801—10.43 (35D) Rule enforcement—power to suspend and discharge members. The commandant shall administer and enforce all rules adopted by the commission, including rules of discipline and, subject to these rules, may immediately suspend the membership of and discharge any member from IVH for infraction of the rules when the commandant determines that the health, safety or welfare of the members of IVH is in immediate danger and other reasonable alternatives have been exhausted. The suspension and discharge are temporary pending action by the commission. Judicial review of the action of the commission may be sought in accordance with Iowa Code chapter 17A.
	 10.43(1) The commandant shall, with the input and recommendation of the IRCC, involuntarily discharge a member for any of the following reasons:
	  a.   	 The member has been diagnosed with a substance use disorder but continues to abuse alcohol or an illegal drug in violation of the member’s conditional or provisional agreement entered into at the time of admission, and all of the following conditions are met:
	 (1) 	 The member has been provided sufficient notice of any changes in the member’s collaborative care plan.
	 (2) 	 The member has been notified of the member’s commission of three offenses and has been given the opportunity to correct the behavior through either of the following options:
	  1. 	 Being given the opportunity to receive the appropriate level of treatment in accordance with best practices for standards of care.
	  2. 	 By having been placed on probation by IVH for a second offense.
Notwithstanding the member meeting the criteria for discharge under paragraph 10.43(1)“a,” if the member has demonstrated progress toward the goals established in the member’s collaborative care plan, the IRCC and the commandant may exercise discretion regarding the discharge. Notwithstanding any provision to the contrary, the member may be immediately discharged under paragraph 10.43(1)“a” if the member’s actions or behavior jeopardizes the life or safety of other members or staff.
	  b.   	 The member refuses to utilize the resources available to address issues identified in the member’s collaborative care plan, and all of the following conditions are met:
	 (1) 	 The member has been provided sufficient notice of any changes in the member’s collaborative care plan.
	 (2) 	 The member has been notified of the member’s commission of three offenses and the member has been placed on probation by IVH for a second offense.
Notwithstanding the member meeting the criteria for discharge under paragraph 10.43(1)“b,” if the member has demonstrated progress toward the goals established in the member’s collaborative care plan, the IRCC and the commandant may exercise discretion regarding the discharge. Notwithstanding any provision to the contrary, the member may be immediately discharged if the member’s actions or behavior jeopardizes the life or safety of other members or staff.
	  c.   	 The member’s medical or life skills needs have been met to the extent possible through the services provided by IVH and the member no longer requires a residential or nursing level of care, as determined by the IRCC.
	  d.   	 The member requires a level of licensed care not provided at IVH.
	 10.43(2) Provisions for member following discharge from IVH.
	  a.   	 If a member is discharged under this rule, the discharge plan shall include placement in a suitable living situation which may include but is not limited to a transitional living program approved by the commission or a living program provided by DVA.
	  b.   	 If a member is involuntarily discharged under this rule, the commission shall, to the greatest extent possible, ensure against the member being homeless and ensure that the domicile to which the member is discharged is fit and habitable and offers a safe and clean environment which is free from health hazards and provides appropriate heating, ventilation and protection from the elements.
	 10.43(3) Discharge notice, including right to appeal. An involuntary discharge of a member under this rule shall be preceded by a written notice to the member. The notice shall state that, unless the discharge is an immediate discharge due to the member’s actions or behavior which jeopardizes the life or safety of other members or staff, the effective date of the discharge is 30 calendar days from the date of receipt of the discharge notice, and that the member has the right to appeal the discharge. In addition, the discharge notice shall contain:
	  a.   	 The stated reason for the proposed discharge or transfer.
	  b.   	 The actual effective date of the proposed discharge or transfer.
	  c.   	 A statement in not less than 12-point type which reads: “You have a right to appeal the facility’s decision to transfer or discharge you. If you think you should not have to leave this facility, you may request a hearing in writing or verbally with the Commission of Veterans Affairs (hereinafter referred to as “Commission”) within five (5) calendar days after receiving this notice. You have a right to be represented at the hearing by an attorney or any other individual of your choice. If you request a hearing, it will be held, and a decision rendered within ten (10) calendar days of the filing of the appeal. Provision may be made for extension of the ten (10) day requirement upon request to the Commission designee. If you lose the hearing, you will not be discharged or transferred before the expiration of 30 days following receipt of the original notice of the discharge or transfer, or no sooner than five (5) days following final decision of such hearing. To request a hearing or receive further information, call the Commission or write to the Commission to the attention of Chairperson, Commission of Veterans Affairs.”
	 10.43(4) Appeal by member.
	  a.   	 If a member appeals the discharge under this rule, the member shall be provided with the information relating to the appeals process as specified in rule 801—10.47(35D).
	  b.   	 If a member appeals the discharge under this rule, the involuntary discharge appeal process in rule 801—10.47(35D) shall apply.
	 10.43(5) By the fourth Monday of each session of the general assembly, the commandant shall submit a report annually to the senate veterans affairs committee and the house veterans affairs committee specifying the number, circumstances and placement of each member involuntarily discharged from IVH under this rule during the previous calendar year.
	 10.43(6) Any involuntary discharge by the commandant under this rule shall comply with the rules adopted by the commission and by the department of inspections and appeals pursuant to 2009 Iowa Acts, Senate File 407, section 2.
[ARC 8014B, IAB 7/29/09, effective 7/10/09]