(1) Appeal of Denied Request. A family member or other person who has requested information and whose request has been denied because the client does not consent to the disclosure, may appeal the denial to the Commissioner of the Department of Mental Health and Mental Retardation by filing an written letter of appeal with the Commissioner.(2) Submission of Copy of Request. If the appeal does not include a copy of the original request, the Commissioner shall request that the family member or other person submit a copy. If the person requesting the appeal fails to submit a copy of the request within 30 days, the Commissioner shall dismiss the appeal and notify the individual and the client of the dismissal.(3) Commissioner's Designee. An appeal shall be heard by a designee of the Commissioner who is a licensed mental health professional, although not necessarily in the employ of an agency funded, licensed or operated by the Department of Mental Health and Mental Retardation. The designee shall have no interests in the matter or information regarding the parties that may affect his or her impartiality.(4) Commissioner's Actions Upon receipt of an appeal under these rules, the Commissioner shall take the following actions immediately: a. Assign a qualified designee to adjudicate the appeal.b. Set a date and place for hearing the appeal. The date shall be within 10 working days of receipt of the appeal, unless the person filing the appeal and the dint agree to a delay. The location for the hearing shall be at a place convenient to both the client and to the person filing the appeal. If convenience is in dispute, the hearing officer will use his or her discretion in deciding upon a place that the officer believes affords the utmost convenience to all parties to the hearing.c. Notify the client and the agency licensed mental health professional that an appeal has been filed. The notice to the client shall include a copy of the appeal, a description of the appeal process, notice of the right to be represented in the proceedings and to appear at a hearing and/or to have a representative appear, a listing of agencies that may be able to provide representational assistance, the date and location of the hearing and notice that they may waive formal hearing in accordance with the provisions of C.7. below.d. Notify the licensed mental health professional that an appeal has been filed and request that the professional inform the Commissioner immediately if he or she has reason to believe that disclosure would cause an imminent risk of serious physical harm to the client and, if so, the basis for the belief. The Commissioner and the Commissioner's designee shall not disclose this information to the person filing the appeal.e. Notify the person filing the appeal of the date and location of the hearing, provide a description of the appeal process and include notice of their right to waive a formal hearing in accordance with the provisions of C.7. below.(5) Dismissal of Appeal Without Hearing. If, upon examination of the appeal and the original request, it appears on the face of the documents that the appeal is without merit, that there has been a prior appeal resulting in denial of disclosure of information, or that the licensed mental health professional has reason to believe that disclosure would cause an imminent risk of serious physical harm to the client, the Commissioner or the Commissioner's designee shall dismiss the appeal and simply note the dismissal in a notice to the client and to the person filing the appeal.(6) Hearing and Written Submissions. A hearing on the appeal shall be held unless both the client and the person filing the appeal request that the hearing requirement be waived and that the issue be decided on the basis of written submissions, including the original request, the request for appeal and any other relevant written materials the client or the person filing the appeal submit for consideration. If the appeal is to be decided in this manner, the Commissioner or the Commissioner's designee shall require that any additional written information be submitted within 10 working days. After considering the written submissions, the Commissioner's designee shall issue a decision in accordance with the provisions of C.9. through C.1.3. below.(7) Hearing Requirements. If the requirement of hearing has not been waived, the Commissioner's designee shall convene a hearing that meets the requirements below:a. The hearing shall be as informal as possible while assuring that the rights of the client and the person filing the appeal, as set out herein, are protected.b. The Commissioner or the designee shall open the hearing by exploring whether any agreement to disclosure of information may be obtained, whether to some or all of the information requested.c. The client and the person filing the appeal may be represented by an individual of his or her choice in the proceedings.d. The client and the person filing the appeal may present evidence in writing, through their own testimony or through that of witnesses.e. The client and/or the client's representative may examine all evidence presented and may pose questions of any person who offers testimony.f. The person filing the appeal and that person's representative, if any, may examine the evidence of the client, and be present during the presentation of any oral testimony presented by the client, only upon the client's consent.(8) Written Decision. Upon conclusion of the hearing, the Commissioner or designee shall issue a written decision on whether disclosure of information may be authorized. The decision shall be rendered within 3 days of the hearing, or of the date on which all written material was to be submitted. Disclosure may be allowed only upon a finding, based upon clear and convincing evidence, that the request for information meets each of the following requirements:a. The person requesting the information is a family member or other person who either "lives with" or "provides direct care" to the client as these terms are defined by these rules.b. The individual who is the subject of the request is a client as that term is defined by these rules.c. The person from whom the information was requested is a licensed mental health professional as that term is defined by these rules.d. Disclosure of the information is in the best interest of the client.e. A denial of the disclosure would result in significant deterioration of the client's daily functioning.(9) Written Findings and Conclusions. The decision shall include written findings and conclusions with respect to each of the requirements set out above at 9.a. through e. and may include a discussion of the evidence presented by the client only if the client consented to allow the person filing the appeal to hear and examine the evidence.(10) Information to be Disclosed. If the Commissioner or designee decides that information may be disclosed, he or she shall state with particularity what information shall be disclosed. The information shall be limited to that which is necessary to avoid the client's significant deterioration, was specified in the person's request and is within the limitations as set out at B.4. above. The manner of disclosure shall be stated in the decision. It may be oral disclosure of the licensed mental health professional to the person requesting the information of through a writing generated in response to the request, but the disclosure may not include documents from the client's file.(11) Authorized Disclosure. The decision shall specify that the authorization of disclosure of information, if such authorization is given, is not a continuing authorization, but shall be for the limited purpose of responding to the pending request for information.(12) Copies of Decision Provided. A copy of the decision shall be sent to the client and the person filing the appeal and their representatives, if any. A certified copy of the decision shall also be sent to the licensed mental health professional to whom the original request was made.(13) Final Agency Action. The decision of the Commissioner or designee shall constitute final agency action.14- 193 C.M.R. ch. 7, § C