed defendant does not come into the custody of the commissioner until the commissioner determines that the state has an available suitable accommodation and designates a licensed state facility to admit the defendant.

33-5-406. Credit on sentence for time in custody.

Whenever a person receives evaluation, training or treatment services under this part or part 5 of this chapter in connection with a criminal charge or conviction, wherever incarcerated, the person shall receive credit toward the satisfaction of the sentence for the time spent in the custody of the commissioner.

Acts 1975, ch. 248, § 13; 1976, ch. 763, § 4; T.C.A., §§ 33-515, 33-5-306; Acts 2000, ch. 947, § 1.

33-5-407. Court order as transfer.

Without regard to its wording, any court order of commitment under this part shall be considered in law as a transfer of the person to the custody of the commissioner.

Acts 1975, ch. 248, § 13; T.C.A., §§ 33-516, 33-5-307; Acts 2000, ch. 947, § 1.

33-5-408. Periodic evaluations.

The commissioner shall cause each person committed under § 33-5-403 or transferred under § 33-3-301 or chapter 3, part 4 of this title, to be evaluated as often as necessary but not less often than every six (6) months.
The commissioner or the commissioner's designee shall report the details of the findings of the evaluation performed under subsection (a) regarding persons with intellectual disabilities committed under § 33-5-403. The report shall include an assessment of the person's present condition and prospects for restoration to competence to stand trial, and shall be sent to the clerk of the court that ordered commitment, the person, the person's attorney, parents, spouse, legal guardian or conservator, if any, and the district attorney general.
If, upon completion of the evaluation under subsection (a), the commissioner or the commissioner's designee determines that a person with an intellectual disability transferred under § 33-3-301, no longer meets the standards under which the person was admitted, the person shall be immediately discharged or transferred to the facility from which the person was transferred or to another appropriate facility of the department under § 33-3-301.

Acts 1981, ch. 224, § 10; T.C.A., § 33-523; Acts 1984, ch. 922, § 10; T.C.A., § 33-5-308; Acts 2000, ch. 947, § 1; 2010, ch. 734, § 1.

Compiler's Notes. For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

33-5-409. Release of intellectually disabled offenders — Delivery to custody of court.

When the commissioner or the commissioner's designee determines that any person committed under § 33-5-403, no longer meets the standards under which the person was committed, the decision maker shall immediately order the person's release and cause the person to be discharged except as provided in subsection (b) or § 33-5-410.
When the commissioner or the commissioner's designee determines that a person who was committed under § 33-5-403 and who is charged with a crime for which the person is subject to being tried is restored to competence to stand trial, the decision maker shall give notice of that fact to the clerk of the court that ordered the person's commitment and deliver the person to the custody of the sheriff of the county from which the person was admitted, who shall transport the person back to the custody of the court.

Acts 1981, ch. 224, § 11; T.C.A., §§ 33-524, 33-5-309; Acts 2000, ch. 947, § 1.

33-5-410. Discharge proceedings for criminal defendant involuntarily committed to an intellectual disability facility.

Whenever an intellectual disability facility determines that a person, who has been committed under § 33-5-403 by a criminal court in connection with a capital offense or with a verdict of not guilty by reason of insanity on a capital offense, no longer meets the commitment standards under which the person was committed, it shall follow the procedures set out in this section to effect the person's release from involuntary commitment.
When the intellectual disability facility determines that the person no longer meets the commitment criteria under which the person was committed, it shall notify the committing court of this fact and the reasons. The determination by the department shall create a rebuttable presumption of its correctness. The court may, within ten (10) business days, holidays excluded, of receipt of the notice, set a hearing to be held within twenty-one (21) business days, holidays excluded, of receipt of the facility's notice on whether the person continues to meet the commitment criteria under which the person was committed. The court shall send notice of the hearing to the following: the person, chief officer of the facility, the person's counsel, the person's next of kin, and the district attorney general.
If the court does not set a hearing and notify the facility within fifteen (15) business days, holidays excluded, of its receipt of the facility's notice, the facility shall release the person from involuntary commitment.
The hearing to determine whether the person continues to meet the commitment criteria under which the person was committed shall be held within twenty-one (21) business days, holidays excluded, of the court's receipt of notice from the facility. The person shall attend the hearing unless the person's presence is waived in writing by counsel before the hearing. If the person does not have counsel, the court shall appoint counsel to represent the person.
Following the hearing, if the court finds by clear, unequivocal, and convincing evidence that the person meets the standards of § 33-5-403, it shall order the person's return to the intellectual disability facility under the authority of the person's commitment. Otherwise, it shall order the person's release from commitment.
Either party may appeal a final adjudication under this section to the court of criminal appeals.

Acts 1980, ch. 822, § 1; 1982, ch. 862, § 2; T.C.A., § 33-313; Acts 1984, ch. 922, § 6; T.C.A., § 33-5-310; Acts 2000, ch. 947, § 1; 2010, ch. 714, § 1; 2010, ch. 734, § 1.

Compiler's Notes. For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 5.

Collateral References.

Propriety of transferring patient found not guilty by reason of insanity to less restrictive confinement. 43 A.L.R.5th 777.

Part 5
Mandatory Community-Based Services

33-5-501. Mandatory community-based services for felony defendant found incompetent to stand trial.

IF AND ONLY IF

a court with criminal jurisdiction finds on proof by clear and convincing evidence that an adult with an intellectual disability is:
1. charged with a felony,
2. incompetent to stand trial,
3. not committable under § 33-5-403, AND
4. at risk of becoming committable; AND
the department certifies to the court that there are funds available within the limits of the department's line item appropriation for services under this section for service to the person,
THEN
the court may order the person to participate in community-based services under a plan approved and developed by the department to attain and maintain competence to stand trial and reduce the risk of becoming committable.

Acts 2000, ch. 947, § 1; 2010, ch. 734, § 1.

In order to effectuate the purposes of this section, funds were appropriated in Acts 2000, ch. 994.

For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

33-5-502. Mandatory community-based services for felony defendant found not guilty due to insanity based on an intellectual disability.

IF AND ONLY IF

a court with criminal jurisdiction finds on proof by clear and convincing evidence that a person with an intellectual disability:
1. is charged with a felony,
2. is acquitted of the charge on a verdict of not guilty by reason of insanity because of an intellectual disability at the time of the commission of the crime,
3. is not committable under § 33-5-403,
4. requires training or treatment because of the intellectual disability, AND
5. is likely to meet the standards of § 33-5-403 without the training or treatment, AND
the department certifies to the court that there are funds available within the limits of the department's line item appropriation for services under this section for service to the person,
THEN
the court may order the person to participate in community-based services under a plan approved and developed by the department to avoid deterioration to the point where the person would be committable.

Acts 2000, ch. 947, § 1; 2010, ch. 734, § 1.

In order to effectuate the purposes of this section, funds were appropriated in Acts 2000, ch. 994. Funding was provided in Acts 2000, ch. 994.

For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

33-5-503. Mandatory community-based services for capital defendant committed under § 33-5-403 but no longer meeting the standards for commitment.

IF AND ONLY IF

a court with criminal jurisdiction finds on proof by clear and convincing evidence that a person with an intellectual disability:
1. has been committed under § 33-5-403 in connection with a capital offense or with a verdict of not guilty by reason of insanity on a capital offense,
2. no longer meets the standards under which the person was committed, AND
3. has a condition that requires training or treatment without which the person would again meet commitment standards, AND
the department certifies to the court that there are funds available within the limits of the department's line item appropriation for services under this section for service to the person,
THEN
the court may order the person to participate in community-based services under a plan approved and developed by the department to prevent the person's deterioration to the point where the person would be committable.

Acts 2000, ch. 947, § 1; 2010, ch. 734, § 1.

In order to effectuate the purposes of this section, funds were appropriated in Acts 2000, ch. 994. Funding was provided in Acts 2000, ch. 994.

For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

Collateral References.

Propriety of transferring patient found not guilty by reason of insanity to less restrictive confinement. 43 A.L.R.5th 777.

33-5-504. Development of community-based services plan — Maximum duration.

If upon completion of an evaluation of a person under § 33-5-403 or § 33-5-408, the department determines that the person meets the standards in § 33-5-501, § 33-5-502, or § 33-5-503, the department shall attempt to develop a community-based services plan for the person for the purpose stated. The plan shall be for a maximum of two (2) years, and no person shall participate in the plan for more than two (2) years.

Acts 2000, ch. 947, § 1.

33-5-505. Hearing on contest of plan.

If a defendant contests a plan proposed by the department under § 33-5-501, § 33-5-502, or § 33-5-503, the court shall hold a hearing within seven (7) days of receipt of the request to determine whether the plan is programmatically appropriate and legally permissible. The court shall either approve the plan or approve the plan as modified by the department to correct deficiencies found by the court.

Acts 2000, ch. 947, § 1.

33-5-506. Assessment of service recipient's needs and progress — Report to court.

A service provider with a service recipient under § 33-5-501, § 33-5-502, or § 33-5-503 shall assess the service recipient's needs at least every six (6) months and shall report to the court every six (6) months on the person's progress toward the goal of the plan and on the person's use of the service. A service provider may request the court to release the service recipient from the plan at any time.

Acts 2000, ch. 947, § 1.

33-5-507. Termination of community-based services.

If, after two (2) years of intensive training on a department-approved competence to stand trial curriculum under § 33-5-501, the defendant has not made substantial progress to attain competence to stand trial, the service provider shall assess the defendant's needs and may terminate the service plan and recommend to the court that the defendant be referred to other mental health or intellectual disability services as deemed appropriate. The service provider shall report its conclusion to the court before terminating services.

Acts 2000, ch. 947, § 1; 2010, ch. 734, § 1.

Compiler's Notes. For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

Part 6
Statewide Planning and Policy Council for the Department of Intellectual and Developmental Disabilities

33-5-601. Statewide planning and policy council created — Chair — Officers — Membership — Expenses — Meetings — Terms of service — Removal.

There is created the statewide planning and policy council for the department of intellectual and developmental disabilities to assist in planning a comprehensive array of high quality prevention, early intervention, treatment, and habilitation services and supports and to advise the department on policy, budget requests, and developing and evaluating services and supports.
1. The statewide planning and policy council shall be composed of not less than eleven (11) members, not including ex officio members. The governor shall appoint the chair of the council. The speaker of the senate and the speaker of the house of representatives shall each appoint one (1) legislator as a member of the council. The commissioner of intellectual and developmental disabilities shall serve, ex officio, as secretary to the council and, if the chair is not present at a meeting, shall designate a member to serve as chair for the meeting. The governor is ex officio a member of the council and may appoint representatives of state agencies as ex officio members of the council. The governor shall appoint one (1) at-large representative.
2. The commissioner of intellectual and developmental disabilities shall appoint five (5) members to represent intellectual and developmental disabilities, of which, two (2) shall be service recipients or members of families of service recipients, one (1) shall be a representative for children, one (1) shall be a intellectual and developmental disabilities service provider, and one (1) shall represent others affected by intellectual and developmental disability issues. Additionally, the commissioner of intellectual and developmental disabilities shall appoint one (1) representative for elderly service recipients and at least one (1) at-large representative.
3. At least a majority of the council's membership shall consist of current or former service recipients and members of service recipient families.
The members of the statewide planning and policy council shall receive no compensation.
The statewide planning and policy council shall meet quarterly at a place designated by the chair and may meet more often upon the call of the chair or a majority of the members.
Terms on the council shall be three (3) years except that the chair and members appointed by the speakers shall have terms of two (2) years.
The appointing authority may remove a member for failure to attend at least one half (½) of the scheduled meetings in any one-year period or for other good cause.

Acts 2010, ch. 1100, § 44.

Compiler's Notes. The statewide planning and policy council for the department of intellectual and developmental disabilities, created by this section, terminates June 30, 2022. See §§ 4-29-112, 4-29-243.

33-5-602. Duties of council.

The statewide planning and policy council shall advise the commissioner of intellectual and developmental disabilities as to plans and policies to be followed in the service systems and the operation of the department of intellectual and development disabilities programs and facilities, recommend to the general assembly legislation and appropriations for the programs and facilities, advocate for and publicize the recommendations, and publicize generally the situation and needs of persons with intellectual or developmental disabilities and their families.
The statewide planning and policy council shall especially attend to:
1. Identification of common areas of concern to be addressed by the service areas;
2. The needs of service recipients who are children or elderly and of service recipients with combinations of intellectual or developmental disabilities and other conditions;
3. Evaluation of needs assessment, service, and budget proposals;
4. Reconciliation of policy issues among the service areas; and
5. Annual review of the adequacy of this title to support the service systems.
The statewide planning and policy council, in conjunction with the commissioner of intellectual and developmental disabilities, shall report annually to the governor on the service systems, including programs, services, supports, and facilities of the department of intellectual and developmental disabilities, and may furnish copies of the reports to the general assembly with recommendations for legislation. The statewide planning and policy council may make other reports to the governor and to the general assembly as the council deems necessary. The commissioner of intellectual and developmental disabilities shall make the reports available to the public, including on the Internet and by other appropriate methods.

Acts 2010, ch. 1100, § 44.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

Chapter 6
Mental Health Service

Part 1
Mental Health Service System

33-6-101. Applicability of title to persons with mental illness and serious emotional disturbance.

Services to persons with mental illness and serious emotional disturbance are governed generally by this title, including chapters 1-4, 7, 8 and 9.

Acts 2000, ch. 947, § 1.

Compiler's Notes. Former chapter 6, §§ 33-6-101 — 33-6-111; 33-6-201 — 33-6-209; 33-6-301 — 33-6-306 (Acts 1957, ch. 288, §§ 1-5; impl. am. Acts 1957, ch. 127, §§ 1, 3, 4; 1963, ch. 315, §§ 1, 2; 1965, ch. 38, §§ 37-40, 43, 45, 46; 1967, ch. 44, § 1; 1967, ch. 58, § 1;1973, ch. 127, § 11; 1974, ch. 464, § 3; 1974, ch. 802, §§ 43, 45, 46, 52, 53; 1975, ch. 199, §§ 1-3; 1975, ch. 248, §§ 1, 14, 16-18; 1976, ch. 610, § 1; 1976, ch. 763, § 5; 1976, ch. 764, §§ 2, 3; 1977, ch. 165, § 1; 1977, ch. 386, § 2; 1977, ch. 449, §§ 1, 2; 1978, ch. 527, §§ 5, 6; 1980, ch. 621, § 1; 1981, ch. 224, §§ 25-27; 1981, ch. 445, § 1; 1981, ch. 449, § 2(21); 1981, ch. 536, § 1; 1982, ch. 862, § 1, 3-11; 1983, ch. 323, §§ 8, 9, 11, 13, 14, 17-22, 24; T.C.A., § 33-314, 33-325, 33-603, 33-601, 33-604, 33-606 — 33-609, 33-614 — 33-619; 33-379 — 33-381, 33-1301 — 33-1305, 33-3-620 — 33-3-622, 33-6-203 — 33-6-205; Acts 1984, ch. 922, § 8, 11-16, 23-25, 27, 28-32, 39, 40; 1985, ch. 437, §§ 14-25; 1985, ch. 478, § 37; Acts 1986, ch. 595, §§ 1, 2; 1986, ch. 836, §§ 4, 6; 1987, ch. 145, § 26; 1988, ch. 862, §§ 1-5; 1988, ch 953, § 8; 1989, ch. 99, § 1; 1989, ch. 311, §§ 1-4; 1989, ch. 513, §§ 3, 15-17; 1990, ch. 630, §§ 1, 2; 1992, ch. 893, §§ 1, 2; 1992, ch. 991, §§ 15, 16; 1993, ch. 356, §§ 1-3; 1993, ch. 376, §§ 1-4; 1994, ch. 676, § 1; 1994, ch. 779, § 1; 1996, ch. 1079, §§ 57-66; 2000, ch. 947, § 6), is deleted and replaced in the revision of title 33 by Acts 2000, ch. 947, § 1, effective March 1, 2001.

33-6-102. Development of system — Purpose.

The department shall maintain a system to assure the most appropriate and effective services for publicly funded service recipients.

Acts 1985, ch. 437, § 31; T.C.A., § 33-2-601; Acts 2000, ch. 947, § 1.

Attorney General Opinions. T.C.A. §§ 33-6-102 to 33-6-106 are compatible with the Emergency Medical Treatment and Active Labor Act (EMTALA), 42 U.S.C. § 1395dd, regardless of whether or not an examination takes place at a facility that provides in-patient mental health treatment, and, therefore, there is no federal preemption, OAG 01-078, 2001 Tenn. AG LEXIS 69 (5/8/01).

T.C.A. §§ 33-6-102 to 33-6-106 do not conflict with the settlement agreement in a case in the U.S. District Court for the Middle District of Tennessee as the settlement agreement applied to the TennCare program and its contractors, rather than to general state law, OAG 01-078, 2001 Tenn. AG LEXIS 69 (5/8/01).

33-6-103. Priority population — Standards of care — Funding — Legislative intent — Contract with licensed community mental health agency.

The department shall identify adults with severe disabling mental illness and children with serious emotional disturbance.
Persons described in subsection (a) are a priority population for the department's mental health services and supports. The department shall set the array of services and supports for this priority population annually in its plan. The state will fund and the department will maintain the array of services and supports for persons in this priority population. Consistent with applicable eligibility requirements, the state may provide the funding for the services through the medicaid program or any waiver granted under the medicaid program, specifically including TennCare, other public funds, or private funds.
It is the legislative intent that the department of mental health and substance abuse services maintain the funding amount and the extent of services of the behavioral health safety net of the state at least at the annualized levels provided as of January 1, 2009. In the event that appropriations to the department are not sufficient to continue funding these critical services at a level at least equivalent to the services being provided as of January 1, 2009, then the department shall provide a report to the planning and policy council created by § 33-1-401 and the fiscal review committee created by § 3-7-101. The report shall identify all means the department intends to use to increase resources available.
The department may contract with any licensed community mental health agency for the provision of services under the behavioral health safety net, as long as the community mental health agency is able to sufficiently demonstrate to the department that the community mental health agency is able to provide to individuals who will be served under the behavioral health safety net all of the behavioral health services that are included within adult behavioral health services for the seriously and persistently mentally ill, as defined in § 71-5-103.

Acts 1994, ch. 861, §§ 1-4; T.C.A., § 33-1-208; Acts 2000, ch. 947, §§ 1, 6; 2002, ch. 730, § 30; 2009, ch. 95, § 3; 2010, ch. 1100, § 45; 2012, ch. 575, § 1; 2020, ch. 578, § 1.

Compiler's Notes. For the Preamble to the act regarding the behavioral health safety net of Tennessee, please refer to Acts 2009, ch. 95.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

Amendments. The 2020 amendment added (d).

Effective Dates. Acts 2020, ch. 578, § 2. July 1, 2020.

Attorney General Opinions. The general sessions court has jurisdiction over services provided to mentally ill persons on an involuntary basis, beginning with their transportation and involuntary admission for diagnosis, evaluation, and treatment of mental illness, and continuing through their discharge, OAG 00-172, 2000 Tenn. AG LEXIS 175 (11/8/00).

A law enforcement officer may transport persons in custody to a physician, doctoral level psychologist, or certain other medical professionals designated by the commissioner, for immediate examination and certification for care and treatment, OAG 00-172, 2000 Tenn. AG LEXIS 175 (11/8/00).

The sheriff is primarily responsible for the transportation of a person who has been certified in need of inpatient care and treatment and must be transported to a hospital or treatment resource for admission, OAG 00-172, 2000 Tenn. AG LEXIS 175 (11/8/00).

Transportation that occurs after a person has been transported to a hospital or treatment resource where the person is proposed to be admitted is the responsibility of the personnel of the hospital or treatment resource, OAG 00-172, 2000 Tenn. AG LEXIS 175 (11/8/00).

The entity responsible for transporting persons with mental illness must provide transportation services 24 hours per day, OAG 00-172, 2000 Tenn. AG LEXIS 175 (11/8/00).

33-6-104. Community-based screening process — Prescreening agents.

The department shall maintain a community-based screening process designed to provide alternatives to hospitalization, minimize length of confinement, promote speedy return to the community, and maximize each service recipient's ability to remain in a community setting.
As part of the system the commissioner shall designate individuals to serve as mandatory prescreening agents. The commissioner may base designation on criteria consistent with § 33-6-427 and may set limits on an agent's authority. The commissioner may decline to designate a person who satisfies the requirements of § 33-6-427. The commissioner may remove authority as a mandatory pre-screening agent from a person without cause. Designation of a person as a mandatory prescreening agent does not vest any property right, and limitations on authority and removal of designation as a mandatory prescreening agent are not governed by the Uniform Administrative Procedures Act, compiled in title 4, chapter 5, or by title 8, chapter 30.
An agent has only the authority designated by the commissioner and, if the agent is not a physician, the authority of the agent terminates if the person no longer satisfies § 33-6-427. An agent's authority is valid in connection with hospitalization of a privately funded person at a private hospital or treatment resource only if the private hospital or treatment resource files notice of acceptance of the designated person's authority with the commissioner.
When performing the duties authorized by this section an individual agent shall be considered to be a state employee pursuant to § 8-42-101(3)(D). When performing the duties authorized by this section an individual agent shall not be considered as an employee of such agent's regular employer, and the agent's regular employer, whether public or private, shall not be held liable in any damages to any person or government entity in a civil action for injury, death or loss to person or property that allegedly results from the actions of the individual agent while acting as a state employee pursuant to this section.

Acts 2000, ch. 947, § 1; 2001, ch. 377, § 3; 2002, ch. 730, § 31; 2010, ch. 633, § 1.

33-6-105. Certificate of need required for admission of publicly funded person — Psychiatric emergency services — Funding for services for uninsured persons.

A person with mental illness or serious emotional disturbance shall not be involuntarily admitted or committed to a state owned or operated hospital or treatment resource under chapter 6, part 4, of this title unless a mandatory prescreening agent provides one of the certificates for each set of certificates of need required by §§ 33-6-309, 33-6-404 and 33-6-408. If a mandatory pre-screening agent cannot examine the person within two (2) hours of the request to examine the person, then a licensed physician or a licensed psychologist with health service provider designation may examine the person and may provide one of the certificates if the physician or psychologist, in consultation with a member of a crisis response service designated by the commissioner to serve the county, determines that all available less drastic alternatives to placement in a hospital or treatment resource are unsuitable to meet the needs of the person.
To the extent that funds are made available and in the interest of public safety, the department of mental health and substance abuse services shall coordinate with other departments and agencies of state government, community mental health centers and other health care providers to promote access to a continuum of appropriate services for persons in psychiatric emergencies, including, but not limited to, the following components:
1. A toll-free telephone number for twenty-four-hour access, seven (7) days a week. The telephone line shall be linked to an appropriate psychiatric emergency service provider staffed by qualified personnel in order to provide crisis triage and intervention;
2. Telephone and walk-in triage screening, telephone and mobile or walk-in face-to-face clinical assessment, intervention and follow-up; and
3. Access to crisis respite and crisis stabilization beds.
It is the legislative intent that the department of mental health and substance abuse services maintain funding for the portion of the emergency psychiatric services continuum for persons in need of such services who are not eligible for the TennCare program and are otherwise uninsured. In the event that appropriations to the department are not sufficient to fully support this portion of the emergency psychiatric services continuum, at least at the annualized levels provided as of January 1, 2009, then the department shall provide a report to the planning and policy council created by § 33-1-401 and the fiscal review committee created by § 3-7-101. The report shall identify all means the department intends to use to continue to make resources available.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 32; 2009, ch. 404, §§ 1, 2; 2010, ch. 1100, § 45; 2012, ch. 575, § 1.

Cross-References. Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

Attorney General Opinions. Applicability to “publicly funded or potentially publicly funded persons” is consistent with stated purpose and with federal policy and case law requiring that treatment occur in the least restrictive environment; thus, there is a rational relationship to a legitimate governmental interest and there is no violation of provider nondiscrimination obligations under TennCare or other provider contracts, OAG 01-078, 2001 Tenn. AG LEXIS 69 (5/8/01).

33-6-106. Persons not meeting admission criteria.

If a mandatory prescreening agent performs the initial evaluation of a person for admission and determines that the person does not meet admission criteria, the mandatory prescreening agent shall assure that the person has alternative services available and offered if appropriate. The mandatory prescreening agent shall contact the person within twelve (12) hours to determine outcome and complete follow-up as necessary. If the prescreening is performed by a physician or psychologist as authorized by § 33-6-105, the crisis response service shall contact the person within twelve (12) hours to determine outcome and complete follow-up as necessary.
Transportation to and admission of a person to a state owned or operated hospital or treatment resource shall not begin until a mandatory prescreening agent or physician or psychologist as authorized by § 33-6-105 completes a certificate of need.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 33.

33-6-107. Treatment review committees.

All inpatient providers of mental health services shall have treatment review committees to make decisions for service recipients who are admitted to inpatient facilities and lack capacity under § 33-3-218 as determined under rules adopted under § 33-3-217 to make decisions for themselves on treatment, release of information to other qualified mental health professionals, other treatment agencies, providers, or a family member, and getting information from other treatment agencies or providers.
The treatment review committee shall be composed of at least four (4) members. No one who is a member of a service recipient's treatment team may be a member of the treatment review committee. The treatment review committee should include a licensed physician, a service recipient advocate, and two (2) who are qualified mental health professionals, licensed pharmacists, or clinical chaplains. A treatment review committee that considers treatment for a physical condition or illness must include a physician, physician assistant, or nurse practitioner. The treatment review committee shall encourage service recipients who are sixteen (16) years of age or older and the conservator or surrogate decision maker on behalf of a service recipient who is sixteen (16) years of age or older to participate with the treatment review committee to the extent possible. The treatment review committee shall make every effort to obtain the participation of parents, legal custodian, or legal guardian in the meeting if the service recipient is a child and not emancipated. The service recipient's family members, legal custodian, legal guardian, conservator, or attorney-in-fact under a durable power of attorney for health care may attend the meeting.
The treatment review committee shall not override a decision by a parent, legal custodian, or legal guardian of a service recipient who is an unemancipated child, or a conservator of a service recipient.
A person committed involuntarily to a hospital or treatment resource who does not lack capacity to make a decision on treatment may be given treatment over the service recipient's objection only if the service recipient's treatment review committee approves the treatment.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 34; 2004, ch. 565, § 9; 2005, ch. 150, § 2.

33-6-108. Admissions to a state-owned or operated hospital or treatment resource.

Notwithstanding any other law to the contrary, all admissions or transfers to a state-owned or operated hospital or treatment resource shall be subject to available suitable accommodations, as defined in § 33-1-101, and no admission to a state-owned or operated hospital or treatment resource shall occur until the department has designated the state-owned or operated facility as having available suitable accommodations; provided, that if there are no suitable available accommodations at the time of the determination, then the commissioner shall expeditiously find a state-owned or operated hospital or treatment resource to accommodate the person upon the availability of suitable available accommodations.

Acts 2009, ch. 531, § 36.

33-6-109. Quarterly report on the implementation and impact of available suitable accommodations.

The department shall report quarterly to the health committee of the house of representatives, the health and welfare committee of the senate, and the finance, ways and means committees of both the house of representatives and the senate on the implementation and the impact of available suitable accommodations, including the number and length of any delayed admissions.

Acts 2009, ch. 531, § 57; 2013, ch. 236, § 51.

Part 2
Voluntary Admission to Inpatient Treatment

33-6-201. Persons who may apply for voluntary admission.

The following persons may apply for admission to a public or private hospital or treatment resource for diagnosis, observation and treatment of a mental illness or serious emotional disturbance:
1. A person who is sixteen (16) years of age or over and who does not lack capacity to apply under § 33-3-218;
2. A parent, legal custodian, or legal guardian who is acting on behalf of a child;
3. A conservator whom the appointing court has expressly granted authority to apply for the person's admission to a hospital or treatment resource for mental illness or serious emotional disturbance;
4. A qualified mental health professional acting on the basis of the terms of the person's declaration for mental health treatment;
5. A person's attorney in fact under a durable power of attorney for health care, under title 34, chapter 6, part 2;
6. A caregiver under title 34, chapter 6, part 3, who is acting on behalf of a child; or
7. An individual acting as an agent under the Tennessee Health Care Decisions Act, compiled in title 68, chapter 11, part 18 or an individual designated as a surrogate under § 68-11-1806(a).
An individual's surrogate as designated under § 68-11-1806(c) may also apply for such admission provided no person may be admitted by a surrogate under this subsection (b) for more than twenty-one (21) consecutive days unless a petition has been filed pursuant to part 5 of this chapter, or unless an individual who meets any of the criteria set out in subdivisions (a)(1)-(7) of this section applies for voluntary admission subsequent to an application by a surrogate for voluntary admission under this section.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 35; 2004, ch. 565, § 4; 2013, ch. 238, § 1.

Cross-References. Definitions applicable throughout title, § 33-1-101.

Family support programs and services, title 33, ch. 5, part 2.

Intellectual disability, voluntary hospitalization, § 33-5-301.

Attorney General Opinions. Release of minor voluntarily admitted to mental health hospital, OAG 88-156, 1988 Tenn. AG LEXIS 157 (8/29/88).

NOTES TO DECISIONS

1. “Voluntary Commitment.”

Use of the term “voluntary commitment” is an oxymoron and a misnomer when referring to the voluntary admission provisions of T.C.A. §§ 33-6-201 through 33-6-208. State v. Simmons, 108 S.W.3d 881, 2002 Tenn. Crim. App. LEXIS 433 (Tenn. Crim. App. 2002), appeal denied, State v. Jackson, — S.W.3d —, 2002 Tenn. LEXIS 534 (Tenn. Nov. 12, 2002).

Collateral References.

Liability of one releasing institutionalized mental patient for harm he causes. 38 A.L.R.3d 699.

33-6-202. Admission upon finding of need for hospitalization.

Upon application, if an examination by an admitting physician determines the need for hospitalization, the chief officer of a public hospital shall admit and the chief officer of a private hospital or treatment resource may admit the person. If the service recipient is a child, the chief officer shall notify the child's parent, legal guardian or legal custodian of the admission. Admission is subject to the availability of suitable accommodations.

Acts 2000, ch. 947, § 1.

33-6-203. Limitations on admission of child.

No unemancipated child may be admitted under this part for more than one (1) six-month period in any twelve-month period unless the admissions review committee approves further hospitalization.

Acts 2000, ch. 947, § 1.

33-6-204. Admissions review committee — Members — Expenses.

The admissions review committee consists of four (4) persons. Two (2) members shall be appointed from the hospital or treatment resource by the chief officer and two (2) members shall be appointed from the community contiguous to the hospital or treatment resource by the chair of the state commission on children and youth. The members appointed by the chair of the state commission on children and youth shall not be employees or staff members of the hospital or treatment resource. The committee members shall be trained or experienced specifically in child mental health. Committee members shall serve voluntarily, and the hospital or treatment resource shall reimburse them for their travel and per diem living expenses.

Acts 2000, ch. 947, § 1.

33-6-205. Approval of commitment.

The admissions review committee shall approve continued hospitalization by a vote of at least three (3) of its members. The committee may recommend the person's continued hospitalization for a period not to exceed six (6) months. If the committee does not approve continued hospitalization, the person shall be released, unless, prior to the committee's decision, a petition for judicial hospitalization has been filed under chapter 6, part 5 of this title.

Acts 2000, ch. 947, § 1.

33-6-206. Request for release.

The following persons may at any time request the service recipient's release by filing a written application with the chief officer:
1. An adult service recipient;
2. A service recipient's conservator;
3. A service recipient's attorney in fact under a durable power of attorney for health care;
4. The parent, legal custodian, or legal guardian who applied for the admission of a child;
5. A child who is sixteen (16) years of age or over and who was admitted on the child's own application;
6. A caregiver under title 34, chapter 6, part 3, who is acting on behalf of a child; or
7. An individual acting as an agent under the Tennessee Health Care Decisions Act, compiled in title 68, chapter 11, part 18 or a person's surrogate as designated under title 68, chapter 11, part 18.
If a competent service recipient cannot file a written request, a person acting on the service recipient's behalf may file the request with the service recipient's consent.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 36; 2004, ch. 565, § 5; 2013, ch. 238, § 2.

33-6-207. Procedure for release following request.

If the chief officer receives a request for discharge under § 33-6-206 and does not admit the service recipient under chapter 6, part 4 of this title, the chief officer shall release the service recipient, if a child, within twenty-four (24) hours and, if an adult, within twelve (12) hours after receipt of the request or at the time stated in the request, whichever is later.

Acts 2000, ch. 947, § 1.

33-6-208. Notification of parent, guardian or custodian prior to release of child.

The chief officer shall notify the parent, legal guardian, or legal custodian of a service recipient who is a child, before releasing the child. If the chief officer has reason to believe that the child is likely to be dependent and neglected upon release, then the chief officer shall notify the department of children's services before the release.

Acts 2000, ch. 947, § 1.

Part 3
Persons with Severe Impairments

33-6-301. “Severe impairment” defined.

For purposes of this part, unless the context requires otherwise, “severe impairment” means a condition in which an adult or an emancipated child:

As a result of a mental illness or serious emotional disturbance:
1. Is in danger of serious physical harm resulting from the person's failure to provide for the person's essential human needs of health or safety; or
2. Manifests severe deterioration in routine functioning evidenced by repeated and escalating loss of cognitive or volitional control over the person's actions; and
Is not receiving care that is essential for the person's health or safety.

Acts 2000, ch. 947, § 1.

Cross-References. Definitions applicable to title, § 33-1-101.

33-6-302. Detention of persons with severe impairments — Record.

No person shall be detained under this part except in a treatment resource that provides psychiatric services, twenty-four hour crisis services, and supervised observation beds, participates in mandatory prescreening authority under § 33-6-104, and is approved by the department for service under this part. The chief officer may detain a person alleged to:
1. Have a mental illness or serious emotional disturbance for which immediate observation, care and treatment in the program is appropriate; and
2. To be experiencing severe impairment that is likely to result in serious harm to the person.
The chief officer shall have entered on the record the reasons why and with whom the person came to the treatment resource.

Acts 2000, ch. 947, § 1.

33-6-303. Examination of person.

A physician shall examine the person as soon as practicable but at least within six (6) hours after the person arrives at the treatment resource.

Acts 2000, ch. 947, § 1.

33-6-304. Detention following finding of severe impairment.

IF AND ONLY IF

the physician determines that the person has a mental illness or serious emotional disturbance for which immediate observation, care and treatment in a treatment resource is appropriate, AND
the physician determines that the person is experiencing “severe impairment” that is likely to result in serious harm to the person,
THEN
the person may be detained for observation, care and treatment and further examination for up to twelve (12) hours from the time the person arrived at the treatment resource.

Acts 2000, ch. 947, § 1.

33-6-305. Extended detention after confirmation of initial finding.

IF AND ONLY IF

another physician examines the person and confirms the determination of the first examining physician under § 33-6-304 within twelve (12) hours after the time the person arrived, AND
the person is admitted to an extended observation bed for observation, care, and treatment,
THEN
the person may be detained under this part for up to seventy-two (72) hours from the time the person arrived at the treatment resource.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 37.

33-6-306. Notice of status and rights as service recipient.

At the time of admission to an extended observation bed, the person shall be given written notice of the person's status and rights as a service recipient under this title. The notice shall contain the service recipient's name. The notice shall be provided to the same persons and in the manner as if the service recipient had been admitted under chapter 6, part 4 of this title.

Acts 2000, ch. 947, § 1.

33-6-307. Request for release.

If the person or anyone acting on the person's behalf demands that the person be released and the chief officer does not detain the person in conformity with chapter 6, part 4 or 5 of this title, the chief officer shall discharge the person.

Acts 2000, ch. 947, § 1.

33-6-308. Release of person no longer in need of immediate care.

If at any time it is determined that the person is no longer in need of immediate observation, care and treatment in accordance with this part and is not in need of involuntary care and treatment in a hospital, the person shall be released unless the person agrees to be admitted to a hospital or treatment resource.

Acts 2000, ch. 947, § 1.

33-6-309. Admission of person to treatment facility beyond seventy-two hour period.

If at any time within the seventy-two hour period it is determined that the person continues to require immediate observation, assessment, and treatment in accordance with this part and that the requirement is likely to continue beyond the seventy-two hour period, the person shall be moved immediately to an appropriate hospital or treatment resource authorized to receive and detain persons with mental illness or serious emotional disturbance under chapter 6, part 4 of this title. The person shall be evaluated for admission and, if appropriate, shall be admitted in accordance with chapter 6, part 4 of this title, and if the person is so admitted, the fifteen-day retention period of chapter 6, part 4 of this title, shall be reduced by the number of days the person was detained under this part. Any person moved to a hospital pursuant to this section shall be moved without regard to the transfer provisions of this title. Evaluation for admission to a state-owned or operated hospital or treatment resource must conform to § 33-6-105.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 38.

33-6-310. Monitoring of admissions to ensure service recipients' rights.

The department shall monitor admissions under this part to assure that they are not used in any way that violates the rights of service recipients with mental illness or serious emotional disturbance.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 39.

33-6-311. Service under this part not substitute for outpatient care.

Service under this part shall not be used instead of assessment or evaluation that can be performed on an outpatient basis.

Acts 2000, ch. 947, § 1.

Part 4
Emergency Involuntary Admission to Inpatient Treatment

33-6-401. Emergency detention.

IF AND ONLY IF

a person has a mental illness or serious emotional disturbance, AND
the person poses an immediate substantial likelihood of serious harm under § 33-6-501 because of the mental illness or serious emotional disturbance,
THEN
the person may be detained under § 33-6-402 to obtain examination for certification of need for care and treatment.

Acts 2000, ch. 947, § 1.

Cross-References. Confidentiality of communications between psychiatrist and patient, § 24-1-207.

Judicial procedures for commitment, title 33, ch. 3, part 5.

Law Reviews.

Barriers to Providing Effective Treatment: A Critique of Revisions in Procedural, Substantive, and Dispositional Criteria in Involuntary Civil Commitment (Donald H.J. Hermann), 39 Vand. L. Rev. 83 (1986).

Civil Commitment in Tennessee — What Process is Due? (W. Russell Stambaugh), 8 Mem. St. U.L. Rev. 135 (1978).

Attorney General Opinions. Constitutionality, OAG 85-027, 1985 Tenn. AG LEXIS 270 (2/4/85).

Due process, OAG 86-23, 1986 Tenn. AG LEXIS 199 (1/31/86).

Duty to transport dangerous mentally ill persons, OAG 96-014, 1996 Tenn. AG LEXIS 14 (2/8/96).

Collateral References.

Admissibility on issue of sanity of expert opinion based partly on medical, psychological or hospital reports. 55 A.L.R.3d 551.

Liability of insane person for his own negligence. 49 A.L.R.3d 189.

Liability of one treating mentally afflicted patient for failure to warn or protect third persons threatened by patient. 83 A.L.R.3d 1201.

Modern status of rules as to standard of proof required in civil commitment proceedings. 97 A.L.R.3d 780.

Right, without judicial proceeding, to arrest and detain one who is, or is suspected of being, mentally deranged. 92 A.L.R.2d 570.

33-6-402. Detention without warrant authorized.

If an officer authorized to make arrests in the state, a licensed physician, a psychologist authorized under § 33-6-427(a), or a professional designated by the commissioner under § 33-6-427(b) has reason to believe that a person is subject to detention under § 33-6-401, then the officer, physician, psychologist, or designated professional may take the person into custody without a civil order or warrant for immediate examination under § 33-6-404 for certification of need for care and treatment.

Acts 2000, ch. 947, § 1.

Attorney General Opinions. Detention of mentally ill patients, OAG 07-092 (6/11/07), 2007 Tenn. AG LEXIS 92.

NOTES TO DECISIONS

1. Failure to Detain Patient.

When a patient was injured after leaving a hospital against medical advice, the hospital was not liable to the patient based on the hospital's failure to detain the patient against the patient's will because (1) Tennessee's involuntary commitment statutes controlled, (2) the only statutorily authorized person who examined the patient completed no certificate of need authorizing the hospital to detain the patient and did not intend to, and a nurse or other hospital employee was not statutorily authorized to detain the patient, so the hospital had no duty to prevent the patient from leaving. Collins v. HCA Health Servs. of Tenn., 517 S.W.3d 84, 2016 Tenn. App. LEXIS 809 (Tenn. Ct. App. Oct. 28, 2016), appeal denied, Collins v. HCA Health Servs. of Tenn., — S.W.3d —, 2017 Tenn. LEXIS 114 (Tenn. Feb. 15, 2017).

33-6-403. Admission to treatment facility.

IF AND ONLY IF

a person has a mental illness or serious emotional disturbance, AND
the person poses an immediate substantial likelihood of serious harm, under § 33-6-501, because of the mental illness or serious emotional disturbance, AND
the person needs care, training, or treatment because of the mental illness or serious emotional disturbance, AND
all available less drastic alternatives to placement in a hospital or treatment resource are unsuitable to meet the needs of the person,
THEN
the person may be admitted and detained by a hospital or treatment resource for emergency diagnosis, evaluation, and treatment under this part.

Acts 2000, ch. 947, § 1.

33-6-404. Certificate of need for emergency treatment and transportation.

1. a licensed physician, psychologist, or designated professional takes a person into custody under § 33-6-402, OR
2. a person is brought to the physician, psychologist, or designated professional for examination under this section,
  THEN
the physician, psychologist, or designated professional shall immediately examine the person and decide whether the person is subject to admission to a hospital or treatment resource under § 33-6-403, AND
1. IF
  1. the person is not subject to admission, THEN
  2. the physician, psychologist, or designated professional shall release the person, AND
2. IF
  1. the person is subject to admission, THEN
  2. the physician, psychologist, or designated professional shall complete a certificate of need for the emergency diagnosis, evaluation, and treatment showing the factual foundation for the conclusions on each item of § 33-6-403, AND
  3. the physician, psychologist, or designated professional shall assess the person's clinical needs and need for physical restraint or vehicle security and determine the mode of transportation to the hospital in consultation with the mandatory pre-screening agent, other mental health professional familiar with the person, or a knowledgeable family member, AND
  4. if admission is sought at a state-owned or operated hospital or treatment resource, the physician, psychologist or designated professional shall verify that the state-owned or operated hospital or treatment resource has been contacted and has available suitable accommodations, acknowledging such verification in writing.

Acts 2000, ch. 947, § 1; 2009, ch. 531, § 37.

Attorney General Opinions. Detention of mentally ill patients, OAG 07-092 (6/11/07), 2007 Tenn. AG LEXIS 92.

Secondary transportation agents for persons with mental health disabilities. OAG 12-88, 2012 Tenn. AG LEXIS 87 (9/20/12).

33-6-405. [Reserved.]

If the person certified for admission under § 33-6-404 is not already at the facility, hospital or treatment resource at which the person is proposed to be admitted, the physician, psychologist or designated professional who completed the certificate of need under § 33-6-404 shall give the sheriff or the transportation agent designated under part 9 of this chapter the original of the certificate and turn the person over to the custody of the sheriff or transportation agent who shall transport the person to a hospital or treatment resource that has available suitable accommodations for the person for proceedings under § 33-6-407; provided, that, if admission is sought to a state-owned or operated hospital or treatment resource, the physician, psychologist or designated professional who completed the certificate of need under § 33-6-404 shall also provide to the sheriff or transportation agent a written statement verifying that the state-owned or operated hospital or treatment resource has been contacted and has available suitable accommodations, and the sheriff or transportation agent shall not be required to take custody of the person for transportation unless both the original of the certificate and the written statement are provided. Failure of the sheriff or other county transportation agent to provide both a certificate of need and the written statement to the receiving state-owned or operated hospital or treatment resource for proceedings under § 33-6-407 shall result in all costs attendant to the person's admission and treatment being assessed to the transporting county.
1. Before transportation begins, the sheriff or transportation agent shall notify the hospital or treatment resource at which the person is proposed to be admitted as to where the person is and the best estimate of anticipated time of arrival at the hospital or treatment resource.
2. The sheriff or transportation agent shall notify the hospital or treatment resource of the anticipated time of arrival. If the sheriff or transportation agent has given notice and arrives at the hospital or treatment resource within the anticipated time of arrival, then the sheriff or transportation agent is required to remain at the hospital or treatment resource long enough for the person to be evaluated for admission under § 33-6-407, but not longer than one (1) hour and forty-five (45) minutes. After one (1) hour and forty-five (45) minutes, the person is the responsibility of the evaluating hospital or treatment resource, and the sheriff or transportation agent may leave.
3. In counties having a population of six hundred thousand (600,000) or more according to the 1970 federal census of population or any subsequent federal census, subdivisions (b)(1) and (2) do not apply, and the sheriff or transportation agent is relieved of further transportation duties after the person has been delivered to the hospital or treatment resource, and transportation duties shall be assumed by appropriate personnel of the hospital or treatment resource.
1. Subject to annual appropriations, there is established a grant program to assist sheriffs required to transport persons to a hospital or treatment resource for emergency mental health transport under this section. The department of finance and administration, in consultation with the department of mental health and substance abuse services and the division of TennCare, shall develop and administer the grant program. Assistance from this grant program must not be provided for emergency mental health transports where a physician, psychologist, or designated professional determines that the person can be transported by one (1) or more friends, neighbors, or other mental health professionals familiar with the person, relatives of the person, or a member of the clergy pursuant to § 33-6-901.
2. A sheriff may contract with one (1) or more third parties or other law enforcement agencies to transport persons to a hospital or treatment resource in accordance with this section. The sheriff shall deem a third party or law enforcement agency contracted to perform this function to be the designated secondary transportation agent pursuant to § 33-6-901. Any contract entered into under this subsection (c) is subject to audit by the comptroller of the treasury or the comptroller's designee.
3. A sheriff may receive grant funds provided under this subsection (c) and pay the grant funds to third parties or other law enforcement agencies with which the sheriff contracts to transport persons to a hospital or treatment resource in accordance with this section. The receipt or expenditure of grant funds received by a sheriff under this subsection (c) is subject to audit by the comptroller of the treasury or the comptroller's designee.
If telehealth services are available and offered by a hospital or treatment resource at which a person is proposed to be admitted pursuant to this part, then the hospital or treatment resource may elect to conduct an evaluation for admission under § 33-6-407 through telehealth as defined in § 56-7-1002.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 40; 2009, ch. 531, §§ 38-40; 2019, ch. 512, § 1.

Compiler's Notes. For table of U.S. decennial populations of Tennessee counties, see Volume 13 and its supplement.

Amendments. The 2019 amendment added (c) and (d).

Effective Dates. Acts 2019, ch. 512, § 2. July 1, 2019.

Attorney General Opinions. Reimbursement for transportation of individuals to be involuntarily hospitalized. OAG 11-22, 2011 Tenn. AG LEXIS 24 (3/14/11).

33-6-407. Examination to determine need for hospitalization.

A hospital or treatment resource that receives a person transported under § 33-6-406 shall have a licensed physician examine the person to determine whether the person is subject to admission under § 33-6-403.
If the person is subject to admission under § 33-6-403, the physician shall complete a certificate of need for the emergency diagnosis, evaluation, and treatment showing the factual foundation for the conclusions on each item of § 33-6-403, and the person who took the service recipient to the hospital or treatment resource may then apply for the admission for the purpose of emergency diagnosis, evaluation and treatment.
If the person is not subject to admission and the sheriff or transportation agent is under a duty to remain at the hospital or treatment resource under § 33-6-406, the sheriff or transportation agent shall return the person to the county.
If the person is not subject to admission and the sheriff or transportation agent is not under a duty to remain at the hospital or treatment resource under § 33-6-406, the hospital or treatment resource shall return the person to the county.
A hospital, treatment resource, or health care provider shall be immune from any civil liability and shall have an affirmative defense to any criminal liability arising either from a determination relative to admission of a person to a facility or treatment resource or from the transportation of a person to and from the hospital or treatment resource.

Acts 2000, ch. 947, § 1; 2009, ch. 531, § 41; 2013, ch. 32, § 1.

Attorney General Opinions. Use of restraint during evaluation of mentally ill patient. OAG 10-123, 2010 Tenn. AG LEXIS 129 (12/30/10).

33-6-408. Admission of person already at treatment facility.

If the person has been certified as subject to admission under § 33-6-403 and is already at the hospital or treatment resource at which the person is proposed to be admitted, the person who took the service recipient to the hospital or treatment resource may then apply for the admission for the purpose of emergency diagnosis, evaluation and treatment. The application shall be accompanied by the two (2) certificates of need and shall state the reasons and circumstances under which the person was taken into custody.

Acts 2000, ch. 947, § 1.

Code Commission Notes.

Language at the beginning of the last sentence pertaining to an exception provided in former § 33-6-409 [repealed] was deleted as obsolete by the Code Commission in 2015.

Compiler's Notes. The bracketed reference is set out to reflect the repeal of § 33-6-409 by Acts 2002, ch. 730.

33-6-409. [Repealed.]

Compiler's Notes. Former § 33-6-409 (Acts 2000, ch. 947, § 1), concerning a person admitted with only initial certificate of need and when a second certificate is required, was repealed by Acts 2002, ch. 730, § 41, effective July 1, 2002.

33-6-410. Admission of detainee to state facility.

If the chief officer of a state hospital or treatment resource determines that the person is subject to admission under § 33-6-403 and has the required certificates of need, then the chief officer of the state facility shall admit and detain the person for emergency diagnosis, evaluation and treatment.

Acts 2000, ch. 947, § 1.

33-6-411. Admission of detainee to private or local facility with contractual relationship with state.

the chief officer of a licensed private or local public hospital or treatment resource determines that the person is subject to admission under § 33-6-403 and has the required certificates of need, AND
the facility has contracted with the state to serve persons in the region,
THEN
the facility shall admit and detain the person in conformity with its obligations under its contract with the state for emergency diagnosis, evaluation and treatment.

Acts 2000, ch. 947, § 1.

33-6-412. Admission of detainee to other private or local facility — Payment for services.

the chief officer of a licensed private or local public hospital or treatment resource determines that the person is subject to admission under § 33-6-403 and has the required certificates of need, AND
1. a parent, legal guardian, legal custodian, conservator, spouse, or an adult relative of the person, or any other person has made arrangements to pay the cost of care and treatment in a hospital, or treatment resource, OR
2. the facility chooses to accept the person when no third person has made arrangements to pay the cost,
  THEN
the facility may admit and detain the person for emergency diagnosis, evaluation and treatment.

Acts 2000, ch. 947, § 1.

Attorney General Opinions. Fees and costs in indigent proceedings, OAG 85-021, 1985 Tenn. AG LEXIS 274 (1/29/85).

33-6-413. Notice of admission to general sessions court — Notice of defendant's rights and status.

The chief officer, upon admission of the person, shall notify the judge of the general sessions court where the hospital or treatment resource is located, by telephone or in person, and shall provide the information from the certificates of need and such other information as the court may desire, that is in the possession of the hospital or treatment resource, bearing on the condition of the person. If the general sessions court finds that there is probable cause to believe that the defendant is subject to admission to a hospital or treatment resource under § 33-6-403, the court may order the defendant admitted for not more than five (5) days from the date of the order, excluding Saturdays, Sundays and holidays, for emergency diagnosis, evaluation and treatment pending a probable cause hearing under § 33-6-422. If the court does not order the defendant admitted, the defendant shall be released.
The court shall cause a notice containing the information described in this subsection (b) to be mailed to the defendant, the defendant's attorney, the chief officer of the hospital or treatment resource and the parent, legal guardian, conservator, spouse or adult next of kin of the defendant. The notice shall contain the following information:
1. The time and place of the probable cause hearing;
2. The defendant's rights, including, but not limited to, right to counsel, right to waive a hearing, right to confront and cross-examine witnesses, and right to be protected from compelled self-incrimination;
3. The status of the defendant if judicially committed, including, but not limited to:
  1. The person's prohibition against purchasing a firearm under § 39-17-1316;
  2. The person's prohibition against obtaining a handgun carry permit under § 39-17-1351 or § 39-17-1366; and
  3. The suspension or revocation of a handgun carry permit under § 39-17-1352 once judicially committed to a hospital or treatment resource pursuant to this title;
4. The person's right to appeal the prohibition against purchasing a firearm pursuant to § 39-17-1316; and
5. The person's right to appeal the denial of a handgun carry permit pursuant to §§ 39-17-1352, 39-17-1353, and 39-17-1354.

Acts 2000, ch. 947, § 1; 2009 ch. 578, § 7; 2019, ch. 479, § 13.

Amendments. The 2019 amendment, effective January 1, 2020, inserted “or § 39-17-1366” following “§ 39-17-1351” in (b)(3)(B).

Effective Dates. Acts 2019, ch. 479, § 22. January 1, 2020.

33-6-414. Detention for twenty-four (24) hours if judge not available.

If the judge is not available and all other provisions of this part have been complied with, the admitting facility may hold the defendant for not more than twenty-four (24) hours pending a court order under § 33-6-413, and the staff may render only necessary emergency treatment.

Acts 2000, ch. 947, § 1.

33-6-415. Treatment not to render defendant unable to participate in probable cause hearing.

Pending the probable cause hearing under § 33-6-422, no treatment shall be given that will make the defendant unable to consult with counsel or to prepare a defense in proceedings for involuntary care and treatment. No psychosurgery, convulsive treatments, or insulin treatment shall be undertaken for any psychiatric disorder until an order has been entered, after the § 33-6-422 probable cause hearing in accordance with this part, requiring continued involuntary care and treatment of the defendant.

Acts 2000, ch. 947, § 1.

33-6-416. Order of admission — Notice to next of kin or representative.

If the court orders the admission of the defendant for diagnosis, evaluation and treatment under § 33-6-413, the chief officer shall give notice of the order to the defendant and by mail or telephone to the parent, legal guardian, legal custodian, conservator, spouse, or adult next of kin of the defendant. The notice shall state specifically the basis for the defendant's detention and the standards for possible future commitment. The notice shall also inform the defendant of the defendant's right to counsel during the course of proceedings for involuntary care and treatment.

Acts 2000, ch. 947, § 1.

33-6-417. Release or transfer prior to hearing.

If the defendant is released under § 33-6-705 or this part before the § 33-6-422 hearing, the chief officer shall notify the court that ordered the defendant's emergency diagnosis, evaluation and treatment. If the defendant is transferred to another facility before the § 33-6-422 hearing, the court shall transfer the hearing to the general sessions court of the county to which the defendant is transferred, and the hearing shall be held within five (5) days of the defendant's original detention under this part.

Acts 2000, ch. 947, § 1.

33-6-418. Procedure for probable cause hearing.

Probable cause proceedings under § 33-6-422 shall be conducted in conformity with §§ 33-3-610—33-3-615.

Acts 2000, ch. 947, § 1.

33-6-419. Notice to court of legal representation — Appointment of counsel.

The defendant's attorney shall notify the court of the representation immediately after accepting it. If the defendant does not employ an attorney, the court shall appoint an attorney to represent the defendant not later than two (2) days after the original detention or three (3) days before the date of the hearing, whichever is earlier. An attorney representing the defendant shall not serve as guardian ad litem. If the court determines that the defendant is not able to understand the nature of the proceedings and cannot communicate with counsel in the conduct of the case, the court may appoint another person to serve as the defendant's guardian ad litem.

Acts 2000, ch. 947, § 1.

33-6-420. Waiver of hearing.

If the defendant consents in writing to a waiver of hearing, counsel may waive the hearing upon proper notice to the court.

Acts 2000, ch. 947, § 1.

33-6-421. Filing of certificates of need.

The chief officer shall file with the court, by the time of the probable cause hearing, certificates of need for care and treatment from two (2) licensed physicians or one (1) licensed physician and a psychologist qualified under § 33-6-427(a), certifying that the defendant satisfies the requirements of § 33-6-502(1)-(4), and that if involuntary treatment is not continued the defendant's condition resulting from mental illness or serious emotional disturbance is likely to deteriorate rapidly to the point that the defendant would be again admissible under § 33-6-403, and showing the factual foundation for the conclusions on each item of the certificates.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 42.

33-6-422. Finding of probable cause — Involuntary commitment for care for up to fifteen (15) days.

If, after the hearing is waived or is completed and the court has completed its consideration of the evidence, including the certificates of the examining professionals, and any other information relevant to the mental condition of the defendant, the court finds probable cause to believe that the defendant is subject to care and treatment under § 33-6-502, and that if involuntary treatment is not continued the defendant's condition resulting from mental illness or serious emotional disturbance is likely to deteriorate rapidly to the point that the defendant would be again admissible under § 33-6-403, the court may order the defendant held for care and treatment pending a hearing under chapter 6, part 5 of this title, for not more than fifteen (15) days after the probable cause hearing unless a complaint is filed under chapter 6, part 5 of this title, within the fifteen (15) days.

Acts 2000, ch. 947, § 1.

33-6-423. Release of defendant if findings not made by court.

The court shall order the release of the defendant from the hospital or treatment resource and terminate the proceedings under this part, if the court does not find both that:

There is probable cause to believe that the defendant is subject to care and treatment under § 33-6-502; and
There is probable cause to believe that if involuntary treatment is not continued, the defendant's condition resulting from mental illness or serious emotional disturbance is likely to deteriorate rapidly to the point that the defendant would be again admissible under § 33-6-403.

Acts 2000, ch. 947, § 1.

33-6-424. Release of defendant if chief officer determines certificates of need not supported by facts.

If the chief officer determines that the defendant's condition does not support the filing of the certificates required by § 33-6-422, the chief officer shall release the defendant. The chief officer shall release the defendant five (5) days, excluding Saturdays, Sundays, and holidays, from the date of the general sessions court's original order to hold the defendant, unless the general sessions court has ordered the defendant's further care and treatment under § 33-6-422 or the defendant has been committed under chapter 6, part 5 of this title. The chief officer shall release the defendant not later than fifteen (15) days after the probable cause hearing unless a complaint is filed under chapter 6, part 5, within the fifteen (15) days.

Acts 2000, ch. 947, § 1.

33-6-425. Detention not to be at jail or other criminal custodial facility unless defendant under arrest for crime.

Acts 2000, ch. 947, § 1.

33-6-426. Certification by physician required.

If a person who is not a licensed physician executes the first certificate of need in support of hospitalization under this part, then only a licensed physician may execute the second certificate of need in support of hospitalization under this part.

Acts 2000, ch. 947, § 1.

33-6-427. Authority of licensed psychologist or other mental health professional.

If a person is a licensed psychologist designated as a health service provider by the board of healing arts and is actively practicing as such, the person may take any action authorized and perform any duty imposed on a physician by §§ 33-6-401 — 33-6-406.
The commissioner may designate a person to take any action authorized and perform any duty imposed on a physician by §§ 33-6-401 — 33-6-406 to the extent the duties are within the scope of practice of the profession in which the person is licensed or certified, if the person:
1. Is a qualified mental health professional under § 33-1-101 or is a licensed physician assistant with a master's degree and expertise in psychiatry as determined by the department based upon training, education or experience;
2. Is licensed or certified to practice in the state if required for the discipline; and
3. Satisfactorily completes a training program approved and provided by the department on emergency commitment criteria and procedures.
Subsection (b) does not affect any property right of an employee of the state while the person is acting in the person's capacity as employee of the state.

Acts 2000, ch. 947, § 1; 2001, ch. 334, § 5; 2002, ch. 730, § 43; 2014, ch. 688, § 1.

Part 5
Nonemergency Involuntary Admission to Inpatient Treatment

33-6-501. “Substantial likelihood of serious harm” defined.

IF AND ONLY IF

1. a person has threatened or attempted suicide or to inflict serious bodily harm on the person, OR
2. the person has threatened or attempted homicide or other violent behavior, OR
3. the person has placed others in reasonable fear of violent behavior and serious physical harm to them, OR
4. the person is unable to avoid severe impairment or injury from specific risks, AND
there is a substantial likelihood that the harm will occur unless the person is placed under involuntary treatment,
THEN
the person poses a “substantial likelihood of serious harm” for purposes of this title.

Acts 2000, ch. 947, § 1.

Cross-References. Confidentiality of communications between psychiatrist and patient, § 24-1-207.

Definitions applicable to title generally, § 33-1-101.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 12.55, 14.10.

Tennessee Law of Evidence (2nd ed., Cohen, Paine and Sheppeard), Rule 501.

Law Reviews.

Civil Commitment in Tennessee — What Process is Due? (W. Russell Stambaugh), 8 Mem. St. U.L. Rev. 135 (1978).

Criminal Law in Tennessee in 1977-1978, III. Defenses (Joseph G. Cook), 46 Tenn. L. Rev. 490 (1979).

Insane Persons — Commitment Proceedings — Requirement of Reasonable Notice, 5 Vand. L. Rev. 113 (1952).

Reducing Unintended Ambiguity in Statutes: An Introduction to Normalization of Statutory Drafting (Grayfred B. Gray), 54 Tenn. L. Rev. 433 (1987).

Selected Tennessee Legislation of 1983 (N. L. Resener, J. A. Whitson, K. J. Miller), 50 Tenn. L. Rev. 785 (1983).

Attorney General Opinions. Fees and costs in indigent proceedings, OAG 85-021, 1985 Tenn. AG LEXIS 274 (1/29/85).

Due process, OAG 86-23, 1986 Tenn. AG LEXIS 199 (1/31/86).

Collateral References.

Admissibility on issue of sanity of expert opinion based partly on medical, psychological or hospital reports. 55 A.L.R.3d 551.

Amnesiac party as entitled to presumption of due care. 88 A.L.R.3d 622.

Liability for false imprisonment predicated upon institution of, or conduct in connection with, insanity proceedings. 30 A.L.R.3d 523.

Liability for malicious prosecution predicated upon institution of, or conduct in connection with, insanity proceedings. 30 A.L.R.3d 455.

Right to counsel in insanity or incompetency adjudication proceedings. 87 A.L.R.2d 950.

When finding or adjudication as to one's mental condition by official or body not clearly judicial is conclusive evidence or has effect of a judgment as regards legal mental status. 108 A.L.R. 47.

33-6-502. Prerequisites to judicial commitment for involuntary care and treatment.

IF AND ONLY IF

a person has a mental illness or serious emotional disturbance, AND
the person poses a substantial likelihood of serious harm because of the mental illness or serious emotional disturbance, AND
the person needs care, training, or treatment because of the mental illness or serious emotional disturbance, AND
all available less drastic alternatives to placement in a hospital or treatment resource are unsuitable to meet the needs of the person,
THEN
the person may be judicially committed to involuntary care and treatment in a hospital or treatment resource in proceedings conducted in conformity with chapter 3, part 6 of this title.

Acts 2000, ch. 947, § 1.

Law Reviews.

One Fell Through the Cracks: Why Tennessee Needs an Initial Outpatient Commitment Statute (Lori R. Holyfield), 42 U. Mem. L. Rev. 221 (2011).

33-6-503. Two (2) certificates of need required — Defendants under sixteen (16) years of age.

No defendant may be judicially committed under this part, unless two (2) licensed physicians, or one (1) licensed physician and one (1) licensed psychologist qualified as provided in § 33-6-427(a), file in the commitment proceeding certificates of need for care and treatment certifying that the defendant satisfies the requirements of § 33-6-502(1)-(4) and showing the factual foundation for the conclusions on each item. No defendant who is a child under sixteen (16) years of age may be judicially committed under this part unless one (1) of the certificates is by a physician or psychologist with experience with children.

Acts 2000, ch. 947, § 1; 2004, ch. 565, § 8.

33-6-504. Persons who may file complaint for commitment under this part.

The parent, legal guardian, legal custodian, conservator, spouse, or a responsible relative of the person alleged to be in need of care and treatment, a licensed physician, a licensed psychologist who meets the requirements of § 33-6-427(a), a health or public welfare officer, an officer authorized to make arrests in the state, or the chief officer of a facility that the person is in, may file a complaint to require involuntary care and treatment of a person with mental illness or serious emotional disturbance under this part.

Acts 2000, ch. 947, § 1; 2004, ch. 565, § 8.

33-6-505. Commitment to state facility.

If the court commits a person under this section, the person comes into the commissioner's custody only if the state-owned or operated facility or treatment resource has available suitable accommodations; provided, that, if there are no suitable available accommodations at the time of the determination, then the commissioner shall expeditiously find a state-owned or operated hospital or treatment resource to accommodate the person upon the availability of suitable available accommodations. Prior to transporting a person for such commitment, the sheriff or other transportation agent shall determine that the receiving state-owned or operated facility or treatment resource has available suitable accommodations.

Acts 2000, ch. 947, § 1; 2009, ch. 531, § 42.

33-6-506. Commitment to other public or private facility.

If a licensed public hospital or treatment resource other than a state facility has available suitable accommodations, the court may commit the defendant to the public hospital or treatment resource.

Acts 2000, ch. 947, § 1.

33-6-507. Commitment to contract facility — Conformance with contract.

If a licensed private or local public hospital or treatment resource has contracted with the department to serve defendants in the region and has available suitable accommodations, the court shall commit the defendant to the facility, and the facility shall admit and detain the defendant in conformity with its obligations under its contract with the department.

Acts 2000, ch. 947, § 1.

33-6-508. Commitment to non-state facility where third-party payment has been arranged.

1. a parent, legal guardian, legal custodian, conservator, spouse, or an adult relative of the defendant, or any other person has made arrangements to pay the cost of care and treatment in a licensed private hospital or treatment resources, OR
2. the facility chooses to accept the defendant when no third person has made arrangements to pay the cost, AND
placement in the facility is more appropriate to the needs of the defendant than placement in a state facility,
THEN
the court may commit the defendant to the facility.

Acts 2000, ch. 947, § 1.

33-6-509. Suitable accommodations required.

The chief officer of a facility to which a person is committed under this part shall not admit the person until the facility has available suitable accommodations. If a person is committed to a state facility under this part, the person does not come into the custody of the commissioner until the facility has available suitable accommodations.

Acts 2000, ch. 947, § 1.

33-6-510. Person eligible for care as armed forces veteran.

If a person ordered to be hospitalized under this part is eligible for hospital care or treatment by the veterans' administration of the United States within this state, the court, upon receipt of a certificate from the veterans' administration showing that facilities are available and that the person is eligible for care or treatment there, may order the person to be placed in the custody of the agency for hospitalization within this state. With respect to those persons the appropriate provisions of § 34-5-118, being a part of the Uniform Veterans' Guardianship Law, shall apply.

Acts 1965, ch. 38, § 43; T.C.A., §§ 33-606, 33-6-105; Acts 2000, ch. 947, § 1.

Compiler's Notes. The Uniform Veterans' Guardianship Law, referred to in this section, is compiled in title 34, ch. 5.

Part 6
Mandatory Outpatient Treatment

33-6-601. Disclosure of patient information relating to outpatient treatment.

a person with mental illness or serious emotional disturbance was committed involuntarily under chapter 6, part 5 of this title, AND
the hospital staff determines preliminarily that:
1. the person will need to participate in outpatient treatment on discharge, and
2. there is a likelihood that the discharge will be subject to the outpatient treatment obligation of this part, AND
the person refuses to give consent to disclose information that is legally confidential under this title to the proposed outpatient qualified mental health professional,
THEN
the hospital and qualified mental health professional may exchange information as necessary to carry out this part.

Acts 1982, ch. 862, § 4; 1983, ch. 323, §§ 19, 20, 22; T.C.A., § 33-615; Acts 1984, ch. 922, §§ 24, 25; 1985, ch. 437, § 21; T.C.A., § 33-6-201(a); Acts 2000, ch. 947, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

33-6-602. Release from hospitalization subject to outpatient treatment.

on the basis of a review of the person's history before and during hospitalization, the hospital staff concludes that:
1. the person has a mental illness or serious emotional disturbance or has a mental illness or serious emotional disturbance in remission,
2. the person's condition resulting from mental illness or serious emotional disturbance is likely to deteriorate rapidly to the point that the person will pose a likelihood of serious harm under § 33-6-501 unless treatment is continued,
3. the person is likely to participate in outpatient treatment with a legal obligation to do so,
4. the person is not likely to participate in outpatient treatment unless legally obligated to do so, and
5. mandatory outpatient treatment is a suitable less drastic alternative to commitment,
  THEN
the person shall be eligible for discharge subject to the obligation to participate in any medically appropriate outpatient treatment, including, but not limited to, psychotherapy, medication, or day treatment, under a plan approved by the releasing facility and the outpatient qualified mental health professional.

Acts 1982, ch. 862, § 4; 1983, ch. 323, §§ 19, 20, 22; T.C.A., § 33-615; Acts 1984, ch. 922, §§ 24, 25; 1985, ch. 437, § 21; T.C.A., § 33-6-201(b); Acts 2000, ch. 947, § 1.

Law Reviews.

One Fell Through the Cracks: Why Tennessee Needs an Initial Outpatient Commitment Statute (Lori R. Holyfield), 42 U. Mem. L. Rev. 221 (2011).

33-6-603. Outpatient treatment plan.

In developing the plan, the releasing facility and the outpatient qualified mental health professional shall consult with the service recipient; the service recipient's parents, legal custodian, or legal guardian if the service recipient is a child; and the service recipient's conservator, if any. Subject to obtaining any necessary consent before making a disclosure of patient information relating to outpatient treatment, the releasing facility and the outpatient qualified mental health professional may also consult with the service recipient's spouse or other adult family member with whom the service recipient would live concerning the outpatient treatment plan. Before approving the outpatient treatment plan, the releasing facility and the outpatient qualified mental health professional shall obtain the service recipient's consent to the plan to the extent practical and shall obtain the consent of the service recipient's parents, legal custodian, or legal guardian if the service recipient is a child.
The releasing facility shall provide a clear written statement of what the service recipient shall do to stay in compliance with the plan to the service recipient; the service recipient's parents, legal custodian, or legal guardian if the service recipient is a child; the service recipient's spouse or other adult family member with whom the service recipient would live; and the service recipient's conservator. If the service recipient is a child, the statement shall specify the duties of the service recipient's parents, legal custodian, or legal guardian.

Acts 1982, ch. 862, § 4; 1983, ch. 323, §§ 19, 20, 22; T.C.A., § 33-615; Acts 1984, ch. 922, §§ 24, 25; 1985, ch. 437, § 21; T.C.A., § 33-6-201; Acts 2000, ch. 947, § 1; 2010, ch. 659, § 1.

33-6-604. Review of plan.

the person requests judicial review of the treatment plan within forty-eight (48) hours after being advised of the person's eligibility for release under it,
THEN
the hospital shall notify the court where the hospital is located that has the same jurisdiction as the committing court that the person is eligible for discharge, subject to the obligation to participate in outpatient treatment under the plan agreed to by the releasing facility and the outpatient qualified mental health professional, AND
the court shall hold a hearing within seven (7) days of receipt of the request to determine whether the treatment plan is medically appropriate and legally permissible, AND
the court shall either approve the plan or approve the plan as modified by the releasing facility and the outpatient qualified mental health professional to correct deficiencies found by the court.

Acts 1982, ch. 862, § 4; 1983, ch. 323, §§ 19, 20, 22; T.C.A., § 33-615; Acts 1984, ch. 922, §§ 24, 25; 1985, ch. 437, § 21; T.C.A., § 33-6-201(c); Acts 2000, ch. 947, § 1.

Code Commission Notes.

This section is similar to former § 33-6-201(c).

33-6-605. Discharge of patient — Notice to court of discharge subject to outpatient treatment.

IF
1. 1. the person does not request judicial review of the discharge plan, OR
  2. the court approves an outpatient treatment plan after a hearing under § 33-6-604,
    THEN
IF
1. 1. the person is subject to judicial review under § 33-6-708,
    THEN
  2. the person shall be discharged in conformity with § 33-6-708, AND
IF
1. 1. the person is not subject to judicial review under § 33-6-708,
    THEN
  2. the hospital shall discharge the person, AND
2. the hospital shall notify the committing court that the person has been discharged subject to the obligation to participate in the outpatient treatment.

Acts 1982, ch. 862, § 4; 1983, ch. 323, §§ 19, 20, 22; T.C.A., § 33-615; Acts 1984, ch. 922, §§ 24, 25; 1985, ch. 437, § 21; T.C.A., § 33-6-201(d); Acts 2000, ch. 947, § 1.

Code Commission Notes.

This section is former § 33-6-201(d).

33-6-606. Amendment of outpatient treatment plan.

After discharge the qualified mental health professional may change the treatment plan to meet the person's treatment needs. If the qualified mental health professional changes the treatment plan, the person's obligation to participate in the treatment continues.

Acts 1982, ch. 862, § 4; 1983, ch. 323, §§ 19, 20, 22; T.C.A., § 33-615; Acts 1984, ch. 922, §§ 24, 25; 1985, ch. 437, § 21; T.C.A., § 33-6-201(e); Acts 2000, ch. 947, § 1.

Code Commission Notes.

This section is similar to former § 33-6-201(e).

33-6-607. Payment for outpatient services.

If the person is indigent and is not eligible for payment for service under any other governmentally or privately funded system, the department shall provide for the outpatient services. The person is responsible for payment for the services, if:

The person is not indigent; or
The person is eligible for payment for services under any other governmentally or privately funded system.

Acts 1982, ch. 862, § 4; 1983, ch. 323, §§ 19, 20, 22; T.C.A., § 33-615; Acts 1984, ch. 922, §§ 24, 25; 1985, ch. 437, § 21; T.C.A., § 33-6-201(f); Acts 2000, ch. 947, § 1.

33-6-608. Admission to treatment facility — Outpatient care suspended — Outpatient care reinstituted following release.

a person who has been discharged subject to the obligation to participate in outpatient treatment is admitted to a hospital or treatment resource before the obligation terminates,
THEN
the obligation to participate in outpatient treatment is suspended, AND
the obligation resumes on discharge unless it has been terminated under § 33-6-620, § 33-6-622, or § 33-6-623 or the discharge is under § 33-6-706.

Acts 1982, ch. 862, § 4; 1983, ch. 323, §§ 19, 20, 22; T.C.A., § 33-615; Acts 1984, ch. 922, §§ 24, 25; 1985, ch. 437, § 21; T.C.A., § 33-6-201(g); Acts 2000, ch. 947, § 1.

33-6-609. Failure to comply with outpatient treatment plan — Action to enforce.

the parent, legal guardian, conservator, spouse, responsible relative, or qualified mental health professional of a service recipient who has been discharged subject to the obligation to participate in outpatient treatment, the person who initiated the commitment proceeding of the service recipient, or the chief officer of the discharging facility files an affidavit with the court that committed the service recipient or any court with jurisdiction under chapter 6, part 5, of this title in the county where the person is being treated or is staying showing that:
1. the person is required to be participating in outpatient treatment under § 33-6-602,
2. the person is, without good cause, out of compliance with the treatment plan, and
3. the qualified mental health professional believes the noncompliance is not likely to be corrected voluntarily,
  THEN
the court shall have jurisdiction to conduct original proceedings to enforce the outpatient treatment obligation, AND
the court may order the person to appear before the court at a stated time not later than five (5) business days after the order is issued to determine whether the person is required by this part to be participating in the outpatient treatment and has failed, without good cause, to participate in the treatment as required, AND
the order and a copy of the affidavit shall be served immediately on the person, the qualified mental health professional, and, if the discharge was under § 33-6-708, the district attorney general for the jurisdiction in which the committing court is located.

Acts 1982, ch. 862, § 5; 1983, ch. 323, § 21; T.C.A., § 33-616; Acts 1984, ch. 922, §§ 28-30; 1988, ch. 862, § 3; T.C.A., § 33-6-202; Acts 2000, ch. 947, § 1; 2002, ch. 730, § 44.

33-6-610. Hearing to determine compliance — Findings — Order to comply — Recommitment upon failure or inability to comply.

If the person appears in person before the court, the court shall hold a hearing to determine whether the person is required to be participating in outpatient treatment and is, without good cause, not complying with the treatment plan.
The court shall release the person, if the court determines that:
1. The person is complying with the treatment plan; or
2. The person is out of compliance for good cause and will be restored to compliance without further action.
If the court determines that the person is out of compliance with the treatment plan without good cause and that the person can be put immediately in compliance with the treatment plan and can be expected to stay in compliance without further hospitalization, the court shall make written findings of fact and conclusions of law on the issues, order the person to comply immediately with the treatment plan, and dismiss the proceedings upon a showing that the person is in compliance.
1. The court shall make written findings of fact and conclusions of law on the issues and order the person re-committed to the hospital from which the person was released, if the court determines that the person is out of compliance with the treatment plan without good cause and that:
  1. The person cannot be put in compliance with the treatment plan immediately; or
  2. The person cannot be expected to stay in compliance without further hospitalization.
2. The sheriff shall immediately transport the person as ordered, and the hospital shall admit the person and give notice of the recommitment to the person's attorney, legal guardian, legal custodian, conservator, and spouse or nearest adult relative, to the qualified mental health professional, to the committing court, and, if the discharge was under § 33-6-708, to the district attorney general in the committing jurisdiction.

Acts 1984, ch. 922, § 29; 1988, ch. 862, § 4; 1996, ch. 1079, § 64; T.C.A., § 33-6-203; Acts 2000, ch. 947, § 1.

33-6-611. Failure to appear at hearing — Custody order — Transportation to hospital — Admission — Notice to attorney or other representative.

the qualified mental health professional has filed an affidavit showing that:
1. the person with mental illness or serious emotional disturbance is required to be participating in outpatient treatment,
2. the person is, without good cause, not complying with the treatment plan, AND
3. the qualified mental health professional believes the noncompliance is not likely to be corrected voluntarily, AND
the person does not respond to the order to appear,
THEN
the court shall order the person taken into custody, AND
the sheriff shall immediately transport the person to the hospital from which the person was discharged, AND
the hospital shall admit the person and give notice of the temporary recommitment and that a hearing under § 33-6-610 will be held to the person's attorney, legal guardian, legal custodian, conservator, and spouse or nearest adult relative, to the qualified mental health professional, to the court that ordered the temporary recommitment of the person, and to the court where the hospital is located that has the same jurisdiction as the recommitting court.

Acts 1984, ch. 922, § 28; 1985, ch. 437, §§ 22-25; 1996, ch. 1079, §§ 65, 66; T.C.A., § 33-6-204(a); Acts 2000, ch. 947, § 1.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 5.

33-6-612. Failure to appear where no affidavit by qualified mental health professional.

the qualified mental health professional has not filed an affidavit with the court regarding the person with mental illness or serious emotional disturbance, AND
the person does not respond to the order to appear,
THEN
the court shall order the person taken into custody, AND
the officer who serves the order on the person shall take the person to the qualified mental health professional or the professional's appointed substitute.

Acts 1984, ch. 922, § 28; 1985, ch. 437, §§ 22-25; 1996, ch. 1079, §§ 65, 66; T.C.A., § 33-6-204(b); Acts 2000, ch. 947, § 1.

33-6-613. Substitution of qualified mental health professional.

A person's qualified mental health professional shall appoint a qualified mental health professional as a substitute in the absence of the appointing professional.

Acts 2000, ch. 947, § 1.

33-6-614. Findings by qualified mental health professional — Release.

The qualified mental health professional shall release the person and notify the court of the basis for the release, if the qualified mental health professional determines that:
1. The person with mental illness or serious emotional disturbance is in compliance with the treatment plan; or
2. The person is out of compliance for good cause, is put in compliance immediately, and can be expected to stay in compliance without further hospitalization.
The qualified mental health professional shall release the person and notify the court of the basis for the release, if the qualified mental health professional determines that:
1. The person is out of compliance with the treatment plan without good cause;
2. The person can be put in compliance with the treatment plan immediately;
3. The person complies immediately with the treatment plan; and
4. The person can be expected to stay in compliance without further hospitalization.

Acts 1984, ch. 922, § 28; 1985, ch. 437, §§ 22-25; 1996, ch. 1079, §§ 65, 66; T.C.A., § 33-6-204(d); Acts 2000, ch. 947, § 1.

33-6-615. Findings by qualified mental health professional — Recommitment — Notice to representative, next of kin and court.

the qualified mental health professional determines that:
1. the person with mental illness or serious emotional disturbance is out of compliance with the treatment plan without good cause, and
2. 1. the person cannot be put immediately in compliance with the treatment plan, or
  2. the person cannot be expected to stay in compliance without further hospitalization, or
  3. the person does not comply immediately with the treatment plan,
  THEN
the qualified mental health professional shall contact the sheriff, AND
the sheriff shall immediately transport the person to the hospital from which the person was discharged, AND
the hospital shall admit the person and give notice of the temporary recommitment and that a hearing under § 33-6-610 will be held to the person, the person's attorney, legal guardian, legal custodian, conservator, and spouse or nearest adult relative, to the qualified mental health professional, to the court that ordered the temporary recommitment of the person, and to the court where the hospital is located that has the same jurisdiction as the recommitting court.

Acts 1984, ch. 922, § 28; 1985, ch. 437, §§ 22-25; 1996, ch. 1079, §§ 65, 66; T.C.A., § 33-6-204(e); Acts 2000, ch. 947, § 1.

33-6-616. Recommitment hearing.

The court where the hospital is located is vested with jurisdiction to hold the hearing on a person returned under § 33-6-611. The court shall schedule a hearing to be held under § 33-6-610 within five (5) business days of receipt of the notice.

Acts 1984, ch. 922, § 28; 1985, ch. 437, §§ 22-25; 1996, ch. 1079, §§ 65, 66; T.C.A., § 33-6-204(f); Acts 2000, ch. 947, § 1; 2002, ch. 730, § 45.

33-6-617. Person eligible for discharge.

If the person, upon being readmitted under this part, is eligible for discharge under § 33-6-602, the person shall be discharged under § 33-6-602 notwithstanding § 33-3-501. The hospital shall give notice of the discharge to the courts that had been notified of the admission, and the judicial proceedings for recommitment shall be dismissed.

Acts 1984, ch. 922, § 28; 1985, ch. 437, §§ 22-25; 1996, ch. 1079, §§ 65, 66; T.C.A., § 33-6-204(g); Acts 2000, ch. 947, § 1.

33-6-618. Rights of defendant in proceedings under this part.

In judicial proceedings under this part the person with mental illness or serious emotional disturbance has the following rights:

The burden of proof to establish, as appropriate to the proceedings, that the outpatient treatment plan is proper, that the person is subject to return to the hospital, or that the plan is subject to extension, shall be by clear, unequivocal, and convincing evidence and shall be borne by the party seeking to impose the obligations;
The person shall be present at the hearing unless the person waives such presence in writing. If the person's attorney shows that the person's physical health would be endangered by being at the hearing, the court may order a continuance until the risk is terminated. If the court determines that the person's conduct at the hearing is so violent or otherwise disruptive that it creates a serious risk of harm to the person or others at the hearing or so disrupts the proceedings that they cannot be conducted in a proper manner, the court may order the person restrained or excluded to the extent necessary to the proper conduct of the proceedings. If the person is not present at or is excluded from the hearing, the court shall make a written fact finding as to why the hearing is held in the person's absence; and
The person's attorney shall notify the court of the representation immediately after accepting it. If the person does not employ an attorney, the court shall appoint an attorney to represent the person as soon as possible after the case is docketed. An attorney representing the person shall not serve as guardian ad litem. If the court determines that the person is not able to understand the nature of the proceedings and cannot communicate with counsel in the conduct of the case, the court may appoint another person to serve as the person's guardian ad litem.

Acts 1984, ch. 922, § 31; T.C.A., § 33-6-205; Acts 2000, ch. 947, § 1.

33-6-619. Dismissal of proceedings pending against person recommitted under this part.

If a person is ordered to be rehospitalized for noncompliance with the treatment plan after a hearing under § 33-6-609, § 33-6-610 or § 33-6-611, upon readmission the person shall be held under the authority of the original court order of commitment entered in the proceedings under chapter 6, part 5 of this title, and any other pending proceedings under chapter 6, part 4 or 5 of this title shall be dismissed.

Acts 1984, ch. 922, § 32; T.C.A., § 33-6-206; Acts 2000, ch. 947, § 1.

33-6-620. Termination of legally mandated outpatient care — Notice to court.

at any time the qualified mental health professional determines that:
1. the person with mental illness or serious emotional disturbance is likely to participate in outpatient treatment without being legally obligated to do so, or
2. the person no longer needs treatment for the mental illness or serious emotional disturbance,
  THEN
the qualified mental health professional shall terminate the treatment obligation, AND
the qualified mental health professional shall notify the committing court and the hospital that discharged the person.

Acts 1982, ch. 862, § 6; T.C.A., §§ 33-617, 33-6-203; Acts 1984, ch. 922, § 26; T.C.A., § 33-6-207(a); Acts 2000, ch. 947, § 1.

33-6-621. Reinstatement of mandatory outpatient care.

during the sixth month after discharge or after the last renewal the qualified mental health professional determines that:
1. the person has a mental illness or serious emotional disturbance or has a mental illness or serious emotional disburbance in remission, AND
2. the person's condition resulting from mental illness or serious emotional disturbance is likely to deteriorate rapidly to the point that the person will pose a likelihood of serious harm under § 33-6-501 unless treatment is continued, AND
3. the person is not likely to participate in outpatient treatment unless legally obligated to do so, AND
4. mandatory outpatient treatment is a suitable less drastic alternative to commitment,
  THEN
the obligation to participate in outpatient treatment is renewed for six (6) months, AND
the qualified mental health professional shall notify the person, the person's attorney, the hospital that discharged the person, and the committing court of the decision and of the basis for it and of the person's right to request a hearing in the committing court.

Acts 1982, ch. 862, § 6; T.C.A., §§ 33-617, 33-6-203; Acts 1984, ch. 922, § 26; T.C.A., § 33-6-207(b); Acts 2000, ch. 947, § 1.

33-6-622. Hearing on reinstatement order.

If the person files a written request for a hearing with the committing court, within thirty (30) days after receipt of notice the committing court shall hold a hearing to review the decision of the qualified mental health professional. IF AND ONLY IF the court determines that:
1. The person has a mental illness or serious emotional disturbance or has a mental illness or serious emotional disturbance in remission,
2. The person's condition resulting from mental illness or serious emotional disturbance is likely to deteriorate rapidly to the point that the person will pose a likelihood of serious harm under § 33-6-501 unless treatment is continued,
3. The person is not likely to participate in outpatient treatment unless legally obligated to do so, AND
4. Mandatory outpatient treatment is a suitable less drastic alternative to commitment,
  THEN
5. the obligation to participate in outpatient treatment is renewed for six (6) months.
1. IF, after a hearing, the court does not determine the obligation to participate in outpatient treatment to be renewed,
2. THEN the person is discharged from the outpatient treatment obligation.

Acts 1982, ch. 862, § 4; 1983, ch. 323, §§ 19, 20, 22; T.C.A., § 33-615; Acts 1984, ch. 922, §§ 24, 25; 1985, ch. 437, § 21; T.C.A., § 33-6-201(c); Acts 2000, ch. 947, § 1.

33-6-623. Outpatient treatment obligation limited to six (6) months.

a person with mental illness or serious emotional disturbance is discharged subject to an outpatient treatment obligation under § 33-6-602, AND
the qualified mental health professional has not terminated the outpatient treatment obligation under § 33-6-620,
THEN
the person's obligation to participate in outpatient treatment terminates six (6) months after the discharge or the last renewal of the obligation.

Acts 1982, ch. 862, § 4; 1983, ch. 323, §§ 19, 20, 22; T.C.A., § 33-615; Acts 1984, ch. 922, §§ 24, 25; 1985, ch. 437, § 21; T.C.A., § 33-6-201(d); Acts 2000, ch. 947, § 1.

33-6-624. Pilot program for patients to receive assisted outpatient treatment.

1. There shall be created a pilot project in Knox County, Tennessee, which shall expire on June 30, 2015, for a maximum of ten (10) patients at any given time to receive assisted outpatient treatment.
2. In addition to any authorized action under § 33-6-502, a court of competent jurisdiction may order a proposed patient to receive assisted outpatient treatment upon finding that the conditions of § 33-6-502(1)-(3) have been met.
Before ordering an outpatient treatment plan pursuant to this part, the court shall comply with subsections (c)-(f).
1. A proposed outpatient treatment plan, developed pursuant to this section by a physician or a professional designated under § 33-6-427(a) or (b) who has examined the proposed patient no more than ten (10) days prior to the entering of an order pursuant to this part, shall be presented to the court in writing. The plan shall include all services the examining physician or a professional designated under § 33-6-427(a) or (b) recommends that the proposed patient receive, and for each such recommended service, identify an appropriate community-based provider that has agreed to provide it.
2. lf the proposed outpatient treatment plan includes alcohol or substance abuse counseling and treatment, it may include a provision requiring relevant testing for either alcohol or illegal substances; provided, that the clinical basis of the physician or a professional designated under § 33-6-427(a) or (b) for recommending such plan provides sufficient facts for the court to find:
  1. That such person has a history of alcohol or substance abuse that is clinically related to the mental illness; and
  2. That such testing is necessary to prevent a relapse or deterioration which would be likely to result in serious harm to the person or others.
3. The examining physician or a professional designated under § 33-6-427(a) or (b) shall:
  1. Provide an opportunity to actively participate in the development of the treatment plan to the proposed patient, the treating physician or a professional designated under § 33-6-427(a) or (b), if any, and, upon the request of the proposed patient, any other individual significant to the proposed patient; and
  2. Make reasonable efforts to gather information that may be relevant in the development of the treatment plan from the proposed patient's family or significant others.
At all stages of a proceeding commenced under this section, the proposed patient shall have the right to be represented by counsel. If neither the patient nor others provide counsel, the court shall appoint counsel for the proposed patient. Upon request of the proposed patient, the court shall order an independent examination by a physician or a professional designated under § 33-6-427(a) or (b) only when retained by the proposed patient.
1. Upon receipt of a petition for which assisted outpatient treatment may be an option, the court shall fix the date for a hearing. Such date shall be no later than ten (10) days from the date such petition is received by the court excluding Saturdays, Sundays, and holidays. Adjournments shall be permitted only for good cause shown. In granting adjournments, the court shall consider the need for further examination of the proposed patient and the potential need to provide assisted outpatient treatment expeditiously. The court shall cause the proposed patient, any other person to whom notice is due under this chapter, the petitioner, the physician or a professional designated under § 33-6-427(a) or (b) whose affirmation or affidavit accompanied the petition, and such other persons as the court may determine to be advised of such date. Upon such date, or upon such other date to which the proceeding may be adjourned, the court shall hear testimony and, if it is deemed advisable and the proposed patient is available, examine the proposed patient in or out of court. If the proposed patient does not appear at the hearing, and appropriate attempts to elicit the attendance of the proposed patient have failed, the court may conduct the hearing in the proposed patient's absence. In such case, the court shall set forth the factual basis for such determination.
2. If the affidavit or affirmation of the physician or a professional designated under § 33-6-427(a) or (b) accompanying the petition indicates that the proposed patient has not submitted to an examination in the ten (10) days prior to the filing of the petition, the court may request the proposed patient to submit to an examination by a physician or a professional designated under § 33-6-427(a) or (b) appointed by the court. If the proposed patient does not consent and the court finds reasonable cause to believe that the allegations in the petition are true, the court may order law enforcement officers to take the proposed patient into custody in accordance with § 33-6-618 and transport the patient to a hospital for examination by a physician or a professional designated under § 33-6-427(a) or (b). Transportation will be conducted in accordance with parts 4 and 9 of this chapter. The subject may be detained for the period required to complete the examination, but not more than forty-eight (48) hours. The physician or a professional designated under § 33-6-427(a) or (b) whose affirmation or affidavit accompanied the petition may perform such examination of the proposed patient if the physician or a professional designated under § 33-6-427(a) or (b) is privileged or otherwise authorized by such hospital to do so. If such examination is performed by another physician or a professional designated under § 33-6-427(a) or (b), the examining physician or a professional designated under § 33-6-427(a) or (b) may consult with the physician or a professional designated under § 33-6-427(a) or (b) whose affirmation or affidavit accompanied the petition as to whether the subject meets the criteria for assisted outpatient treatment. Upon completion of the examination, the subject shall be released and the examining physician or a professional designated under § 33-6-427(a) or (b) shall report the findings of the examination to the court. The court shall not hold a hearing on the petition unless and until the examining physician or a professional designated under § 33-6-427(a) or (b) submits to the court:
  1. An affidavit or affirmation stating that the physician or a professional designated under § 33-6-427(a) or (b) concurs that the proposed patient meets the criteria for assisted outpatient treatment; and
  2. A proposed assisted outpatient treatment plan for the proposed patient, developed by the examining physician or a professional designated under § 33-6-427(a) or (b), and conforming to the requirements of subsection (c).
3. The court shall not order assisted outpatient treatment unless an examining physician or a professional designated under § 33-6-427(a) or (b) who has personally examined the proposed patient no more than ten (10) days before the filing of the petition and recommends assisted outpatient treatment, testifies at the hearing. Such physician or a professional designated under § 33-6-427(a) or (b) shall testify to:
  1. The facts and clinical determinations that support the allegations that the proposed patient meets each of the criteria for assisted outpatient treatment; and
  2. The proposed assisted outpatient treatment plan, the rationale for each component of such plan, and whether each such component is the least restrictive available alternative to serve the clinical needs of the proposed patient; and
  3. A history of medication compliance.
4. The proposed patient shall be afforded an opportunity to present evidence, to call witnesses on the patient's behalf, and to cross-examine adverse witnesses.
5. Unless the proposed patient requests a public hearing, the hearing shall be confidential and a report of the proceedings shall not be released to the public or press.
1. If after hearing all relevant evidence, the court does not find by clear and convincing evidence that the proposed patient meets the criteria for assisted outpatient treatment, the court shall not order outpatient treatment under this section and shall order inpatient care and treatment under § 33-6-502 or make other dispositions as authorized by law.
2. If after hearing all relevant evidence, the court finds by clear and convincing evidence that the proposed patient meets the criteria for assisted outpatient treatment, the court may order the proposed patient to receive assisted outpatient treatment for an initial period not to exceed six (6) months. In fashioning the order, the court shall specifically make findings by clear and convincing evidence that the ordered treatment is the least restrictive treatment appropriate and feasible for the proposed patient, and that community resources and a willing treatment provider are available to support such treatment. The order shall state an assisted outpatient treatment plan, which shall include all categories of assisted outpatient treatment that the proposed patient is to receive, but shall not include any such category that has not been recommended in both the proposed written treatment plan and the testimony provided to the court.
3. If after hearing all relevant evidence, the court finds by clear and convincing evidence that the proposed patient meets the criteria for assisted outpatient treatment and that the treatment recommended by the examining physician or a professional designated under § 33-6-427(a) or (b) is in whole or in part appropriate, but the court does not find by clear and convincing evidence that community resources and a willing treatment provider are available to provide such treatment, the court shall state such findings of fact on the record and deny assisted outpatient treatment without prejudice and may order such other treatment or commitment as authorized by law.
4. The petitioner shall cause a copy of any court order issued pursuant to this section to be served personally, or by mail, facsimile or electronic means, upon the assisted outpatient and all service providers identified in the treatment plan.
In addition to any other right or remedy available by law with respect to the order for assisted outpatient treatment, either party to the order may apply to the court, on notice to the other party and all others entitled to notice, to stay, vacate, or modify the order.
The treatment provider may modify the treatment plan according to the treatment needs of the assisted outpatient and provide notice to the court and petitioner.
Within thirty (30) days prior to the expiration of an order for assisted outpatient treatment, the original applicant, if the petitioner retains the status of an authorized petitioner pursuant to this chapter, or, in the absence of a timely petition by the original petitioner, any other person authorized to petition pursuant to this chapter, may apply to the court to order continued assisted outpatient treatment and the court may order continued assisted outpatient treatment for a period not to exceed six (6) months from the expiration date of the current order if the court finds by clear and convincing evidence that the assisted outpatient treatment continues to meet the criteria in this part. If the court's disposition of such petition does not occur prior to the expiration date of the current order, the current order shall remain in effect for up to an additional thirty (30) days without further action of the court. If the court's disposition of such petition does not occur within thirty (30) days after the expiration date of the current order, the order for assisted outpatient treatment shall terminate. The procedures for obtaining any order pursuant to this subsection (i) shall be in accordance with this section.
Section 33-6-607 shall apply to the costs incurred for services ordered under this section.
An assisted outpatient's substantial failure to comply with the order of the court shall constitute reason for a physician or a professional designated under § 33-6-427(a) or (b) to determine whether the assisted outpatient is subject to emergency detention under § 33-6-401, and shall give rise to the authority under § 33-6-402 for such physician or a professional designated under § 33-6-427(a) or (b) to take custody of the assisted outpatient. Failure to comply with an order of assisted outpatient treatment shall not be grounds for a finding of contempt of court or for non-emergency involuntary detention under this title. Nothing in this section precludes the use of detention by law enforcement officers under § 33-6-402.
The commissioner of mental health and substance abuse services is authorized to promulgate rules to implement this section in accordance with the Uniform Administration Procedures Act, compiled in title 4, chapter 5.

Acts 2012, ch. 575, § 2; 2012, ch. 1060, § 1; 2014, ch. 1000, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

Part 7
Discharge from Inpatient Treatment

33-6-701. Review of admitted persons to determine eligibility for discharge.

The chief officer of a public or private hospital shall, as often as practicable, but not less often than every six (6) months, examine or cause to be examined each person admitted under this title for treatment of mental illness or serious emotional disturbance. If the chief officer determines on the basis of the examination that the person is eligible for discharge under § 33-6-602, § 33-6-705 or § 33-6-706, and that the discharge is not subject to judicial review under § 33-6-708, the chief officer shall order the immediate release of the person and shall notify the person upon whose application the person was admitted and, if the person was involuntarily hospitalized, the court that ordered the hospitalization.

Acts 1965, ch. 38, § 46; 1974, ch. 464, § 3; 1975, ch. 248, §§ 1, 18; 1982, ch. 862, §§ 9, 10; T.C.A., § 33-609; Acts 1996, ch. 1079, § 63; T.C.A., § 33-6-108(d); Acts 2000, ch. 947, § 1.

33-6-702. Request for current examination of mental condition — Payment.

Any person hospitalized under a court order obtained under chapter 6, part 5 of this title, or the person's attorney, parent, legal guardian, legal custodian, conservator, spouse or adult next of kin, shall be entitled, upon the expiration of ninety (90) days following the order and not more frequently than every six (6) months thereafter, to request, in writing, the chief officer of the hospital in which the person is hospitalized to have a current examination of the person's mental condition made by one (1) or more physicians. If the request is timely, it shall be granted. The person shall be entitled at the person's own expense to have a licensed physician not connected with the hospital to participate in the examination. If the person is indigent, is in a department facility, and makes a written request for examination, with the approval of the commissioner, the department shall assist the person in obtaining a licensed physician to participate in the examination in the person's behalf. A physician so obtained by the indigent person shall be compensated for services out of unobligated funds of the department in an amount the department determines to be fair and reasonable.

Acts 1965, ch. 38, § 46; 1974, ch. 464, § 3; 1975, ch. 248, §§ 1, 18; 1982, ch. 862, §§ 9, 10; T.C.A., § 33-609; Acts 1996, ch. 1079, § 63; T.C.A., § 33-6-108(b)(1); Acts 2000, ch. 947, § 1.

33-6-703. Discharge of person eligible for release — Petition for review where one (1) or more physicians finds admission no longer needed.

If, after considering the reports of the physicians and other relevant information, the chief officer determines that the person is eligible for discharge under § 33-6-602, § 33-6-705 or § 33-6-706 and that the discharge is not subject to judicial review under § 33-6-708, the chief officer shall order the immediate release of the person and notify the committing court. If one (1) or more of the physicians participating in the examination reports that the person no longer meets the standards under which the person was admitted, the person may petition the court that ordered the hospitalization for an order directing the person's release. The person shall be apprised of the results of the examination reports and shall be furnished true copies of them, which shall accompany the person's petition.

Acts 1965, ch. 38, § 46; 1974, ch. 464, § 3; 1975, ch. 248, §§ 1, 18; 1982, ch. 862, §§ 9, 10; T.C.A., § 33-609; Acts 1996, ch. 1079, § 63; T.C.A., § 33-6-108(b)(2); Acts 2000, ch. 947, § 1.

33-6-704. Procedure for reviewing petition.

In considering the petition, the court shall consider the testimony of the physicians who participated in the examination of the person and their reports accompanying the petition. After considering the testimony and reports, the court shall either:
1. Reject the petition and order the continued hospitalization of the person; or
2. Order the immediate release of the person.
Any physician participating in the examination shall be a competent and compellable witness at any judicial proceeding held under this title.

Acts 1965, ch. 38, § 46; 1974, ch. 464, § 3; 1975, ch. 248, §§ 1, 18; 1982, ch. 862, §§ 9, 10; T.C.A., § 33-609; Acts 1996, ch. 1079, § 63; T.C.A., § 33-6-108(c); Acts 2000, ch. 947, §§ 1, 6.

33-6-705. Discharge of person no longer meeting standards for admission.

a person was admitted to a hospital for treatment of mental illness or serious emotional disturbance under any provision of this title other than chapter 6, part 5 of this title, AND
the person no longer meets the standards under which the admission took place, AND
the person's detention is not otherwise authorized under the part under which the person was admitted,
THEN
the person shall be discharged.

Acts 1982, ch. 862, § 3; 1983, ch. 323, §§ 18, 19; T.C.A., § 33-614; Acts 1985, ch. 437, § 18; T.C.A., § 33-6-109(a); Acts 2000, ch. 947, § 1.

33-6-706. Discharge of involuntarily committed person — Person no longer mentally ill or in remission — Person unlikely to cause harm — Voluntary outpatient treatment possible.

a person was committed involuntarily under chapter 6, part 5 of this title, AND
1. the person does not have a mental illness or serious emotional disturbance, OR
2. 1. the person has a mental illness or serious emotional disturbance or has a mental illness or serious emotional disturbance in remission, AND
  2. the person does not pose a likelihood of serious harm under § 33-6-501, OR
3. 1. the person would pose a likelihood of serious harm under § 33-6-501 unless treatment is continued, AND
  2. voluntary outpatient treatment is a suitable less drastic alternative to commitment because the person is likely to participate in outpatient treatment without being legally obligated to do so,
  THEN
IF
1. the person is not subject to judicial review under § 33-6-708,
  THEN
2. the person shall be discharged, AND
IF
1. the person is subject to judicial review under § 33-6-708,
  THEN
2. the person shall be discharged in conformity with § 33-6-708.

Acts 1982, ch. 862, § 3; 1983, ch. 323, §§ 18, 19; T.C.A., § 33-614; Acts 1985, ch. 437, § 18; T.C.A., § 33-6-109(b); Acts 2000, ch. 947, § 1.

33-6-707. Persons eligible for discharge subject to mandatory outpatient treatment.

a person was committed involuntarily under chapter 6, part 5 of this title, AND
the person has a mental illness or serious emotional disturbance or has a mental illness or serious emotional disturbance in remission, AND
the person would pose a likelihood of serious harm under § 33-6-501 unless treatment continues, AND
voluntary outpatient treatment is not a suitable less drastic alternative to commitment because the person is not likely to participate in outpatient treatment without being legally obligated to do so,
THEN
the person is eligible for discharge only under § 33-6-602.

Acts 1982, ch. 862, § 3; 1983, ch. 323, §§ 18, 19; T.C.A., § 33-614; Acts 1985, ch. 437, § 18; T.C.A., § 33-6-109(c); Acts 2000, ch. 947, § 1.

33-6-708. Discharge procedure for involuntarily committed persons.

If a person is committed involuntarily by a criminal or juvenile court under chapter 6, part 5 of this title and the court determines at the time of commitment that, due to the nature of the person's criminal conduct that created a serious risk of physical harm to other persons, the person should not be discharged from the commitment without proceedings under this section to review eligibility for discharge under §§ 33-6-602, 33-6-705 and 33-6-706, the hospital shall proceed under this section to effect discharge from the commitment.
Any person who was committed involuntarily on the basis of mental illness between April 23, 1980, and July 1, 1982, and who was subject to the discharge procedures of former § 33-313 during that period is subject to discharge only under the procedures of subdivisions (c)(1)-(5).
1. When the chief officer determines that the person is eligible for discharge under § 33-6-602, § 33-6-705 or § 33-6-706, the chief officer shall notify the committing court of that conclusion, of the basis for it, and, if discharge is under § 33-6-602, of the outpatient treatment plan approved by the releasing facility and the qualified mental health professional for the person. The determination by the chief officer shall create a rebuttable presumption of its correctness. The clerk shall send a copy of that complete notice and plan to the person's counsel and to the district attorney general for the jurisdiction in which the committing court is located. The court may, on its own motion or that of the district attorney general, order a hearing to be held within twenty-one (21) days of the receipt of the chief officer's notice. The court shall send notice of the hearing to the person, the chief officer, the person's counsel, the person's next of kin, and the district attorney general.
2. If the court does not set a hearing and notify the chief officer within fifteen (15) days of its receipt of the chief officer's notice, the chief officer shall release the person from involuntary commitment under § 33-6-602, § 33-6-705 or § 33-6-706, as appropriate.
3. If the court sets a hearing, the hearing shall be held within twenty-one (21) days of the court's receipt of notice from the chief officer. The person shall attend the hearing, unless the person's presence is waived in writing by counsel before the hearing. If the person does not have counsel, the court shall appoint counsel to represent the person throughout the proceedings and any appeal. The person's counsel shall advocate for the least drastic alternative to commitment, unless directed otherwise by the person. Compensation of appointed counsel for the person shall be pursuant to Tennessee Rules of the Supreme Court, Rule 15.
4. Following the hearing, if the court finds by clear, unequivocal, and convincing evidence that the person is not eligible for discharge under § 33-6-602, § 33-6-705 or § 33-6-706, it shall order the person's return to the hospital under the original commitment. If the court finds otherwise, it shall order the person's release from involuntary commitment in accordance with the recommendations of the chief officer.
5. The district attorney general on behalf of the state or the person may file a notice of appeal of a final adjudication under this section to the court of criminal appeals.

Acts 1982, ch. 862, § 1; T.C.A., § 33-314; Acts 1985, ch. 437, §§ 19, 20; 1986, ch. 836, § 6; 1988, ch. 862, §§ 1, 2, 5; T.C.A., § 33-6-110; Acts 2000, ch. 947, § 1.

Compiler's Notes. Former T.C.A. § 33-313 is now compiled as part of § 33-5-410.

Part 8
Sex Offenders

33-6-801. Part definitions.

As used in this part, unless the context otherwise requires:

“Sex crime” means any offense involving the unlawful sexual abuse, molestation, fondling, or carnal knowledge of a child of fourteen (14) years of age or under or incest, a crime against nature, assault with intent to commit rape or rape; and
“Sex offender” means any person who has been convicted of a crime involving the unlawful sexual abuse, molestation, fondling, or carnal knowledge of a child of fourteen (14) years of age or under or any person convicted of incest, a crime against nature, assault with intent to commit rape or rape.

Acts 1957, ch. 288, § 1; 1963, ch. 315, §§ 1, 2; 1975, ch. 248, § 1; 1977, ch. 449, §§ 1, 2; 1981, ch. 224, § 25; T.C.A., §§ 33-1301, 33-6-301; Acts 2000, ch. 947, §§ 1, 6.

Cross-References. Definitions applicable throughout title, § 33-1-101.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 19.

Collateral References.

Applicability, in proceedings under statutes relating to sexual psychopaths, of constitutional provisions for the protection of a person accused of crime. 34 A.L.R.3d 652.

NOTES TO DECISIONS

1. Constitutionality.

Former § 33-6-302 (repealed) did not violate due process on the basis that it stigmatizing sex offenders, diminishing their employment opportunities, or establishing an irrebuttable presumption that all convicted sex offenders are mentally ill. Dean v. McWherter, 70 F.3d 43, 1995 FED App. 334P, 1995 U.S. App. LEXIS 32337 (6th Cir. Tenn. 1995).

33-6-802. Examination upon conviction for sex crime.

Any person convicted of a sex crime shall be examined thoroughly by a psychiatrist, licensed psychologist, licensed psychological examiner, licensed senior psychological examiner, clinical nurse specialist in psychiatry, licensed professional counselor, or licensed clinical social worker from the department of correction as soon as practicable after admittance to the penal facility. A community mental health center may provide the examination when the service is specifically contracted for and funded by the department of mental health and substance abuse services or the department of correction.

Acts 1957, ch. 288, § 3; 1974, ch. 802, § 52; 1975, ch. 248, § 1; 1981, ch. 224, § 26; T.C.A., § 33-1303; Acts 1986, ch. 595, § 1; 1989, ch. 311, § 1; T.C.A., § 33-6-303; Acts 2000, ch. 947, §§ 1, 6; 2001, ch. 334, § 6; 2002, ch. 730, § 46; 2010, ch. 1100, § 45; 2012, ch. 575, § 1.

Collateral References.

Standard of proof required under statute providing for commitment of sexual offenders or sexual psychopaths. 96 A.L.R.3d 840.

33-6-803. Certification for treatment.

If, as a result of the examination provided for in § 33-6-802, it is found that the convicted person is capable of being successfully treated, this fact shall be certified by the examining official or officials to the commissioner of correction, together with the suggested treatment, whereupon, the commissioner of correction shall provide the treatment.

Acts 1957, ch. 288, § 4; 1975, ch. 248, § 1; T.C.A., § 33-1304; Acts 1989, ch. 311, § 2; T.C.A., § 33-6-304; Acts 2000, ch. 947, § 1.

Collateral References.

Jurisdiction of court to permit sterilization of mentally defective person in absence of specific statutory authority. 74 A.L.R.3d 1210.

33-6-804. Examination prior to release — Petition for commitment.

Not more than one (1) year nor less than six (6) months prior to the non-parole release of any person convicted of a sex crime, an examination of the person shall be made by a psychiatrist, licensed psychologist, licensed senior psychological examiner, licensed psychological examiner, clinical nurse specialist in psychiatry, licensed professional counselor, or licensed clinical social worker from the department of correction.
The examiner shall determine whether the person has a mental illness and, because of that illness, poses a likelihood of serious harm under § 33-6-501, and is in need of care and treatment in a mental hospital or treatment resource, as defined in § 33-1-101.
If the examiner determines that the person has a mental illness or serious emotional disturbance and poses a likelihood of serious harm because of the illness, the director of the correctional facility shall, before the time for the release of the person, petition where the facility is located for judicial commitment under chapter 6, part 5, of this title to a hospital or treatment resource designated by the commissioner.

Acts 1957, ch. 288, § 5; 1974, ch. 802, § 53; 1975, ch. 248, § 1; 1977, ch. 386, § 2; 1981, ch. 224, § 27; 1983, ch. 323, § 24; T.C.A., § 33-1305; Acts 1986, ch. 595, § 2; 1989, ch. 311, §§ 3, 4; T.C.A., § 33-6-305; Acts 2000, ch. 947, § 1; 2001, ch. 334, § 7; 2002, ch. 730, § 47.

Collateral References.

Liability of one releasing institutionalized mental patient for harm he causes. 38 A.L.R.3d 699.

33-6-805. Post-plea treatment system.

The department of mental health and substance abuse services, in cooperation with the department of correction, the department of human services and the district attorneys general conference, shall develop a post-plea treatment system for sexual offenders, victims, and their families, modeled after systems that are operating in some local communities around the country. The system shall provide for a standard fee for treatment services and shall provide for the development of a certification process for service providers to assure sexual abuse treatment expertise by the service providers. The certification should encompass a combination of professional education and licensure with specialized knowledge in this field. The treatment system shall be designed within a conceptual framework that includes, but is not limited to, the following:
1. Limiting offender eligibility to first-offender, intra-family abuse, absence of violence or threat of violence, sexual abuse of short duration, absence of drug or alcohol addiction, and abuse that has resulted in no significant trauma to the child victim;
2. The sentence and probation established for program participants shall be a definite sentence; and
3. As a requirement for participation in the treatment program, the offender shall plead guilty to the commission of the appropriate sexual offense and agree to abide by all requirements of the probation agreement or sentence alternative.
The probation agreement or sentence alternative shall require that the offender pay for the victim's medical and psychological treatment, as needed, and for the offender's treatment in the treatment program, based upon the offender's financial ability to pay.

Acts 1985, ch. 478, § 37; 1987, ch. 145, § 26; 1988, ch. 953, § 8; T.C.A., § 33-6-306; Acts 2000, ch. 947, §§ 1, 6; 2010, ch. 1100, § 45; 2012, ch. 575, § 1.

Cross-References. Sexual abuse treatment program for incarcerated sex offenders, § 41-21-235.

Part 9
Special Provisions for Mental Health Transportation

33-6-901. Transportation of persons under part 4 or 5 of this chapter by sheriff, secondary transport agent, municipal officer or other authorized person.

1. The sheriff in a county in which a person with mental illness or serious emotional disturbance is to be transported under part 4 or 5 of this chapter, shall transport the person except for persons who are transported by:
  1. A secondary transportation agent under this section;
  2. A municipal law enforcement agency that meets the requirements for a secondary transportation agent under this section and is designated by the sheriff;
  3. A person authorized under other provisions of this title; or
  4. One or more friends, neighbors, other mental health professionals familiar with the person, relatives of the person, or a member of the clergy.
2. The sheriff may designate a secondary transportation agent or agents for the county for persons with mental illness or serious emotional disturbance whom a physician or mandatory prescreening authority has evaluated and determined do not require physical restraint or vehicle security. A secondary transportation agent shall be available twenty-four (24) hours per day, provide adequately for the safety and security of the person to be transported, and provide appropriate medical conditions for transporting persons for involuntary hospitalization. The sheriff shall take into account in designating a secondary transportation agent or a municipal law enforcement agency both its funding and the characteristics of the persons who will be transported. The sheriff shall consult with the county mayor before designating a secondary transportation agent. A secondary transportation agent has the same duties and authority under this chapter in the detention or transportation of those persons as the sheriff. The designation of a transportation agent other than the sheriff is a discretionary function under § 29-20-205. If a mandatory prescreening agent, physician, or licensed psychologist with health service provider designation, who is acting under § 33-6-404(3)(B), determines that the person does not require physical restraint or vehicle security, then any person identified in subdivision (a)(1)(D) may, instead of the sheriff, transport the person at the transporter's expense.
3. 1. If a physician, psychologist, or designated professional, operating under § 33-6-404(3)(B)(iii), determines to a reasonable degree of professional certainty that the person subject to transportation under this part does not require physical restraint or vehicle security and does not pose a reasonable risk of danger to the person's self or others, then the sheriff may permit one (1) or more persons designated under this section, other than the sheriff or secondary transportation agent, to transport the person; provided, that the person or persons provide proof of current automobile insurance. Before a person is transported, the sheriff or other transportation agent designated under subdivision (a)(1) or (a)(2) shall give the notice required by § 33-6-406(b), along with the name or names of the person or persons who will actually transport the person subject to admission to a hospital or treatment resource. The person or persons designated to transport under this section must comply with the requirements of § 33-6-406(b)(2) and § 33-6-407(c), and must provide the original of the certificate completed under § 33-6-404(3)(B)(ii) to the hospital or treatment resource.
  2. When making this determination, the physician, psychologist or designated professional operating under § 33-6-404(3)(B)(iii) shall be immune from any civil liability and shall have an affirmative defense to any criminal liability arising from that protected activity.
  3. When making this determination, if the physician, psychologist or designated professional operating under § 33-6-404(3)(B)(iii) is an agent of a hospital, health care facility, or community mental health center, that hospital, health care facility, or community mental health center shall be immune from any civil liability and shall have an affirmative defense to any criminal liability arising from this agent's protected activity and from the transportation of the person to and from the facility.
When a sheriff or secondary transportation agent is required to transport a person to a hospital or treatment resource for screening, evaluation, diagnosis or hospitalization, the county in which the person is initially transported by the sheriff or secondary transportation agent is responsible for the remainder of such person's transportation requirements. The initial transporting county is responsible for the continuing transportation of the person even if the person is assessed, diagnosed, screened or evaluated in a second county before being admitted to a facility, hospital or treatment resource in a third county. If the person is transported to a hospital or treatment resource by the sheriff or secondary transportation agent of a county other than the initial transporting county, the sheriff or secondary transportation agent actually providing transportation may bill the initial transporting county for transportation costs.
The department shall provide training on mental health crisis management for transportation agents and the sheriffs' personnel.
It is the policy of this state that people with mental illness who are determined to be a danger to themselves and in need of physical restraint or vehicular security shall be transported by the sheriff or secondary transportation agents designated by the sheriff. People with a mental illness who do not present themselves as a danger to themselves or are not in need of physical restraint or vehicular security may be transported by one (1) or more friends, neighbors, other mental health professionals familiar with the person, relatives of the person or a member of the clergy; provided, that these persons are willing and able to provide such transport.

Acts 2000, ch. 947, § 1; 2003, ch. 90, § 2; 2003, ch. 210, § 1; 2009, ch. 468, §§ 1, 2; 2011, ch. 45, § 1; 2013, ch. 32, § 2.

Acts 2003, ch. 90, § 2, directed the code commission to change all references from “county executive” to “county mayor” and to include all the changes in supplements and replacement volumes for the Tennessee Code Annotated.

For the Preamble to the act regarding transportation of people with a mental illness, please refer to Acts 2009, ch. 468.

Attorney General Opinions. Reimbursement for transportation of individuals to be involuntarily hospitalized. OAG 11-22, 2011 Tenn. AG LEXIS 24 (3/14/11).

Secondary transportation agents for persons with mental health disabilities. OAG 12-88, 2012 Tenn. AG LEXIS 87 (9/20/12).

No circumstances exist whereby an initial transporting county may refuse to reimburse a properly designated secondary transportation agency for expenses incurred in the out-of-county transport of persons suffering from mental illness or severe emotional disturbances. OAG 13-07, 2013 Tenn. AG LEXIS 7 (2/1/13).

33-6-902. Transportation of patient to hospital — Temporary detention.

Whenever a person is about to be admitted to a hospital or treatment resource under chapter 6, part 5 of this title, the court shall arrange for the transportation of the person to the hospital. Whenever practicable, the person to be hospitalized shall be permitted to be accompanied by one (1) or more friends or relatives, who shall travel at their own expense. Any reputable and trustworthy relative or friend of the person who will assume responsibility for the person's safe deliverance may be allowed to transport the person to the hospital if the relative or friend will do so at the transporter's own expense.
Pending removal to a hospital, a person with mental illness or serious emotional disturbance taken into custody or ordered to be hospitalized under chapter 6, part 5 of this title, may be detained in the person's home or in some suitable facility under such reasonable conditions as the court may order, but the person shall not be detained in a non-medical facility used for the detention of persons charged with or convicted of criminal offenses. Reasonable measures necessary to assure proper care of a person temporarily detained under this section, including provision for medical care, shall be taken.

Acts 1965, ch. 38, § 44; 1967, ch. 58, § 1; 1983, ch. 323, § 17; T.C.A., §§ 33-607, 33-6-106; Acts 2000, ch. 947, § 1; 2002, ch. 730, § 48.

Part 10
Declarations for Mental Health Treatment

33-6-1001. Declaration for mental health treatment authorized — Contents.

A competent adult may make a declaration for mental health treatment to express the person's preferences and instructions about participation in mental health treatment, including hospitalization for a maximum of fifteen (15) days, psychoactive and other medications, and electroconvulsive and other convulsive therapies. The declaration may include consent to or refusal to permit mental health treatment and other instructions and information for mental health service providers.

Acts 2000, ch. 947, § 1.

33-6-1002. “Incapable of making mental health treatment decisions” defined.

IF AND ONLY IF

1. a court determines in a proceeding to appoint a conservator under title 34, chapters 1 and 3, that a person is currently unable to make an informed decision about mental health treatment as shown by the fact that the person is not able to understand the proposed procedure, its risks and benefits, and the available alternative procedures due to a diagnosed mental illness, OR
2. 1. (a) two (2) physicians examine a person, OR
  2. the examiners determine that the person is currently unable to make an informed decision about mental health treatment as shown by the fact that the person is not able to understand the proposed procedure, its risks and benefits, and the available alternative procedures due to a diagnosed mental illness,
  THEN
the person is incapable of making mental health treatment decisions for purposes of this part.

a physician with expertise in psychiatry by training, education, or experience and a psychologist designated as a health service provider examine a person, AND

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 49.

Cross-References. Definitions applicable throughout title, § 33-1-101.

33-6-1003. Duration of declaration — Expiration — Revocation.

A declaration for mental health treatment continues in effect for two (2) years, for a lesser period if so stated, or until revoked, whichever is sooner. If a declaration for mental health treatment has been invoked and is in effect at the expiration date, the declaration remains effective until the service recipient is capable of making mental health treatment decisions but no more than thirty (30) days after the expiration date. Subsequent declarations shall conform to all requirements of § 33-6-1004.
A service recipient may revoke a declaration in whole or in part at any time orally or in writing if the service recipient is capable of making mental health treatment decisions. Making a new declaration revokes an earlier declaration. It is presumed that a service recipient is capable of making mental health treatment decisions. The presumption is a presumption affecting the burden of proof.
A revocation is effective when a service recipient communicates the revocation to the attending physician or other provider. The attending physician or other provider shall note the revocation as part of the service recipient's medical record.

Acts 2000, ch. 947, § 1.

33-6-1004. Signature required — Witnesses.

A declaration is effective only if it is signed by the service recipient and two (2) competent adult witnesses and is not signed on the premises of a mental health service provider. The witnesses shall attest that the service recipient is personally known to them; signed the declaration in their presence; talked with the witnesses about the document, its contents, and the reasons for preparing and wanting the document to be effective; appears to be capable of making mental health treatment decisions; and is not under duress, fraud, or undue influence.
None of the following may be used as a witness:
1. The service recipient's mental health service provider;
2. An employee of the service recipient's mental health service provider;
3. The operator of a mental health facility; or
4. An employee of a mental health facility.
At least one (1) of the persons who is a witness shall be a person who is neither:
1. A relative of the service recipient by blood, marriage or adoption; nor
2. A person who would be entitled to any portion of the estate of the service recipient upon the service recipient's death under any will or codicil of the service recipient that exists at the time of execution of the declaration for mental health treatment or by operation of law then existing.

Acts 2000, ch. 947, § 1.

33-6-1005. Effective date and applicability of declaration — Compliance.

A declaration becomes effective when it is signed by the declarant and all witnesses and remains valid until revoked or expired. The physician or provider shall act in accordance with an operative declaration when the service recipient has been found to be incapable of making mental health treatment decisions. The physician or provider shall continue to obtain the service recipient's informed consent to all mental health treatment decisions if the service recipient is capable of providing informed consent or refusal.
Upon being presented with a declaration, a physician or other provider shall make the declaration a part of the service recipient's medical record. When acting under authority of a declaration, a physician or provider shall comply with it to the fullest extent possible.
If the physician or other provider is unwilling at any time to comply with the declaration for mental health treatment, the physician or provider may withdraw from providing treatment consistent with the exercise of independent medical judgment and shall promptly notify the service recipient and document the notification in the service recipient's medical record. The physician or other provider shall arrange for the prompt and orderly transfer of the patient to the care of others when as a matter of conscience the health care provider cannot implement the decisions as provided in the declaration for mental health treatment.

Acts 2000, ch. 947, § 1.

33-6-1006. Care contrary to declaration — Authorization by review committee — Emergency.

The physician or other mental health service provider may provide mental health treatment to the service recipient in a manner contrary to the service recipient's wishes as expressed in a declaration for mental health treatment
IF AND ONLY IF
1. The service recipient is involuntarily committed to an inpatient treatment facility under this title and a treatment review committee authorizes it, OR
2. There is an emergency endangering the service recipient's life or health.
A declaration does not limit any authority under this title to take a person into custody or to admit, retain, or treat a person in a mental health facility.

Acts 2000, ch. 947, § 1.

33-6-1007. Declaration superior to powers of conservator.

If a conservator is appointed with powers over the person for mental health treatment, the declaration for mental health treatment shall remain in effect and shall be superior to the powers and duties of the conservator with respect to mental health treatment covered under the declaration.

Acts 2000, ch. 947, § 1.

33-6-1008. New mental health care provider to receive copy of declaration.

If a mental health service provider has a person's declaration for mental health treatment and learns that the person is being provided mental health treatment by another provider, the mental health service provider shall provide the current service provider with a copy of the declaration.
If a mental health service provider knows that a person has revoked a declaration for mental health treatment and learns that the person is being provided mental health treatment by another provider, the mental health service provider shall notify the current service provider of the revoked declaration.

Acts 2000, ch. 947, § 1.

33-6-1009. Effect of declarations executed in another state.

A declaration for mental health treatment that is validly executed in another state by a nonresident of this state at the time of execution shall be given effect in this state if the declaration for mental health treatment is in compliance with either this part or the laws of the state of the service recipient's residence and the department determines that those laws are essentially as protective of the service recipient as this part.

Acts 2000, ch. 947, § 1.

33-6-1010. Incorporation into durable power of attorney for health care.

A declaration for mental health treatment may be expressed in or incorporated into a durable power of attorney for health care that is executed under title 34, chapter 6, part 2, on or after March 1, 2001. The declaration in that case shall be revocable as to mental health service only under the conditions set in this part.

Acts 2000, ch. 947, § 1.

33-6-1011. Immunity for actions taken or not taken in good faith reliance on declaraton.

A physician or mental health service provider who administers or does not administer mental health treatment as provided in and in good faith reliance on the validity of a declaration is not subject to criminal prosecution, civil liability or professional disciplinary action based on a subsequent finding of the declaration's invalidity.

Acts 2000, ch. 947, § 1.

33-6-1012. Admission to treatment not to be conditioned on execution of declaration for mental health treatment.

No mental health service provider, medical service plan, health maintenance organization, insurer issuing disability insurance, self-insured employee welfare plan, or nonprofit hospital plan, or any similar insurance or medical plan, may condition admission to a mental health facility or providing mental or physical health treatment or insurance on the requirement that a person execute a declaration for mental health treatment.

Acts 2000, ch. 947, § 1.

33-6-1013. Destruction or alteration of declaration prohibited — Penalty.

It is an offense for a person, without authorization of the service recipient, intentionally to alter, forge, conceal, or destroy a declaration for mental health treatment, the revocation of a declaration, or any other evidence or document reflecting the service recipient's desires and interests, with the intent or effect of affecting the service recipient's mental health treatment.
An offense under this section is a Class A misdemeanor.

Acts 2000, ch. 947, § 1.

Cross-References. Penalty for Class A misdemeanor, § 40-35-111.

33-6-1014. Standard form for declaration for mental health treatment.

The department shall make available a standard form and explanation for declarations for mental health treatment in simple language and easily read type with adequate space to express the preferences and instructions of the service recipient.
The form shall include at least the following information:
1. The effect of making the declaration;
2. The basic power of a service recipient to control mental health treatment and involuntary treatment authority;
3. The general range of mental health treatment processes that the service recipient might consider;
4. The conditions under which the declaration may be acted on; and
5. How to revoke a declaration.
The form shall include places for at least the following types of preferences and instructions to be written:
1. Symptoms that may suggest use of the declaration;
2. Psychoactive medication;
3. Electroconvulsive or other convulsive treatment;
4. Admission to and remaining in mental health facilities;
5. Actions that the service recipient refuses to permit;
6. Mental health service providers; and
7. Other matters on which the service recipient may have preferences or instructions or wish to provide information to mental health service providers.

Acts 2000, ch. 947, § 1; 2002, ch. 730, § 50.

33-6-1015. Providers to have written policies and procedures relating to declarations for mental health treatment.

A mental health service provider shall maintain written policies and procedures, applicable to all competent adults who receive mental health treatment from the service provider, that provide for:
1. Delivering to service recipients the following information and material, in written form, without recommendation:
  1. Information materials provided by the state on the right to make mental health treatment decisions, including the right to accept or refuse mental health treatment and the right to execute declarations for mental health treatment;
  2. Information on the policies of the provider with respect to implementation of the right to make mental health treatment decisions;
  3. A copy of the declaration for mental health treatment form; and
  4. The name of a person who can provide additional information concerning the forms for declarations for mental health treatment;
2. Documenting in a prominent place in the service recipient's record whether there is an executed declaration for mental health treatment;
3. Ensuring compliance by the provider with the law relating to declarations for mental health treatment; and
4. Educating the staff and the community on issues relating to declarations for mental health treatment.
A provider need not furnish a copy of a declaration for mental health treatment to a service recipient if the provider has reason to believe that the service recipient has received a copy of a declaration in the form set forth in this part within the preceding twelve (12) month period or has a validly executed declaration.
The requirements of this section are in addition to any requirements that may be imposed under federal law and shall be interpreted in a manner consistent with federal law. Nothing in this section shall be interpreted to require a mental health service provider or any employee or agent of a mental health service provider to act in a manner inconsistent with federal law or contrary to the provider's religious or philosophical beliefs.
No mental health service provider is subject to criminal prosecution or civil liability for failure to comply with this section.

Acts 2000, ch. 947, § 1.

33-6-406. Transportation of detainee to treatment facility.

Chapter 7
Security Units and Forensic Services

Part 1
General Provisions

33-7-101. Examination of patients.

Any person with mental illness hospitalized under this chapter or held in a forensic services unit shall be examined as often as practicable but not less often than every three (3) months.

Acts 1974, ch. 464, § 1; 1975, ch. 248, § 27; T.C.A., § 33-714; Acts 1984, ch. 922, § 37; 2000, ch. 947, § 1.

Compiler's Notes. Former chapter 7, §§ 33-7-101 — 33-7-103, 33-7-201 — 33-7-203, 33-7-301 — 33-7-303 (Acts 1974, ch. 464, § 1; 1975, ch. 248, §§ 22, 26, 27; 1977, ch. 386, § 1; 1979, ch. 311, §§ 1-3; 1981, ch. 224, § 17; 1982, ch. 862, § 12; 1983, ch. 323, § 23; T.C.A., §§ 33-701, 33-704, 33-708, 33-709 33-711 — 33-715; Acts 1984, ch. 922, §§ 35-38; 1985, ch. 437, §§ 26-28; 1987, ch. 143, § 4; 1998, ch. 978, §§ 1, 2), is deleted and replaced in the revision of title 33 by Acts 2000, ch. 947, § 1, effective March 1, 2001.

33-7-102. Credit toward sentence — Release.

Whenever a person is hospitalized or receives evaluation or treatment services under this chapter in connection with a criminal charge or conviction, wherever incarcerated, the person shall receive credit toward the satisfaction of the sentence for the time spent in the custody of the commissioner.
When a person has been transferred from the department of correction to the custody of the commissioner, the person shall be released from the custody of the commissioner at the expiration of the sentence unless a judicial hospitalization order has been entered with respect to the person.

Acts 1974, ch. 464, § 1; 1976, ch. 763, § 8; T.C.A., § 33-713; Acts 2000, ch. 947, § 1.

Textbooks. Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, § 19.

33-7-103. Judicial hospitalization order as transfer of custody.

Without regard to its wording, any court order of hospitalization in a hospital or unit of a hospital shall be considered in law as a transfer of the person to the custody of the commissioner.

Acts 1974, ch. 464, § 1; T.C.A., § 33-715; Acts 2000, ch. 947, § 1.

33-7-104. Admissions to a state-owned or operated facility.

Notwithstanding any other law to the contrary, all admissions or transfers to a state-owned or operated hospital or treatment resource under this chapter shall be subject to available suitable accommodations as defined in § 33-1-101, and no admission to a state-owned or operated hospital or treatment resource under this chapter shall occur until the commissioner has designated the state owned or operated facility as having available suitable accommodations; provided, that, if there are no suitable available accommodations at the time of the determination, then the commissioner shall expeditiously find a state-owned or operated hospital or treatment resource to accommodate the person upon the availability of suitable available accommodations. Prior to transporting a defendant for such evaluation and treatment in a department facility, the sheriff or other transportation agent shall determine that the receiving facility has available suitable accommodations.

Acts 2009, ch. 531, § 43.

Part 2
Security Units

33-7-201. Creation of forensic services units.

The commissioner shall operate in the state hospitals secure facilities, known as forensic services units, necessary for persons with mental illness who are eligible for admission to the units under this title.

Acts 1974, ch. 464, § 1; T.C.A., § 33-701; Acts 1984, ch. 922, § 35; 2000, ch. 947, § 1.

33-7-202. Initiation of commitment proceedings — Findings required.

If the commissioner authorizes the transfer of a voluntary service recipient with mental illness to a forensic services unit, the chief officer of the receiving facility shall initiate commitment proceedings under chapter 6, part 5 of this title.
In the proceedings the court shall determine, in addition to the findings required by chapter 6, part 5 of this title, whether the service recipient is substantially likely to injure the person or others if not treated in a forensic services unit and whether treatment in a forensic services unit is in the person's best interest.

Acts 1974, ch. 464, § 1; 1975, ch. 248, § 22; T.C.A., § 33-704; Acts 1984, ch. 922, § 36; 2000, ch. 947, § 1.

33-7-203. Discharge from forensic services unit.

When a person in a forensic services unit no longer meets the standards under which the person was admitted to the unit, the chief officer shall cause the person to be discharged or to be returned to the hospital, division or facility from which the person was transferred or to be transferred to another appropriate facility or program.

Acts 1974, ch. 464, § 1; T.C.A., § 33-711; Acts 2000, ch. 947, § 1.

Law Reviews.

Federal Procedure — Statutory Construction — Meaning of “Mentally Incompetent,” 6 Vand. L. Rev. 928 (1953).

Collateral References.

Amnesia as affecting capacity to commit crime or stand trial. 46 A.L.R.3d 544.

Part 3
Forensic Services

33-7-301. Evaluation of accused believed incompetent to stand trial — Judicial hospitalization proceedings — Recovery report.

1. When a defendant charged with a criminal offense is believed to be incompetent to stand trial, or there is a question about the defendant's mental capacity at the time of the commission of the crime, the criminal, circuit, or general sessions court judge may, upon the judge's own motion or upon petition by the district attorney general or by the attorney for the defendant and after hearing, order the defendant to be evaluated on an outpatient basis. The evaluation shall be done by the community mental health center or licensed private practitioner designated by the commissioner to serve the court or, if the evaluation cannot be made by the center or the private practitioner, on an outpatient basis by the state hospital or the state-supported hospital designated by the commissioner to serve the court. If, and only if, the outpatient evaluator concludes that further evaluation and treatment are needed, the court may order the defendant hospitalized, and if in a department facility, in the custody of the commissioner for not more than thirty (30) days for further evaluation and treatment for competence to stand trial subject to the availability of suitable accommodations.
2. At any stage of a felony criminal proceeding, including a pretrial hearing, trial, sentencing, or post-conviction proceeding, the state may move or petition the court to authorize the district attorney general to designate a qualified expert to examine the defendant if the defendant gives notice that the defendant intends to offer testimony about the defendant's mental condition, whether in support of a defense of insanity or for any other purpose. The court may authorize the district attorney general to designate a qualified expert, who is willing to be appointed, to examine the defendant, if:
  1. An inpatient evaluator under subdivision (a)(1) notifies the court in a pretrial proceeding that the type or extent of assessment required exceeds the expertise or resources available to the evaluator or exceeds the scope of analysis of the defendant's competence to stand trial, satisfaction of criteria for the insanity defense, or for commitment under chapter 6, part 5 of this title; or
  2. In any other type of felony criminal proceeding, the court determines that examination of the defendant by a qualified expert for the state is necessary to adjudicate fairly the matter before it.
3. The amount and payment of expert fees shall be determined and paid by the state district attorneys general conference.
4. 1. Except as provided in subdivision (a)(4)(B), during the post-conviction stage of a criminal proceeding, if it is believed that a defendant is incompetent to assist counsel in preparation for, or otherwise participate in, the post-conviction proceeding, the court may, upon its own motion, order that the defendant be evaluated on either an outpatient or inpatient basis, as may be appropriate. If the defendant is indigent, the amount and payment of the costs for the evaluation shall be determined and paid for by the administrative office of the courts. If the defendant is not indigent, the cost of the evaluation shall be charged as court costs. If the evaluation cannot be done on an outpatient basis and if it is necessary to hospitalize the defendant in a department facility, hospitalization shall not be for more than thirty (30) days and shall be subject to available suitable accommodations. Prior to transporting a defendant for such evaluation and treatment in a department facility, the sheriff or other transportation agent shall determine that the receiving department facility has available suitable accommodations. Any costs incurred by the administrative office of the courts shall be absorbed within the current appropriation for the indigent defense fund.
  2. In a post-conviction proceeding in a capital case, if there is a question on the defendant's mental condition at the time of the commission of the crime when there has been no such prior evaluation or a question as to whether the defendant is intellectually disabled, the court may, upon its own motion or upon petition by the district attorney general or by the attorney for the defendant, and, if the matter is contested, after a hearing, order that the defendant be evaluated on an outpatient basis. If and only if the outpatient evaluator concludes that an inpatient evaluation is necessary, the court may order the defendant to be hospitalized for not more than thirty (30) days.
5. Prior to transporting a defendant for such evaluation and treatment in a department facility, the sheriff or other transportation agent shall determine that the receiving department facility has available suitable accommodations.
1. If the court determines on the basis of the mental health evaluation and other relevant evidence:
  1. That the defendant is incompetent to stand trial because of mental illness; or
  2. 1. That the defendant is competent to stand trial but that the failure to hospitalize would create a likelihood to cause the defendant serious harm by reason of mental illness; and
    2. The defense attorney agrees with those findings, the district attorney general or the attorney for the defense may petition the criminal court before which the case is pending or that would hear the case, if the defendant were bound over to the grand jury to conduct proceedings for judicial hospitalization under chapter 6, part 5 of this title.
2. Either party may demand a jury trial on the issues.
3. The court is vested with jurisdiction to conduct the proceedings.
4. In the proceedings the court shall determine, in addition to the findings required by chapter 6, part 5 of this title, whether the defendant is substantially likely to injure the defendant or others if the defendant is not treated in a forensic services unit and whether treatment is in the defendant's best interest.
5. If the court enters an order of judicial hospitalization, the defendant shall be transferred to the custody of the commissioner, and if the court finds in addition that the defendant is substantially likely to injure the defendant or others if the defendant is not treated in a forensic services unit and that treatment in the unit is in the defendant's best interests, the defendant shall be transferred to the custody of the commissioner at a forensic services unit designated by the commissioner. If the court commits a person under this subsection (b), the person comes into the commissioner's custody only if the forensic services unit has available suitable accommodations; provided, that, if there are no suitable available accommodations at the time of the determination, then the commissioner shall expeditiously find a state-owned or operated hospital or treatment resource to accommodate the person upon the availability of suitable available accommodations. Prior to transporting a defendant for such commitment, the sheriff or other transportation agent shall determine that the receiving facility has available suitable accommodations.
When a defendant admitted under subsection (b) has been hospitalized for six (6) months, and at six-month intervals thereafter, the chief officer of the hospital shall file a written report with the clerk of the court by whose order the defendant was confined and shall give a copy of the report to the defendant, the defendant's attorney, the defendant's legal guardian or conservator, if any, and to the district attorney general. The chief officer shall also send a copy of the report to the defendant’s parent, adult child, or spouse, whichever is appropriate, but at least one (1) of the three (3). The report shall detail the chief officer's best judgment as to the defendant's prospects for recovery, the defendant's present condition, the time required for relevant kinds of recovery, and whether there is substantial probability that the defendant will become competent to stand trial in the foreseeable future. This reporting obligation shall cease at the point that misdemeanor charges are retired for defendants with no other charges in accordance with subsection (d).
If a defendant is found to be incompetent to stand trial, any misdemeanor charges pending at the time of the incompetency determination shall be retired no later than eleven (11) months and twenty-nine (29) days after the date of arrest when the misdemeanor charge or charges have not otherwise been disposed of except that no misdemeanor charges shall be retired pursuant to this subsection (d) if the defendant is restored to competency prior to the date on which the misdemeanor charge or charges would have otherwise been retired under this subsection (d).

Acts 1974, ch. 464, § 1; 1975, ch. 248, § 26; 1977, ch. 386, § 1; 1982, ch. 862, § 12; T.C.A., § 33-708; Acts 1985, ch. 437, § 26; 1987, ch. 143, § 4; 1998, ch. 978, §§ 1, 2; 2000, ch. 947, § 1; 2002, ch. 730, § 51; 2005, ch. 260, § 1; 2009, ch. 419, § 1; 2009, ch. 531, §§ 44, 46, 47; 2010, ch. 734, § 1; 2013, ch. 100, §§ 1, 2.

For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 12.3, 14.3, 14.4, 14.7, 14.8, 14.10, 14.16, 14.17, 14.24.

Tennessee Forms (Robinson, Ramsey and Harwell), Nos. 3-11-1, 3-12.2-4, 3-12.2-5.

Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, §§ 18—20.

Law Reviews.

Criminal Law in Tennessee in 1977-1978, III. Defenses (Joseph G. Cook), 46 Tenn. L. Rev. 490 (1979).

Trial Rights and Psychotropic Drugs: The Case Against Administering Involuntary Medications to a Defendant During Trial, 55 Vand. L. Rev. 165 (2002).

Attorney General Opinions. Judicial powers of hospitalization, OAG 84-126, 1984 Tenn. AG LEXIS 222 (4/17/84).

NOTES TO DECISIONS

1. Certified Questions.

Dismissal of defendant's appeal was proper where a resolution favorable to defendant under T.C.A. § 33-7-301 would not have resulted in dismissal. Thus, the appellate court held that his certified question of whether he was competent to stand trial was not dispositive of the case. State v. Bailey, 213 S.W.3d 907, 2006 Tenn. Crim. App. LEXIS 392 (Tenn. Crim. App. 2006), rehearing denied, 213 S.W.3d 907, 2006 Tenn. Crim. App. LEXIS 1031 (Tenn. Crim. App. 2006), appeal denied, — S.W.3d —, 2006 Tenn. LEXIS 1083 (Tenn. 2006), cert. denied, Bailey v. Tennessee, 549 U.S. 1348 , — S. Ct. —, 167 L. Ed. 2d 781, 2007 U.S. LEXIS 4095 (2007).

Collateral References.

Right of accused in criminal prosecution to presence of counsel at court-appointed or -approved psychiatric examination. 3 A.L.R.4th 910.

33-7-302. Determination and notice of restored competence to stand trial.

When the chief officer determines that a defendant in a state hospital or treatment resource who is charged with a crime is restored to competence to stand trial, the chief officer shall give notice of that fact to the clerk of the court by whose order the defendant was confined and deliver the defendant to the sheriff of the county from which the defendant was admitted.

Acts 1974, ch. 464, § 1; T.C.A., § 33-712; Acts 2000, ch. 947, § 1.

33-7-303. Judicial hospitalization or outpatient treatment of person judged not guilty by reason of insanity — Transfer to forensic services unit — Appeal — Cost of treatment.

1. When a person charged with a criminal offense is acquitted of the charge on a verdict of not guilty by reason of insanity at the time of the commission of the offense, the criminal court shall immediately order the person to be diagnosed and evaluated on an outpatient basis. The evaluation shall be performed by the community mental health agency or licensed private practitioner designated by the commissioner to serve the court.
2. When a person charged with a felony criminal offense under title 39, chapter 13, is found not guilty by reason of insanity at the time of the commission of the offense and that person is in custody at the time of the verdict, the court may order that the person remain held without bond following the verdict, for the purpose of receiving an outpatient evaluation performed by the community mental health agency or licensed private practitioner designated by the commissioner to serve the court. In such cases, the court shall immediately enter an order to hold the person without bond for the purpose of receiving the evaluation and shall order that the evaluation be completed within thirty (30) days of receipt of the court order by the examining professional.
1. Following diagnosis and evaluation, if certification is provided that the person is committable under chapter 6, part 5 of this title, the district attorney general shall file a complaint in the criminal court for judicial commitment under chapter 6, part 5 of this title. If certification is not provided that the person is committable under chapter 6, part 5 of this title, the district attorney general shall file a complaint in the criminal court for an order requiring the person to participate in outpatient treatment under this subsection (b).
2. If the court does not commit the person under chapter 6, part 5 of this title and the court determines that the person's condition resulting from mental illness is likely to deteriorate rapidly to the point that the person will pose a substantial likelihood of serious harm under § 33-6-501 unless treatment is continued, the court may order the person to participate in outpatient treatment. Otherwise, the court may not order the person to participate in outpatient treatment. The obligation to participate in outpatient treatment continues until it is terminated by the court under subdivision (b)(4).
3. If the court orders the person to participate in outpatient treatment and the person does not comply with the treatment plan, the qualified mental health professional shall notify the district attorney general of the noncompliance, and the district attorney general may move the criminal court to cite the person for civil or criminal contempt of court for the noncompliance and may file a complaint in the criminal court under chapter 6, part 5 of this title. The qualified mental health professional shall file a report with the district attorney general every six (6) months as to the person's continuing need for treatment.
4. The court shall terminate the obligation to participate in outpatient treatment when it determines that the person is no longer subject to the obligation under subdivision (b)(2).
5. The court is vested with jurisdiction to conduct proceedings authorized by this subsection (b).
1. Following the hearing conducted by the criminal court under chapter 6, part 5, of this title, if the court finds that the person meets the commitment standards under chapter 6, part 5 of this title, the court shall enter an order of judicial hospitalization and transfer the person to the custody of the commissioner subject to department rules governing release procedures.
2. If the court further finds that:
  1. The person is substantially likely to injure the person or others if the person is not treated in a forensic services unit; and
  2. Treatment in the unit is in the person's best interests, the person shall be transferred into the custody of the commissioner at a forensic services unit designated by the commissioner subject to the provisions of § 33-7-203.
3. If the court commits a person under this subsection (c), the person comes into the commissioner's custody only if the commissioner determines that a facility has available suitable accommodations; provided, that, if there are no suitable available accommodations at the time of the determination, then the commissioner shall expeditiously find a state-owned or operated hospital or treatment resource to accommodate the person upon the availability of suitable available accommodations. Prior to transporting a defendant for commitment in a department facility, the sheriff or other transportation agent shall determine that the receiving facility has available suitable accommodations.
Either party may appeal a final adjudication under this section to the court of criminal appeals.
The criminal court, in a trial before a jury in which the issue of insanity at the time of the commission of the offense is raised, shall instruct the jury before it begins deliberation as to the provisions of this section.
The cost of treatment incurred as a result of the outpatient treatment and evaluation required in subdivision (b)(2) shall be taxed as court costs.
1. When a person charged with first degree murder or a Class A felony offense under title 39, chapter 13, is found not guilty by reason of insanity at the time of the commission of the offense, the trial court shall immediately order the person to be diagnosed and evaluated on an outpatient basis. The evaluation shall be performed by the community mental health agency or licensed private practitioner designated by the commissioner to serve the trial court to determine if the person should be committed to inpatient hospitalization under chapter 6, part 5 of this title. If the person was in custody at the time of the verdict, the trial court shall immediately order the person to remain held without bond following the verdict of not guilty by reason of insanity, for purposes of receiving the outpatient evaluation. The trial court shall order that the outpatient evaluation be completed within thirty (30) days of receipt of the court order by the examining community mental health agency or licensed private practitioner.
2. If, after outpatient evaluation, the person is committed to inpatient hospitalization under chapter 6, part 5 of this title, the person shall only be discharged from inpatient hospitalization subject to a court order by the trial court to participate in outpatient treatment.
3. If, after outpatient evaluation, the person is not committed to inpatient hospitalization under chapter 6, part 5 of this title, the trial court shall order the person to participate in outpatient treatment.
4. Any person currently committed to inpatient hospitalization under chapter 6, part 5 of this title, who was charged with first degree murder or a Class A felony offense under title 39, chapter 13, and found not guilty by reason of insanity at the time of the commission of the offense, shall only be discharged from inpatient hospitalization subject to a court order by the trial court to participate in outpatient treatment.
5. Any person ordered by the trial court to participate in outpatient treatment under this subsection (g) shall do so for an initial mandatory period of six (6) months. Upon completion of the initial six-month period, the trial court shall review the person's need for continued court-ordered outpatient treatment. If the trial court determines that continued outpatient treatment is appropriate, then the trial court may order the continuation of outpatient treatment beyond the initial six (6) month period. Thereafter, the trial court shall review the person's need for continued court-ordered outpatient treatment on an annual basis. The trial court shall consider the following factors when determining the appropriateness of ordering a person to continued outpatient treatment beyond the initial six-month period under this subsection (g):
  1. The likelihood that harm will occur unless the person remains under court-ordered outpatient treatment;
  2. The likelihood that the person will voluntarily participate in outpatient treatment;
  3. The person's history of compliance with outpatient treatment plans; and
  4. Any other factor that the trial court deems appropriate for purposes of evaluating the person's need for court-ordered outpatient treatment.

Acts 1974, ch. 464, § 1; 1977, ch. 396, § 1; 1979, ch. 311, §§ 1-3; 1981, ch. 224, § 17; 1983, ch. 323, § 23; T.C.A., § 33-709; Acts 1984, ch. 922, § 38; 1985, ch. 437, §§ 27, 28; 2000, ch. 947, § 1; 2002, ch. 730, § 52; 2005, ch. 150, § 3; 2009, ch. 531, §§ 48-51; 2011, ch. 142, § 1; 2017, ch. 342, §§ 1, 2.

Amendments. The 2017 amendment rewrote (a)(2) which read, “(2) When a person charged with a felony criminal offense under title 39, chapter 13, offenses against person, is acquitted of the charge on a verdict of not guilty by reason of insanity at the time of the commission of the offense and when that person is detained at the time of the acquittal, the court may order that the person remain detained following the verdict of not guilty by reason of insanity, for the purpose of receiving an outpatient evaluation performed by the community mental health agency or licensed private practitioner designated by the commissioner to serve the court. In such cases, the court shall immediately enter an order to detain the person for the purpose of receiving this evaluation and shall order that the evaluation be completed within thirty (30) days of receipt of the court order by the examining professional.”; and added (g).

Effective Dates. Acts 2017, ch. 342, § 3. July 1, 2017.

Textbooks. Tennessee Criminal Practice and Procedure (Raybin), §§ 28.50, 28.49.

Tennessee Jurisprudence, 18 Tenn. Juris., Mental Illness, Intellectual Disabilities, and Other Incapacities, §§ 19, 21.

Law Reviews.

Criminal Law in Tennessee in 1976-1977 — A Critical Survey, III. Defenses (Joseph G. Cook), 45 Tenn. L. Rev. 18 (1978).

Criminal Law in Tennessee in 1977-1978, III. Defenses (Joseph G. Cook), 46 Tenn. L. Rev. 490 (1979).

Special Project: Drugs and Criminal Responsibility, 33 Vand. L. Rev. 1145 (1980).

Attorney General Opinions. Constitutionality of proposed “guilty but excused from responsibility” verdict, OAG 99-116, 1999 Tenn. AG LEXIS 116 (5/14/99).

After a finding of “not guilty by reason of insanity” in a trial in general sessions court, the court has jurisdiction to order the 60 to 90 day (now 30 day) evaluation required by T.C.A. § 33-7-303, but only in misdemeanor cases where the defendant waives in writing an indictment, presentment, grand jury investigation, and jury trial and the district attorney general does not object, OAG 01-041, 2001 Tenn. AG LEXIS 41 (3/19/01).

NOTES TO DECISIONS

1. In General.

This section is not mandatory. Edwards v. State, 540 S.W.2d 641, 1976 Tenn. LEXIS 564 (Tenn. 1976).

When the state fails to prove sanity this section will apply. State v. Clayton, 656 S.W.2d 344, 1983 Tenn. LEXIS 787 (Tenn. 1983).

2. Constitutionality.

Section is not unconstitutional or void for vagueness; court rejected contention lay jurors could not determine from the statutory scheme the ramifications of verdict not guilty by reason of insanity. State v. Vanzant, 659 S.W.2d 816, 1983 Tenn. Crim. App. LEXIS 362 (Tenn. Ct. App. 1983).

Insanity acquittee's automatic commitment under T.C.A. § 33-7-303(a) did not violate acquittee's equal protection rights since his commitment did not require a determination equivalent to that made in a civil commitment case; an insanity acquittee enjoys no fundamental right to unrestricted liberty, and the commitment of an insanity acquittee bears a rational relationship to a legitimate state interest in assessing acquittee's mental state. State v. Phillips, 968 S.W.2d 874, 1996 Tenn. Crim. App. LEXIS 583 (Tenn. Crim. App. 1996), rehearing denied, — S.W.3d —, 1997 Tenn. Crim. App. LEXIS 498 (1997), cert. denied, Phillips v. Tennessee, 525 U.S. 847, 119 S. Ct. 117, 142 L. Ed. 2d 94, 1998 U.S. LEXIS 5278 (1998).

3. —Due Process Rights.

Even if commitment is sought and received, the United States supreme court requires that criminal committees be afforded the same due process rights as civil committees, including a precommitment hearing and periodic examinations at reasonable intervals. Stacy v. Love, 528 F. Supp. 38, 1981 U.S. Dist. LEXIS 16503 (M.D. Tenn. 1981), aff'd, 679 F.2d 1209, 1982 U.S. App. LEXIS 18738 (6th Cir. Tenn. 1982).

Insanity acquittee's automatic commitment under former T.C.A. § 33-7-401(a) (see now T.C.A. § 33-7-303) was reasonable in light of the uncertainty of psychiatric evaluation and did not violate acquitee's due process rights. State v. Phillips, 968 S.W.2d 874, 1996 Tenn. Crim. App. LEXIS 583 (Tenn. Crim. App. 1996), rehearing denied, — S.W.3d —, 1997 Tenn. Crim. App. LEXIS 498 (1997), cert. denied, Phillips v. Tennessee, 525 U.S. 847, 119 S. Ct. 117, 142 L. Ed. 2d 94, 1998 U.S. LEXIS 5278 (1998).

4. Instructions.

Prior to the 1977 amendment that added subsection (e), where the evidence in a first-degree murder case indicated that defendant, who relied on a defense of not guilty by reason of insanity, was competent to stand trial, no prejudice resulted from the refusal of the trial court to instruct the jury concerning the possible legal effects of a verdict of not guilty by reason of insanity under this discretionary section. Edwards v. State, 540 S.W.2d 641, 1976 Tenn. LEXIS 564 (Tenn. 1976).

At trial before the effective date of the 1977 amendment of this section, the trial judge properly refused to charge the jury concerning the civil commitment laws pertaining to persons adjudicated not guilty by reason of insanity where there was no competent evidence before the jury tending to show that the defendant was not guilty by reason of insanity. Matlock v. State, 566 S.W.2d 892, 1978 Tenn. Crim. App. LEXIS 299 (Tenn. Crim. App. 1978).

Prior to the 1977 amendment it was not error to refuse to charge a jury as to what the effect of a finding of not guilty by reason of insanity would be, because the charge is not relevant to the issue of guilty or innocence, and there were so many options and alternatives available, depending upon the mental condition of the accused, it would have been highly conjectural and would have involved the jury in speculation as to what might happen to the accused. Glasscock v. State, 570 S.W.2d 354, 1978 Tenn. Crim. App. LEXIS 318 (Tenn. Crim. App. 1978), cert. denied, Glasscock v. Tennessee, 441 U.S. 943, 99 S. Ct. 2160, 60 L. Ed. 2d 1044, 1979 U.S. LEXIS 1817 (1979).

Although the trial judge erred in charging the jury on the defense of insanity while not at the same time complying with clear mandate of a former version of this section that he also instruct the jury “that a verdict of not guilty by reason of insanity … shall result in automatic detention of the person so acquitted in a mental hospital or treatment center,” this error did not require reversal, because in the absence of a prima facie showing of insanity, the proof was such that the jury could not reasonably have found the defendant to be other than sane. Thus the failure to charge the jury under subsection (e) of this section did not affect the outcome of the trial, and the error had to be deemed harmless. Mothershed v. State, 578 S.W.2d 96, 1978 Tenn. Crim. App. LEXIS 283 (Tenn. Crim. App. 1978).

5. Harmless Error.

Improper argument by prosecutor to the effect that if jury found defendant not guilty by reason of insanity he would be evaluated and it would be left up to some psychiatrist to decide when he would be put back on the street was held harmless under the circumstances. State v. Estes, 655 S.W.2d 179, 1983 Tenn. Crim. App. LEXIS 397 (Tenn. Crim. App. 1983).

Collateral References.

Extended commitment of one committed to institution as consequence of acquittal of crime on ground of insanity. 52 A.L.R.6th 567.

Propriety of transferring patient found not guilty by reason of insanity to less restrictive confinement. 43 A.L.R.5th 777.

Validity of conditions imposed when releasing person committed to institution as consequence of acquittal of crime on ground of insanity. 2 A.L.R.4th 934.

33-7-304. Cost of evaluation and treatment — Court-ordered inpatient evaluation to be completed within thirty days of admission.

The cost of evaluation and treatment under this part, if the defendant is charged with a misdemeanor, will be a charge upon the funds of the county. If the court finds the defendant financially able to pay all or part of the costs and expenses for the evaluation and treatment, the court may order the defendant to pay all or part of the costs and expenses. Payment shall be made to the clerk of the general sessions court for remittance to the person, agency or facility to whom compensation is due, or if the costs and expenses have been paid by the county, to the appropriate office of the county.
Costs of the care or treatment of any defendant ordered by the court and who is charged with a misdemeanor shall be paid by the state only when specifically authorized by law.
Where a court orders a defendant charged with a misdemeanor to be evaluated under § 33-7-301(a), the court shall order that any inpatient evaluation be completed within thirty (30) days of admission to the facility.

Acts 2009, ch. 531, § 45; 2012, ch. 997, § 1.

Attorney General Opinions. County's responsibility for payment of court-ordered mental health evaluations. OAG 10-13, 2010 Tenn. AG LEXIS 13 (2/2/10).

County's responsibility for payment of court-ordered mental health evaluations. OAG 11-76, 2011 Tenn. AG LEXIS 78 (11/1/11).

Part 4
Mandatory Community-Based Services

33-7-401. Mandatory community-based services for felony defendant incompetent to stand trial but not committable.

IF AND ONLY IF

a court with criminal jurisdiction holds a hearing to commit an adult with mental illness under § 33-7-301, AND
the court finds on proof by clear and convincing evidence that the person is:
1. charged with a felony,
2. incompetent to stand trial,
3. not committable under § 33-6-502, AND
4. at risk of becoming committable, AND
the department certifies to the court that there are funds available within the limits of the department's line item appropriation for services under this section for service to the person,
THEN
the court may order the person to participate in community-based services under a plan approved and developed by the department to attain and maintain competence to stand trial and reduce the risk of becoming committable.

Acts 2000, ch. 947, § 1.

In order to effectuate the purposes of this section, funds were appropriated in Acts 2000, ch. 994. Funding was provided in Acts 2000, ch. 994.

33-7-402. Mandatory community-based services for person found in need of services by forensic examiner.

If upon completion of an evaluation of a person under § 33-7-301, the department determines that the person meets the standards in § 33-7-401(2)(B), (C), and (D), and (3), the department shall attempt to develop a community-based services plan for the person for the purpose stated. The plan shall be for a maximum of two (2) years, and no person shall participate in the plan for more than two (2) years.

Acts 2000, ch. 947, § 1.

33-7-403. Hearing.

If a defendant contests a plan proposed by the department under § 33-7-401, the court shall hold a hearing within seven (7) days of receipt of the request to determine whether the plan is programmatically appropriate and legally permissible. The court shall either approve the plan or approve the plan as modified by the department to correct deficiencies found by the court.

Acts 2000, ch. 947, § 1.

33-7-404. Periodic need assessment.

A service provider for a person under § 33-7-401 shall assess the person's needs at least every six (6) months and shall report to the court every six (6) months on the person's progress toward the goal of the plan, prospects for recovery, the person's current condition, the time required for relevant kinds of recovery, and whether there is substantial probability that the person will become competent to stand trial in the foreseeable future. A service provider may request the court to release the person from the plan at any time.

Acts 2000, ch. 947, § 1.

33-7-405. Referral to other service provider where services under this part not effective.

If after two (2) years of intensive services for competence to stand trial under § 33-7-401, the person has not made substantial progress to attain competence to stand trial, the service provider shall assess the person's needs and may terminate the service plan and recommend to the court that the person be referred to other mental health services as deemed appropriate. The service provider shall report its conclusion to the court before terminating services.

Acts 2000, ch. 947, § 1.

Chapter 8
Special Provisions for Children

Part 1
Services to Children Generally

33-8-101. Applicability of title to children.

Services for children who have serious emotional disturbance, mental illness, or developmental disabilities are governed by all of this title. The general assembly finds that supporting families in their role as primary care givers for their children is more humane, efficient, and cost effective than placing children in state custody to obtain necessary services or otherwise placing children in settings outside their homes.
For children covered by this title, the following service principles are fundamental to carrying out the responsibilities of service providers and advocates:
1. Families and children are most responsible for determining their needs and should be included appropriately in planning and providing service and support;
2. Families should receive the support they need to care for their children at home;
3. Service providers and advocates should enable families and children to make good decisions concerning necessary, desirable, and appropriate services;
4. Service providers should coordinate services among agencies likely to provide services and supports to children and families;
5. Service providers and advocates should participate in development of interagency agreements under § 33-1-308 to assure consideration of the needs and problems of children and families; and
6. Service providers should achieve smooth transitions in services and supports as children grow through various stages of development and become vested in making decisions for themselves, including the transition into adulthood.

Acts 2000, ch. 947, § 1.

Compiler's Notes. Prior to the deletion and replacement of chapter 8 in the revision of title 33, by Acts 2000, ch. 947, § 1, effective March 1, 2001, former chapter 8, parts 1-5, were transferred to title 68, ch. 24, parts 1-5, respectively, in 1993. See the Compiler's Notes under § 68-24-101.

33-8-102. Responsibilities of department with regard to children.

The department in coordination with the council on children's mental health care shall promote effective advocacy for services and supports for all children with serious emotional disturbance, mental illness, or developmental disabilities. The department's responsibilities for children shall include, but not be limited to:

Promoting collaboration among care givers and service providers and equitable involvement of care givers in service plan development;
Case finding after the department has adopted rules regarding service and support to children;
Determining eligibility;
Providing basic service standards;
Facilitating the interdepartmental planning process for children through the statewide and regional planning and policy councils;
Initiating meetings or other processes to develop local interagency agreements as needs and problems are identified by service providers, advocates, or families;
Assisting children and their families to gain access to the system of services and supports;
Defining and listing an array of services and supports; and
Assisting youth who have been in the public system of care with transition to adult services.

Acts 2000, ch. 947, § 1; 2008, ch. 1062, § 5.

Compiler's Notes. For the Preamble to the act regarding to the mental health needs of Tennessee's children and youth, please refer to Acts 2008, ch. 1062.

33-8-103. Children as priority population.

Children with serious emotional disturbances are a priority population for the department's mental health services and supports. Children with developmental disabilities are a priority population for the department's developmental disabilities services and supports. The department shall set the array of services and supports for these priority populations annually in its plan. The state will fund and the department will maintain the array of services and supports for persons in this priority population. Consistent with applicable eligibility requirements, the state may provide the funding for the services through the medicaid program or any waiver granted under the medicaid program, specifically including TennCare, other public funds, or private funds.

Acts 2000, ch. 947, § 1.

33-8-104. Emancipated children — Rights and responsibilities under this title.

Children who are emancipated by marriage, court order, or in any other way recognized by law in the state have all the rights and responsibilities of adults under this title, except to the extent those rights are restricted by court order. The parent of an emancipated child shall be treated as the parent of an adult under all provisions of this title that give parents rights or responsibilities with respect to the child.

Acts 2000, ch. 947, § 1.

33-8-105. Interagency plans for transition to adult services.

Mental health and developmental disabilities service providers shall prepare interagency plans to assure that persons seventeen (17) years of age in state custody who will continue to need services and supports in adulthood can make a smooth transition to adult services. The plan should take into account the requirements of other state and federal laws with respect to service. If necessary to avoid delays in service during the transition into adult services, plans shall be prepared before the persons become seventeen (17) years of age.

Acts 2000, ch. 947, § 1.

33-8-106. Interagency agreements — Cooperation of service providers with department.

Service providers shall inform the department and the council on children's mental health care of needs or problems of children and families that may be addressed by local interagency agreements with the goals set in § 33-1-308 for state interagency agreements. Service providers shall participate in processes initiated by the department and the council on children's mental health care or others to address the needs or problems.

Acts 2000, ch. 947, § 1; 2008, ch. 1062, § 6.

Compiler's Notes. For the Preamble to the act regarding to the mental health needs of Tennessee's children and youth, please refer to Acts 2008, ch. 1062.

Part 2
Special Provisions for Mental Health Services to Children

33-8-201. Child with alcohol or drug dependence or developmental disability.

A child who has alcohol dependence, drug dependence, or developmental disability may only receive mental health service or support from the mental health service division if the condition is concurrent with another serious emotional disturbance or mental illness.

Acts 2000, ch. 947, § 1.

33-8-202. Rights of child sixteen (16) years of age or older.

If a child with serious emotional disturbance or mental illness is sixteen (16) years of age or older, the child has the same rights as an adult with respect to outpatient and inpatient mental health treatment, medication decisions, confidential information, and participation in conflict resolution procedures under this title except as provided in part 3 of this chapter, or as otherwise expressly provided in this title. If the child's parent, legal guardian, legal custodian, or treating professional believes that the child's decision to terminate treatment, other than a request for discharge under chapter 6, part 2 of this title, will have severe adverse effects on the child, the conflict resolution procedures under chapter 2, part 6 of this title shall be used.
An outpatient facility or professional may provide treatment and rehabilitation without obtaining the consent of the child's parent, legal guardian, or legal custodian.

Acts 2000, ch. 947, § 1.

Cross-References. Confidentiality of public records, § 10-7-504.

33-8-203. Parents, custodians and guardians to participate in child's outpatient treatment plan.

Parents, legal custodians, and legal guardians shall participate in mandatory outpatient treatment discharge planning and do what is necessary to carry out the child's plan.

Acts 2000, ch. 947, § 1.

Part 3
Special Medical Procedure Rules

33-8-301. Electroconvulsive therapy upon child prohibited except under this part.

No person or facility may administer electroconvulsive therapy or other convulsive therapy to a child except as authorized under this part under §§ 33-8-302 and 33-8-303 or under §§ 33-8-305—33-8-313.

Acts 1976, ch. 489, § 1; 1978, ch. 877, §§ 1, 2; T.C.A., §§ 33-320, 33-3-201(a); Acts 2000, ch. 947, §§ 1, 6.

Collateral References.

Jurisdiction of court to permit sterilization of mentally defective person in absence of specific statutory authority. 74 A.L.R.3d 1210.

Power of parent to have mentally defective child sterilized. 74 A.L.R.3d 1224.

33-8-302. Electroconvulsive therapy — When authorized for child with mania or severe depression.

IF AND ONLY IF

a child has mania or severe depression, AND
1. all other accepted methods of therapy have been exhausted, OR
2. electroconvulsive or other convulsive therapy is necessary to save the child's life due to potential suicide, or to prevent irreparable injury resulting from conditions such as starvation, dehydration, or physical exhaustion bordering on serious collapse to the extent the conditions are life threatening, AND
the service provider to perform the therapy has convened a multi-disciplinary review team of at least five (5) persons, at least one (1) of whom is independent of the service provider, AND
the multi-disciplinary review team has approved the electroconvulsive or other convulsive therapy, AND
an American Board of Psychiatry and Neurology certified psychiatrist, who is child and adolescent certified, approves the therapy,
THEN
the approved convulsive therapy may be necessary for the child for purposes of this part.

Acts 2000, ch. 947, § 1.

33-8-303. Electroconvulsive therapy — When authorized for child over fourteen (14) years of age.

IF AND ONLY IF

a child is fourteen (14) years of age or older, AND
the approved convulsive therapy may be necessary for the child as determined under § 33-8-302, AND
a second American Board of Psychiatry and Neurology certified psychiatrist approves the procedure, AND
the child does not object to the electroconvulsive or other convulsive therapy after being informed of the proposed therapy and alternatives, AND
at least one (1) parent who has custody of the child or the child's legal guardian consents, AND
no parent objects to the therapy,
THEN
the child may be treated with the approved convulsive therapy under authority of this section.

Acts 2000, ch. 947, § 1.

33-8-304. Electroconvulsive therapy — When authorized for child in state custody.

If a child is in state custody and a convulsive therapy may be necessary for the child as determined under § 33-8-302, the therapy shall not be performed unless the commissioner of children's services obtains authority under §§ 33-8-305 — 33-8-313. A child in state custody may not be provided convulsive therapy under § 33-8-309.

Acts 2000, ch. 947, § 1.

33-8-305. Electroconvulsive therapy upon child — Court approval or finding of emergency required.

No mental health professional, hospital, treatment resource, or other person or facility may administer electroconvulsive therapy or other form of convulsive therapy to any person under eighteen (18) years of age under this section and §§ 33-8-306 — 33-8-313, except:
1. Upon prior written authorization by a court based upon a hearing at which it is shown that the approved convulsive therapy may be necessary for the child as determined under § 33-8-302 and is necessary in light of all evidence presented at the hearing; or
2. Emergency treatment under § 33-8-309.
In all cases under this section and §§ 33-8-306 — 33-8-313, the court shall appoint for the child a guardian ad litem who is not the child's attorney.

Acts 1976, ch. 489, § 1; 1978, ch. 877, §§ 1, 2; T.C.A., §§ 33-320, 33-3-201(a); Acts 2000, ch. 947, §§ 1, 6.

33-8-306. Electroconvulsive therapy — Commitment proceedings pending.

If proceedings for the child's commitment under chapter 6, part 5 of this title are pending, the hearing to determine the necessity of administering convulsive therapy may be held only after adequate written notice has been given to the child, the child's legal guardian, and the child's attorney informing them of the nature of the therapy sought and the facts upon which the claim is based that the therapy is necessary for the child's health or safety. The hearing may either be consolidated with the hearing for the child's commitment under chapter 6, part 5 of this title, or may be convened at another time.

Acts 1976, ch. 489, § 1; 1978, ch. 877, §§ 1, 2; T.C.A., §§ 33-320, 33-3-201(b); Acts 2000, ch. 947, §§ 1, 6.

33-8-307. Electroconvulsive therapy — Hearing in juvenile court.

If no proceedings for the child's commitment under chapter 6, part 5 of this title are pending, the hearing to determine the necessity of administering electroconvulsive or other convulsive therapy shall be convened in the juvenile court where the child resides, was committed to state custody, or may be found upon petition of the child, the child's parent, the legal guardian, a mental health professional, hospital, or treatment resource seeking authorization to administer the therapy. The petition shall be verified and shall state the nature of the therapy for which authorization is sought, and the facts upon which the petitioner relies to support the claim that the therapy is necessary for the child's health or safety. The court shall, upon receipt of the petition, appoint counsel to defend against the petition, and the petition shall be served personally upon both the child and the child's attorney.

Acts 1976, ch. 489, § 1; 1978, ch. 877, §§ 1, 2; T.C.A., §§ 33-320, 33-3-201(c); Acts 2000, ch. 947, §§ 1, 6.

33-8-308. Electroconvulsive therapy upon child — Independent psychiatric evaluation required.

Whenever authorization is sought for the administration to a child of electroconvulsive or other convulsive therapy, the court shall appoint an independent psychiatrist who shall receive reimbursement in an amount fixed by the court. No electroconvulsive or other convulsive therapy may be authorized for a child except upon the testimony of an independent psychiatrist, who is child and adolescent certified by the American Board of Psychiatry and Neurology, that the psychiatrist has examined the child and is of the opinion that the therapy is necessary for the child's health or safety.

Acts 1976, ch. 489, § 1; 1978, ch. 877, §§ 1, 2; T.C.A., §§ 33-320, 33-3-201(d); Acts 2000, ch. 947, §§ 1, 6.

33-8-309. Electroconvulsive therapy — Petition to court.

Electroconvulsive or other convulsive therapy may be initiated prior to a court hearing under §§ 33-8-305 — 33-8-313, if the petitioner files a petition with the court having jurisdiction of the child's commitment under chapter 6, part 5 of this title, if the proceeding is pending, or otherwise files a petition in the juvenile court where the child resides, was committed to state custody, or may be found.
The petition shall be verified by the mental health professional, hospital or treatment resource seeking authorization to administer the therapy and shall state the nature of the therapy for which authorization is sought, and the facts upon which the petitioner relies to support the claim that it has been determined under § 33-8-302 that the convulsive therapy may be necessary for the child.
1. Attached to the petition shall be an affidavit from a child psychiatrist, who shall be child and adolescent certified by the American Board of Psychiatry and Neurology, stating that:
  1. It has been determined under § 33-8-302 that the convulsive therapy may be necessary for the child; and
  2. There is insufficient time to complete the procedure provided by §§ 33-8-305—33-8-313, and therefore treatment prior to a court hearing is necessary.
2. The affidavit shall provide the specific factual, medical and clinical basis supporting the requirements of this section.
The child psychiatrist shall personally examine the child within twenty-four (24) hours of the filing of the petition.
The child psychiatrist shall not be in a professional practice or association with the attending physician, nor have any direct financial interest in any private hospital or treatment resource in which the child is to be detained or receive therapy.
If the petition and affidavit have been filed in conformity with this section, electroconvulsive or other convulsive therapy may be initiated. Electroconvulsive or other convulsive therapy shall be discontinued immediately when any of the conditions required under §§ 33-8-302(1) and (2) and 33-8- 303(1) that justified the therapy are no longer true.

Acts 1976, ch. 489, § 1; 1978, ch. 877, §§ 1, 2; T.C.A., §§ 33-320, 33-3-201(g)(1), (2); Acts 2000, ch. 947, §§ 1, 6.

33-8-310. Counsel required for hearing.

The court hearing upon a petition under §§ 33-8-305 — 33-8-313 shall be held within seven (7) calendar days of the filing of the petition. Upon the filing of the petition, the court shall appoint counsel to represent the child at the hearings, unless the child already has an attorney due to a pending commitment under chapter 6, part 5 of this title. The petition shall be served personally upon both the child and the child's attorney.
The child's attorney shall not in any case be a person who has previously advised the parties seeking authorization to administer electroconvulsive therapy or other convulsive therapy, nor shall the attorney be a person who has previously advised the child's parents, the parent's business, the child's legal guardian, or the legal guardian's business.
The court-appointed independent psychiatrist or the child psychiatrist whose affidavit accompanied a petition filed under § 33-8-309 shall be a witness at the hearing. The child psychiatrist's testimony may be used in place of a court-appointed independent psychiatrist. The psychiatrist's testimony shall not be regarded as conclusive, and the court shall consider any other evidence, including other expert testimony, offered in opposition to the authorization of the therapy.

Acts 1976, ch. 489, § 1; 1978, ch. 877, §§ 1, 2; T.C.A., §§ 33-320, 33-3-201(d), (g)(3); Acts 2000, ch. 947, §§ 1, 6.

33-8-311. Conduct of hearing.

At the hearing the court shall determine:
1. If therapy was administered under § 33-8-309, whether retrospectively all of the standards for initiating therapy under § 33-8-309 prior to a court hearing were fully complied with, and if not, which standards were not met; and
2. Whether prospectively electroconvulsive or other convulsive therapy is necessary for the child's health or safety.
Nothing in §§ 33-8-305 — 33-8-313 shall be construed to modify or alter §§ 33-8-315 or 33-8-316.

Acts 1976, ch. 489, § 1; 1978, ch. 877, §§ 1, 2; T.C.A., §§ 33-320, 33-3-201(g)(4), (5); Acts 2000, ch. 947, §§ 1, 6.

33-8-312. Hearing costs.

Under §§ 33-8-305 — 33-8-313, if the child is indigent and is not in the custody of the department of children's services, the department shall reimburse the attorney for the petitioner, the attorney and the guardian ad litem appointed by the court for the child, and the psychiatrist who testifies at the hearing, whether the board-certified child psychiatrist under § 33-8-309 or the court-appointed independent psychiatrist under § 33-8-308, in an amount fixed by the court. The department shall pay all court costs under §§ 33-8-305 — 33-8-313 if the child is indigent and is not in the custody of the department of children's services.

Acts 1976, ch. 489, § 1; 1978, ch. 877, §§ 1, 2; T.C.A., §§ 33-320, 33-3-201(i); Acts 2000, ch. 947, §§ 1, 6; 2010, ch. 1100, § 24.

33-8-313. Appeal.

Any decision of the court under §§ 33-8-305 — 33-8-313 shall be reviewable de novo upon expedited appeal to the circuit court, and the decision of the court from which an appeal is taken shall be stayed pending disposition of the appeal in circuit court.

Acts 1976, ch. 489, § 1; 1978, ch. 877, §§ 1, 2; T.C.A., §§ 33-320, 33-3-201(e); Acts 2000, ch. 947, §§ 1, 6.

33-8-314. Report on use of convulsive therapies.

The department shall report annually to the statewide planning and policy council on the use of electroconvulsive and other convulsive therapies.

Acts 2000, ch. 947, § 1.

33-8-315. Lobotomies upon children prohibited.

Lobotomies for intervention or alteration of a mental, emotional or behavioral disorder shall not be performed on children, and the courts of this state are prohibited from ordering or authorizing the performance of the procedure upon any child.

Acts 1976, ch. 489, § 1; 1978, ch. 877, §§ 1, 2; T.C.A., §§ 33-320, 33-3-201(f); Acts 2000, ch. 947, §§ 1, 6.

33-8-316. Child's rights not to be waived.

A child may not waive any right created by this part, nor may the right be waived by any other person acting on the child's behalf.

Acts 1976, ch. 489, § 1; 1978, ch. 877, §§ 1, 2; T.C.A., §§ 33-320, 33-3-201(h); Acts 2000, ch. 947, §§ 1, 6.

Chapter 9
Interstate Provisions

Part 1
Extradition

33-9-101. Part definitions.

As used in this part, unless the context otherwise requires:

“Executive authority,” “governor” and “chief magistrate,” respectively, as applied to a request to return any person under this part to or from the District of Columbia, include a justice of the supreme court of the District of Columbia and other authority;
“Flight” and “fled” mean any voluntary or involuntary departure from the jurisdiction of the court where the proceedings mentioned may have been instituted and are still pending, with the effect of avoiding, impounding, or delaying the action of the court in which the proceedings may have been instituted or are pending, or any such departure from the state where the person demanded then was, if the person then was under detention by law as a person with mental illness and subject to detention; and
“State” includes states, territories, districts and insular and other possessions of the United States.

Acts 1917, ch. 115, § 2; Shan., §§ 5499a2-5499a4; Code 1932, §§ 9660-9662; T.C.A. (orig. ed.), §§ 33-1001 — 33-1003; Acts 2000, ch. 947, § 1.

Compiler's Notes. Former chapter 9, §§ 33-9-101 — 33-9-109, 33-9-201 — 33-9-206 (Acts 1917, ch. 115, §§ 2-6; Shan., §§ 5499a2-5499a12; Code 1932, §§ 9660-9670; T.C.A. (orig. ed.), §§ 33-1001 — 33-1011; Acts 1971, ch. 364, §§ 1-6; T.C.A., §§ 33-1501 — 33-1506), is deleted and replaced in the revision of title 33 by Acts 2000, ch. 947, § 1, effective March 1, 2001.

Cross-References. Definitions applicable throughout title, § 33-1-101.

33-9-102. Persons subject to extradition.

A person alleged to be mentally ill who is found in this state, having fled from another state, shall, on demand of the executive authority of the state from which the person fled, be presented for return, if at the time of the person’s flight:

The person was under detention by law in a facility as a mentally ill person;
The person had been previously determined by legal proceedings to be mentally ill, the finding being unreversed and in full force and effect, and the control of the person having been acquired by a court of competent jurisdiction of the state from which the person fled; or
The person was subject to detention in the state, being then the person’s legal domicile, personal service of process having been made, based on legal proceedings pending there to have the person declared mentally ill.

Acts 1917, ch. 115, § 3; Shan., § 5499a5; Code 1932, § 9663; T.C.A. (orig. ed.), § 33-1004; Acts 2000, ch. 947, § 1.

33-9-103. Procedure.

Whenever the executive authority of any state demands of the executive authority of this state any fugitive under § 33-9-102, and produces a copy of the commitment, decree or other judicial process and proceedings, certified as authentic by the governor or chief magistrate of the state from which the person so charged has fled, with an affidavit made before a proper officer showing the person to be a fugitive, it shall be the duty of the executive authority of this state to cause the person to be apprehended and secured, if found in this state, and to cause immediate notice of the apprehension to be given to the executive authority making the demand, or to the agent of the authority appointed to receive the fugitive and to deliver the fugitive to the agent when the person appears.

Acts 1917, ch. 115, § 4; Shan., § 5499a6; Code 1932, § 9664; T.C.A. (orig. ed.), § 33-1005; Acts 2000, ch. 947, § 1.

33-9-104. Fugitive discharged if no agent appears.

If the agent does not appear within thirty (30) days from the time of the apprehension, the fugitive may be discharged.

Acts 1917, ch. 115, § 4; Shan., § 5499a7; Code 1932, § 9665; T.C.A. (orig. ed.), § 33-1006; Acts 2000, ch. 947, § 1.

33-9-105. Costs.

All costs and expenses incurred in apprehending, securing, maintaining, and transmitting the fugitive to the state making the demand, shall be paid by that state.

Acts 1917, ch. 115, § 4; Shan., § 5499a8; Code 1932, § 9666; T.C.A. (orig. ed.), § 33-1007; Acts 2000, ch. 947, § 1.

33-9-106. Power of agent.

An appointed agent who receives the fugitive into custody shall be empowered to transmit the person to the state from which the person fled.

Acts 1917, ch. 115, § 4; Shan., § 5499a9; Code 1932, § 9667; T.C.A. (orig. ed.), § 33-1008; Acts 2000, ch. 947, § 1.

33-9-107. Governor may demand return of fugitives.

The executive authority is vested with the power, on the application of any person interested, to demand the return to this state of any fugitive under this part.

Acts 1917, ch. 115, § 4; Shan., § 5499a10; Code 1932, § 9668; T.C.A. (orig. ed.), § 33-1009; Acts 2000, ch. 947, § 1.

33-9-108. Statute of limitations.

Any proceedings under this part shall begin within one (1) year after the flight referred to in this part.

Acts 1917, ch. 115, § 5; Shan., § 5499a11; Code 1932, § 9669; T.C.A. (orig. ed.), § 33-1010; Acts 1985, ch. 437, § 29; 2000, ch. 947, § 1.

NOTES TO DECISIONS

1. Purpose and Effect.

This section was enacted for the benefit of the adjudged non compos. In re Chaffee, 211 Tenn. 88, 362 S.W.2d 467, 1962 Tenn. LEXIS 343 (1962).

2. Proceedings after Expiration of Year.

Petitioner who had been adjudged insane by a foreign court but who had resided in Tennessee county for more than one year after having been released from hospital in the other state could bring suit in Tennessee for restoration of sanity. In re Chaffee, 211 Tenn. 88, 362 S.W.2d 467, 1962 Tenn. LEXIS 343 (1962).

33-9-109. Interpretation and construction of part.

This part shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states that enact it.

Acts 1917, ch. 115, § 6; Shan., § 5499a12; Code 1932, § 9670; T.C.A. (orig. ed.), § 33-1011; Acts 2000, ch. 947, § 1.

Part 2
Interstate Compact on Mental Health

33-9-201. Text of compact.

The Interstate Compact on Mental Health is enacted into law and entered into by this state with all other states legally joining the compact in the form substantially as follows:

Interstate Compact on Mental Health

The contracting states solemnly agree that:

Article I

The party states find that the proper and expeditious treatment of the mentally ill and mentally deficient can be facilitated by cooperative action, to the benefit of the patients, their families, and society as a whole. Further, the party states find that the necessity of and desirability for furnishing such care and treatment bears no primary relation to the residence or citizenship of the patient but that, on the contrary, the controlling factors of community safety and humanitarianism require that facilities and services be made available for all who are in need of them. Consequently, it is the purpose of this compact and of the party states to provide the necessary legal basis for the institutionalization or other appropriate care and treatment of the mentally ill and mentally deficient under a system that recognizes the paramount importance of patient welfare and to establish the responsibilities of the party states in terms of such welfare.

Article II

As used in this compact:

“Aftercare” means care, treatment and services provided a patient, as defined herein, on convalescent status or conditional release;
“Institution” means any hospital or other facility maintained by a party state or political subdivision thereof for the care and treatment of mental illness or mental deficiency;
“Mental deficiency” means mental deficiency as defined by appropriate clinical authorities to such extent that a person so afflicted is incapable of managing such persons and such persons affairs, but does not include mental illness as defined herein;
“Mental illness” means mental disease to such extent that a person so afflicted requires care and treatment for that person's own welfare, or the welfare of others, or of the community;
“Patient” means any person subject to or eligible as determined by the laws of the sending state, for institutionalization or other care, treatment, or supervision pursuant to the provisions of this compact;
“Receiving state” means a party state to which a patient is transported pursuant to the provisions of the compact or to which it is contemplated that a patient may be so sent;
“Sending state” means a party state from which a patient is transported pursuant to the provisions of the compact or from which it is contemplated that a patient may be so sent; and
“State” means any state, territory or possession of the United States, the District of Columbia, and the Commonwealth of Puerto Rico.

Article III

Whenever a person physically present in any party state shall be in need of institutionalization by reason of mental illness or mental deficiency, such person shall be eligible for care and treatment in an institution in that state irrespective of such person's residence, settlement or citizenship qualifications.
The provisions of paragraph (a) of this article to the contrary notwithstanding, any patient may be transferred to an institution in another state whenever there are factors based upon clinical determinations indicating that the care and treatment of the patient would be facilitated or improved thereby. Any such institutionalization may be for the entire period of care and treatment or for any portion or portions thereof. The factors referred to in this paragraph include the patient's full record with due regard for the location of the patient's family, character of the illness and probable duration thereof, and such other factors as shall be considered appropriate.
No state shall be obliged to receive any patient pursuant to the provisions of paragraph (b) of this article unless the sending state has given advance notice of its intention to send the patient; furnished all available medical and other pertinent records concerning the patient; given the qualified medical or other appropriate clinical authorities of the receiving state an opportunity to examine the patient if such authorities so wish; and unless the receiving state shall agree to accept the patient.
In the event that the laws of the receiving state establish a system of priorities for the admission of patients, an interstate patient under this compact shall receive the same priority as a local patient and shall be taken in the same order and at the same time that such interstate patient would be taken if such interstate patient were a local patient.
Pursuant to this compact, the determination as to the suitable place of institutionalization for a patient may be reviewed at any time and such further transfer of the patient may be made as seems likely to be in the best interest of the patient.

Article IV

Whenever, pursuant to the laws of the state in which a patient is physically present, it shall be determined that the patient should receive aftercare or supervision, such care or supervision may be provided in a receiving state. If the medical or other appropriate clinical authorities having responsibility for the care and treatment of the patient in the sending state shall have reason to believe that aftercare in another state would be in the best interest of the patient and would not jeopardize the public safety, they shall request the appropriate authorities in the receiving state to investigate the desirability of affording the patient such aftercare in the receiving state, and such investigation shall be made with all reasonable speed. The request for investigation shall be accompanied by complete information concerning the patient's intended place of residence and the identity of the person in whose charge it is proposed to place the patient, the complete medical history of the patient, and such other documents as may be pertinent.
If the medical or other appropriate clinical authorities having responsibility for the care and treatment of the patient in the sending state and the appropriate authorities in the receiving state find that the best interest of the patient would be served thereby, and if the public safety would not be jeopardized thereby, the patient may receive aftercare or supervision in the receiving state.
In supervising, treating, or caring for a patient on aftercare pursuant to the terms of this article, a receiving state shall employ the same standards of visitation, examination, care, and treatment that it employs for similar local patients.

Article V

Whenever a dangerous or potentially dangerous patient escapes from an institution in any party state, that state shall promptly notify all appropriate authorities within and without the jurisdiction of the escape in a manner reasonably calculated to facilitate the speedy apprehension of the escapee. Immediately upon the apprehension and identification of any such dangerous or potentially dangerous patient, such patient shall be detained in the state where found pending disposition in accordance with law.

Article VI

The duly accredited officers of any state party to this compact, upon the establishment of their authority and the identity of the patient, shall be permitted to transport any patient being moved pursuant to this compact through any and all states party to this compact, without interference.

Article VII

No person shall be deemed a patient of more than one (1) institution at any given time. Completion of transfer of any patient to an institution in a receiving state shall have the effect of making the person a patient of the institution in the receiving state.
The sending state shall pay all costs of and incidental to the transportation of any patient pursuant to this compact, but any two (2) or more party states may, by making a specific agreement for that purpose, arrange for a different allocation of costs as among themselves.
No provision of this compact shall be construed to alter or affect any internal relationships among the departments, agencies and officers of and in the government of a party state, or between a party state and its subdivisions, as to the payment of costs, or responsibilities therefor.
Nothing in this compact shall be construed to prevent any party state or subdivision thereof from asserting any right against any person, agency or other entity in regard to costs for which such party state or subdivision thereof may be responsible pursuant to any provision of this compact.
Nothing in this compact shall be construed to invalidate any reciprocal agreement between a party state and a nonparty state relating to institutionalization, care or treatment of the mentally ill or mentally deficient, or any statutory authority pursuant to which such agreements may be made.

Article VIII

Nothing in this compact shall be construed to abridge, diminish, or in any way impair the rights, duties, and responsibilities of any patient's guardian on the guardian's own behalf or in respect of any patient for whom the guardian may serve, except that where the transfer of any patient to another jurisdiction makes advisable the appointment of a supplemental or substitute guardian, any court of competent jurisdiction in the receiving state may make such supplemental or substitute appointment and the court that appointed the previous guardian shall, upon being duly advised of the new appointment, and upon the satisfactory completion of such accounting and other acts as such court may by law require, relieve the previous guardian of power and responsibility to whatever extent shall be appropriate in the circumstances; provided, that in the case of any patient having settlement in the sending state, the court of competent jurisdiction in the sending state shall have the sole discretion to relieve a guardian appointed by it or continue patient power and responsibility, whichever it shall deem advisable. The court in the receiving state may, in its discretion, confirm or reappoint the person or persons previously serving as guardian in the sending state in lieu of making a supplemental or substitute appointment.
“Guardian” as used in paragraph (a) of this article includes any guardian, trustee, legal committee, conservator, or other person or agency however denominated who is charged by law with power to act for or responsibility for the person or property of a patient.

Article IX

No provision of this compact except Article V shall apply to any person institutionalized while under sentence in a penal or correctional institution or while subject to trial on a criminal charge, or whose institutionalization is due to the commission of an offense for which, in the absence of mental illness or mental deficiency, such person would be subject to incarceration in a penal or correctional institution.
To every extent possible, it shall be the policy of states party to this compact that no patient shall be placed or detained in any prison, jail or lockup, but such patient shall, with all expedition, be taken to a suitable institutional facility for mental illness or mental deficiency.

Article X

Each party state shall appoint a “compact administrator” who, on behalf of party state, shall act as general coordinator of activities under the compact in party state and who shall receive copies of all reports, correspondence, and other documents relating to any patient processed under the compact by party state, either in the capacity of sending or receiving state. The compact administrator or party duly designated representative shall be the official with whom other party states shall deal in any matter relating to the compact or any patient processed thereunder.
The compact administrators of the respective party states have the power to promulgate reasonable rules and regulations to carry out more effectively the terms and provisions of this compact.

Article XI

The duly constituted administrative authorities of any two (2) or more party states may enter into supplementary agreements for the provision of any service or facility or for the maintenance of any institution on a joint or cooperative basis whenever the states concerned shall find that such agreements will improve services, facilities, or institutional care and treatment in the fields of mental illness or mental deficiency. No such supplementary agreement shall be construed so as to relieve any party state of any obligation which it otherwise would have under other provisions of this compact.

Article XII

This compact shall enter into full force and effect as to any state when enacted by it into law and such state shall thereafter be a party thereto with any and all states legally joining therein.

Article XIII

A state party to this compact may withdraw therefrom by enacting a statute repealing the same. Such withdrawals shall take effect one (1) year after notice thereof has been communicated officially and in writing to the governors and compact administrators of all other party states. However, the withdrawal of any state shall not change the status of any patient who has been sent to such state or sent out of such state pursuant to the provisions of the compact.
Withdrawal from any agreement permitted by Article VII(b) as to costs or from any supplementary agreement made pursuant to Article XI shall be in accordance with the terms of such agreement.

Article XIV

This compact shall be liberally construed so as to effectuate the purposes thereof. The provisions of this compact shall be severable and if any phrase, clause, sentence or provision of this compact is declared to be contrary to the constitution of any party state or of the United States or the applicability thereof to any government, agency, person or circumstance is held invalid, the validity of the remainder of this compact and the applicability thereof to any government, agency, person or circumstance shall not be affected thereby. If this compact shall be held contrary to the constitution of any state party thereto, the compact shall remain in full force and effect as to the remaining states and in full force and effect as to the state affected as to all severable matters.

Acts 1971, ch. 364, § 1; T.C.A., § 33-1501; Acts 2000, ch. 947, § 1.

Compiler's Notes. The interstate compact on mental health, created by this section, terminates June 30, 2022. See §§ 4-29-112, 4-29-243.

Former chapter 9, §§ 33-9-101 — 33-9-109, 33-9-201 — 33-9-206 (Acts 1917, ch. 115, §§ 2-6; Shan., §§ 5499a2-5499a12; Code 1932, §§ 9660-9670; T.C.A. (orig. ed.), §§ 33-1001 — 33-1011; Acts 1971, ch. 364, §§ 1-6; T.C.A., §§ 33-1501 — 33-1506), is deleted and replaced in the revision of title 33 by Acts 2000, ch. 947, § 1, effective March 1, 2001.

Cross-References. Definitions applicable throughout title, § 33-1-101.

33-9-202. Administrator — Designation — Powers.

The commissioner or the commissioner's designee shall be the compact administrator and, acting jointly with like officers of other party states, has the power to adopt rules to carry out more effectively the terms of the compact. The compact administrator shall cooperate with all departments, agencies, and officers of this state and its subdivisions in facilitating the proper administration of the compact and any supplementary agreement entered into by this state.

Acts 1971, ch. 364, § 2; 1981, ch. 14, § 3; T.C.A., § 33-1502; Acts 2000, ch. 947, § 1.

33-9-203. Supplementary agreements.

The compact administrator may enter into supplementary agreements with appropriate officials of other states pursuant to Articles VII and XI of the compact compiled in § 33-9-201. If the supplementary agreements involve the use of a facility or facility of this state or the provision of any service by this state, the agreement shall have no force or effect until approved by the head of the department or agency under whose jurisdiction the institution or facility is operated or whose department or agency will be charged with rendering the service.

Acts 1971, ch. 364, § 3; T.C.A., § 33-1503; Acts 2000, ch. 947, § 1.

33-9-204. Financial obligations.

The compact administrator, subject to the approval of the commissioner of finance and administration, may make or arrange for any payments necessary to discharge any financial obligations imposed upon this state by the compact or by any supplementary agreement entered into thereunder.

Acts 1971, ch. 364, § 4; T.C.A, § 33-1504; Acts 2000, ch. 947, § 1.

33-9-205. Proposed transferees — Consultations — Approval of court.

The compact administrator shall consult with the immediate family of any proposed transferee and, in the case of a proposed transferee from a facility in this state to a facility in another party state, take no final action without approval of the court that committed the proposed transferee.

Acts 1971, ch. 364, § 5; T.C.A., § 33-1505; Acts 2000, ch. 947, § 1.

33-9-206. Copies.

Duly authorized copies of this part shall, upon its approval, be transmitted by the secretary of state to the governor of each state, the attorney general and the administrator of general services of the United States, and the council of state governments.

Acts 1971, ch. 364, § 6; T.C.A., § 33-1506; Acts 2000, ch. 947, § 1.

33-9-207. Inapplicability to persons not meeting the applicable standards for service under this title other than state residence.

The compact administrator shall not agree to accept any person with mental illness, serious emotional disturbance, alcohol dependence, drug dependence, or developmental disability who does not meet the applicable standards for service under this title other than any requirement of being a state resident.

Acts 2000, ch. 947, § 1.

Chapter 10
Comprehensive Alcohol and Drug Treatment Act of 1973

Part 1
Comprehensive Alcohol and Drug Treatment Act of 1973

33-10-101. Short title.

This chapter shall be known and may be cited as the “Comprehensive Alcohol and Drug Treatment Act of 1973.”

Acts 1973, ch. 295, § 1; T.C.A., § 33-801; Acts 1993, ch. 234, § 1; T.C.A., § 33-8-101; Acts 2009, ch. 186, § 15; T.C.A. § 68-24-101.

Compiler's Notes. Former title 68, ch. 24, parts 1, 2, 4 and 5 and former title 68, ch. 1, part 6 were transferred to parts 1-5 of this chapter in 2009. See the following parallel reference table for the former and new locations.

Former Sections New Sections

68-24-101 33-10-101

68-24-102 33-10-102

68-24-103 33-10-103

68-24-104 33-10-104

68-24-105 33-10-105

68-24-106 33-10-106

68-24-201 33-10-201

68-24-202 33-10-202

68-24-203 33-10-203

68-24-401 33-10-301

68-24-402 33-10-302

68-24-501 33-10-401

68-24-502 33-10-402

68-24-503 33-10-403

68-24-504 33-10-404

68-24-505 33-10-405

68-24-506 33-10-406

68-24-507 33-10-407

68-24-508 33-10-408

68-24-509 33-10-409

68-24-510 33-10-410

68-24-601 33-10-501

68-24-602 33-10-502

68-24-603 33-10-503

68-24-604 33-10-504

68-24-605 33-10-505

68-24-606 33-10-506

33-10-102. Chapter definitions.

As used in this chapter, unless the context otherwise requires:

“Alcohol abuse” means a condition characterized by the continuous or episodic use of alcohol that results in social impairment, vocational impairment, psychological dependence or pathological patterns of use;
“Alcoholism” means alcohol abuse that results in the development of tolerance or manifestation of alcohol abstinence syndrome upon cessation of use;
“Drug abuse” means a condition characterized by the continuous or episodic use of a drug or drugs that results in social impairment, vocational impairment, psychological dependence or pathological patterns of use;
“Drug dependence” means drug abuse that results in the development of tolerance or manifestations of drug abstinence syndrome upon cessation of use;
“Indigent person” means a person whose income or resources are determined to be insufficient to pay for needed alcohol and drug abuse services as determined by the department;
“Maintenance” means the cost of all institutional and professional services received by a patient or resident;
“Resident of Tennessee” means an individual who has lived continuously in Tennessee for a period of sixty (60) days and who has not acquired residence in another state by living continuously in another state for at least sixty (60) days subsequent to residing in Tennessee. Time spent in a public institution for the care of the mentally ill or for the intellectually disabled, or on leave of absence from the institution, shall not be counted in determining the question of residence in Tennessee or in another state; and
“Treatment resource” means any public or private facility, service, or program providing treatment or rehabilitation services for alcohol and drug dependence, mental illness or serious emotional disturbance, including, but not limited to, detoxification centers, licensed hospitals, community mental health centers, clinics or programs, halfway houses and rehabilitation centers. This does not include any entity otherwise licensed by the department of health.

Acts 1993, ch. 234, § 2; 2000, ch. 947, § 6; 2009, ch. 186, § 16; T.C.A. § 68-24-102; Acts 2010, ch. 734, § 1.

Compiler's Notes. For the Preamble to the act regarding changing the term “mental retardation” to “intellectual disability”, please refer to Acts 2010, ch. 734.

33-10-103. Policy.

Alcoholism and drug dependence are addictive disorders and are recognized and declared to be primary, progressive and chronic diseases and a public health problem affecting the general welfare and economy of the state. The need for proper and sufficient facilities, programs and procedures within the state for the control and treatment and rehabilitation and recovery of alcohol and drug dependent persons is recognized. It is declared that the procedures for the securing of services for such persons are not punitive but rather are for the purpose of treatment of an illness affecting not only the individual involved but also the public welfare.
The policy of the state with reference to alcoholism and drug dependence is declared to be as follows:
1. The prevention of alcoholism and drug dependence should be accomplished in a number of ways, including public education concerning the causes, symptoms and nature of alcoholism and drug dependence. In order to so educate the public, the department shall prepare and distribute suitable educational material to the schools and interested members of the public, render assistance to suitable local agencies and provide activities promoting public interest in and information about substance abuse and dependence;
2. As a component of the program described in subdivision (b)(1), the department, in coordination with the department of education, shall increase efforts to educate and raise public awareness of the dangers of methamphetamine manufacture and abuse, including, but not limited to, distribution of public information materials designed to oppose methamphetamine abuse and shall direct persons suffering from the effects of methamphetamine abuse to proper treatment resources;
3. 1. Programs for assisting the rehabilitation of alcohol and drug dependent persons are properly instituted, financed, and sponsored locally by interested citizens or agencies organized to:
    1. Meet the particular needs of each local community; and
    2. Utilize the available personnel and facilities in each local community;
  2. It is the policy of the state to render needed advice, guidance and assistance in the organization and conduct of such approved local facilities and to supplement local efforts and financing by providing personnel and matching grants or funds; and
4. Individuals who receive alcohol or drug abuse services should be required to pay the reasonable cost of counseling, assistance, treatment or rehabilitation furnished to them; however, no one should be refused assistance because of the inability to pay for such services.

Acts 1973, ch. 295, § 2; 1975, ch. 248, §§ 1, 28; 1981, ch. 224, § 18; T.C.A., § 33-802; Acts 1993, ch. 234, § 3; T.C.A., § 33-8-102; Acts 2005, ch. 18, § 3; 2009, ch. 186, § 17; T.C.A. § 68-24-103.

33-10-104. Powers and duties of department — Abuse prevention pilot programs.

The department, through its commissioner, is vested with all necessary and incidental powers for carrying into effect the purposes and programs set forth in this chapter, including the power to promulgate rules and regulations governing the admission, care and discharge of individuals committed or admitted, or both, for alcohol and drug abuse evaluation or treatment as the commissioner deems necessary or appropriate.
1. It is the duty of the department to formulate and effect a plan for the prevention of alcohol and drug abuse and for the care, treatment and rehabilitation of alcohol and drug dependent persons.
2. In formulating and effecting the plan, the department shall:
  1. 1. Furnish such aid to alcohol and drug abusers in such manner as to afford them with the greatest benefit; and
    2. Have the power in this connection to make suitable arrangements with hospitals or clinics that afford them proper treatment, care or rehabilitation;
  2. Provide services through existing mental health centers, clinics and other appropriate treatment resources, including state hospitals;
  3. Carry on educational and informational programs on alcoholism and drug dependence for the benefit of the general public, consumers, professional persons or others who care for or may be engaged in the delivery of alcohol and drug abuse services;
  4. 1. Cooperate with physicians and treatment resources in making arrangements for the treatment and care of indigents; and
    2. Have authority to arrange for payment for hospital care on a cost basis for such individuals;
  5. 1. Formulate, undertake and carry out a research and evaluation program on alcoholism and drug dependence; and
    2. Participate in, cooperate with, and assist, as in its discretion shall be deemed advisable, other properly qualified agencies, including any agency of the federal government, schools of medicine and hospitals or clinics, in planning and conducting research on the prevention, care, treatment and rehabilitation of alcohol dependence or drug dependence, or both;
  6. Serve as a clearinghouse for information relating to alcohol and drug abuse;
  7. Develop, encourage and foster statewide, regional and local plans and programs in the field of alcoholism and drug dependence;
  8. Review, comment upon and assist public agencies and local governments with applications for grants or other funds for services for alcohol and drug abusers to be submitted to the federal government;
  9. Enlist the assistance of public and voluntary health, education, welfare and rehabilitation agencies in a concerted effort to prevent and treat alcohol and drug abuse and dependence;
  10. Encourage the development of rehabilitation projects for industries in the state; and
  11. Encourage the development of new treatment facilities.
1. Through direct administration or through contracting with service providers, the department shall establish comprehensive, culturally relevant, drug and alcohol abuse prevention pilot programs. The pilot programs shall be located in those areas of the state that are especially in need of such programs and that will generate sufficient data to thoroughly measure and evaluate the overall efficiency and effectiveness of such programs. The pilot programs shall include, but not necessarily be limited to, the following:
  1. Performance of a minority community needs assessment analysis in order to document specific prevention, treatment and health care needs;
  2. Identification of high risk groups within the minority community;
  3. Arrangement for delivery of needed prevention, treatment and other health care services from among those available to the minority community;
  4. Delivery of a limited number of needed prevention, treatment and health care services not readily available to the minority community;
  5. Utilization of community volunteers and outreach workers to:
    1. Establish rapport;
    2. Provide individual support and encouragement; and
    3. Facilitate networking among social, religious, educational and community agencies and program personnel;
  6. Development and implementation of a culturally relevant public awareness campaign specifically designed to target the minority community; and
  7. Serve as models for the establishment of similar programs in other parts of the state.
2. Each year, on or before December 31, the department shall report to the governor and to each member of the general assembly concerning implementation of the pilot programs and shall include within the report the findings and recommendations of the department regarding the effectiveness and efficiency of the pilot programs.
3. Implementation of this subsection (c) shall be limited to the level of funding provided for that purpose within the general appropriations act.
In formulating a plan for the prevention of alcohol and drug abuse and for the care, treatment and rehabilitation of alcohol and drug dependent persons, the department shall make appropriate provision for ensuring that all state and local programs coordinated by the department pursuant to this section and that are targeted at children and youth shall address, through culturally relevant education activities, the hazards of nicotine abuse.
1. Through grants contracted with community based agencies, the commissioner is authorized to plan, establish and administer pilot projects to develop effective and efficient prevention and treatment services for low-income, pregnant substance abusers. Each of the pilot projects should, to the extent possible within available funding, provide the following:
  1. Public information programs culturally appropriate to the target populations, such information programs to include brochures, public service announcements and other creative and effective means of communication;
  2. Community outreach, interagency liaison, interagency referral mechanisms and specialized training for maternal and child health providers;
  3. Residential beds dedicated exclusively for rehabilitation of low income, pregnant substance abusers;
  4. Intensive, outpatient slots dedicated exclusively for treatment of low income, pregnant substance abusers;
  5. Family intervention services throughout the term of the pregnancy and during a period of postpartum follow-up;
  6. Specialized support services needed to ensure effectiveness of rehabilitation and treatment, including, but not necessarily limited to, transportation services and day care;
  7. Enhanced physician oversight of treatment modalities, to be provided at a level prescribed by the commissioner; and
  8. Documentation and recordkeeping sufficient to enable the commissioner to objectively and systematically evaluate the effectiveness and efficiency of the various components of the pilot projects.
2. In seeking funding support for the pilot projects, the commissioner is authorized to utilize the resources of the United States alcohol, drug abuse, and mental health administration, the United States office of substance abuse prevention, as well as other public and private funding sources for substance abuse prevention and treatment programs. Implementation of the pilot projects shall be limited to the level of funding and resources obtained and provided for that purpose.
1. Notwithstanding subsection (e), a pregnant woman referred for drug abuse or drug dependence treatment at any treatment resource that receives public funding shall be a priority user of available treatment. All records and reports regarding such pregnant woman shall be kept confidential. The department of mental health and substance abuse services shall ensure that family-oriented drug abuse or drug dependence treatment is available, as appropriations allow. A treatment resource that receives public funds shall not refuse to treat a person solely because the person is pregnant as long as appropriate services are offered by the treatment resource.
2. 1. If during prenatal care, the attending obstetrical provider determines no later than the end of the twentieth week of pregnancy that the patient has used prescription drugs which may place the fetus in jeopardy, and drug abuse or drug dependence treatment is indicated, the provider shall encourage counseling, drug abuse or drug dependence treatment and other assistance to the patient.
  2. If the patient initiates drug abuse or drug dependence treatment based upon a clinical assessment prior to her next regularly scheduled prenatal visit and maintains compliance with both drug abuse or drug dependence treatment based on a clinical assessment as well as prenatal care throughout the remaining term of the pregnancy, then the department of children's services shall not file any petition to terminate the mother's parental rights or otherwise seek protection of the newborn solely because of the patient's use of prescription drugs for non-medical purposes during the term of her pregnancy.
  3. Notwithstanding subdivision (f)(2)(B), nothing shall prevent the department of children's services from filing any petition to terminate the mother's parental rights or seek protection of the newborn should the department determine that the newborn's mother, or any other adult caring for the newborn, is unfit to properly care for such child.
3. Any physician or other health care provider who does not recognize that the pregnant woman has used prescription drugs that place the fetus in jeopardy after a reasonable inquiry, or who complies with this subsection (f), or any physician or facility that initiates substance abuse treatment consistent with community standards of care pursuant to this subsection (f), shall be presumed to be acting in good faith and shall have immunity from any civil liability that might otherwise result by reason of such actions.
4. The commissioner of mental health and substance abuse services is authorized to promulgate emergency rules and regulations to effectuate the purposes of this act. All such rules and regulations shall be promulgated in accordance with the Uniform Administrative Procedures Act, compiled in title 4, chapter 5.

Acts 1973, ch. 295, § 4; 1975, ch. 248, § 1; 1981, ch. 224, § 19; T.C.A., § 33-804; Acts 1989, ch. 441, § 1; 1990, ch. 931, § 1; 1990, ch. 966, § 1; 1993, ch. 234, § 3; T.C.A., § 33-8-103; Acts 2009, ch. 186, § 18; T.C.A. § 68-24-104; Acts 2013, ch. 398, § 2.

Compiler's Notes. For the Preamble to the act concerning the growing misuse of prescription drugs by pregnant women, please refer to Acts 2013, ch. 398.

Acts 2013, ch. 398, § 1 provided that the act, which added subsection (f), shall be known as the “Safe Harbor Act of 2013.”

Cross-References. Confidentiality of public records, § 10-7-504.

Reporting requirement satisfied by notice to general assembly members of publication of report, § 3-1-114.

33-10-105. Admission to inpatient programs.

Admission to inpatient programs under this chapter shall be governed by § 33-6-201, title 33, chapter 6, part 4 and title 33, chapter 6, part 5.

Acts 1973, ch. 295, § 6; 1975, ch. 248, §§ 1, 29; 1976, ch. 763, § 9; 1981, ch. 224, § 20; T.C.A., § 33-806; Acts 1993, ch. 234, § 3; T.C.A., § 33-8-104; Acts 2000, ch. 947, §§ 8A, 8C, 8E; 2009, ch. 186, § 19; T.C.A. § 68-24-105.

33-10-106. Contracts in furtherance of department functions — Grants and gifts of funds.

The department, through its commissioner, is empowered to:

Enter into contractual agreements with institutions and individuals in furtherance of its function of prevention, treatment, training, research or education;
Accept grants and gifts of funds, from whatever source derived, administer the grants and gifts according to the terms of the grants or gifts and enter cooperative programs with private and public instrumentalities, including the federal government, for the betterment of alcohol and drug prevention and treatment services in the state;
Enter into contractual agreements with other states, or political subdivisions of other states, or corporations chartered in those other states, for the purpose of providing alcohol and drug services for those persons in need of prevention and treatment; and
Enter into contractual agreements with counties, or agencies of counties, of the state for the inpatient treatment of alcohol and drug patients or residents.

Acts 1993, ch. 234, § 4; 2009, ch. 186, § 20; T.C.A. § 68-24-106.

Part 2
Special Provisions for Criminal Cases

33-10-201. Admission of persons charged with or convicted of a crime.

A person charged with or convicted of a crime may be admitted under § 33-6-201 to an appropriate treatment resource, in accordance with the law relating to probation, parole or other disposition of persons charged with or convicted of criminal offenses.

Acts 1973, ch. 295, § 14; 1981, ch. 224, § 21; T.C.A., § 33-814; Acts 1993, ch. 234, § 5; T.C.A., § 33-8-201; Acts 2000, ch. 947, § 8E; 2009, ch. 186, § 21; T.C.A. § 68-24-201.

33-10-202. Appearance before judicial officer of persons arrested for intoxication — Disposition.

Whenever any citizen is taken into custody solely because of a condition of intoxication or similar condition, it shall be the duty of the arresting officer to promptly present the citizen before a judicial officer.
If the judicial officer finds that the citizen is in need of and willing to accept medical treatment for the citizen's condition, then the judicial officer shall order the arresting officer to conduct the citizen to a place of treatment, if available, and the delivery of the citizen to the designated place of treatment shall effectively release and discharge the arresting officer and judicial officer from any further duties or liability in connection with the arrest.

Acts 1973, ch. 295, § 17; T.C.A., § 33-817; Acts 1993, ch. 234, § 5; T.C.A., § 33-8-202; Acts 2009, ch. 186, § 22; T.C.A., § 68-24-202.

33-10-203. Arrests for public intoxication.

All arrests and court proceedings for public intoxication or drunkenness in this state shall be under § 39-17-310, to the exclusion of any common law or statutory offense now being enforced.
No county, municipality or other political subdivision of this state shall adopt any local law, ordinance, resolution or regulation having the force of law rendering public intoxication or drunkenness in and of itself or being a common drunkard or being found in enumerated places in an intoxicated condition, an offense, a violation of the subject of criminal or civil penalties or sanctions of any kind.
Nothing contained in this section shall affect any laws, ordinances, resolutions or regulations against drunken driving, driving under the influence of alcohol or other similar offenses that involve the operation of motor vehicles, machinery or other hazardous equipment.
Any fines collected under § 39-17-310 shall be retained by the unit of local government over which the court has jurisdiction.

Acts 1973, ch. 295, § 23; T.C.A., § 33-818; Acts 1993, ch. 234, § 5; T.C.A., § 33-8-203; Acts 1996, ch. 675, § 70; 2009, ch. 186, § 23; T.C.A., § 68-24-203.

Part 3
Juvenile Alcohol Abuse

33-10-301. Legislative findings.

The general assembly finds that any proposition to increase the legal drinking age raises many issues and involves many organizations in both the public and private sector. First, a disproportionate number of fatal highway accidents involve both people under twenty-five (25) years of age and the use of alcoholic beverages. Second, the public school system is not consistently using a curriculum that emphasizes the effects of alcoholic beverages on individuals and their communities. Third, resources for early intervention programs for high-risk children who abuse alcoholic beverages are widely scattered and often unavailable to many children. Fourth, the state does not presently operate or have a contractual relationship for residential treatment facilities for the care and treatment of children who abuse alcoholic beverages and other drugs. Fifth, sanctions for present violations of the Tennessee alcoholic beverage and beer licensing statutes concerning sales to minors are often not imposed, because of varying standards, as well as a lack of knowledge on the part of licensing authorities.

Acts 1985, ch. 443, § 1; 1993, ch. 234, § 7; T.C.A., § 33-8-401; Acts 2009, ch. 186, § 24; T.C.A. § 68-24-401.

Code Commission Notes.

Acts 2009, ch. 186, § 24 purported to transfer this section from § 68-24-401 to § 33-10-401; however, § 68-24-401 was transferred to § 33-10-301 by the code commission.

33-10-302. Comprehensive treatment prevention program.

The department shall establish a comprehensive treatment program for substance abusing youth in this state. The program shall include residential care and treatment and necessary day treatment, outpatient and intervention services to support residential care.
As an alternative to building new facilities, the department may contract with hospitals or other health care institutions that provide the services required by this part.

Acts 1985, ch. 443, § 2; 1993, ch. 234, § 7; T.C.A., § 33-8-402; Acts 2009, ch. 186, § 25; T.C.A. § 68-24-402; Acts 2010, ch. 1100, § 24.

Code Commission Notes.

Acts 2009, ch. 186, § 25 purported to transfer this section from § 68-24-402 to § 33-10-402; however, § 68-24-402 was transferred to § 33-10-302 by the code commission.

Part 4
Alcohol Abuse Prevention

33-10-401. Short title.

This part shall be known and may be cited as the “Alcohol Abuse Prevention Act of 1990,” and shall establish programs and procedures to permit the detention and treatment of persons intoxicated or incapacitated by alcohol.

Acts 1990, ch. 639, § 2; 1993, ch. 234, § 8; T.C.A., § 33-8-501; Acts 2009, ch. 186, § 26; T.C.A. § 68-24-501.

Code Commission Notes.

Acts 2009, ch. 186, § 26 purported to transfer this section from § 68-24-501 to § 33-10-501; however, § 68-24-501 was transferred to § 33-10-401 by the code commission.

33-10-402. Application of part.

This part shall be an alternative to part 2 of this chapter. This part shall apply to a county and shall take effect only upon adoption of a resolution by the county legislative body electing to establish programs and procedures for the detention and treatment of such persons in that county pursuant to this part and to provide appropriate first year funding for those programs.

Acts 1990, ch. 639, § 2; 1993, ch. 234, § 8; T.C.A., § 33-8-502; Acts 2009, ch. 186, § 27; T.C.A. § 68-24-502.

Code Commission Notes.

Acts 2009, ch. 186, § 27 purported to transfer this section from § 68-24-502 to § 33-10-502; however, § 68-24-502 was transferred to § 33-10-402 by the code commission.

33-10-403. Legislative policy and findings.

It is the policy of this state that intoxicated persons should be afforded a continuum of treatment so they might lead normal lives as productive members of society.
The general assembly finds that alcoholism and intoxication are matters of statewide concern.
The general assembly recognizes the character and pervasiveness of alcohol abuse and alcoholism and that public intoxication and alcoholism are health problems that should be handled by public health rather than criminal procedures, when proper facilities, procedures and services as defined and set forth in this part are available.
The general assembly finds that this health problem has been seriously neglected and that the costs and the waste of human resources caused by alcohol abuse and alcoholism are massive, tragic and no longer acceptable.
The general assembly finds that the best interests of this state demand a locally-oriented attack on the massive alcohol abuse and alcoholism problem.
The general assembly finds that the handling of intoxicated persons as criminals contributes to jail overcrowding and the consumption of resources needed for the handling of more serious and violent matters.
The general assembly finds that there is a need for alternative programs in this state for the detention and treatment of persons intoxicated or incapacitated by alcohol.

Acts 1990, ch. 639, § 2; 1993, ch. 234, § 8; T.C.A., § 33-8-503; Acts 2009, ch. 186, § 28; T.C.A. § 68-24-503

Code Commission Notes.

Acts 2009, ch. 186, § 28 purported to transfer this section from § 68-24-503 to § 33-10-503; however, § 68-24-503 was transferred to § 33-10-403 by the code commission.

33-10-404. Part definitions.

As used in this part, unless the context otherwise requires:

“Approved private treatment facility” means a private agency meeting the standards prescribed by the department and licensed by the department of mental health and substance abuse services;
“Approved public social services facility” means a not-for-profit social services agency meeting the standards prescribed by the local courts acting in consultation with the county health department;
“Approved public treatment facility” means a not-for-profit treatment agency operating under the direction and control of or approved by the health department of any county to which this part applies or providing treatment under this part through a contract with the department and licensed by the department of mental health and substance abuse services;
“Custodial health officer” means an employee of the county health department trained in detecting intoxication or incapacitation, or both, of persons due to the consumption of alcohol or drugs, or both, and also trained in the proper handling and transport of those persons;
“Department” means the health department of any county to which this part applies;
“Director” means the director of the health department of any county to which this part applies;
“Health professional” means a person trained and licensed in the health sciences, including medical doctors, registered nurses and licensed practical nurses;
“Incapacitated by alcohol” means that a person, as a result of the use of alcohol, is unconscious or that the person's judgment is otherwise so impaired that the person is incapable of realizing and making a rational decision with respect to the person's need for treatment, is unable to take care of the person's basic personal needs or safety or lacks sufficient understanding or capacity to make or communicate rational decisions concerning the person's welfare;
“Intoxicated person” or “person intoxicated by alcohol” means any person who meets a condition or the conditions set forth in § 39-17-310;
“Licensed physician” means either a physician licensed by this state or a hospital-licensed physician employed by the admitting facility;
“Magistrate” or “judicial commissioner” means those officials as defined by § 40-5-101 or created by § 40-5-201; and
“Treatment” means the broad range of emergency, outpatient, intermediate and inpatient services and care, including diagnostic evaluation, medical, psychiatric, psychological care or social service care, or both, vocational rehabilitation or career counseling, or both, that may be extended to alcoholics and intoxicated persons.

Acts 1990, ch. 639, § 3; 1991, ch. 376, §§ 1, 2; 1993, ch. 234, § 8; T.C.A., § 33-8-504; Acts 2000, ch. 947, § 6; 2009, ch. 186, § 29; T.C.A. § 68-24-504; Acts 2010, ch. 1100, § 24; 2012, ch. 575, § 1.

Code Commission Notes.

Acts 2009, ch. 186, § 29 purported to transfer this section from § 68-24-504 to § 33-10-504; however, § 68-24-504 was transferred to § 33-10-404 by the code commission.

33-10-405. Counties — Powers.

To carry out the purposes of this part, counties may:

Make any contract necessary or incidental to the implementation of this part, including contracts with public and private not-for-profit agencies, organizations and individuals to provide funds for services rendered or furnished to alcoholics or intoxicated persons;
Solicit and accept any gift or grant of money, services or property from any private source or from the state or federal government or any agencies or any political subdivision of state or federal government, and cooperate in making application for such grants;
Coordinate activities, cooperate with alcoholism programs and make contracts and other joint or cooperative arrangements with state, local or private agencies in this state and other states for the treatment of alcoholics and intoxicated persons pursuant to this part;
Keep records and engage in research and the gathering of relevant statistics;
Acquire, hold or dispose of real property or any interest in real property and construct, lease or otherwise provide treatment facilities or social services facilities for alcoholics and intoxicated persons; and
Do whatever is necessary or convenient to execute the authority expressly granted in this part.

Acts 1990, ch. 639, § 4; 1991, ch. 376, § 3; 1993, ch. 234, § 8; T.C.A., § 33-8-505; Acts 2009, ch. 186, § 30; T.C.A. § 68-24-505.

Code Commission Notes.

Acts 2009, ch. 186, § 30 purported to transfer this section from § 68-24-505 to § 33-10-505; however, § 68-24-505 was transferred to § 33-10-405 by the code commission.

33-10-406. Persons charged with or convicted of a crime — Admission to treatment.

A person charged with or convicted of a crime may be admitted under § 33-6-201 to an appropriate treatment resource in accordance with the law relating to probation, parole or other disposition of persons charged with or convicted of criminal offenses.

Acts 1990, ch. 639, § 5; 1993, ch. 234, § 8; T.C.A., § 33-8-506; Acts 2000, ch. 947, § 8E; 2009, ch. 186, § 31; T.C.A. § 68-24-506.

Code Commission Notes.

Acts 2009, ch. 186, § 31 purported to transfer this section from § 68-24-506 to § 33-10-506; however, § 68-24-506 was transferred to § 33-10-406 by the code commission.

33-10-407. Persons intoxicated or incapacitated by alcohol — County provision of treatment and housing in lieu of arrest.

Any county may, pursuant to this part, provide facilities and services for the treatment or housing, or both, of a person intoxicated or incapacitated, or both, by alcohol in lieu of arrest. In such county or counties, when any person is intoxicated or incapacitated by alcohol and is clearly dangerous to the health and safety of the person or others, the person may be taken into protective custody by law enforcement authorities or custodial health officers, acting with probable cause, and taken to an approved treatment or social services facility. For purposes of determining whether a person is clearly dangerous to the person's health and safety, the degree of intoxication alone is sufficient, if the enforcement officer reasonably believes that the individual is unable to avoid severe impairment or injury from specific risks by or as a result of intoxication.
In determining whether a person should be taken to a treatment or social services facility in lieu of arrest under subsection (a), the law enforcement officer or custodial health officer shall consider all of the following:
1. Whether the person is likely to engage in a violation of the law while being transported to the treatment or social services facility or while at the facility;
2. The type of services available at the treatment or social services facility that are not readily available at the jail to which the person would be taken upon arrest;
3. Whether the treatment or social services facility has space available; and
4. The amenability of the person to the treatment or services provided by the treatment or social services facility.
A law enforcement officer or custodial health officer, in detaining the person, is taking the person into protective custody. In so doing, the detaining officer may use reasonable protective methods but shall make every reasonable effort to protect the detainee's health and safety. A taking into protective custody under this section is not an arrest and no entry or other records shall be made to indicate that the person has been arrested or charged with a crime. Any warrantless search conducted under this part is strictly limited by the circumstances justifying the search. A law enforcement officer or custodial health officer who acts in compliance with this section is acting in the course of official duties and shall not be held criminally or civilly liable for the officer's actions.
The law enforcement officer or custodial health officer shall, upon presenting the detained person to the treatment or social services facility, make written application for the detainee's evaluation and treatment at the facility. The application shall be directed to the administrator of the facility and shall state the circumstances requiring evaluation, detention and treatment, including the applicant's personal observations and the specific statements of other persons having relevant knowledge of the person's intoxication or incapacitation, or both, and the danger posed to the person or others, upon which the officer relies in initially detaining the person and in making the application. A copy of the application shall be furnished to the person to be detained. The facility may adopt policies governing the eligibility and criteria for admission.
1. If the approved treatment or social services facility administrator or the administrator's designee, after examination by a health professional for the purpose of determining whether the person is intoxicated or incapacitated, or both, by alcohol, approves the application consistent with purposes of this part and the admission policies, the person may be detained for evaluation and treatment for such period of time as the grounds for the detention as stated in the application for admission exist.
2. However, without regard to the decision of the facility administrator, all persons detained under this part shall be presented to a magistrate or judicial commissioner without unnecessary delay, for the purpose of determining whether the person can be held and treated pursuant to this part. Also, without regard to the decision of the facility administrator or magistrate or judicial commissioner, any person who refuses treatment or evaluation or requests release shall be released immediately, unless the person is detained in accordance with chapter 6, part 4 of this title.
If the approved treatment or social services facility administrator, or the administrator's designee or the magistrate or judicial commissioner determines that the application fails to sustain the grounds for detention as set forth in subsection (a), the application for detention shall be refused and the person detained shall be immediately released and the person shall be encouraged to seek voluntary treatment, if appropriate.
When the administrator, based upon the recommendation of the health professional, determines that the grounds for commitment no longer exist, the administrator shall discharge the person committed under this section, unless the person seeks and obtains voluntary treatment under § 33-6-201.
In those cases where involuntary commitment becomes necessary, such commitments shall be governed by chapter 3, part 6 of this title.

Acts 1990, ch. 639, § 6; 1991, ch. 376, § 4; 1993, ch. 234, § 8; T.C.A., § 33-8-507; Acts 2000, ch. 947, §§ 8A, 8E; 2009, ch. 186, § 32; T.C.A. § 68-24-507.

Code Commission Notes.

Acts 2009, ch. 186, § 32 purported to transfer this section from § 68-24-507 to § 33-10-507; however, § 68-24-507 was transferred to § 33-10-407 by the code commission.

33-10-408. Registration and records of treatment facilities — Confidentiality — Exception.

The registration and other records of treatment facilities shall remain confidential and are privileged.
Notwithstanding subsection (a), the director may make available information from patients' records for purposes of research into the causes and treatment of alcoholism. Information under this subsection (b) shall not be published in a way that discloses patients' names or other identifying information.

Acts 1990, ch. 639, § 7; 1993, ch. 234, § 8; T.C.A., § 33-8-508; Acts 2009, ch. 186, § 33; T.C.A. § 68-24-508.

Code Commission Notes.

Acts 2009, ch. 186, § 33 purported to transfer this section from § 68-24-508 to § 33-10-508; however, § 68-24-508 was transferred to § 33-10-408 by the code commission.

Cross-References. Confidentiality of public records, § 10-7-504.

33-10-409. Patients in treatment or social services facilities — Visitation and communication — Patients' rights — Detention.

Patients in any approved treatment or social services facility shall be granted opportunities for visitation and communication with their families and friends consistent with an effective treatment program. Patients shall be permitted to consult with counsel at any time. In determining whether to detain a person under this part, the facility administrator shall also give due consideration to the immediate effect on the individual's employment and shall detain the individual only when the individual's immediate welfare dictates.
Neither mail nor other communication to or from a patient in any approved treatment or social services facility may be intercepted, read or censored. The approved treatment or social services facility may adopt reasonable policies regarding the use of the telephone in the facility.

Acts 1990, ch. 639, § 8; 1991, ch. 376, § 5; 1993, ch. 234, § 8; T.C.A., § 33-8-509; Acts 2009, ch. 186, § 34; T.C.A. § 68-24-509.

Code Commission Notes.

Acts 2009, ch. 186, § 34 purported to transfer this section from § 68-24-509 to § 33-10-509; however, § 68-24-509 was transferred to § 33-10-409 by the code commission.

33-10-410. Public intoxication or drunkenness — Arrests and court proceedings.

All arrests and court proceedings for public intoxication or drunkenness in this state shall be pursuant to § 39-17-310, to the exclusion of any common law or statutory offense now being enforced.
No county, municipality or other political subdivision of this state shall adopt any local law, ordinance, resolution or regulation having the force of law rendering public intoxication or drunkenness, in and of itself, or being a common drunkard or being found in enumerated places in an intoxicated condition, an offense, a violation of which is the subject of criminal or civil penalties or sanctions of any kind.
Nothing contained in subsection (b) shall affect any laws, ordinances, resolutions or regulations against drunken driving, driving under the influence of alcohol or other similar offenses that involve the operation of motor vehicles, machinery or other hazardous equipment.
Any fines collected under § 39-17-310 shall be retained by the unit of local government over which the court has jurisdiction.

Acts 1990, ch. 639, § 9; 1993, ch. 234, § 8; T.C.A., § 33-8-510; Acts 2009, ch. 186, § 35; T.C.A. § 68-24-510.

Code Commission Notes.

Acts 2009, ch. 186, § 35 purported to transfer this section from § 68-24-510 to § 33-10-510; however, § 68-24-510 was transferred to § 33-10-410 by the code commission.

Part 5
Comprehensive Alcohol, Tobacco and Other Drug Prevention Program Act

33-10-501. Short title.

This part shall be known and may be cited as the “Comprehensive Alcohol, Tobacco and Other Drug Prevention Program Act.”

Acts 2005, ch. 484, § 2; 2009, ch. 186, § 40; T.C.A. § 68-1-601.

Code Commission Notes.

Acts 2009, ch. 186, § 40 purported to transfer this section from § 68-1-601 to § 33-10-601; however, § 68-1-601 was transferred to § 33-10-501 by the code commission.

33-10-502. Part definitions.

As used in this part, unless the context otherwise requires:

“Commissioner” means the commissioner of mental health and substance abuse services; and
“Department” means the department of mental health and substance abuse services.

Acts 2005, ch. 484, § 3; 2009, ch. 186, § 41; T.C.A. § 68-1-602; Acts 2010, ch. 1100, § 24; 2012, ch. 575, §§ 1, 2.

Code Commission Notes.

Acts 2009, ch. 186, § 41 purported to transfer this section from § 68-1-602 to § 33-10-602; however, § 68-1-602 was transferred to § 33-10-502 by the code commission.

33-10-503. Creation of the comprehensive alcohol, tobacco and other drug prevention program grant.

There is created, within the department, the comprehensive alcohol, tobacco and other drug prevention program grant.

Acts 2005, ch. 484, § 4; 2009, ch. 186, § 42; T.C.A. § 68-1-603; Acts 2010, ch. 1100, § 24.

Code Commission Notes.

Acts 2009, ch. 186, § 42 purported to transfer this section from § 68-1-603 to § 33-10-603; however, § 68-1-603 was transferred to § 33-10-503 by the code commission.

33-10-504. Grants for tools to aid youth in resisting pressure to use alcohol, tobacco and drugs.

Subject to the availability of funding in the general appropriations act, grants shall be provided in such amounts as determined by the commissioner to organizations that have or that develop a resistance training/social skills program to provide the necessary tools to the youth of this state, to aid them in successfully resisting peer and media pressures to use alcohol, tobacco and other drugs and to understand the physical and social changes taking place in their lives.
In order to qualify for a grant, the components of a program offered by an organization must, at a minimum, have:
1. An in-service training that provides staff and volunteers with an overview of the program and suggests ways to incorporate the prevention message into any other programs offered by the organization;
2. A skills development program for boys and girls six (6) to nine (9) years of age. The program focus on this age group shall be on self-awareness, decision-making and interpersonal skills, while communicating age-appropriate information about alcohol, tobacco and other drugs;
3. A resistance skills program for youth nine (9) to twelve (12) years of age that focuses on ways to identify and resist peer, social and media pressures to use alcohol, tobacco and other drugs;
4. A social skills program for adolescents thirteen (13) to fifteen (15) years of age, that teaches resistance skills, stresses reduction techniques, communication skills, assertiveness training and life planning and that provides accurate information about alcohol, tobacco and other drug use;
5. A program for parents that emphasizes communication skills and factual information about alcohol, tobacco and other drug use; and
6. A plan that implements community service projects in which youth and adults work as a team, the end result of which enhances the self-esteem of the participating youth and gives them a sense of accomplishment and a sense of belonging to the community.
If the program of an organization provides some, but not all, of these components, then, in the discretion of the commissioner, the organization may qualify for a percentage of the grant that equates to the percentage of the components the organization offers.

Acts 2005, ch. 484, § 5; 2009, ch. 186, § 43; T.C.A. § 68-1-604.

Code Commission Notes.

Acts 2009, ch. 186, § 43 purported to transfer this section from § 68-1-604 to § 33-10-604; however, § 68-1-604 was transferred to § 33-10-504 by the code commission.

33-10-505. Duties of commissioner.

The commissioner shall develop:

The criteria for determining how available funds for grants shall be disbursed to qualifying organizations; and
The application and appeals process for issuing the grants.

Acts 2005, ch. 484, § 6; 2009, ch. 186, § 44; T.C.A. § 68-1-605.

Code Commission Notes.

Acts 2009, ch. 186, § 44 purported to transfer this section from § 68-1-605 to § 33-10-605; however, § 68-1-605 was transferred to § 33-10-505 by the code commission.

33-10-506. Authority.

The commissioner is authorized to take any necessary action, subject to this title, in order to effectuate the purposes of this part.

Acts 2005, ch. 484, § 6; 2009, ch. 186, § 45; T.C.A. § 68-1-606.

Code Commission Notes.

Acts 2009, ch. 186, § 45 purported to transfer this section from § 68-1-606 to § 33-10-606; however, § 68-1-606 was transferred to § 33-10-506 by the code commission.

Chapter 1 General Provisions

Part 1 Definitions

33-1-101. Title definitions.

Part 2 Policies, Values, and Principles

33-1-201. Responsibilities of department — State policy toward mental health and developmental disabilities.

33-1-202. Statement of values underlying title.

33-1-203. Principles of service.

33-1-204. Unnecessary entitlements not created — Programs subject to funding by general assembly.

Part 3 General Powers and Duties of Department

33-1-301. Powers of department — Contracts — Property and monetary grants — Pilot programs.

33-1-302. Other powers of department — Power to make grants and contracts — Cooperative programs — Rulemaking — Operation of facilities.

33-1-303. Powers of commissioner.

NOTES TO DECISIONS

1. Jurisdiction.

2. Duty of Reasonable Care.

3. Judicial Notice.

33-1-304. Duties of commissioner.

33-1-305. Power of commissioner to adopt rules, prescribe forms and investigate complaints.

33-1-306. Designation of administrative law judges or hearing officers.

33-1-307. Departmental information systems.

33-1-308. Interagency agreements.

33-1-309. Adoption of rules.

33-1-310. Power to assume temporary control of facility in event of emergency.

33-1-311. Development of interagency projects and programs.

Part 4 Statewide Planning and Policy Council

33-1-401. Statewide planning and policy council created — Chair — Officers — Membership — Expenses — Meetings — Terms of service — Removal.

33-1-402. Duties of council.

Chapter 2 Services and Facilities

Part 1 Community Service System

33-2-101. Services and support to be community-based system.

33-2-102. Goals and purposes of mental health care system.

33-2-103. Requirements for community-based systems.

33-2-104. Core values of service system.

33-2-105. Geographic area for service systems — Designation of information sources.

33-2-106. Legislative intent — Alleviation of geographical disparities.

Part 2 Service System Assessment and Planning

33-2-201. Three-year plan for services and supports — Annual budget request.

33-2-202. Developmental disabilities planning and policy, mental health planning and policy, and regional planning and policy councils established.

33-2-203. Councils — Purpose — Membership.

Part 3 Setting Service Standards

33-2-301. Basic quality standards for services and supports.

33-2-302. Regulation of compliance.

33-2-303. Contracting for higher standards authorized.

Part 4 Mental Health, Alcohol and Drug Abuse Prevention and/or Treatment, Intellectual and Developmental Disabilities, and Personal Support Services Licensure Law

33-2-401. Short title.

33-2-402. Part definitions.

33-2-403. Licensure of mental health, substance abuse, and intellectual and developmental disabilities services and facilities — Exemptions — Rules.

33-2-404. Rules for licensure — Amendment of rules.

33-2-405. Operation of unlicensed facility unlawful — Penalty.

33-2-406. Application for licensure.

33-2-407. Suspension or revocation of license — Civil penalties.

33-2-408. Sanctions against licensed entities.

33-2-409. Amount of civil penalties.

33-2-410. Service recipient protection trust fund.

33-2-411. Surveyor to notify licensee of violations.

33-2-412. Suit to enjoin services rendered without license or under suspended or revoked license.

33-2-413. Inspections of facilities.

33-2-414. Departmental assistance to applicants and to service recipients affected by license denial, suspension or revocation.

33-2-415. Provisional licenses.

33-2-416. Department to investigate reports of abuse, dereliction or deficiency in operation of facility — Private cause of action — Departmental remedies.

33-2-417. Provision of services without license — Actions by commissioner — Violations.

33-2-418. Residential facilities.

33-2-419. Standardized training and continuing education required — Classifications.

33-2-420. Dual licensing not required.

33-2-421. Providers of personal support services.

33-2-422. Differentiation between licensed physicians based on maintenance of certification.

33-2-423. Prohibited marketing practices.

Part 5 Transportation

33-2-501. Transportation options.

33-2-502. Meeting on transportation services.

Part 6 Conflict Resolution

33-2-601. Rules for conflict resolution procedures.

NOTES TO DECISIONS

1. State employee — Private Healthcare Providers and Employees.

33-2-602. Licensees to adopt conflict resolution procedures and appeal processes.

33-2-603. [Repealed.]

33-2-604. [Repealed.]

33-2-605. Applicability to grievances pertaining to family support program.

Part 7 Community Mental Health Center Cooperation Act

33-2-701. Short title.

Chapter 1
General Provisions

Part 1
Definitions

Part 2
Policies, Values, and Principles

Part 3
General Powers and Duties of Department

Part 4
Statewide Planning and Policy Council

Chapter 2
Services and Facilities

Part 1
Community Service System

Part 2
Service System Assessment and Planning

Part 3
Setting Service Standards

Part 4
Mental Health, Alcohol and Drug Abuse Prevention and/or Treatment, Intellectual and Developmental Disabilities, and Personal Support Services Licensure Law

Part 5
Transportation

Part 6
Conflict Resolution

Part 7
Community Mental Health Center Cooperation Act

Part 8
State Facilities

Part 9
Boards of Trustees for State Facilities

Part 10
Costs in Private Nonprofit Facilities

Part 11
Costs in State Facilities

Part 12
Personnel and Volunteers

Part 13
Conflict of Interest

Chapter 3
General Rules Applicable to Service Recipients

Part 1
General Rights of All Service Recipients

Part 2
Special Liability Rules