CHAPTER He-M 300  RIGHTS

 

PART He-M 301  CLIENT RIGHTS IN COMMUNITY PROGRAMS AND COMMUNITY RESIDENCES - RESERVED

 

Source.  #2014, eff 5-14-82; ss by #2799, eff 8-3-84; rpld by #4410, eff 4-27-88

 

PART He-M 302  CLIENT RIGHTS PROTECTION PROCEDURES - RESERVED

 

Source.  (See Revision Note at part heading for He-M 202); rpld by #5832, eff 5-26-94

 

PART He-M 303  EMERGENCY TREATMENT - EXPIRED

 

Source.  #2420, eff 7-12-83, EXPIRED: 7-12-89

 

PART He-M 304  CLIENT RIGHTS IN STATE FACILITIES - RESERVED

 

Source.  #1504, eff 1-1-80; ss by #2785, eff 7-31-84; rpld by #4411, eff 4-27-88

 

PART He-M 305  PERSONAL SAFETY EMERGENCIES

 

Statutory Authority: RSA 135-C:57, V; RSA 135-C:61 XI, XII

 

He-M 305.01  Purpose.  The purpose of these rules is to define the circumstances in which, and mechanisms by which, involuntary emergency treatment, seclusion, or restraint can be provided in facilities serving adults and children with mental illness. These emergency interventions are designed to be effective, safe, and time-limited and utilized only after all less restrictive options have been exhausted.

 

Source.  #3095, eff 8-19-85; EXPIRED: 8-19-93

 

New.  #5204, eff 8-22-91, EXPIRED: 8-22-97

 

New.  #7183, eff 12-24-99, EXPIRED: 12-24-07

 

New.  #9120, eff 4-3-08, EXPIRED: 4-3-16

 

New.  #11102, INTERIM, eff 5-25-16, EXPIRED: 11-21-16

 

New.  #12077, eff 12-28-16

 

He-M 305.02  Definitions.

 

(a)  “Advance practice registered nurse (APRN)” means advanced practice registered nurse as defined in RSA 135-C:2, II-a, namely, “an advanced practice registered nurse licensed by the board of nursing who is certified as a psychiatric mental health nurse practitioner by a board-recognized national certifying body.”

 

(b)  “CMS regional office” means the office of the U.S. Department of Health and Human Services, Branch Chief, Survey and Enforcement Branch, Centers for Medicare & Medicaid Services, Room 2275, John F. Kennedy Federal Building, Boston, Massachusetts 02203.

 

(c)  “Child” means “child” as defined in RSA 126-U:1, I.

 

(d)  “Department” means the department of health and human services.

 

(e)  “Facility” means New Hampshire hospital, Glencliff home for the elderly, or any other treatment program designated under RSA 135-C:26

 

(f)  “Individual” means a person receiving services from a facility.

 

(g)  “Informed decision” means a choice made voluntarily by an individual or applicant for services or, where appropriate, such person's legal guardian, after all relevant information necessary to making the choice has been provided, when:

 

(1)  The person understands that he or she is free to choose or refuse any available alternative;

 

(2)  The person clearly indicates or expresses his or her choice; and

 

(3)  The choice is free from all coercion.

 

(h)  “Nursing staff” means a registered or licensed practical nurse or other care provider working under the direct supervision of a registered nurse.

 

(i)  “Personal safety emergency” means a physical status or a mental status and an act or pattern of behavior of an individual which, if not treated immediately, will result in serious physical harm to the individual or others.

 

(j)  “Physician” means a medical doctor licensed in the state of New Hampshire who is employed by, consultant to, or otherwise under contract with a facility.

 

(k)  “Restraint” means:

 

(1)  Any drug or medication when it:

 

a.  Is used as a restriction to manage an individual’s behavior or restrict the individual’s freedom of movement; and

 

b.  Is not a standard treatment or dosage for the individual’s condition, in that its overall effect reduces an individual’s ability to effectively or appropriately interact; or

 

(2)  Any manual method, physical or mechanical device, material, or equipment that immobilizes an individual or reduces the ability of an individual to move his or her arms, legs, head, or other body parts freely but does not include devices, such as orthopedically prescribed devices, surgical dressings or bandages, protective helmets, or other methods that involve the physical holding of an individual, if necessary, for the purpose of:

 

a.  Conducting routine physical examinations or tests;

 

b.  Protecting the individual from falling out of bed; or

 

c.  Permitting the individual to participate in activities without the risk of physical harm; or

 

(3)  The term restraint means “restraint” as defined in RSA 126-U:1, IV as applied to a person who has not reached 18 years of age, or who is otherwise a child as defined by RSA 126-U:1, I.

 

(l)  “Seclusion” means the involuntary confinement of an individual who:

 

(1)  With regard to a person who is 18 or older:

 

a.  Is placed alone in a room or area from which the individual is physically prevented, by lock or person, from leaving; and

 

b.  Cannot or will not make an informed decision to agree to such confinement; or

 

(3)  The term “seclusion” as defined in RSA 126-U:1, V-a as applied to a person who has not reached 18 years of age, or who is otherwise a child as defined by RSA 126-U:1, I.

 

(m)  “Training” means provision of education to staff, based on the specific needs of the individual population, resulting in demonstrated knowledge and documented competency.

 

(n)  “Treatment” means medical or psychiatric care, excluding seclusion or restraint, provided by a physician, or a person acting under the direction of a physician, in accordance with generally accepted clinical and professional standards.

 

Source.  #3095, eff 8-19-85; EXPIRED: 8-19-93

 

New.  #5204, eff 8-22-91, EXPIRED: 8-22-97

 

New.  #7183, eff 12-24-99, EXPIRED: 12-24-07

 

New.  #9120, eff 4-3-08, EXPIRED: 4-3-16

 

New.  #11102, INTERIM, eff 5-25-16, EXPIRED: 11-21-16

 

New.  #12077, eff 12-28-16

 

He-M 305.03  Emergency Response.

 

(a)  As soon as possible after an admission, the treatment staff of the facility and the individual shall develop a crisis plan to:

 

(1)  Identify the individual’s preferred response to a psychiatric emergency situation in order to avoid more restrictive interventions;

 

(2)  Identify the individual’s history of physical, sexual, or emotional trauma, if any;

 

(3)  Minimize the possibility of involuntary emergency measures; and

 

(4)  If the individual is a child, the plan shall meet the requirements of RSA 126-U:3.

 

(b)  Involuntary emergency treatment, seclusion, or restraint in a facility shall not be implemented unless a physician determines that a personal safety emergency exists.

 

(c)  A physician shall authorize involuntary emergency treatment, seclusion, or restraint without consent of the individual or his or her guardian only following personal examination or observation, except as provided in He-M 305.04 or He-M 305.05 (b).

 

(d)  No involuntary emergency treatment shall be administered pursuant to He-M 305 unless it is to take effect within 24 hours and is expected to alleviate or ameliorate the status or condition which has caused the emergency.

 

(e)  The emergency response that is administered pursuant to He-M 305 shall be an intervention that:

 

(1)  Is expected to be effective;

 

(2)  Considers whether any of the following factors regarding the individual’s condition would require special accommodation to ensure necessary communication and the individual’s safety:

 

a.  Medical factors;

 

b.  Psychological factors; and

 

c.  Physical factors, including:

 

1.  Blindness or other limitations of sight;

 

2.  Deafness or other limitations of hearing; and

 

3.  Any other physical limitation that would require special accommodation;

 

(3)  Is the least restrictive of the individual’s freedom of movement; and

 

(4)  Gives consideration to the individual’s preferred response to a psychiatric emergency situation.

 

(f)  Involuntary emergency treatment, seclusion, or restraint ordered following a personal safety emergency shall be authorized for no more than is necessary, but in no case for more than 24 hours in accordance with He-M 305.04(k).

 

(g)  If the individual is a child, and the emergency response and involuntary emergency treatment set forth in (c) through (e) above includes the use of restraint or seclusion, that use shall be made in accordance with RSA 126-U:5, RSA 126 U:5-a, and RSA 126 U:5-b and shall not include techniques listed in RSA 126-U:4.

 

(h)  If the individual is a child, notification of the use of restraint or seclusion as part of an emergency response in (a)–(g) above shall be made to the child’s parent or guardian pursuant to RSA 126-U:7.

 

Source.  #3095, eff 8-19-85; EXPIRED: 8-19-93

 

New.  #5204, eff 8-22-91, EXPIRED: 8-22-97

 

New.  #7183, eff 12-24-99, EXPIRED: 12-24-07

 

New.  #9120, eff 4-3-08, EXPIRED: 4-3-16

 

New.  #11102, INTERIM, eff 5-25-16, EXPIRED: 11-21-16

 

New.  #12077, eff 12-28-16

 

He-M 305.04  Seclusion or Restraint.

 

(a)  An emergency response may include use of restraint or seclusion.

 

(b)  Restraint or seclusion shall:

 

(1)  Not be imposed longer than is necessary to resolve a personal safety emergency regardless of the length of the time identified in the order;

 

(2)  Not exceed 15 minutes unless there is documented authorization by a physician; and

 

(3)  Only be used with a child according to the requirements of RSA 126-U:5, and RSA 126-U:5-a, 5-b and shall not include techniques listed in RSA 126-U:4.

 

(c)  Before seclusion or restraint is employed, an individual who can make an informed decision to be voluntarily placed in an unlocked room shall be offered that alternative, if feasible.

 

(d)  Restraint or seclusion shall be used only as a last resort when no other intervention in an emergency situation is feasible to protect the immediate safety of the individual or others.

 

(e)  Seclusion or restraint shall never be used explicitly or implicitly as punishment for the behavior of the individual.

 

(f)  Individuals in seclusion or restraint shall be afforded privacy through practices including:

 

(1)  The use of a single room;

 

(2)  Minimizing external stimuli such as noise, nearby movement, and approaches by other individuals;

 

(3)  Continuous staff observation to assure the conditions in (2) above are met; and

 

(4)  If the individual in seclusion or restraint is a child, the conditions of seclusion shall be pursuant to RSA 126-U:5-a, RSA126-U:5-b, and RSA 126-U:11, and shall not include the techniques listed in RSA 126-U:4.

 

(g)  Authorization for the use of seclusion or restraint shall be as follows:

 

(1)  A physician may write an order for the use of seclusion or restraint; or

 

(2)  A physician may authorize the use of seclusion or restraint via telephone when the order:

 

a.  Follows deliberate and comprehensive consultation between the physician and a trained advanced practice registered nurse (APRN) or registered nurse (RN) who has personally evaluated the individual by reviewing:

 

1.  The assessments of the individual that have been performed;

 

2.  The safety issues involved; and

 

3.  The potential antecedents to the seclusion or restraint;

 

b.  Is for a period not to exceed one hour; and

 

c.  Is countersigned by the ordering physician within 24 hours of the time such treatment was ordered and;

 

(3)  If authorization is for the use of seclusion or restraint with a child, the authorization shall be given pursuant to a written policy consistent with RSA 126-U:2 and authorization and monitoring pursuant to RSA 126-U:11.

 

(h)  A physician may authorize in writing, on the physician order sheet, or verbally, by telephone, the extension of an order of seclusion or restraint if he or she, or a trained APRN or RN, has personally examined, observed, and assessed the individual for whom the seclusion or restraint is ordered.

 

(i)  Following an examination and assessment as required by (g) above, a physician may issue an order to extend seclusion or restraint if the order is for:

 

(1)  Not more than 4 hours if the individual is at least 18 years old;

 

(2)  Not more than 2 hours if the individual is at least 9 but not more than 17 years old; or

 

(3)  Not more than one hour if the individual is less than 9 years old.

 

(j)  If the individual is a child, then any order to extend seclusion or restraint in (i) above shall be subject to the limitations of RSA 126-U:11, III and IV.

 

(k)  A physician who authorizes seclusion or restraint shall, in collaboration with the attending registered nurse, establish release criteria for the termination of the seclusion or restraint.

 

(l)  If the condition of the individual does not improve to meet the criteria for termination, the physician may renew the order as specified in (h) above for up to the time limits established in (i) above, provided that no individual shall remain in seclusion or restraint for more than 24 hours from the time such procedure was initiated unless a physician personally examines, observes and assesses the individual and renews the order in writing.

 

(m)  Nursing staff trained pursuant to He-M 305.07 shall continually monitor the individual during periods of seclusion or restraint to ensure that:

 

(1)  In the judgment of the nursing staff, all reasonable measures are in place to ensure that the individual’s health and safety is protected during the period of seclusion or restraint;

 

(2)  The individual receives meals and regular opportunities to move and to utilize the bathroom;

 

(3)  All other basic physiological needs are identified and met; and

 

(4)  The seclusion or restraint is discontinued as soon as the emergency is resolved, regardless of the length of time identified in the order.

 

(n)  Individuals in seclusion or restraint shall have the right to:

 

(1)  Wear their own clothes, unless clinically contraindicated; and

 

(2)  Meet with an attorney.

 

(o)  No procedure or device for seclusion or restraint shall be utilized without the authorization of the clinical managers of the facility.

 

Source.  #3095, eff 8-19-85; EXPIRED: 8-19-93

 

New.  #5204, eff 8-22-91, EXPIRED: 8-22-97

 

New.  #7183, eff 12-24-99, EXPIRED: 12-24-07

 

New.  #9120, eff 4-3-08, EXPIRED: 4-3-16

 

New.  #11102, INTERIM, eff 5-25-16, EXPIRED: 11-21-16

 

New.  #12077, eff 12-28-16

 

He-M 305.05  Emergency Medication and Other Emergency Treatment.

 

(a)  A physician or APRN in a facility shall prescribe medication as a form of emergency treatment, to be administered without the individual’s consent, only after personally examining or observing the individual for whom the medication is ordered, except as provided in (b) below.

 

(b)  A physician or APRN may authorize involuntary administration of a previously prescribed medication by telephone order at the time a personal safety emergency is declared. Such authorization shall be countersigned by the ordering physician or APRN within 24 hours of the order for involuntary administration of the medication.

 

(c)  When emergency medication is ordered, the individual shall be offered, whenever feasible, a choice of taking the medication orally or by injection.

 

(d)  Psychosurgery, electroconvulsive therapy, sterilization, or experimental treatment of any kind shall not be used as involuntary emergency treatment.

 

(e)  If a physician or APRN prescribes medication for a child as stated in He-M 305.02(k)(1)a. and b., the administration shall be considered a “medication restraint” as defined in RSA 126-U:1, IV(a), and shall be administered pursuant to the requirements of RSA 126-U.

 

Source.  #3095, eff 8-19-85; EXPIRED: 8-19-93

 

New.  #5204, eff 8-22-91, EXPIRED: 8-22-97

 

New.  #7183, eff 12-24-99, EXPIRED: 12-24-07

 

New.  #9120, eff 4-3-08, EXPIRED: 4-3-16

 

New.  #11102, INTERIM, eff 5-25-16, EXPIRED: 11-21-16

 

New.  #12077, eff 12-28-16; ss by #12929, eff 11-26-19

 

He-M 305.06  Review and Documentation of Emergency Response.

 

(a)  At the time that any emergency treatment, seclusion, or restraint is administered in a facility pursuant to He-M 305, the physician administering or directing such treatment, or a person acting under his or her direction, shall promptly record the circumstances pertaining to the personal safety emergency.

 

(b)  The person completing a record pursuant to (a) above shall include the following:

 

(1)  The individual’s name;

 

(2)  The date and time when the report is completed;

 

(3)  The physician’s name;

 

(4)  A description of the individual’s physical or mental status and the act or pattern of behavior which constitutes the emergency;

 

(5)  The names of any witnesses other than the individual;

 

(6)  A description of any alternatives attempted or considered prior to declaring a personal safety emergency;

 

(7)  Any treatment limitations;

 

(8)  A description of the specific emergency treatment, seclusion, or restraint ordered; and

 

(9)  The physician’s signature.

 

(c)  As soon as possible following an involuntary emergency treatment, seclusion, or restraint, facility medical or nursing staff, or both shall advise the individual’s treating physician regarding the emergency intervention if such intervention was not ordered by the treating physician.

 

(d)  As soon as possible following the resolution of the emergency situation, nursing staff shall:

 

(1)  Address any physical injuries or trauma that might have occurred as a result of the episode;

 

(2)  Hold and document a discussion with the individual to:

 

a.  Review the circumstances that led up to the emergency with the individual involved;

 

b.  Ascertain the individual’s willingness or desire to involve family or other caregivers in a debriefing to discuss and clarify their perceptions about the episode and to identify additional alternatives or treatment plan modifications;

 

c.  Hear and document the individual’s perspective on the episode;

 

d.  Discuss and clarify any possible misperceptions the individual or staff might have concerning the incident;

 

e.  Identify with the individual any environmental changes or alternative interventions to reduce the potential for additional episodes; and

 

f.  Ascertain whether the individual’s rights and physical well-being were addressed during the episode and advise the individual of the process to address perceived rights grievances; and

 

(3)  Support the individual’s re-entry into the treatment setting.

 

(e)  Within one business day, nursing staff shall, after discussion with the individual, modify the treatment plan as needed through a treatment team review including areas noted in (d)(1)-(3) above and seek an informed decision on that plan by the individual.

 

(f)  An executive review of the clinical appropriateness of the use of seclusion or restraint shall be conducted:

 

(1)  As authorized by the facility’s chief executive officer;

 

(2)  On the next business day following a personal safety emergency;

 

(3)  To assess compliance with the requirements of He-M 305;

 

(4)  To consider and take any action needed to prevent the recurrence of the same or similar personal safety emergencies; and

 

(5)  To include:

 

a.  A member of the individual’s treatment team;

 

b.  A member of nursing management; and

 

c.  The medical director or designee.

 

(g)  If the individual subject to seclusion or restraint is a child, information shall be collected and notification made pursuant to RSA 126-U:7 and 126-U:10.

 

Source.  #3095, eff 8-19-85; EXPIRED: 8-19-93

 

New.  #5204, eff 8-22-91, EXPIRED: 8-22-97

 

New.  #7183, eff 12-24-99, EXPIRED: 12-24-07

 

New.  #9120, eff 4-3-08, EXPIRED: 4-3-16

 

New.  #11102, INTERIM, eff 5-25-16, EXPIRED: 11-21-16

 

New.  #12077, eff 12-28-16

 

He-M 305.07  Training.

 

(a)  Facilities shall provide training for leadership in strategies toward the elimination of seclusion and restraint.

 

(b)  At a minimum, facilities shall provide training at the following intervals to all staff who will be involved in the use of any type of restraint or seclusion:

 

(1)  During initial orientation; and

 

(2)  During annual competency evaluation.

 

(c)  Staff shall not perform any action relative to restraint or seclusion without having been trained in the use of such methods, in accordance with (d) below.

 

(d)  Training in the use of restraint or seclusion shall address at least the following:

 

(1)  Techniques to identify behaviors, events, and environmental factors regarding individuals and staff that might trigger circumstances that require restraint or seclusion;

 

(2)  Use of non-physical interventions;

 

(3)  How to identify and choose positive behavioral supports and the least restrictive intervention based on an individualized assessment of the individual’s medical or behavioral status or condition;

 

(4)  How to ensure that the individual and staff are able to communicate effectively;

 

(5)  Safe application and use of all types of restraint or seclusion, including mitigating positional risks that can result in asphyxia or airway obstruction, in accordance with individual needs;

 

(6)  How to monitor the physical and psychological well-being of the individual who is restrained or secluded;

 

(7)  How to recognize and respond to signs of physical and psychological distress;

 

(8)  How to identify clinical changes that indicate that restraint or seclusion is no longer necessary;

 

(9)  How to monitor respiratory and circulatory status, skin integrity, and vital signs during restraint; and

 

(10)  Training in first aid techniques and certification in cardiopulmonary resuscitation (CPR), including CPR recertification every two years.

 

(e)  Training shall be given by a person who:

 

(1)  As defined in writing by the facility, possesses the requisite qualifications based upon education, training, experience, and certification to teach the assessment of, and response to, an individual’s medical or behavioral status or condition;

 

(2)  Is certified by a nationally recognized program, such as the American Heart Association, as an instructor in CPR; and

 

(3)  Is trained in crisis prevention utilizing a nationally recognized program or comparable curriculum.

 

Source.  #9120, eff 4-3-08, EXPIRED: 4-3-16

 

New.  #11102, INTERIM, eff 5-25-16, EXPIRED: 11-21-16

 

New.  #12077, eff 12-28-16

 

He-M 305.08  Notice and Right of Appeal.

 

(a)  On the business day following administration of emergency treatment, seclusion, or restraint under He-M 305, the individual’s case manager or another staff member designated by the program or facility shall forward the following to the individual or his or her guardian:

 

(1)  A copy of the record completed pursuant to He-M 305.06(a);

 

(2)  The specific rules that support, or the federal or state law that requires, the action;

 

(3)  Notice of the individual’s right to complain against and appeal the administration of emergency treatment as a client rights violation in accordance with the emergency procedures contained in He-M 204 and He-C 200, rules of practice and procedure;

 

(4)  Notice of the right to have representation in an appeal by:

 

a.  Legal counsel;

 

b.  A relative;

 

c.  A friend; or

 

d.  Another spokesperson;

 

(5)  Notice that neither the facility nor the bureau is responsible for the cost of representation; and

 

(6)  Notice of organizations with their addresses and phone numbers that might be available to provide legal assistance and advocacy, including the Disabilities Rights Center and pro bono or reduced fee assistance.

 

(b)  Appeals of the final decision under He-M 204 shall be forwarded, in writing, to the director of the bureau of behavioral health in care of the department’s office of client and legal services. An exception shall be that appeals may be filed verbally if the individual is unable to convey the appeal in writing.

 

(c)  The director shall immediately forward the appeal to the department’s administrative appeals unit for action in accordance with He-C 200. The burden shall be as provided by He-C 203.14. A proposed decision shall be issued in accordance with He-M 204.

 

Source.  #9120, eff 4-3-08, EXPIRED: 4-3-16

 

New.  #11102, INTERIM, eff 5-25-16, EXPIRED: 11-21-16

 

New.  #12077, eff 12-28-16

 

He-M 305.09  Reporting of Death.

 

(a)  In accordance with Patient Rights 42 CFR 482.13(g)(1)i and the Protection and Advocacy for Mentally Ill Individuals Act (PAIMI Act), 42 U.S.C. § 10801-10851, facility staff shall make a telephone report to the CMS regional office, no later than the close of the next business day and to the state protection and advocacy agency within 7 days following knowledge of an individual’s death that:

 

(1)  Occurs while an individual is in restraint or in seclusion at the facility;

 

(2)  Occurs within 24 hours after the individual has been removed from restraint or seclusion; and

 

(3)  Occurs within one week after restraint or seclusion where it is reasonable to assume that the use of restraint or placement in seclusion contributed directly or indirectly to the individual’s death including, at a minimum:

 

a.  Death related to restrictions of movement for prolonged periods of time; and

 

b.  Death related to chest compression, restriction of breathing, or asphyxiation.

 

(b)  Staff shall document in the individual’s medical record the date and time the death was reported.

 

(c)  If the individual subject to seclusion or restraint as part of emergency treatment suffers injury or death, and the individual is a child as defined in RSA 126-U:1, I, the facility staff shall provide notification pursuant to RSA 126-U:7 and RSA 126-U:10.

 

Source.  #9120, eff 4-3-08, EXPIRED: 4-3-16

 

New.  #11102, INTERIM, eff 5-25-16, EXPIRED: 11-21-16

 

New.  #12077, eff 12-28-16

 

PART He-M 306  MEDICAL AND PSYCHIATRIC EMERGENCIES

 

Statutory Authority: RSA 135-C:57, III, V; 61, XI

 

         He-M 306.01  Purpose.  The purpose of these rules is to establish procedures by which an individual involuntarily admitted to New Hampshire hospital has emergency treatment authorized when he or she has been determined to lack the capacity to make an informed treatment decision.

 

Source.  #3096, eff 8-19-85; EXPIRED: 8-19-91

 

New.  #4708, eff 12-1-89, EXPIRED: 12-1-95

 

New.  #7133, eff 11-23-99; ss by #7559, eff 9-25-01; ss by #9520, eff 8-4-09, EXPIRED: 89-4-18

 

New.  #13035, EMERGENCY, eff 4-14-20, EXPIRES: 10-11-20; ss by #13108, eff 9-22-20

 

         He-M 306.02  Definitions.

 

         (a)  "Administrator" means the chief executive officer of New Hampshire hospital or, in the absence of the administrator, the executive person in charge of the facility.

 

          (b)  “Advance practice registered nurse (APRN)” means “advanced practice registered nurse” as defined in RSA 135-C:2, II-a, namely “an advanced practice registered nurse licensed by the board of nursing who is certified as a psychiatric mental health nurse practitioner by a board-recognized national certifying body.”

 

         (c)  "Involuntary admission" means admission to New Hampshire hospital pursuant to RSA 135-C:34-54.

 

         (d)  "Lack of capacity" means the inability of a person, after efforts have been made to explain the nature, effects, and risks of the proposed treatment and alternatives to the proposed treatment, to engage in a rational decision-making process regarding the proposed treatment as evidenced by his or her inability to weigh the nature, purpose, risks, and benefits of the proposed treatment and any available alternatives and the likely consequences of refusing treatment.

 

         (e)  "Medical emergency" means a physical condition of a patient which, if not treated, will result in an immediate, substantial, and progressive deterioration of a serious physical illness.

 

         (f)  “Patient” means a person involuntarily admitted to New Hampshire hospital by order of a probate court pursuant to RSA 135-C:34-54.

 

         (g)  “Presiding officer” means an individual who has been delegated authority by the commissioner of the department of health and human services, in accordance with RSA 126-A:5, III, to render decisions on appeals under RSA 126-A:5, VIII.

 

         (h)  "Psychiatric emergency" means a mental condition of a patient, resulting from mental illness, which, if not treated promptly, likely will result in either:

 

(1)  Imminent danger of harm to the patient or others as evidenced by:

 

a.  Symptoms that in the past have immediately preceded acts of harm to self or others; or

 

b.  A recent overt act including, but not limited to, an assault, or self-injurious behavior when the likelihood of preventing such harm would be substantially diminished if treatment is delayed;

 

(2)  Deterioration of the patient's mental status from his or her usual mental status as manifested by exacerbation of psychiatric symptoms that potentially endanger self or others, or lead to severe self-neglect, or lead to a failure to function in a less restrictive environment when the likelihood of stabilizing and reversing such deterioration would be substantially diminished if treatment is delayed; or

 

(3)  Continued decompensation of the patient’s mental status from his or her usual mental status as manifested by persistent psychiatric symptoms that potentially endanger self or others, or lead to severe self-neglect, or lead to a failure to function in a less restrictive environment when there is a reasonable likelihood that such symptoms could be alleviated if treatment could be administered to the patient.

 

         (i)  "Treatment" means a  form of medical or psychiatric care that:

 

(1)  Is provided by a physician, or a person acting under the direction of a physician;

 

(2)  Is provided in accordance with generally accepted clinical and professional standards; and

 

(3)  Does not include:

 

a.  Psychosurgery;

 

b.  Electroconvulsive therapy;

 

c.  Sterilization; or

 

d.  Experimental treatment of any kind.

 

Source.  #3096, eff 8-19-85; EXPIRED: 8-19-91

 

New.  #4708, eff 12-1-89, EXPIRED: 12-1-95

 

New.  #7133, eff 11-23-99; ss by #7559, eff 9-25-01; ss by #9520, eff 8-4-09; amd by #10641, eff 7-18-14 paras (a), and (c) – (i) EXPIRED: 8-4-18

 

New.  #13035, EMERGENCY, eff 4-14-20, EXPIRES: 10-11-20; ss by #13108, eff 9-22-20

 

         He-M 306.03  Emergency Treatment Authorized.  A physician, or a person acting under the direction of a physician, shall administer treatment to a patient, without the consent of the patient, when authorization is granted by the presiding officer pursuant to the provisions set forth below.

 

Source.  #3096, eff 8-19-85; EXPIRED: 8-19-91

 

New.  #4708, eff 12-1-89, EXPIRED: 12-1-95

 

New.  #7133, eff 11-23-99; ss by #7559, eff 9-25-01; ss by #9520, eff 8-4-09, EXPIRED: 8-4-18

 

New.  #13035, EMERGENCY, eff 4-14-20, EXPIRES: 10-11-20; ss by #13108, eff 9-22-20

 

          He-M 306.04  Criteria for Emergency Treatment.

 

          (a)  A treating physician or APRN shall submit a written request for treatment authorization to the department’s administrative appeals unit, the administrator, and the patient if he or she determines that:

 

(1)  The involuntarily admitted patient cannot make a decision regarding his or her treatment due to lack of capacity;

 

(2)  A medical or psychiatric emergency exists;

 

(3)  The patient does not have a guardian authorized to make medical decisions; and

 

(4)  A reasonable person would consent to the administration of emergency treatment.

 

          (b)  A physician’s or APRN’s request for treatment authorization submitted pursuant to (a) above shall contain the following information:

 

(1)  A description of the efforts that have been made to inform the patient of the nature, effects, and risks of the proposed treatment, and facts demonstrating that, despite this effort, the patient lacks the capacity to make an informed decision with respect to the medical or psychiatric treatment offered;

 

(2)  A statement of facts which indicate that a medical or psychiatric emergency exists;

 

(3)  A description of the proposed treatment, including:

 

a.  Its anticipated therapeutic benefit;

 

b.  Its potentially significant risks; and

 

c.  The nature and severity of possible side effects;

 

(4)  A statement indicating the supports or treatment, if any, that the patient has agreed to accept and why provision of such treatment would not ameliorate the medical or psychiatric emergency; and

 

(5)  The reasons why a delay in treatment would:

 

a.  In the case of a medical emergency, likely result in an immediate, substantial, and progressive deterioration of a serious physical illness; or

 

b.  In the case of a psychiatric emergency:

 

1.  Substantially diminish the likelihood of preventing imminent harm to the patient or others;

 

2.  Substantially diminish the likelihood of stabilizing or reversing the patient's deteriorating mental status; or

 

3.  Result in continued decompensation of the patient’s mental status from his or her usual mental status as manifested by persistent psychiatric symptoms when there is a


reasonable likelihood that such symptoms could be alleviated if treatment could be administered to the patient.

 

Source.  #3096, eff 8-19-85; EXPIRED: 8-19-91

 

New.  #4708, eff 12-1-89, EXPIRED: 12-1-95

 

New.  #7133, eff 11-23-99; ss by #7559, eff 9-25-01; ss by #9520, eff 8-4-09; ss by #10641, eff 7-18-14

 

          He-M 306.05  Hearing.  Upon receipt of the physician’s or APRN’s written request for treatment authorization, the presiding officer shall:

 

          (a)  Schedule a hearing to be held as soon as reasonably possible and, in any event, within 3 working days of the date of receipt of the written request for treatment authorization;

 

          (b)  Notify the legal staff of New Hampshire hospital of the patient’s need for legal counsel; and

 

          (c)  Conduct a hearing in accordance with He-C 203.

 

Source.  #3096, eff 8-19-85; EXPIRED: 8-19-91

 

New.  #4708, eff 12-1-89, EXPIRED: 12-1-95

 

New.  #7133, eff 11-23-99; ss by #7559, eff 9-25-01; ss by #9520, eff 8-4-09; ss by #10641, eff 7-18-14

 

         He-M 306.06  Decision.

 

         (a)  Within 2 working days of the hearing, the presiding officer shall issue a written decision.

 

         (b)  The presiding officer shall authorize the proposed treatment if the presiding officer determines that the state has demonstrated, by clear and convincing evidence, that each of the following criteria is met:

 

(l)  The patient lacks the capacity to make an informed decision with respect to the proposed treatment;

 

(2)  A medical or psychiatric emergency exists that would:

 

a.  In the case of a medical emergency, likely result in an immediate, substantial, and progressive deterioration of a serious physical illness; or

 

b.  In the case of a psychiatric emergency:

 

1.  Substantially diminish the likelihood of preventing imminent harm to the patient or others;

 

2.  Substantially diminish the likelihood of stabilizing or reversing the patient's deteriorating mental status; or

 

3.  Result in continued decompensation of the patient’s mental status from his or her usual mental status as manifested by persistent psychiatric symptoms when there is a reasonable likelihood that such symptoms could be alleviated if treatment could be administered to the patient;

 

(3)  The proposed treatment is the least restrictive appropriate alternative available;

 

(4)  The patient does not have a guardian authorized to make treatment decisions; and

 

(5)  A reasonable person would consent to the administration of emergency treatment.

 

         (c)  The presiding officer shall not authorize emergency treatment for a period of more than 45 days.

 

Source.  #3096, eff 8-19-85; EXPIRED: 8-19-91

 

New.  #4708, eff 12-1-89, EXPIRED: 12-1-95

 

New.  #7133, eff 11-23-99; ss by #7559, eff 9-25-01; ss by #9520, eff 8-4-09, EXPIRED: 8-4-18

 

New.  #13035, EMERGENCY, eff 4-14-20, EXPIRES: 10-11-20; ss by #13108, eff 9-22-20

 

         He-M 306.07  Guardianship.  During the course of the authorized treatment period, New Hampshire hospital staff shall assess the patient's need for the appointment of a guardian and take actions consistent with RSA 135-C:60.

 

Source.  #3096, eff 8-19-85; EXPIRED: 8-19-91

 

New.  #4708, eff 12-1-89, EXPIRED: 12-1-95

 

New.  #7133, eff 11-23-99; ss by #7559, eff 9-25-01; ss by #9520, eff 8-4-09, EXPIRED: 8-4-18

 

New.  #13035, EMERGENCY, eff 4-14-20, EXPIRES: 10-11-20; ss by #13108, eff 9-22-20

 

         He-M 306.08  Treatment Limitations.

 

         (a)  No involuntary treatment shall be imposed pursuant to a request for authority to administer emergency treatment prior to a decision being rendered by the presiding officer in accordance with He-M 306.06 except in accordance with He-M 305, personal safety emergencies.

 

         (b)  Treatment shall not be administered to a voluntarily admitted individual who refuses to accept it.

 

         (c)  The chief medical officer of New Hampshire hospital shall monitor treatment provided pursuant to He-M 306.03 at least every 7 days through review with the attending physician or APRN and order discontinuation of the treatment authorization upon determination that the criteria for treatment authorization no longer exist. The chief medical officer may delegate these functions to the associate medical director or to another New Hampshire hospital psychiatrist who is a board-certified physician and not the attending physician for the patient.

 

          (d)  No more than 2 authorizations for emergency treatment shall be granted during each single involuntary admission.

 

          (e)  Authorizations shall not exceed 4 during the total period of the involuntary admission order.

 

          (f)  “Single involuntary admission” means:

 

(1)  The period of initial involuntary admission following the order of the probate court pursuant to RSA 135 C-34-54; or

 

(2) Any subsequent period of involuntary admission following an absolute revocation of conditional discharge.

 

(g)  The authorization to provide emergency treatment to the patient shall immediately expire if a guardian over the person of the patient with authority to make treatment decisions is appointed during the period of emergency treatment authorized by the presiding officer.

 

Source.  #3096, eff 8-19-85; EXPIRED: 8-19-91

 

New.  #4708, eff 12-1-89, EXPIRED: 12-1-95

 

New.  #7133, eff 11-23-99; ss by #7559, eff 9-25-01; ss by #9520, eff 8-4-09; amd by #10641, eff 7-18-14; paras (a), (b), and (d)-(g) expired: 8-4-18,

 

New.  #13035, EMERGENCY, eff 4-14-20, EXPIRES: 10-11-20; ss by #13108, eff 9-22-20

 

PART He-M 307 - RESERVED

 

PART He-M 308  FAIR HEARINGS ON APPEALS RELATED TO MEDICAID-FUNDED MENTAL HEALTH/DEVELOPMENTAL DISABILITY SERVICES - RESERVED

 

Source.  #4312, eff 9-25-87, EXPIRED: 9-25-93 (See Revision Note at part heading for He-M 204)

 

PART He-M 309  RIGHTS OF PERSONS RECEIVING MENTAL HEALTH SERVICES IN THE COMMUNITY

 

Statutory Authority:  RSA 135-C:5, I, (b), C:13; C:18; C:61, VI & XI

 

He-M 309.01  Purpose.  The purpose of these rules is to define the rights of individuals applying for services or individuals who have been found eligible for services under RSA 135-C:12 and who are receiving services in the community.  Individuals might have additional rights under RSA 151:21, patients' bill of rights, for residents of health care facilities.

 

Source.  #4412, eff 4-27-88; ss by #5093, eff 3-15-91, EXPIRED: 3-15-97

 

New.  #6757, eff 5-27-98; ss by #8639, INTERIM, eff
5-27-06, EXPIRES: 11-23-06, ss by #8757, eff 11-17-06; ss by #10706, INTERIM, eff 11-15-14, EXPIRES: 5-14-15; ss by #10819, eff 4-23-15

 

He-M 309.02  Definitions.

 

(a)  "Abuse" means an act or omission by an employee, consultant or volunteer of a program which is not accidental and harms or threatens to harm an individual’s physical, mental, or emotional health, or safety and includes emotional abuse, physical abuse, and sexual abuse.

 

(b)  "Attorney" means a member of the New Hampshire Bar Association who is retained, employed, or appointed by a court to represent an individual.

 

(c)  “Bureau” means the bureau of behavioral health within the department of health and human services.

 

(d)  “Client” means “individual” as defined in (l) below.

 

(e)  "Community" means a non-facility or non-institutional service setting that is integrated as much as possible into the service network available to all citizens in the geographic area served by the program.

 

(f)  "Community residence" means a residence, exclusive of any independent living arrangement, that:

 

(1)  Provides residential services in accordance with He-M 426 for at least one individual with a mental illness;

 

(2)  Provides services based on the needs identified in a resident’s individual service plan (ISP);

 

(3)  Is operated:

 

a.  Directly by a community mental health center (CMHC);

 

b.  By contract or agreement between a CMHC and another entity, or

 

c.  Directly by an entity under contract with the department;

 

(4)  Serves individuals whose services are funded by the department; and

 

(5)  Is certified pursuant to He-M 1002.

 

(g)  “Department” means the department of health and human services.

 

(h)  “Direct care” means services provided to individuals including, but not limited to: assistance with medication, accompanying an individual to a treatment team or other clinical meeting, and providing ongoing direct and active support.

 

(i) “Emotional abuse” means the misuse of power, authority, or both, verbal harassment, or unreasonable confinement which results or could result in mental anguish or emotional distress of an individual.

 

(j)  "Exploitation" means the use of an individual’s person or property for another's profit or advantage or breach of a fiduciary relationship through improper use of an individual’s person or property including situations where a person obtains money, property, or services from an individual through undue influence, harassment, deception, or fraud.

 

(k)  "Guardian" means a person, appointed under RSA 463 or RSA 464-A, or the parent of an individual under the age of 18 whose parental rights have not been terminated or limited by law in such a way as to remove the person’s right to make health care decisions on behalf of the individual.

 

(l)  "Individual" means:  A person who is receiving or applying for a service from a program or community residence.  The term includes “client.”

 

(m)  "Informed decision" means “informed decision” as defined in RSA 135-C:2, IX, namely, “a choice made by a client or person seeking to be admitted who has the ability to make such a choice and who makes it voluntarily after all relevant information necessary to making the decision has been provided, and who understands that he or she is free to choose or refuse any available alternative, and who clearly indicates or expresses his or her choice.  The choice shall be free from all coercion.”  The term includes such decision of an individual, as defined in He-M 309.02(l) above, and the individual’s legal guardian, where appropriate, based on the same factors as an informed decision made by a client or person seeking to be admitted. 

 

(n)  “Intellectual disability” means “intellectual disability” as defined in RSA 171-A:2, XI-a, namely, “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior, and manifested during the developmental period.  A person with an intellectual disability may be considered mentally ill provided that no person with an intellectual disability shall be considered mentally ill solely by virtue of his or her intellectual disability.”

 

(o)  "Mental illness" means “mental illness” as defined in RSA 135-C:2 X, namely, "a substantial impairment of emotional processes, or of the ability to exercise conscious control of one's actions, or of the ability to perceive reality or to reason, when the impairment is manifested by instances of extremely abnormal behavior or extremely faulty perceptions.  It does not include impairment primarily caused by:  (a) epilepsy; (b) intellectual disability; (c) continuous or noncontinuous periods of intoxication caused by substances such as alcohol or drugs; or (d) dependence upon or addiction to any substance such as alcohol or drugs."

 

(p)  "Neglect" means an act or omission which results or could result in the deprivation of essential services or supports necessary to maintain the minimum mental, emotional, or physical health of an incapacitated adult.  The term includes neglect toward an individual.

 

(q)  "Program" means any public or private corporation, person or organization which provides services to individuals with a mental illness or intellectual disability when such services are funded in whole or in part or are operated, monitored or regulated by the bureau.

 

(r)  “Physical abuse” means the use of physical force which results or could result in physical injury to an individual.

 

(s)  "Service" means any evaluation, training, counseling, therapy, habilitation, case management, or other type of assistance, medical care, or treatment provided by a program.

 

(t)  "Service delivery system" means those facilities and programs funded, in whole or in part, operated, monitored, or regulated by the bureau.

 

(u)  “Sexual abuse” means contact or interaction of a sexual nature between an individual and an employee of or a consultant or volunteer for a program.

 

(v) "Treatment" means “treatment” as defined in RSA 135-C:2, XVI, namely, "examination, diagnosis, training, rehabilitation therapy, pharmaceuticals, and other services provided to clients in the mental health services system.  Treatment shall not include examination or diagnosis for the purpose of determining the need for involuntary emergency admissions pursuant to RSA 135-C:27-33 or involuntary admissions pursuant to RSA 135-C:34-54."  The term includes treatment provided to individuals in the mental health services system.

 

Source.  #4412, eff 4-27-88; ss by #5093, eff 3-15-91, EXPIRED: 3-15-97

 

New.  #6757, eff 5-27-98; ss by #8639, INTERIM, eff
5-27-06, EXPIRES: 11-23-06; ss by #8757, eff 11-17-06; ss by #10706, INTERIM, eff 11-15-14, EXPIRES: 5-14-15; ss by #10819, eff 4-23-15

 

He-M 309.03  Notice of Individual and Applicant Rights.

 

(a)  Programs shall inform individuals or their guardians of the individual’s rights under RSA 135-C and these rules in clearly understandable language and form, both verbally and in writing.

 

(b)  The notification of rights required under (a) above shall include, at a minimum, the following measures:

 

(1)  Individuals applying for services shall be informed of the rights in (a) above relating to evaluations and access to treatment;

 

(2)  Programs shall provide meaningful and understandable information about individual rights described in (a) above to individuals who are minors or who have been adjudicated incapacitated as well as to their parents, guardians, or attorneys;

 

(3)  Individuals shall be advised of their rights upon initial participation in any program, and at least once a year after initial participation;

 

(4)  Every program within the service delivery system shall post notice of the rights set forth in these rules, as follows:

 

a.  The notice shall be posted continuously and conspicuously; and

 

b.  The notice shall be presented in clearly understandable language and form; and

 

(5)  Each program and community residence shall have on the premises complete copies of He-M 309 available for individual and staff review.

 

(c)  Each program shall document notifications of the opportunity to review He-M 309 in the individual’s records.

 

(d)  Any person shall have the right to complain or bring a grievance on behalf of an individual or a group of individuals pursuant to He-M 204.

 

Source.  #4412, eff 4-27-88; ss by #5093, eff 3-15-91, EXPIRED: 3-15-97

 

New.  #6757, eff 5-27-98; ss by #8639, INTERIM, eff
5-27-06, EXPIRES: 11-23-06, ss by #8757, eff 11-17-06; ss by #10706, INTERIM, eff 11-15-14, EXPIRES: 5-14-15; ss by #10819, eff 4-23-15

 

He-M 309.04  Fundamental Rights.

 

(a)  Any individual receiving treatment for mental illness shall be entitled to any legal right to which all citizens are entitled regardless of that individual's admission to the mental health services system.

 

(b)  The legal rights protected shall include, at a minimum:

 

(1)  The right to freedom of religious preference and practice, the right to be free from engaging in any religious activity, and the right to receive reasonable assistance in attending places of worship;

 

(2)  The right to register to vote, if eligible, in public elections and to receive assistance in registering to vote and in voting;

 

(3)  The following civil rights, unless a court has determined that an individual is legally incapacitated pursuant to RSA 464-A, and a guardian has been appointed to make certain decisions, or an emergency exists under He-M 305, personal safety emergencies:

 

a.  The right to manage affairs;

 

b.  The right to contract;

 

c.  The right to hold professional, occupational, or motor vehicle driver's licenses;

 

d.  The right to marry or to obtain a divorce;

 

e.  The right to make a will; and

 

f.  The right to exercise any other civil right;

 

(4)  The right to not be discriminated against in any manner because of race, color, sex, religion, national origin, age, marital status, disability, sexual orientation, or degree of disability as provided in state and federal laws, title VII of the civil rights act of 1964, section 504 of the rehabilitation act of 1973, the age discrimination act of 1975, the Americans with Disabilities Act of 1990, and the provisions of certain block grants, including:

 

a.  Access to auxiliary aids needed by persons with disabilities;

 

b.  Services which are accessible to persons of limited English proficiency; and

 

c.  Service locations that are physically accessible; and

 

(5)  The right to legal remedies, including the right to petition for and receive the benefits of a writ of habeas corpus, and to seek any other remedy provided by law.

 

Source.  #4412, eff 4-27-88; ss by #5093, eff 3-15-91, EXPIRED: 3-15-97

 

New.  #6757, eff 5-27-98; ss by #8639, INTERIM, eff
5-27-06, EXPIRES: 11-23-06; ss by #8757, eff 11-17-06; ss by #10706, INTERIM, eff 11-15-14, EXPIRES: 5-14-15 ss by #10819, eff 4-23-15

 

He-M 309.05  Personal Rights.

 

(a)  Individuals who are applying for services or individuals in the service delivery system shall be treated with dignity and respect at all times.

 

(b)  Individuals shall be free from abuse, neglect, and exploitation including, at a minimum, the following:

 

(1)  Freedom from any emotional, physical, or sexual abuse or neglect;

 

(2)  Freedom from the intentional use of physical force, except the minimum force necessary to prevent harm to the individual or others, to prevent substantial damage to real property, or to impose emergency treatment under He-M 305, personal safety emergencies or RSA 135:21-b; and

 

(3)  Freedom from personal or financial exploitation.

 

(c)  Individuals shall have the right to privacy.

 

(d)  Individuals who are applying for services, or who are currently, or were previously in the service delivery system shall have the right to confidentiality of all information and records.

 

(e)  At a minimum, programs shall adhere to the following confidentiality requirements:

 

(1)  Material safeguarded shall include any information with respect to an individual or through which an individual can be identified such as:

 

a.  Names;

 

b.  Addresses;

 

c.  Diagnoses and evaluative data;

 

d.  Medical and clinical records;

 

e.  Individual service plans; and

 

f.  Whether an individual is using or has used a program’s services;

 

(2)  The individual or his or her guardian shall be informed that clinical information may be released to the third party payor to the extent necessary to substantiate charges for care and treatment;

 

(3)  If the individual or his or her guardian wishes to bear the cost of services privately rather than allow the release of information to third party payors, the individual or his or her guardian shall be personally responsible for the full cost of care and treatment;

 

(4)  All program staff shall be informed so as to know and understand confidentiality and comply with confidentiality statutes and rules;

 

(5)  Separate, individual records shall be maintained when group treatment methods are employed and joint records of treatment activity shall not be maintained;

 

(6)  No program shall photograph, fingerprint, or record any individual by audio or visual equipment unless the individual or his or her guardian has consented following an informed decision, nor allow any third party to photograph, fingerprint, or record any individual by audio or visual equipment unless the individual or his or her guardian has consented following an informed decision;

 

(7)  These rules shall not affect the obligation of programs to release information as required by:

 

a.  RSA 161-F:42-57, protective services to adults;

 

b.  RSA 169-C:29, report of child abuse;

 

c.  RSA 631:6, report of injury caused by criminal act; or

 

d.  Other law; and

 

(8)  In accordance with RSA 329:26, RSA 330-A:32, RSA 329-B:26 and RSA 326-B:35, statements made by individuals to physicians licensed pursuant to RSA 329, psychologists licensed pursuant to RSA 329-B, persons licensed pursuant to RSA 330-A, advanced practice registered nurses licensed pursuant to RSA 326-B, or to those who work under their supervision, may be disclosed for the purpose of commitment hearings conducted pursuant to RSA 135-C:27-54 or RSA 464-A.

 

(f)  Access to an individual’s records shall be as follows:

 

(1)  Information pertaining to an individual shall be released to the individual or his or her guardian upon request including all information provided by third parties except that information which was provided by someone other than a health care provider under an agreement that the information would not be disclosed and disclosure would be reasonably likely to reveal the source of the information.  When information is not released, the individual or his or her guardian shall be provided with a written denial stating the basis for the denial, a description of how a complaint may be filed, the name, title and address of the contact person to receive the complaint; and the process for filing a complaint pursuant to 45 C.F.R. 160.306;

 

(2)  A clinical staff member shall be present at a record review if:

 

a.  There is a reasonable concern that an individual will experience a harmful effect as a result of reviewing his or her record, or reasonable concern that the security of the record is at risk; and

 

b.  The determination that (2)a. above applies has been made on a case by case basis, and the reasons for the determination have been documented in writing;

 

(3)  Information shall be released to any person or organization that has obtained the written consent of the individual or his or her guardian;

 

(4)  Information shall be released to the department and funding, licensing, and accrediting agencies by programs within the service delivery system as necessary for:

 

a.  Determining eligibility for funding;

 

b.  Assisting in accrediting or licensing decisions;

 

c.  Monitoring and evaluating service delivery;

 

d.  Assuring the delivery of appropriate services to individuals; and

 

e.  Planning future service delivery;

 

(5)  Programs shall not include or release confidential information in an individual’s record which pertains to other individuals;

 

(6)  Programs shall include within the records of an individual any supplemental information provided by the individual or his or her guardian either clarifying or rebutting information deemed by the individual to be inaccurate;

 

(7)  An attorney appointed by a court to represent an individual shall have access to all records and information pertaining to that individual;

 

(8)  Legal counsel for the department shall have access to all relevant records and information pertaining to an individual when such records and information are necessary because the individual:

 

a.  Is the subject of an involuntary commitment hearing;

 

b.  Is the subject of a guardianship proceeding; or

 

c.  Has instituted legal action against the state in regard to care and treatment provided by the mental health service delivery system;

 

(9)  In cases where an individual, his or her guardian, an attorney or other advocate representing the individual, after review of the record, requests copies of the record, such copies in paper format, shall be made available free of charge for the first 25 pages and not more than 25 cents per page thereafter; or, if available, copies of records electronically stored and produced, shall be made available free of charge for the first 25 pages and at actual cost per page thereafter. The individual, his or her guardian, attorney or other advocate representing the individual may choose whether to receive the record in paper form, or if available in electronic form;

 

(10)  Information regarding the medical treatment of an individual shall be released to law enforcement officials or health facility personnel if necessary to address an emergency situation involving danger to the individual's health or safety, but only specific information necessary to the relief of the emergency may be released without the individual or his or her guardian’s consent;

 

(11)  In accordance with RSA 329:31, RSA 330-A:35, RSA 329-B:29, and RSA 326-B:33, any of the following persons licensed in New Hampshire shall make reasonable efforts to disclose to a third party or law enforcement when an individual has made a serious threat of physical violence against a clearly identified or reasonably identifiable victim or victims, or a serious threat of substantial damage to real property:

 

a.  A physician;

 

b.  A psychologist;

 

c.  An advance practice registered nurse;

 

d.  Any person licensed pursuant to RSA 330-A; or

 

e.  Any person who works under the supervision of any of the above;

 

(12)  In accordance with RSA 135-C:19-a, I, a community mental health center may disclose to a family member or other person, if such family member or other person lives with the individual or provides direct care to the individual information regarding:

 

a.  Diagnosis;

 

b.  Admission to or discharge from a treatment facility;

 

c.  Functional assessment;

 

d.  The name of the medicine prescribed;

 

e.  The side effects of any medication prescribed;

 

f.  Behavioral or physical manifestations which would result from failure of the individual to take such prescribed medication;

 

g.  Treatment plans and goals; and

 

h.  Behavioral management strategies;

 

(13)  Information shall not be released pursuant to (12) above unless the program first:

 

a.  Provides written notice to the individual or his or her guardian specifying the information requested, the reason for the request, and the person making the request;

 

b.  Requests the individual or his or her guardian’s consent to release the information; and

 

c.  If consent cannot be obtained, the individual shall be notified in writing prior to the disclosure of:

 

1.  The reason for the intended disclosure;

 

2.  The name of the person(s) to whom the information will be released; and

 

3.  The specific information intended to be released;

 

(14)  A community mental health center shall receive or accept communications from family members, friends, or other persons with information pertaining to the health and safety of the individual, and shall document such communications in the individual’s record;

 

(15)  In accordance with RSA 135-C:19-a, II, when the medical director or designee determines that obtaining information is essential to the care or treatment of an individual  admitted pursuant to RSA 135-C:27-54, a designated receiving facility may request, and any health care provider which previously provided services to any individual involuntarily admitted to the facility may provide, information about such individual limited to medications prescribed, known medication allergies or other information essential to the medical or psychiatric care of the individual admitted;

 

(16)  Information shall not be released pursuant to (15) above unless the program first:

 

a. Provides written notice to the individual or his or her guardian specifying the information requested, the reason for the request, and the person making the request;

 

b.  Requests, the individual or his or her guardian's consent to release the information; and

 

c.  If consent cannot be obtained, the facility shall notify the individual in writing prior to the disclosure of:

 

1.  The name of the care provider who have been asked to provide information;

 

2.  The reason for the disclosure;

 

3.  The name of the person(s) to whom the information will be released; and

 

4.  The specific information which will be released;

 

(17)  In accordance with RSA 135-C:19-a, II-a, when the medical director, or designee, determines that obtaining information is essential to the care and treatment of an  individual admitted pursuant to RSA 135-C: 27-54 and the consent of the  individual or his or her guardian admitted cannot be obtained, the designated receiving facility may request and any community mental health program which has previously provided services to such individual shall immediately provide information about the individual including medications prescribed, known medication allergies, services provided and other information essential to the medical and psychiatric care of the individual admitted.  The facility may disclose information necessary to identify the individual and the facility which is requesting the information; and

 

(18)  In accordance with RSA 135-C:19-a, III, a community mental health program or state facility may disclose to an interdisciplinary committee designated by the governor to review child fatalities, information which is relevant to a case of suicide or traumatic fatal injury under review by such committee.  Information to be disclosed to such committee shall be limited to the diagnosis and course of treatment of the child or the person who caused the fatality.  Information disclosed pursuant to this subparagraph shall remain confidential and shall not be subject to discovery, subpoena, or admission into evidence in any judicial or administrative proceeding.

 

(g)  Individuals or their guardians shall have the right to complain about any alleged violation of a right afforded by these rules or by any state or federal law or rule or any other matter.

 

Source.  #4412, eff 4-27-88; ss by #5093, eff 3-15-91, EXPIRED: 3-15-97

 

New.  #6757, eff 5-27-98; ss by #8639, INTERIM, eff
5-27-06, EXPIRES: 11-23-06, ss by #8757, eff 11-17-06; ss by #10706, INTERIM, eff 11-15-14, EXPIRES: 5-14-15; ss by #10819, eff 4-23-15

 

He-M 309.06  Treatment Rights.

 

(a)  Individuals shall have the right to adequate and humane treatment, including:

 

(1)  The right of access to treatment including:

 

a.  For those individuals applying for services the right to evaluation to determine the individual’s need for services and to determine which programs are most suited to provide the services needed;

 

b.  The right to receive necessary services when those services are available, subject to the admission and eligibility policies and standards of each program; and

 

c.  The right to receive services without regard to race, color, age, religion, sex, marital status, national origin, severity of disability, sexual orientation or inability to pay except in accordance with He-M 401.14;

 

(2)  The right to quality treatment including:

 

a. Treatment and services provided in accordance with licensing requirements and applicable rules adopted by the department in He-M 200-1300 and applicable rules of other state agencies; and

 

b. Services provided in keeping with generally accepted clinical and professional standards applicable to the persons and programs providing the treatment and to the conditions for which the individual is being treated;

 

(3)  The right to receive services in such a manner as to promote the individual's full participation in his or her community;

 

(4)  The right to receive all services or treatment in accordance with the time frame set forth in the individual service plan;

 

(5)  The right to an individual service plan developed, reviewed, and revised in accordance with He-M 401 which addresses the individual’s own goals;

 

(6)  The right to receive treatment and services contained in individual service plans designed to provide opportunities for the individual to participate in meaningful activities in the communities in which they live and work;

 

(7)  The right to service and treatment in the least restrictive alternative or environment necessary to achieve the intended purposes of treatment including programs which least restrict freedom of movement, informed decision-making, and participation in the community while providing the level of security and support needed by the individual;

 

(8)  The right to be served, whenever possible, in generic, integrated settings rather than specialized programs for persons with mental illness, except that programs may restrict access by individuals to various areas to:

 

a.  Ensure the privacy or safety of the individuals;

 

b.  Achieve other necessary objectives contained in the individual service plan; or

 

c.  Comply with provisions of law or orders of court;

 

(9)  The right for the individual or his or her guardian to be informed of all significant risks, benefits, side effects and alternative treatment and services and to give consent to any treatment, placement, or referral following an informed decision except actions taken under He-M 305 or where otherwise provided by law, such that:

 

a.  Whenever possible, the consent shall be given in writing; and

 

b.  In all other cases, evidence of consent shall be documented by the program and be witnessed by at least one person;

 

(10)  The right to refuse to participate in any form of experimental treatment or research;

 

(11)  The right to be fully informed of one's own diagnosis and prognosis;

 

(12)  The right to voluntary placement unless RSA 135-C:27-33, 135-C:34-48, or 135-C:51 apply, including the right to:

 

a.  Seek changes in placement, services, or treatment at any time; and

 

b.  Withdraw from any form of voluntary treatment or from the service delivery system;

 

(13)  The right to services which promote independence including services which shall be directed toward:

 

a.  Eliminating, or reducing as much as possible, the individual’s needs for continued services and treatment; and

 

b. Promoting the ability of the individuals to function at their highest capacity and as independently as possible;

 

(14)  The right to refuse medication and treatment except emergency treatment provided under the terms and conditions of RSA 135:21-b;

 

(15)  The right to referral for medical care and treatment including:

 

a.  Assistance in finding such care and treatment in a prompt and timely manner; and

 

b.  Access to such medical services as is required in accordance with He-M 401;

 

(16)  The right to consultation and second opinion including:

 

a.  At the individual's own expense, the consultative services of:

 

1.  Private physicians;

 

2.  Psychologists;

 

3.  Dentists; and

 

4.  Other health practitioners;

 

b.  Granting to such health practitioners reasonable access to the individual in programs; and

 

c.  Allowing such health practitioners to make recommendations to programs regarding the services and treatment provided by the programs;

 

(17)  The right, upon request, to have one or more of the following present at any treatment meeting requiring the individual’s participation and informed decision-making:

 

a.  Guardian;

 

b.  Representative;

 

c.  Attorney;

 

d.  Family member;

 

e.  Friend;

 

f.  Advocate;

 

g.  Consultant; or

 

h.  Peer;

 

(18)  The right to freedom from restraint including the right to be free from seclusion and physical, mechanical or pharmacological restraint; and

 

(19)  If the individual meets the definition of a “child” in RSA 126-U:1, the right to freedom from restraint and seclusion, as defined in RSA 126-U:1, IV and V-a, respectively, except as allowed by RSA 126-U.

 

(b)  These rules shall not require any behavioral health care professional to administer treatment contrary to such professional's clinical judgment.

 

(c)  Programs shall, whenever possible, maximize the decision-making authority of the individual.

 

(d)  For individuals who have a guardian, the following provisions shall apply:

 

(1)  The program shall ensure that, the guardian and all persons involved in the provision of service are made aware of the individual’s needs, views, preferences and aspirations;

 

(2)  The program shall comply with the decisions made by the guardian within the legitimate scope of his or her authority;

 

(3)  A guardian is only allowed to make decisions that are within the scope of his or her powers pursuant to RSA 464-A:25, RSA 463 and as modified by the court, or as otherwise allowed by law;

 

(4)  The program shall request a copy of the guardianship order from the guardian and keep the order in the individual’s record at the program;

 

(5)  If any issues arise relative to the provision of services and supports which are outside the scope of the guardian’s decision-making authority as set forth in the guardianship order, the individual’s choice and preference relative to those issues shall prevail unless the guardian’s authority is expanded by the court to include those issues;

 

(6)  A program shall take such steps as are necessary to prevent a guardian from exceeding the decision-making authority granted by the court or acting in a manner that does not further the best interests of the individual, including:

 

a.  Reviewing with the guardian the limits on his or her decision-making authority; and

 

b. If necessary, bringing the matter to the attention of the court that appointed the guardian; and

 

(7)  In the event that there is a dispute between the program and the guardian, the program shall inform the guardian of his or her right to take either or both of the following actions:

 

a.  Appeal the matter pursuant to He-M 204 and He-C 200; or

 

b.  Bring the dispute to the attention of the probate court that appointed the guardian.

 

Source.  #4412, eff 4-27-88; ss by #5093, eff 3-15-91, EXPIRED: 3-15-97

 

New.  #6757, eff 5-27-98; ss by #8639, INTERIM, eff
5-27-06, EXPIRES: 11-23-06; ss by #8757, eff 11-17-06; ss by #10706, INTERIM, eff 11-15-14, EXPIRES: 5-14-15; ss by #10819, eff 4-23-15

 

He-M 309.07  Termination of Services.  Termination of services shall be done only pursuant to He-M 401.14.

 

Source.  #4412, eff 4-27-88; ss by #5093, eff 3-15-91, EXPIRED: 3-15-97

 

New.  #6757, eff 5-27-98; ss by #8639, INTERIM, eff
5-27-06, EXPIRES: 11-23-06; ss by #8757, eff 11-17-06; ss by #10706, INTERIM, eff 11-15-14, EXPIRES: 5-14-15; ss by #10819, eff 4-23-15

 

He-M 309.08  Suspension of Services.  Suspension of services shall be done only pursuant to He-M 401.14.

 

Source.  #4412, eff 4-27-88; ss by #5093, eff 3-15-91, EXPIRED: 3-15-97

 

New.  #6757, eff 5-27-98; ss by #8639, INTERIM, eff
5-27-06, EXPIRES: 11-23-06; ss by #8757, eff 11-17-06; ss by #10706, INTERIM, eff 11-15-14, EXPIRES: 5-14-15; ss by #10819, eff 4-23-15

 

He-M 309.09  Individual Rights in Community Residences.

 

(a)  In addition to the foregoing rights, individuals in community residences shall also have the following rights:

 

(1)  The right to a safe, sanitary and humane living environment;

 

(2)  The right to freely and privately communicate with others, including:

 

a. The right to send and receive unopened and uncensored written and electronic correspondence;

 

b.  The right to have reasonable access to telephones and to be allowed to make and to receive reasonable numbers of telephone calls except that community residences may require an individual to reimburse them for the cost of any long distance calls made by the individual;

 

c.  The right to receive and to refuse to receive visitors except that community residences may impose reasonable restrictions on the number and time of visits in order to ensure effective provision of services; and

 

d. The right to engage in social, recreational, and religious activities including the provision of regular opportunities for individuals to engage in such activities;

 

(3)  The right to privacy, including the following:

 

a.  The right to courtesies such as knocking on closed doors before entering and ensuring privacy for telephone calls, electronic communications, and visits;

 

b.  The right to opportunities for personal interaction in a private setting except that any conduct or activity which is illegal shall be prohibited; and

 

c.  The right to be free from searches of their persons and possessions except in accordance with applicable constitutional and legal standards;

 

(4)  The right to personal choice, including the following:

 

a.  The right to keep and wear their own clothes;

 

b.  The right to reasonable space for personal possessions;

 

c.  The right to keep and to read materials of his or her own choosing;

 

d.  The right to keep and spend their own money; and

 

e.  The right to be compensated for any work performed and the right not to work, except that:

 

1. Individuals may be required to perform personal housekeeping tasks within the individual's own immediate living area and equitably shared housekeeping tasks within the common areas of the community residence, without compensation; and

 

2.  Individuals may perform vocational learning tasks or work required for the operation or maintenance of a community residence, if the work is consistent with their individual service plans and the individual is compensated for work performed according to laws, rules, and regulations set by the state and federal governments; and

 

(5)  The right to be reimbursed for the loss of any money held in safekeeping by the community residence.

 

(b)  Nothing in He-M 309.09 shall require a community residence to have policies governing the behavior of the residents.

 

(c)  Individuals and guardians shall have the right to be informed of any house policies prior to admission to the community residence.

 

(d)  Residents shall have the right to participate in the development and modification of any house policies.  Residents shall formally review the house policies at least annually.

 

(e)  House policies shall be posted by community residences.

 

(f)  House policies shall be in conformity with He-M 309.

 

(g)  House policies shall be periodically reviewed for compliance with He-M 309 in connection with community mental health program and department site visits.

 

Source.  #4412, eff 4-27-88; ss by #5093, eff 3-15-91, EXPIRED: 3-15-97

 

New.  #6757, eff 5-27-98; ss by #8639, INTERIM, eff
5-27-06, EXPIRES: 11-23-06; ss by #8757, eff 11-17-06; ss by #10706, INTERIM, eff 11-15-14, EXPIRES: 5-14-15; ss by #10819, eff 4-23-15

 

PART He-M 310  RIGHTS OF PERSONS RECEIVING DEVELOPMENTAL SERVICES OR ACQUIRED BRAIN DISORDER SERVICES IN THE COMMUNITY

 

Statutory Authority:  RSA 171-A:3; 171-A:14, V; 126-A:16, III; 137-K:3, IV

 

          He-M 310.01  Purpose.  The purpose of these rules is to define the rights of applicants for service or persons who have been found eligible for services under He-M 503.03 or He-M 522.03 and who are being served in the community or in a state-operated designated receiving facility.  Individuals might have additional rights under RSA 151:21, patients' bill of rights for residents of health care facilities.

 

Source.  #4413, eff 4-27-88; ss by #5094, eff 3-15-91; ss by #6212, INTERIM, eff 3-30-96, EXPIRES: 12-31-98; ss by #6758, eff 5-27-98; ss by #8640, INTERIM, eff 5-27-06, EXPIRES: 11-23-06; ss by #8701, eff 8-4-06; ss by #10821, eff 4-25-15

 

          He-M 310.02  Definitions.  The words and phrases used in this part shall have the following meanings:

 

          (a)  “Abuse” means an act or omission by an employee, consultant, or volunteer of a provider agency which is not accidental and harms or threatens to harm an individual's physical, mental or emotional health or safety and includes emotional abuse, physical abuse, and sexual abuse.

 

          (b)  “Acquired brain disorder” means a disruption in brain functioning that:

 

(1)  Is not congenital or caused by birth trauma;

 

(2)  Presents a severe and life-long disabling condition which significantly impairs a person's ability to function in society;

 

(3)  Occurs prior to age 60;

 

(4)  Is attributable to one or more of the following reasons:

 

a.  External trauma to the brain as a result of:

 

1.  A motor vehicle incident;

 

2.  A fall;

 

3.  An assault; or

 

4.  Another related traumatic incident or occurrence;

 

b.  Anoxic or hypoxic injury to the brain such as from:

 

1.  Cardiopulmonary arrest;

 

2.  Carbon monoxide poisoning;

 

3.  Airway obstruction;

 

4.  Hemorrhage; or

 

5.  Near drowning;

 

c.  Infectious diseases such as encephalitis and meningitis;

 

d.  Brain tumor;

 

e.  Intracranial surgery;

 

f.  Cerebrovascular disruption such as a stroke;

 

g.  Toxic exposure; or

 

h.  Other neurological disorders such as Huntington's disease or multiple sclerosis which predominantly affect the central nervous system; and

 

(5)  Is manifested by one or more of the following:

 

a.  Significant decline in cognitive functioning and ability; or

 

b.  Deterioration in:

 

1.  Personality;

 

2.  Impulse control;

 

3.  Judgment;

 

4.  Modulation of mood; or

 

5.  Awareness of deficits.

 

          (c)  “Applicant” means any person who requests services pursuant to He-M 503.04 or He-M 522.04.

 

          (d)  “Area agency” means “area agency” as defined in RSA 171-A:2, I-b.

 

          (e)  “Attorney” means a member of the New Hampshire Bar Association retained, employed, or appointed by a court to represent an individual.

 

          (f)  “Coercion” means an act by an employee, contractor, consultant, or volunteer of an area agency which is designed to compel an individual to act in clear opposition to the preference of the individual, excluding requirements otherwise prescribed by law or rule.

 

          (g)  “Community residence” means either an agency residence as defined in He-M 1001.02 (b) or family residence as defined in He-M 1001.02 (p) exclusive of any independent living arrangement that:

 

(1)  Provides residential services for at least one person with a developmental disability, in accordance with He-M 503, or acquired brain disorder in accordance with He-M 522;

 

(2)  Provides services and supervision for an individual on a daily and ongoing basis, both in the home and in the community, unless the individual’s service agreement states that the individual may be without supervision for specified periods of time;

 

(3)  Serves individuals whose services are funded by the department; and

 

(4)  Is certified pursuant to He-M 1001.

 

          (h)  “Designated receiving facility (DRF)” means a residential treatment program designated by the commissioner pursuant to RSA 171-A:20 and He-M 526 to provide care, custody, and treatment to persons involuntarily admitted to the state developmental services system.

 

          (i)  “Developmental disability” means “developmental disability” as defined in RSA 171-A:2, V, namely, “a disability:

 

a.  Which is attributable to an intellectual disability, cerebral palsy, epilepsy, autism, or a specific learning disability, or any other condition of an individual found to be closely related to an intellectual disability as it refers to general intellectual functioning or impairment in adaptive behavior or requires treatment similar to that required for persons with an intellectual disability; and

 

b  Which originates before such individual attains age 22, has continued or can be expected to continue indefinitely, and constitutes a severe disability to such individual's ability to function normally in society."

 

          (j)  “Emotional abuse” means:

 

(1)  The misuse of power, authority or both;

 

(2)  Verbal harassment; or

 

(3)  Unreasonable confinement which results or could result in the mental anguish or emotional distress of an individual.

 

          (k)  “Exploitation” means the use of an individual’s person or property for another’s profit or advantage or breach of a fiduciary relationship through improper use of an individual's person or property including situations where a person obtains money, property, or services from an individual through undue influence, harassment, deception, or fraud.

 

          (l)  “Guardian” means a person appointed under RSA 463 or RSA 464-A or who is a parent of an individual under the age of 18 whose parental rights have not been terminated or limited by law in such a way as to remove the person’s right to make decisions pursuant to RSA 171-A on behalf of the individual.

 

          (m)  “Habilitation” means “habilitation” as defined in RSA 171-A:2, IX, namely, “the process by which program personnel assist clients to acquire and maintain those life skills which enable them to cope more effectively with the demands of their own persons and of their environment, to be economically self-sufficient and to raise the level of their physical, mental and social efficiency.  Habilitation includes but is not limited to programs of formal, structured education and treatment.”

 

          (n)  “Individual” means a person who has a developmental disability as defined in (i) above or an acquired brain disorder as defined in (b) above and receives services from an area agency.

 

          (o)  “Individual treatment plan” means, for an individual receiving treatment pursuant to RSA 171-B:12, a plan developed by the individual's treatment team to address the individual’s clinical needs and the behavior or condition which creates a potential danger for others.

 

          (p)  “Informed decision” means a choice made voluntarily by an individual receiving services or an applicant for services or, where appropriate, such person's legal guardian or representative, after all relevant information necessary to making the choice has been provided, when:

 

(1)  The person understands that he or she is free to choose or refuse any available alternative;

 

(2)  The person clearly indicates or expresses his or her choice; and

 

(3)  The choice is free from all coercion.

 

          (q)  “Intellectual disability” means “intellectual disability” as defined in RSA 171-A:2, XI-a, namely, “significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior, and manifested during the developmental period.  A person with an intellectual disability may be considered mentally ill provided that no person with an intellectual disability shall be considered mentally ill solely by virtue of his or her intellectual disability.”

 

          (r)  “Neglect" means an act or omission which results or could result in the deprivation of essential services necessary to maintain the minimum mental, emotional, or physical health of an individual.

 

          (s)  “Parent” means the father or mother of an individual under the age of 18 whose parental rights have not been terminated or limited by law.

 

          (t)  “Physical abuse” means the use of physical force which results or could result in physical injury to an individual.

 

          (u)  “Prescribing practitioner” means a licensed professional with prescriptive authority, including the following:

 

(1)  Physician;

 

(2)  Advance practice registered nurse (APRN);

 

(3)  Dentist;

 

(4)  Physician's assistant;

 

(5)  Optometrist; and

 

(6)  Podiatrist.

 

          (v)  “Provider agency” means an area agency or an entity under contract with an area agency that is responsible for providing services to individuals.

 

          (w)  “Representative” means:

 

(1)  The parent or guardian of an individual under the age of 18;

 

(2)  The legal guardian of an individual 18 or over; or

 

(3)  A person who has power of attorney for the individual.

 

          (x)  “Service” means any evaluation, training, counseling, therapy, habilitation, service coordination, or other type of assistance provided by a provider agency.

 

          (y)  “Sexual abuse” means contact or interaction of a sexual nature between an individual and an employee of or a consultant or volunteer for a provider agency.

 

          (z)  “Service agreement” means a written agreement between the individual or his or her guardian or representative and the area agency that is prepared as a result of the person-centered planning process and describes the services that an individual will receive and constitutes an individual service agreement as defined in RSA 171-A:2, X. 

 

          (aa)  “Treatment” means medical care provided by a prescribing practitioner.

 

Source.  #4413, eff 4-27-88; ss by #5094, eff 3-15-91; ss by #6212, INTERIM, eff 3-30-96, EXPIRES: 12-31-98; ss by #6758, eff 5-27-98; ss by #8640, INTERIM, eff 5-27-06, EXPIRES: 11-23-06; ss by #8701, eff 8-4-06; ss by #10821, eff 4-25-15

 

          He-M 310.03  Notice of Rights of Individuals and Applicants.

 

          (a)  Provider agencies shall inform individuals and applicants of their rights under these rules in clearly understandable language and form, both verbally and in writing, on an annual basis.

 

          (b)  The notification of rights required pursuant to (a) above shall include, at a minimum, the following measures:

 

(1)  Provider agencies shall inform applicants for services of their rights to evaluations and access to treatment and other services;

 

(2)  Provider agencies shall provide meaningful and understandable information about rights to individuals who are minors or who have been adjudicated incapacitated as well as to their parents, guardians, representatives, or attorneys;

 

(3)  Provider agencies shall provide information outlining the process of how to file a complaint pursuant to He-M 202;

 

(4)  Provider agencies shall advise individuals or their guardians or representatives of individuals’ rights upon initial participation in any service, upon any change in provider agency or community residence, and at least once a year after initial participation;

 

(5)  Every provider agency shall post a notice of the rights set forth in these rules, as follows:

 

a.  The notice shall be posted continuously and conspicuously; and

 

b.  The notice shall be presented in clearly understandable language and form; and

 

(6)  Each provider agency and community residence shall have on the premises complete copies of rules pertaining to rights of individuals which are available for individuals, guardians, representatives, and staff to review.

 

          (c)  Each provider agency shall document, as indicated by signature of the individual or his or her parent, guardian, or representative, notifications of rights in individuals’ records.

 

Source.  #4413, eff 4-27-88; ss by #5094, eff 3-15-91; ss by #6212, INTERIM, eff 3-30-96, EXPIRES: 12-31-98; ss by #6758, eff 5-27-98; ss by #8640, INTERIM, eff 5-27-06, EXPIRES: 11-23-06; ss by #8701, eff 8-4-06; ss by #10821, eff 4-25-15

 

          He-M 310.04  Fundamental Rights.

 

          (a)  Any person receiving services for a developmental disability or acquired brain disorder shall be entitled to any legal right to which all citizens are entitled regardless of that person's admission to the developmental services system, except as provided by RSA 171-B.

 

          (b)  The legal rights protected shall include, at a minimum:

 

(1)  The right to freedom of religious preference and practice, the right to be free from engaging in any religious activity, and the right to receive reasonable assistance in attending places of worship;

 

(2)  The right to register to vote, if eligible, in public elections and, as provided in 42 U.S.C. § 1973aa-6, the right to receive assistance from the person of his or her choice in registering to vote and in voting;

 

(3)  The following civil rights, unless a court has determined that an individual is legally incapacitated pursuant to RSA 464-A and a guardian or representative has been appointed to make certain decisions or a behavior change program, as described in (c) below, exists that limits an individual’s rights and is approved by a human rights committee pursuant to RSA 171-A:17, II(c):

 

a.  The right to manage affairs;

 

b.  The right to contract;

 

c.  The right to hold professional, occupational, or motor vehicle driver’s licenses;

 

d.  The right to marry or to obtain a divorce;

 

e.  The right to make a will; and

 

f.  The right to exercise any other civil right;

 

(4)  The right to not be discriminated against in any manner because of race, color, sex, religion, national origin, age, disability, marital status, sexual orientation or degree of disability as provided in state and federal laws, title VII of the civil rights act of 1964, section 504 of the rehabilitation act of 1973, the age discrimination act of 1975, the Americans with Disabilities Act of 1990, and the provisions of certain block grants, including:

 

a.  Access to auxiliary aids needed by the individual;

 

b.  Services which are accessible to individuals of limited English proficiency; and

 

c.  Service locations that are accessible and meet the individuals physical, sensory, intellectual, or emotional needs; and

 

(5)  The right to legal remedies including the right to petition for and receive the benefits of a writ of habeas corpus and to seek any other remedy provided by law.

 

          (c)  A behavior change program shall be a written plan, protocol, or procedure that:

 

(1)  Outlines strategies including:

 

a.  Physical environment modifications;

 

b.  Restrictive strategies;

 

c.  Use of monitoring devices; or

 

d.  Other strategies for altering behavior; and

 

(2)  Is approved by an area agency human rights committee pursuant to RSA 171-A:17, II(c).

 

          (d)  The legal rights of a person involuntarily admitted in accordance with RSA 171-B may be limited to the extent necessary to prevent harm to the individual or others, unless the individual is committed to the secure psychiatric unit of the New Hampshire state prison.

 

Source.  #4413, eff 4-27-88; ss by #5094, eff 3-15-91; ss by #6212, INTERIM, eff 3-30-96, EXPIRES: 12-31-98; ss by #6758, eff 5-27-98; ss by #8640, INTERIM, eff 5-27-06, EXPIRES: 11-23-06; ss by #8701, eff 8-4-06; ss by #10821, eff 4-25-15

 

          He-M 310.05  Personal Rights.

 

          (a)  Persons who are applicants for services or individuals who are receiving services from provider agencies shall be treated with dignity and respect at all times.

 

          (b)  Individuals shall be free from abuse, neglect, and exploitation including, at a minimum, the following:

 

(1)  Freedom from any emotional, physical, or sexual abuse or neglect;

 

(2)  Freedom from the intentional use of physical force except the minimum force necessary to prevent harm to the individual or others or substantial damage to property or when a behavior change program exists that limits an individual’s rights and is approved by a human rights committee pursuant to RSA 171-A:17, II(c); and

 

(3)  Freedom from personal or financial exploitation.

 

          (c)  Individuals shall have the right to privacy.

 

          (d)  Individuals shall have the right to be free from coercion.

 

          (e)  Any individual who uses or has used provider agency services shall have the right to confidentiality of all information and records.

 

          (f)  At a minimum, provider agencies shall adhere to the following confidentiality requirements:

 

(1)  Material safeguarded shall include any information with respect to an individual or through which an individual can be identified such as:

 

a.  Names;

 

b.  Photographic and video images;

 

c.  Addresses;

 

d.  Diagnoses and evaluative data;

 

e.  Medical and clinical records;

 

f.  Service agreements; and

 

g.  Whether a person is using or has used a provider agency’s services;

 

(2)  Provider agency staff may disclose to the chief of police in the community in which the individual resides, or any law enforcement officer, as safety and security of the individual and others require, or the individual’s legal counsel that an individual is served by an area agency if that individual is a victim of a crime, has been charged with a misdemeanor or felony, or is involuntarily admitted in accordance with RSA 171-B;

 

(3)  The individual and guardian or representative shall be informed that clinical information shall be released to the third party payor to the extent necessary to substantiate charges for services;

 

(4)  If the individual, guardian, or representative wishes to bear the cost of services privately rather than allow the release of information to third party payors, the individual shall be personally responsible for the full cost of such services;

 

(5)  All employees, consultants, and volunteers of provider agencies shall be informed so as to know and understand confidentiality and comply with confidentiality statutes and rules;

 

(6)  Separate, individual records shall be maintained when group treatment methods are employed and joint records of treatment activity that identify participants shall not be maintained;

 

(7)  No provider agency shall photograph, fingerprint, or record any individual by audio or visual equipment unless the individual, guardian, or representative has consented following an informed decision, nor allow any third party to photograph, fingerprint, or record any individual by audio or visual equipment unless the individual, guardian, or representative has consented following an informed decision, except if such monitoring or recording is part of a treatment program for a person committed in accordance with RSA 171-B;

 

(8)  These rules shall not affect the obligation of provider agencies to release information as required by:

 

a.  RSA 161-F:56, protective services to adults;

 

b.  RSA 169-C:29, report of child abuse;

 

c.  RSA 631:6, report of injury caused by criminal act;

 

d.  He-M 202.07 (j); or

 

e.  Other law; and

 

(9)  Statements made by individuals to physicians licensed pursuant to RSA 329, psychologists licensed pursuant to RSA 329-B, or persons licensed pursuant to RSA 330-A or to those who work under their supervision, may be disclosed for the purpose of commitment hearings.

 

          (g)  Access to records shall be as follows:

 

(1)  Information pertaining to an individual shall be released to the individual and guardian or representative upon request including all information provided by third parties except that which was provided prior to May 1982, under an agreement that the information would not be disclosed;

 

(2)  A provider agency service coordinator or nurse shall be present at a record review if:

 

a.  There is a reasonable concern that an individual will experience a harmful effect as a result of reviewing his or her record, or reasonable concern that the security of the record is at risk; and

 

b.  The determination that a. above applies has been made on an individual, case-by-case basis and the reasons for the determination have been documented in writing;

 

(3)  Information shall be released to any person or organization that has obtained the written consent of the individual, guardian, or representative;

 

(4)  Information shall be released to the department and funding, licensing, and accrediting agencies by provider agencies under RSA 171-A as necessary for:

 

a.  Determining eligibility for funding;

 

b.  Assisting in accrediting or licensing decisions;

 

c.  Delivering appropriate services to individuals;

 

d.  Monitoring and evaluating service delivery; and

 

e.  Planning future service delivery;

 

(5)  Provider agencies shall not include or release confidential information in an individual's record which pertains to other individuals;

 

(6)  Provider agencies shall include within the records of an individual any supplemental information provided by the individual, guardian, or representative either clarifying or rebutting information deemed by the individual to be inaccurate;

 

(7)  An attorney appointed by a court to represent an individual shall have access to all records and information pertaining to that individual;

 

(8)  Legal counsel for the department shall have access to all relevant records and information pertaining to an individual when such records and information are necessary because the individual:

 

a.  Is the subject of an involuntary commitment hearing;

 

b.  Is the subject of a guardianship proceeding; or

 

c. Has instituted legal action against the state in regard to services provided by the developmental services system;

 

(9)  In cases where an individual, or an attorney or other advocate who represents the individual, after review of the record, requests copies of the record, such copies shall be made available free of charge for the first 25 pages and for not more than 25 cents per page thereafter;

 

(10)  Information regarding the medical treatment of an individual shall be released to law enforcement officials or health facility personnel if necessary to address an emergency situation involving danger to the individual's health or safety, but only specific information necessary to the relief of the emergency may be released without the individual's, guardian’s, or representative’s consent; and

 

(11)  In accordance with RSA 329:31, RSA 329-B:29, and RSA 330-A:35, when an individual has made a serious threat of physical violence against a clearly identified or reasonably identifiable victim or victims, or a serious threat of substantial damage to real property, the following shall be obligated to make reasonable efforts to disclose the threat to the third party or law enforcement officials:

 

a.  Physicians licensed pursuant to RSA 329;

 

b.  Psychologists licensed pursuant to RSA 329-B; and

 

c.  Persons licensed pursuant to RSA 330-A and those who work under their supervision.

 

          (h)  Individuals and guardians or representatives shall have the right to complain about any alleged violation of a right afforded by these rules or by any state or federal law or rule or the unreasonable restriction of a legal, personal, or treatment right of a person involuntarily admitted in accordance with RSA 171-B, or any other matter.

 

          (i)  Any person shall have the right to complain or bring a grievance on behalf of an individual or a group of individuals.  The rules governing procedures for protection of rights of individuals, He-M 202, shall apply to such complaints and grievances.

 

          (j)  An individual shall have the right to a hearing pursuant to RSA 171-A and He-C 200 when a recommendation is made to provide service for that individual in any residential setting that restricts in any way the liberty or informed decisions of the individual.  The individual shall have a right to representation by legal counsel, except that persons involuntarily admitted pursuant to RSA 171-B may only challenge that admission in accordance with procedures set forth in RSA 171-B.

 

          (k)  The personal rights of a person involuntarily admitted in accordance with RSA 171-B shall be restricted where safety or security requires such limitation.

 

Source.  #4413, eff 4-27-88; ss by #5094, eff 3-15-91; ss by 6212, INTERIM, eff 3-30-96, EXPIRES: 12-31-98; ss by #6758, eff 5-27-98; ss by #8640, INTERIM, eff 5-27-06, EXPIRES: 11-23-06; ss by #8701, eff 8-4-06; ss by #10821, eff 4-25-15

 

          He-M 310.06  Service Rights.

 

          (a)  Individuals shall have the right to adequate and humane service and treatment, including:

 

(1)  The right of access to services including:

 

a. The right to evaluation to determine the type of services needed and which provider agencies are most suited to provide those services;

 

b. The right to receive necessary services when those services are available, subject to the admission and eligibility policies and standards of each provider agency; and

 

c. The right to receive services without regard to race, color, age, religion, sex, marital status, national origin, severity of disability, sexual orientation or inability to pay;

 

(2)  The right to quality services including services provided in accordance with licensing requirements and rules adopted by the department in He-M 200-1300 and other applicable rules of state agencies and services provided in keeping with generally accepted clinical and professional standards applicable to the individuals’ disabilities and services;

 

(3)  The right to receive services in his or her community:

 

a.  To the same degree of access as persons not receiving services;

 

b.  That will promote the individual’s full community participation; and

 

c.  Except as limited by individual treatment plans for individuals involuntarily admitted in accordance with RSA 171-B;

 

(4)  The right to a person-centered planning process that:

 

a.  Is directed by the individual or representative, if applicable;

 

b. Is intended to identify the strengths, capacities, preferences, needs and desired outcomes of the individual;

 

c.  Includes participants freely chosen by the individual as important contributors;

 

d.  Provides information and support to assist the individual to direct the process and to make informed choices and decisions;

 

e.  Reflects cultural considerations of the individual and is conducted in clearly understandable language and form;

 

f.  Occurs at times and location of convenience to the individual;

 

g.  Includes strategies for solving conflict or disagreement within the process;

 

h.  Offers informed choices to the individual or representative, if applicable,  regarding services and supports;

 

i.  Involves the family or other participants in enabling and assisting the individual to identify and access a personalized mix of paid and non-paid services and supports that will assist him or her to achieve personally defined outcomes in the most integrated setting appropriate to the needs of the individual;

 

j.  Includes identification of the individual’s planning goals to achieve personal outcomes in collaboration with those whom the individual has identified;

 

k.  Results in a service agreement that identifies personally defined outcomes and training supports, therapies, treatments, and other services the individual is to receive to achieve those outcomes;

 

l.  Includes a method for the individual to request amendments to the agreement; and

 

m.  Records the alternative home and community based settings that were considered by the individual;

 

(5)  The right to a service agreement developed, reviewed, and revised in accordance with He-M 503;

 

(6)  The right to services in accordance with the time frame set in the service agreement;

 

(7)  The right to services in a setting that is:

 

a.  Based on the individual’s needs and preferences;

 

b.  Chosen by the individual or his or her representative from among options that are identified in the service agreement and include non-disability specific settings; and

 

c.  Integrated in, and supportive of full access of individuals to, the greater community, including opportunities to:

 

1.  Seek employment and work in competitive integrated settings;

 

2. Engage in community life;

 

3.  Control schedules and activities;

 

4.  Control personal resources; 

 

5.  Receive services in the community to the same degree of access as the general population; and

 

6.  Live in a private unit in a residential setting, based on the resources available for  room and board;

 

(8)  The right to be informed of all significant risks, benefits, side effects, and alternative treatment and services and to give consent to any treatment, behavior change program, service, or referral following an informed decision, except when action is necessary to prevent harm to the individual or others or prevent substantial damage to property or where otherwise provided by law, such that:

 

a.  Whenever it is possible, the consent shall be given in writing; and

 

b.  In all other cases, evidence of consent shall be documented by the provider agency and shall be witnessed by at least one person;

 

(9)  The right to refuse to participate in any form of experimental treatment or in any research or have one’s representative refuse on the individual’s behalf;

 

(10)  The right to be fully informed of one's own diagnosis and prognosis;

 

(11)  The right to voluntary participation in services, as decided by the individual or his or her representative, including the right to seek changes in services or provider agency at any time or to withdraw from any form of service or from a provider agency, unless the person is involuntarily admitted in accordance with RSA 171-B;

 

(12)  The right to services which promote independence including services which shall be directed toward:

 

a.  Eliminating or reducing the individual's need for continued services; and

 

b.  Promoting the ability of the individuals to function at their highest capacity and as independently as possible;

 

(13)  The right to receive medical care and treatment;

 

(14)  The right to refuse medications and treatment, except emergency treatment that is:

 

a.  Necessary to prevent harm to the individual or others or prevent substantial damage to property; or

 

b.  In accordance with a behavior change program that limits an individual’s rights and is approved by a human rights committee;

 

(15)  The right to consultation and second opinion, including;

 

a.  At the individual's own expense, the consultative services of:

 

1.  Private physicians;

 

2.  Psychologists;

 

3.  Dentists; and

 

4.  Other health practitioners;

 

b.  Granting such health practitioners reasonable access to the individual by provider agencies; and

 

c.  Allowing such health practitioners to make recommendations to provider agencies regarding the services and treatment provided;

 

(16)  The right to choose, or have one’s representative choose, one or more of the following persons to be present at any person-centered planning meeting or other service planning meeting requiring the individual’s participation and informed decision-making:

 

a.  Guardian;

 

b.  Representative;

 

c.  Attorney;

 

d.  Family member;

 

e.  Friend;

 

f.  Direct support staff;

 

g.  Advocate;

 

h.  Consultant; or

 

i.  Other person the individual requests; and

 

(17)  The right to freedom from restraint including:

 

a.  For individuals under the age of 18, the right to limitations on the use of restraint pursuant to RSA 126-U; and

 

b.  The right to be free from seclusion and physical, mechanical or pharmacological restraint except that in cases of emergency such as the occurrence or serious threat of extreme violence, personal injury, or attempted suicide where no less restrictive alternative would be effective:

 

1.  Such means of restraint as are authorized by a prescribing practitioner and approved by a human rights committee pursuant to RSA 171-A:17, II(c), may be used as part of a treatment plan to which the individual or individual’s guardian or representative, if any, has consented, having made an informed decision to do so; and

 

2.  The minimum necessary degree of restraint may also be used:

 

(i)  In an emergency to prevent harm to the individual or others or prevent substantial damage to property;

 

(ii)  As part of a behavior change program that limits an individual’s rights and is approved by a human rights committee pursuant to RSA 171-A:17, II, (c); or

 

(iii)  When the person is involuntarily admitted in accordance with RSA 171-B.

 

          (b)  Applicants shall have the right to evaluation to determine an applicant’s eligibility for services and the type of services needed and to determine which provider agencies are most suited to provide the services needed.

 

          (c)  Provider agencies shall, whenever possible, maximize the decision-making authority of the individual.

 

          (d)  Whenever possible, individuals shall be served in generic, integrated settings rather than specialized programs for persons with developmental disabilities or acquired brain disorders.

 

          (e)  Provider agencies may restrict access by individuals to various locations to:

 

(1)  Ensure the privacy or safety of the individuals;

 

(2)  Achieve other necessary objectives contained in the service agreement; or

 

(3)  Comply with provisions of law and orders of court.

 

          (f)  These rules shall not require any licensed professional to administer treatment contrary to such professional's clinical judgment.

 

          (g)  The service rights of a person involuntarily admitted in accordance with RSA 171-B may be restricted where safety or security requires such limitation.

 

          (h)  For individuals who have a guardian or representative, the following provisions shall apply:

 

(1)  The provider agency shall ensure that the guardian or representative and all persons involved in the provision of services are made aware of the individual’s needs, views, preferences and aspirations;

 

(2)  The provider agency shall comply with decisions made by the guardian or representative within the legitimate scope of his or her authority;

 

(3)  A guardian or representative is only allowed to make decisions that are within the scope of his or her powers pursuant to RSA 464-A:25, RSA 463:12, or RSA 137-J:5 and as modified by the court, or as otherwise allowed by law;

 

(4)  The area agency shall request a copy of the guardianship order or power of attorney from the guardian or representative and keep the order in the individual’s record;

 

(5)  Provider agencies shall obtain a copy of the guardianship order or power of attorney from the area agency and keep the order in the individual’s record at the provider agency;

 

(6)  If any issues arise relative to the provision of services and supports which are outside the scope of the guardian’s or representative’s decision-making authority as set forth in the guardianship order or power of attorney, the individual’s choice and preference relative to those issues shall prevail unless the guardian’s or representative’s authority is expanded by the court to include those issues;

 

(7)  An area agency shall take such steps as are necessary to prevent a guardian or representative from exceeding the decision-making authority granted by the court or acting in a manner that does not further the best interests of the individual, including:

 

a.  Reviewing with the guardian or representative the limits on his or her decision-making authority; and

 

b.  If necessary, bringing the matter to the attention of the court that appointed the guardian; and

 

(8)  In the event that there is a dispute between the area agency and the guardian or representative, the area agency shall inform the guardian or representative of his or her right to take either or both of the following actions:

 

a.  Appeal the matter pursuant to He-M 202 and He-C 200; or

 

b.  Bring the dispute to the attention of the probate court that appointed the guardian.

 

Source.  #4413, eff 4-27-88; ss by #5094, eff 3-15-91; ss by 6212, INTERIM, eff 3-30-96, EXPIRES: 12-31-98; ss by #6758, eff 5-27-98; ss by #8640, INTERIM, eff 5-27-06, EXPIRES: 11-23-06; ss by #8701, eff 8-4-06; ss by #10821, eff 4-25-15

 

          He-M 310.07  Termination of Services.

 

          (a)  Except as provided in (g) below, an individual’s services shall not be terminated unless:

 

(1)  Such termination is deemed in the best interest of the individual;

 

(2)  The individual can function independently without such service;

 

(3)  The individual has received optimal benefit from the service;

 

(4)  The individual or representative refuses to pay for the services that he or she is receiving despite having the financial resources to do so; or

 

(5)  The individual or representative refuses to apply for benefits that could cover the cost of the services that he or she is receiving despite the fact that the individual is or might be eligible for such benefits.

 

          (b)  Provider agencies shall only terminate services to individuals in accordance with RSA 171-A:8.

 

          (c)  Prior to any termination of service, the provider agency shall give the individual 30 days’ notice.

 

          (d)  The notice shall:

 

(1)  Be in writing;

 

(2)  Contain the reasons for the termination;

 

(3)  Contain the effective date of the termination; and

 

(4)  Explain that the individual, guardian, or representative has the right to appeal the termination in accordance with He-M 202 and He-C 200.

 

(e)  Services shall be continued while an administrative appeal under He-M 202 or He-C 200 is pending.

 

          (f)  In every instance of termination, the area agency shall recommend appropriate services or be responsible for contacting the individual in accordance with RSA 171-A:8, II.

 

          (g)  Services to persons involuntarily admitted in accordance with RSA 171-B shall not be terminated except as provided in RSA 171-A:8, V.

 

Source.  #4413, eff 4-27-88; ss by #5094, eff 3-15-91; ss by #6212, INTERIM, eff 3-30-96, EXPIRES: 12-31-98; ss by #6758, eff 5-27-98; ss by #8640, INTERIM, eff 5-27-06, EXPIRES: 11-23-06; ss by #8701, eff 8-4-06; ss by #10821, eff 4-25-15

 

          He-M 310.08  Suspension of Services.

 

          (a)  A provider agency shall not suspend services to an individual unless the individual and guardian or representative have prior written notice of the specific behaviors and conduct for which suspension is imposed.

 

          (b)  Prior written notice shall be given through the service agreement process or through written provider agency policies which are explained to the individual and guardian or representative upon admission.

 

          (c)  Upon suspension, the provider agency shall give the individual and guardian or representative written notice containing the following:

 

(1)  The reason for the suspension;

 

(2)  The length of the suspension; and

 

(3)  An explanation of the right to appeal in accordance with He-M 202 and He-C 200.

 

          (d)  The maximum length of a suspension shall be 5 service days.  However, should an individual, guardian, or representative choose to exercise the right to appeal, the individual shall be suspended for no longer than one service day pending resolution of the appeal.

 

          (e)  Services to persons involuntarily admitted under RSA 171-B shall not be suspended.

 

Source.  #4413, eff 4-27-88; ss by #5094, eff 3-15-91; ss by 6212, INTERIM, eff 3-30-96, EXPIRES: 12-31-98; ss by #6758, eff 5-27-98; ss by #8640, INTERIM, eff 5-27-06, EXPIRES: 11-23-06; ss by #8701, eff 8-4-06; ss by #10821, eff 4-25-15

 

          He-M 310.09  Rights of Individuals in Community Residences.

 

          (a)  In addition to the foregoing rights, individuals living in community residences shall also have the following rights:

 

(1)  The right to a safe, sanitary and humane living environment;

 

(2)  The right to settings that are physically accessible to the individual;

 

(3)  The right to freely and privately communicate with others, including:

 

a. The right to send and receive unopened and uncensored written and electronic correspondence;

 

b. The right to have reasonable access to telephones and to be allowed to make and to receive reasonable numbers of telephone calls except that community residences may require an individual to reimburse them for the cost of any long distance calls made by the individual;

 

c.  The right to receive and to refuse to receive visitors except that community residences may impose reasonable restrictions on the number and time of visits in order to ensure effective provision of services; and

 

d. The right to engage in social, recreational, and religious activities including the provision of regular opportunities for individuals to engage in such activities;

 

(4)  The right to privacy in the individual's sleeping or living unit, including the following:

 

a.  The right to courtesies such as knocking on closed doors before entering and ensuring privacy for telephone calls, electronic communications, and visits;

 

b.  The right to entrance doors lockable by the individual with only appropriate staff having keys to doors;

 

c.  The right to receive visitors of one’s choosing at any time;

 

d.  The right to opportunities for personal interaction in a private setting except that any conduct or activity which is illegal shall be prohibited;

 

e.  The right to receive personal care in private; and

 

f.  The right to be free from searches of their persons and possessions except in accordance with applicable constitutional and legal standards;

 

(5)  The right to individual choice, including the following:

 

a.  The right to keep and wear their own clothes;

 

b.  The right to reasonable space for personal possessions;

 

c.  The right to keep and to read materials of their own choosing;

 

d.  The right to keep and spend their own money;

 

e.  The right to be compensated for any work performed and the right not to work, except that:

 

1.  Individuals may be required to perform personal housekeeping tasks within the individual's own immediate living area and equitably shared housekeeping tasks within the common areas of the community residence, without compensation; and

 

2.  Individuals may perform vocational learning tasks or work required for the operation or maintenance of a community residence, if the work is consistent with their service agreements and the individual is compensated for work performed according to laws, rules, and regulations set by the state and federal governments;

 

f. The right to be choose one’s roommate when bedrooms are shared;

 

g.  The right to furnish and decorate one’s sleeping or living unit within the limits of the lease or other agreement;  and

 

h.  The freedom and support to control one’s own activities and schedules, and to access food at any time; and

 

(6)  The right to be reimbursed for the loss of any money held in safekeeping by the community residence.

 

          (b)  In community residences serving persons involuntarily admitted in accordance with RSA 171-B, restrictions on a person’s communication, privacy, and personal choice may be imposed if necessary for the person’s treatment if consistent with the individual treatment plan or the residence's policies.

 

          (c)  Nothing in He-M 310.09 shall require a community residence to have policies governing the behavior of the residents.

 

          (d)  Individuals and guardians or representatives shall have the right to be informed in writing of any house policies prior to admission to the community residence.

 

          (e)  Residents shall have the right to participate in the development and modification of any house policies.  Residents shall formally review the house policies at least annually.

 

          (f)  House policies shall be in conformity with He-M 310.

 

          (g)  House policies shall be periodically reviewed for compliance with He-M 310 in connection with area agency and department site visits.

 

          (h)  Any modification to (a) (4) or (5) above shall be supported by a specific assessed need and documentation described in (i) below.

 

          (i)  A provider agency shall only make modifications pursuant to (h) above by documenting in the service agreement the following:

 

(1)  The specific and individualized assessed need and a description of the condition that is directly proportionate to the need;

 

(2)  Positive interventions and supports used prior to any modification to the service agreement;

 

(3)  Less intrusive methods of meeting the need that have been tried unsuccessfully;

 

(4)  A method for the regular collection and review of data to measure the ongoing effectiveness of the modification, and established timelines for periodic reviews to determine whether the modification is still necessary or can be terminated;

 

(5)  Informed consent of the individual, guardian, or representative; and

 

(6)  An assurance that the interventions and supports will not cause harm to the individual.

 

Source.  #4413, eff 4-27-88; ss by #5094, eff 3-15-91; ss by 6212, INTERIM, eff 3-30-96, EXPIRES: 12-31-98; ss by #6758, eff 5-27-98; ss by #8640, INTERIM, eff 5-27-06, EXPIRES: 11-23-06; ss by #8701, eff 8-4-06; ss by #10821, eff 4-25-15

 

PART He-M 311  RIGHTS OF PERSONS IN STATE MENTAL HEALTH FACILITIES

 

Statutory Authority:  RSA 135-C:5, I, (b); C:13; C:16; C:18, C:58; C:61, V, VI & XI.

 

He-M 311.01  Purpose.  The purpose of these rules is to define the rights of individuals receiving services in state mental health facilities which include New Hampshire hospital, Glencliff home, and any receiving facility so designated by the commissioner pursuant to RSA 135-C:26.

 

Source.  #4414, eff 4-27-88; ss by #5095, eff 3-15-91, EXPIRED: 3-15-97

 

New.  #6759, eff 5-27-98; ss by #8641, INTERIM, eff
5-27-06, EXPIRES: 11-23-06; ss by #8758, eff 11-17-06; ss by #10707, INTERIM, eff 11-15-14, EXPIRES: 5-14-15; ss by #10820, eff 4-23-15

 

He-M 311.02  Definitions.

 

(a)  "Abuse" means an act or omission by an employee, consultant or volunteer of a mental health facility or designated receiving facility which is not accidental and harms or threatens to harm an individual’s physical, mental or emotional health or safety and includes emotional abuse, physical abuse, and sexual abuse.

 

(b)  "Attorney" means a member of the New Hampshire Bar Association who is retained, employed, or appointed by a court to represent an individual.

 

(c)  “Bureau” means the bureau of behavioral health within the department of health and human services.

 

(d)  “Client” means “individual” as defined in (l) below.

 

(e)  “Community residence” means a residence, exclusive of any independent living arrangement, that:

 

(1)  Provides residential services in accordance with He-M 426 for at least one individual with a mental illness;

 

(2)  Provides services based on the needs identified in a resident’s individual service plan (ISP);

 

(3)  Is operated directly by a facility or by contract or agreement between a facility and another entity;

 

(4)  Serves individuals whose services are funded by the department; and

 

(5)  Is certified pursuant to He-M 1002.

 

(f)  “Department” means the department of health and human services.

 

(g)  “Direct care” means services provided to individuals including, but not limited to: assistance with medication, accompanying an individual to a treatment team or other clinical meeting, or providing ongoing direct and active support.

 

(h)  “Emotional abuse” means the misuse of power, authority or both, verbal harassment, or unreasonable confinement which results or could result in mental anguish or emotional distress of an individual.

 

(i)  "Exploitation" means the use of an individual’s person or property for another's profit or advantage or breach of a fiduciary relationship through improper use of an individual’s person or property including situations where a person obtains money, property, or services from an individual through undue influence, harassment, deception, or fraud.

 

(j)  "Facility" means New Hampshire hospital, Glencliff home, and any receiving facility so designated by the commissioner pursuant to RSA 135-C:26.

 

(k)  "Guardian" means a person appointed under RSA 463, or RSA 464-A, or who is a parent of an individual under the age of 18 whose parental rights have not been terminated or limited by law in such a way as to remove the person’s right to make health care decisions on behalf of the individual.

 

          (l)  "Individual" means: A person who is receiving or applying for a service from a facility.  The term includes “client.”

 

(m)  "Informed decision" means “informed decision” as defined in RSA 135-C:2, IX namely, “a choice made by a client, an individual, or person seeking to be admitted who has the ability to make such a choice and who makes it voluntarily after all relevant information necessary to making the decision has been provided, and who understands that he or she is free to choose or refuse any available alternative, and who clearly indicates or expresses his or her choice.  The choice shall be free from all coercion.”  The term also includes such decision of an individual, as defined in He-M 311.02(l) above, and the individual’s legal guardian, where appropriate, based on the same factors as an informed decision by an individual or person seeking to be admitted.

 

(n)  "Mental illness" means “mental illness” as defined in RSA 135-C:2 X, namely, "a substantial impairment of emotional processes, or of the ability to exercise conscious control of one's actions, or of the ability to perceive reality or to reason, when the impairment is manifested by instances of extremely abnormal behavior or extremely faulty perceptions.  It does not include impairment primarily caused by: (a) epilepsy; (b) intellectual disability; (c) continuous or noncontinuous periods of intoxication caused by substances such as alcohol or drugs; or (d) dependence upon or addiction to any substance such as alcohol or drugs."

 

(o)  "Neglect" means an act or omission which results or could result in the deprivation of essential services or supports necessary to maintain the minimum mental, emotional, or physical health of an incapacitated adult.  The term also includes neglect toward an individual.

 

(p)  “Physical abuse” means the use of physical force which results or could result in physical injury to an individual.

 

(q) "Program" means any public or private corporation, person or organization which provides services to individuals with a mental illness or intellectual disability when such services are funded in whole or in part or are operated, monitored or regulated by the bureau.

 

(r)  "Service" means any evaluation, training, counseling, therapy, habilitation, case management, or other type of assistance, medical care, or treatment provided by a facility.

 

(s) "Service delivery system" means those facilities and programs funded, in whole or in part, operated, monitored, or regulated by the bureau.

 

(t)  “Sexual abuse” means contact or interaction of a sexual nature between an individual and an employee of or a consultant or volunteer for a facility.

 

(u) “Treatment" means “treatment” as defined in RSA 135-C:2, XVI, namely, "examination, diagnosis, training, rehabilitation therapy, pharmaceuticals, and other services provided to individuals in the mental health services system.  Treatment shall not include examination or diagnosis for the purpose of determining the need for involuntary emergency admissions pursuant to RSA 135-C:27-33 or involuntary admissions pursuant to RSA 135-C:34-54.”  The term includes treatment provided to individuals in the mental health system.

 

Source.  #4414, eff 4-27-88; ss by #5095, eff 3-15-91, EXPIRED: 3-15-97

 

New.  #6759, eff 5-27-98; ss by #8641, INTERIM, eff
5-27-06, EXPIRES: 11-23-06; ss by #8758, eff 11-17-06; ss by #10707, INTERIM, eff 11-15-14, EXPIRES: 5-14-15; ss by #10820, eff 4-23-15

 

He-M 311.03  Notice of Individual and Applicant Rights.

 

(a)  Facilities shall inform individuals or guardians of the individual’s rights under RSA 135-C and these rules in clearly understandable language and form, both verbally and in writing.

 

(b)  The notification of rights required pursuant to (a) above shall include, at a minimum, the following measures:

 

(1)  Individuals applying for services shall be informed of the rights in (a) above relating to evaluations and access to treatment;

 

(2) Facilities shall provide meaningful and understandable information about the rights described in (a) above to individuals who are minors or who have been adjudicated incapacitated as well as to their parents, guardians, or attorneys; 

 

(3)  Individuals shall be advised of their rights upon entry into any facility, upon change from one facility to another, and at least once a year after entry;

 

(4)  Every facility within the service delivery system shall post a notice of the rights set forth in these rules, as follows:

 

a.  The notice shall be posted continuously and conspicuously; and

 

b.  The notice shall be presented in clearly understandable language and form;

 

(5)  Each facility and community residence shall have on the premises complete copies of He-M 311 available for individual and staff review; and

 

(6)  Individuals admitted to a receiving facility pursuant to RSA 135-C:27-33 shall be given immediate notice by the facility administrator or his/her designee in simple language he/she understands, and written notice within 12 hours, of the following rights:

 

a.  To be represented by legal counsel;

 

b.  To have legal counsel appointed for him or her if he or she is indigent;

 

c.  To apply for admission on a voluntary basis;

 

d.  To consult with legal counsel prior to a change in admission status;

 

e.  That involuntary emergency admission shall not exceed a period of 10 days unless the period is extended pursuant to RSA 135-C:32; and

 

f.  That no treatment shall be administered during involuntary emergency admission unless the individual makes an informed decision to consent to treatment, or unless a medical or psychiatric emergency exists in accordance with He-M 305.

 

(c)  Each facility shall document notifications of He-M 311 in the individual’s records.

 

(d)  Any person shall have the right to complain or bring a grievance on behalf of an individual or a group of individuals pursuant to He-M 204.

 

Source.  #4414, eff 4-27-88; ss by #5095, eff 3-15-91, EXPIRED: 3-15-97

 

New.  #6759, eff 5-27-98; ss by #8641, INTERIM, eff
5-27-06, EXPIRES: 11-23-06; ss by #8758, eff 11-17-06; ss by #10707, INTERIM, eff 11-15-14, EXPIRES: 5-14-15
; ss by #10820, eff 4-23-15

 

He-M 311.04  Fundamental Rights.

 

(a)  Any individual receiving treatment for mental illness shall be entitled to any legal right to which all citizens are entitled regardless of that person's admission to the mental health services system.

 

(b)  The legal rights protected shall include, at a minimum:

 

(1)  The right to freedom of religious preference and practice, the right to be free from engaging in any religious activity, and the right to receive reasonable assistance in attending places of worship;

 

(2) The right to register to vote, if eligible, in public elections and to receive assistance in registering to vote and in voting;

 

(3) The following civil rights, unless a court has determined that an individual is legally incapacitated pursuant to RSA 464-A, and a guardian has been appointed to make certain decisions, or an emergency exists under He-M 305, personal safety emergencies or He-M 306, medical and psychiatric emergencies:

 

a.  The right to manage affairs;

 

b.  The right to contract;

 

c.  The right to hold professional, occupational, or motor vehicle driver's licenses;

 

d.  The right to marry or to obtain a divorce;

 

e.  The right to make a will; and

 

f.  The right to exercise any other civil right;

 

(4)  The right to not be discriminated against in any manner because of race, color, sex, religion, national origin, age, marital status, disability, sexual orientation or degree of disability as provided in state and federal laws, title VII of the civil rights act of 1964, 42 U.S.C. 2000e et. seq.; section 504 of the rehabilitation act of 1973, 29 U.S.C. 791 et. seq.; the age discrimination act of 1975, 29 U.S.C. 621; the Americans with Disabilities Act of 1990, 42 U.S.C. 12101; and the provisions of certain block grants, including:

 

a.  Access to auxiliary aids needed by persons with disabilities;

 

b.  Services which are accessible to persons of limited English proficiency; and

 

c.  Service locations that are physically accessible; and

 

(5)  The right to legal remedies, including the right to petition for and receive the benefits of a writ of habeas corpus, and to seek any other remedy provided by law.

 

Source.  #4414, eff 4-27-88; ss by #5095, eff 3-15-91, EXPIRED: 3-15-97

 

New.  #6759, eff 5-27-98; ss by #8641, INTERIM, eff
5-27-06, EXPIRES: 11-23-06; ss by #8758, eff 11-17-06; ss by #10707, INTERIM, eff 11-15-14, EXPIRES: 5-14-15
; ss by #10820, eff 4-23-15

 

He-M 311.05  Personal Rights.

 

(a)  Individuals who are individuals in the service delivery system shall be treated with dignity and respect at all times.

 

(b)  Individuals shall be free from abuse, neglect, and exploitation including, at a minimum, the following:

 

(1)  Freedom from any emotional, sexual, or physical abuse or neglect;

 

(2)  Freedom from the intentional use of physical force, except the minimum force necessary to prevent harm to the individual or others, or to impose emergency treatment under He-M 305, personal safety emergencies; and

 

(3)  Freedom from personal or financial exploitation.

 

(c)  Individuals shall have the right to privacy.

 

(d)  Individuals applying for services, or who are currently, or were previously in the service delivery system shall have the right to confidentiality of all information and records.

 

(e)  At a minimum, facilities shall adhere to the following confidentiality requirements:

 

(1)  Material safeguarded shall include any information with respect to an individual or through which an individual can be identified such as:

 

a.  Names;

 

b.  Addresses;

 

c.  Diagnoses and evaluative data;

 

d.  Medical and clinical records;

 

e.  Individual service plans; and

 

f.  Whether an individual is using or has used a facility’s services;

 

(2)  Clinical information shall be released by the facility to a third party payor in order to substantiate both need for and charges for care and treatment rendered to the individual by the facility;

 

(3)  All staff shall be trained so as to know and understand confidentiality and shall comply with confidentiality statutes and rules;

 

(4)  Separate, individual records shall be maintained when group treatment methods are employed and joint records of treatment activity shall not be maintained;

 

(5)  No facility shall photograph, fingerprint, or record any individual by audio or visual equipment unless the individual has consented following an informed decision, nor allow any third party to photograph, fingerprint, or record any individual by audio or visual equipment unless the individual has consented following an informed decision;

 

(6)  These rules shall not affect the obligation of facilities to release information as required by:

 

a.  RSA 161-F:42-57, protective services to adults;

 

b.  RSA 169-C:29, report of child abuse;

 

c.  RSA 631:6, report of injury caused by criminal act; or

 

d.  Other law; and

 

(7)  In accordance with RSA 329:26, RSA 330-A:32, RSA 329-B:26, and RSA 326-B:35, statements made by individuals to physicians licensed pursuant to RSA 329, psychologists licensed pursuant to RSA 329-B, persons licensed pursuant to RSA 330-A, advanced practice registered nurses licensed pursuant RSA 326-B, or to those who work under their supervision, may be disclosed for the purpose of commitment hearings.

 

(f)  Access to records shall be as follows:

 

(1)  Information pertaining to an individual shall be released to the individual or his or her guardian upon request including all information provided by third parties except that information which was provided by someone other than a health care provider under an agreement that the information would not be disclosed and disclosure would be reasonably likely to reveal the source of the information.  When information is not released, the individual or his or her guardian shall be provided with a written denial stating the basis for the denial, a description of how a complaint may be filed, the name, title and address of the contact person to receive the complaint, and the process for filing a complaint pursuant to 45 CFR 160.306;

 

(2)  A clinical staff member shall be present at a record review if:

 

a.  There is a reasonable concern that an individual will experience a harmful effect as a result of reviewing his or her record, or reasonable concern that the security of the record is at risk; and

 

b.  The determination that (2)a. above applies has been made on a case by case basis and the reasons for the determination have been documented in writing;

 

(3)  Information shall be released to any person or organization that has obtained the written consent of the individual or his or her guardian;

 

(4)  Information shall be released to the department and funding, licensing, and accrediting agencies by facilities within the service delivery system as necessary for:

 

a.  Determining eligibility for funding;

 

b.  Assisting in accrediting or licensing decisions;

 

c.  Monitoring and evaluating service delivery;

 

d.  Assuring the delivery of appropriate services to individuals; and

 

e.  Planning future service delivery;

 

(5)  Facilities shall not include or release confidential information in an individual's record which pertains to other individuals;

 

(6)  Facilities shall include within the records of an individual any supplemental information provided by the individual either clarifying or rebutting information deemed by the individual or his or her guardian to be inaccurate;

 

(7)  An attorney appointed by a court to represent an individual shall have access to all records and information pertaining to that individual;

 

(8)  Legal counsel for the department shall have access to all relevant records and information pertaining to an individual when such records and information are necessary because the individual:

 

a.  Is the subject of an involuntary commitment hearing;

 

b.  Is the subject of a guardianship proceeding; or

 

c.  Has instituted legal action against the state in regard to care and treatment provided by the mental health service delivery system;

 

(9)  In cases where an individual, his or her guardian, attorney or other advocate who represents the individual, after review of the record, requests copies of the record, such copies in paper format, shall be made available free of charge for the first 25 pages and not more than 25 cents per page thereafter; or, if available, copies of records electronically stored and produced, shall be made available free of charge for the first 25 pages and at actual cost per page thereafter.  The individual, his or her guardian, attorney or other advocate who represents the individual may choose whether to receive the record in paper form, or if available in electronic form;

 

(10)  Information regarding the medical treatment of an individual shall be released to law enforcement officials or health facility personnel if necessary to address an emergency situation involving danger to the individual's health or safety, but only specific information necessary to the relief of the emergency may be released without the individual's consent;

 

(11)  In accordance with RSA 329:31, RSA 330-A:35, RSA 329-B:29, and RSA 326-B:33, any of the following persons licensed in New Hampshire shall make reasonable efforts to disclose to a third party or law enforcement when an individual has made a serious threat of physical violence against a clearly identified or reasonably identifiable victim or victims, or a serious threat of substantial damage to real property: 

 

a.  A physician;

 

b.  A psychologist;

 

c.  An advance practice registered nurse;

 

d.  Any person licensed pursuant to RSA 330-A; or

 

e.  Any person who works under the supervision of any of the above;

 

(12)  In accordance with RSA 135-C:19-a, I, a facility may disclose to a family member or other person, if such family member or other person lives with the individual or provides direct care to the individual, information regarding:

 

a.  Diagnosis;

 

b.  Admission to or discharge from a treatment facility;

 

c.  Functional assessment;

 

d.  The name of the medicine prescribed;

 

e.  The side effects of any medication prescribed;

 

f.  Behavioral or physical manifestations which would result from failure of the individual to take such prescribed medication;

 

g.  Treatment plans and goals; and

 

h.  Behavioral management strategies;

 

(13)  Information shall not be released pursuant to (12) above unless the facility first:

 

a. Provides written notice to the individual or his or her guardian specifying the information requested, the reason for the request, and the person making the request;

 

b.  Requests the individual or his or her guardian's consent to release the information; and

 

c.  If consent cannot be obtained, the facility shall notify the individual in writing prior to the disclosure of:

 

1.  The reason for the disclosure;

 

2.  The name of the person(s) to whom the information will be released; and

 

3.  The specific information which will be released;

 

(14)  The facility shall receive or accept communications from family members, friends, or other persons with information pertaining to the health and safety of the individual, and shall document such communications in the individual’s record.

 

(15)  In accordance with RSA 135-C:19-a, II, when the medical director or designee determines that obtaining information is essential to the care or treatment of an individual admitted pursuant to RSA 135-C:27-54, a designated receiving facility may request, and any health care provider which previously provided services to any individual involuntarily admitted to the facility may provide, information about such individual limited to medications prescribed, known medication allergies or other information essential to the medical or psychiatric care of the individual admitted;

 

(16)  Information shall not be released pursuant to (15) above unless the program first:

 

a. Provides written notice to the individual or his or her guardian specifying the information requested, the reason for the request, and the person making the request;

 

b.  Requests the individual or his or her guardian's consent to release the information; and

 

c.  If consent cannot be obtained, the individual shall be notified prior to disclosure in writing of:

 

1.  The reason for the disclosure;

 

2.  The name of the person(s) to whom the information will be released; and

 

3.  The specific information which will be released;

 

(17)  In accordance with RSA 135-C:19-a, II-a, when the medical director, or designee, determines that obtaining information is essential to the care and treatment of a individual admitted pursuant to RSA 135-C: 27-54 and the consent of the individual admitted cannot be obtained, the designated receiving facility may request and any community mental health program which has previously provided services to such individual shall immediately provide information about the individual including medications prescribed, known medication allergies, services provided and other information essential to the medical and psychiatric care of the individual admitted.  The facility may disclose information necessary to identify the individual and the facility which is requesting the information; and

 

(18)  In accordance with RSA 135-C:19-a, III, a community mental health program or state facility may disclose to an interdisciplinary committee designated by the governor to review child fatalities, information which is relevant to a case of suicide or traumatic fatal injury under review by such committee.  Information to be disclosed pursuant to this subparagraph shall be limited to the diagnosis and course of treatment of the child or the person who caused the fatality.  Information disclosed pursuant to this paragraph shall remain confidential and shall not be subject to discovery, subpoena, or admission into evidence in any judicial or administrative proceeding.

 

(g)  Individuals shall have the right to complain about any alleged violation of a right afforded by these rules or by any state or federal law or rule or any other matter.

 

(h)  Individuals shall have the right to freely and privately communicate with others, including:

 

(1)  The right to send and receive unopened and uncensored written correspondence except that if there are reasonable grounds to believe that incoming mail contains items or substances which might be harmful to the individual or others, the facility shall direct reasonable examination of the mail in the presence of the individual or, wherever possible, permit the individual to open the mail in the presence of a staff person provided that the facility shall not read the mail but may regulate the disposition of the items or substances; 

 

(2)  The right to stationery, writing implements, and postage in reasonable amounts upon request;

 

(3)  The right to have reasonable access to telephones and to make and to receive reasonable numbers of telephone calls, except that facilities shall require an individual to reimburse them for the cost of any long distance calls made by the individual if the individual has the financial ability to do so;

 

(4)  The right to receive and to refuse to receive visitors except that:

 

a. Facilities shall impose reasonable restrictions on the number and time of visits as necessary to ensure effective provision of services; and

 

b. A parent, guardian, individual representative, or court-appointed attorney may visit without the consent of the individual except as provided in (5) below;

 

(5)  The right to receive visits from any person unless the facility has documented that a visit with that particular person or visits in general present a serious likelihood of physical harm to the individual or other individuals in the facility;

 

(6)  The right to opportunities for personal interaction in a private setting except that any conduct or activity which is illegal shall be prohibited; and

 

(7)  The right to engage in social, recreational, and religious activities including the provision of regular opportunities for individuals to engage in such activities;

 

(i)  Individuals shall have the right to be free from searches of their persons and possessions except where reasonably necessary for the protection of the safety of the individual or others, to prevent the introduction of contraband, and as in (k) below.

 

(j)  Facilities shall conduct searches of individuals or visitors according to the following:

 

(1)  Searches conducted without the consent of the individual and without a warrant shall be performed only under the following circumstances:

 

a.  A physician shall order that a search of an individual's person or possessions be made upon determination that a search is necessary to protect the safety of the individual or others based on reliable information that the individual possesses contraband;

 

b.  The individual, nurse coordinator, and one other staff member shall be present during the search, except that, in an emergency, the individual need not be present;

 

c.  A written inventory of the property searched shall be made and a copy of the inventory shall be documented in the individual's record;

 

d.  At the time of the search the staff members conducting the search shall sign the inventory and the individual shall be asked to sign the inventory; and

 

e.  The facility coordinator shall, within 24 hours of the search, forward a report of the search, together with the rationale for the search, to the unit director and superintendent;

 

(2)  Facilities shall require a visitor, upon notice, to submit to a search prior to a visit or restrict visitors to a secure area, or both, when the facility reasonably believes, based upon reliable information, that the visitor may be introducing contraband such as drugs, weapons, toxic substances, explosives, and instruments of escape; and

 

(3)  Facilities which have individuals committed through the criminal justice system shall subject visitors to a search by electronic means as necessary to prevent the introduction of contraband such as weapons, toxic substances, explosives, and instruments of escape into the facility provided that the facility has the means to conduct electronic searches.

 

(k)  Individuals shall have the right to individual choice including, at a minimum, the following:

 

(1)  The right to keep and wear their own clothes except:

 

a.  Where necessary to prevent the individual from causing harm to himself or herself; and

 

b.  Where the need for such restriction is documented in the individual's record;

 

(2)  The right to keep personal possessions not otherwise prohibited by law or facility policy in accordance with He-M 311.05(j) and the right to reasonable space for personal possessions;

 

(3)  The right to keep and to read materials of their own choosing; and

 

(4)  The right to keep and spend their own money unless a medical determination of incapacity to handle funds has been approved by the state or federal agency which administers those funds except that reasonable limits shall be imposed on the amount of money kept by individuals on their persons or in their rooms in order to prevent the individuals from causing harm to themselves or to prevent theft.

 

(l)  Individuals shall have the right not to work and to be compensated for any work performed, except that:

 

(1)  Individuals shall be required to perform personal housekeeping tasks within the individuals’ own immediate living areas and equitably shared housekeeping tasks within the common areas of the community residence, without compensation, unless the facility determines that it would be clinically or medically contraindicated or inappropriate to require  an individual to perform such tasks; and

 

(2)  Individuals may have the option to perform pre-vocational or vocational learning tasks or work required for the operation or maintenance of a community residence if:

 

a.  The work is consistent with their individual service plans; and

 

b. The individuals are compensated for work performed according to laws, rules, and regulations set by the state and federal governments.

 

Source.  #4414, eff 4-27-88; ss by #5095, eff 3-15-91; amd by #6220, eff 4-13-96, EXPIRES: 12-31-98; ss by #6759, eff
5-27-98; ss by #8641, INTERIM, eff 5-27-06, EXPIRES:
11-23-06; ss by #8758, eff 11-17-06; ss by #10707, INTERIM, eff 11-15-14, EXPIRES: 5-14-15
; ss by #10820, eff 4-23-15

 

He-M 311.06  Treatment Rights.

 

(a)  Individuals shall have the right to adequate and humane treatment, including:

 

(1)  The right to access to treatment including:

 

a.  For those applying for services the right to evaluation to determine the individual ’s need for services and to determine which programs are most suited to provide the services needed;

 

b.  The right to receive necessary services subject to the admission and eligibility policies and standards of each facility; and

 

c.  The right to receive services without regard to race, color, age, religion, sex, national origin, type or severity of disability, sexual orientation or inability to pay except in accordance with He-M 311.07;

 

(2)  The right to quality treatment including:

 

a.  Treatment and services provided in accordance with licensing requirements and applicable rules adopted by the department in He-M 200-1300 and applicable rules of other state agencies; and

 

b.  Services provided in keeping with generally accepted clinical and professional standards applicable to the persons and facilities providing the treatment and to the conditions for which the individual is being treated;

 

(3)  The right to receive all services or treatment in accordance with the time frame set forth in the individual’s individual service plan;

 

(4)  The right to quality treatment such that where state rules adopted pursuant to RSA 541-A do not set a different requirement, the quality of services and treatment at New Hampshire Hospital shall be in accordance with “The Joint Commission Comprehensive Accreditation Manual for Hospitals” (January 2015) published by Joint Commission Resources, Inc. One Renaissance Boulevard, Oakbrook Terrace, Illinois 60181;

 

(5)  The right to an individual service plan developed, reviewed and revised in accordance with RSA 135-C:19 and “The Joint Commission Comprehensive Accreditation Manual for Hospitals” (January 2015)  published by Joint Commission Resources, Inc. One Renaissance Boulevard, Oakbrook Terrace, Illinois 60181;

 

(6)  The right to receive service and treatment in the least restrictive alternative or environment necessary to achieve the intended purpose of treatment including services and treatment which least restrict freedom of movement, informed decision-making, and participation in the community while providing the level of security and support needed by the individual;

 

(7)  The right to be served in the least restrictive program or facility and also the least restrictive setting within a program or facility, except that a facility may restrict access by individuals to various areas as necessary to:

 

a.  Ensure the privacy or safety of the individuals;

 

b.  Achieve other necessary objectives contained in the individual service plan; or

 

c.  Comply with provisions of law and orders of court;

 

(8)  The right to be informed of all significant risks, benefits, side effects, and alternative treatments and services and to give consent to any treatment, placement, or referral following an informed decision, except actions taken under He-M 305 or otherwise permitted by law, such that:

 

a.  Whenever it is possible, the consent shall be given in writing; and

 

b.  In all other cases, evidence of consent shall be documented by the facility and be witnessed by at least one person;

 

(9)  The right to refuse to participate in any form of experimental treatment or in any research;

 

(10)  The right to be fully informed of one's own diagnosis and prognosis;

 

(11)  The right to voluntary placements and to seek changes in placement, services, or treatment except that:

 

a.  Placements shall not be voluntary if RSA 135-C:27-48 or 135-C:51 apply; and

 

b.  Withdrawal shall be restricted as provided in RSA 135-C:17;

 

(12)  The right to services which promote independence including services which shall be directed toward:

 

a.  Eliminating, or reducing as much as possible, the individuals' needs for continued services and treatment; and

 

b.  Promoting the ability of the individuals to function at their highest capacity and as independently as possible;

 

(13)  The right to prompt medical care and treatment as the person's condition requires;

 

(14)  The right to consultation and second opinion including:

 

a.  At the individual's own expense, the consultative services of:

 

1.  Private physicians;

 

2.  Psychologists;

 

3.  Dentists; and

 

4.  Other health practitioners; and

 

b.  Granting to such health practitioners of reasonable access to their individuals in facilities; and