(1) CRITERIA.—An inmate may be retained in a mental health treatment facility if he or she is mentally ill and continues to be in need of care and treatment, as defined in s. 945.42. (2) PROCEDURE.—
(a) The warden shall, prior to the expiration of the period during which the treatment facility is authorized to retain the inmate, file a petition with the Division of Administrative Hearings for an order authorizing continued placement. The petition must be accompanied by a statement from the inmate’s physician justifying the petition and providing a brief summary of the inmate’s treatment during the time he or she has been placed. In addition, the warden shall submit an individualized plan for the inmate for whom he or she is requesting continued placement. The inmate may remain in a mental health treatment facility pending a hearing after the timely filing of the petition.
(b) Notification of this request for retention shall be mailed to the inmate, along with a waiver-of-hearing form and the completed petition, requesting the inmate’s signature. The waiver-of-hearing form shall require express and informed consent and shall state that the inmate is entitled to an administrative hearing under the law; that the inmate is entitled to be represented by an attorney at the hearing and that, if the inmate cannot afford an attorney, one will be appointed; and that, if it is shown at the hearing that the inmate does not meet the criteria for continued placement, he or she will be transferred out of the mental health treatment facility. If the inmate does not sign the petition, or if the inmate does not sign a waiver within 15 days, the administrative law judge shall notice a hearing with regard to the inmate involved in accordance with ss. 120.569 and 120.57(1). (3) PROCEDURE FOR HEARING.— (a) The hearing on a petition for the continued placement of an inmate in a mental health treatment facility is an administrative hearing and shall be conducted in accordance with ss. 120.569 and 120.57(1), except that an order entered by the administrative law judge is final and subject to judicial review in accordance with s. 120.68. An administrative law judge shall be assigned by the Division of Administrative Hearings to conduct hearings for continued placement.
(b) The administrative law judge may appoint a private pro bono attorney in the circuit in which the treatment facility is located to represent the inmate.
(c) The administrative law judge may waive the presence of the inmate at the hearing if such waiver is consistent with the best interests of the inmate and the inmate’s counsel does not object.
(d) If, at a hearing pursuant to ss. 945.40-945.49, the administrative law judge finds that the inmate no longer meets the criteria for placement, he or she shall order that the inmate be transferred out of the mental health treatment facility.
(e) If the inmate waives the hearing or if the administrative law judge finds that the inmate is in need of continued placement, the administrative law judge shall enter an order authorizing such continued placement for a period not to exceed 1 year. The same procedure shall be repeated prior to the expiration of each additional 1-year period that the inmate is retained in the mental health treatment facility.