He-M 300

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 individuals 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

He-M 305.02 Definitions.

(a) “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.

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

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

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

(e) “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.

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

(g) “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.

(h) “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.

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

(1) Is placed alone in a room or area from which the individual is physically prevented,

by lock or person, from leaving; and

(2) Cannot or will not make an informed decision to agree to such confinement.

(j) “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.

(k) “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.

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

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

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; and

(3) Minimize the possibility of involuntary emergency measures.

(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).

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

He-M 305.04 Seclusion or Restraint.

(a) An emergency response may include 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; and

(2) Not exceed 30 minutes unless there is documented authorization by a physician.

(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; and

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

(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 registered nurse practitioner (ARNP) 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.

(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 ARNP 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) 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.

(k) 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.

(l) 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.

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

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

(2) Meet with an attorney.

(n) 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

He-M 305.05 Emergency Medication and Other Emergency Treatment.

(a) A physician 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 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 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.

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

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; and

(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.

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

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

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 202.09 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 202.07(r) 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 204.14. A proposed decision shall be issued in accordance with He-M 202.08(f).

Source. #9120, eff 4-3-08

He-M 305.09 Reporting of Death.

(a) In accordance with Patient Rights 42 CFR 482.13(f)(7) and the Protection and Advocacy for Mentally Ill Individuals Act (PAIMI Act), 42 U.S.C. § 290, 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.

Source. #9120, eff 4-3-08

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

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

(c) "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.

(d) "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.

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

(f) “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.

(g) "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.

(h) "Treatment" means a recognized and approved 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

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

He-M 306.04 Criteria for Emergency Treatment.

(a) A treating physician 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 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

He-M 306.05 Hearing. Upon receipt of the physician’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

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

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) 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.

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

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

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 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

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 applicants for service or persons who have been found eligible for services under RSA 135-C:12 and who are receiving services in the community. Clients 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

He-M 309.02 Definitions. The words and phrases used in this chapter shall have the following meanings:

(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 a client'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 a client.

(1) A person who is receiving a service from a program or community residence; or

(2) The person’s parent or guardian where the rules require the consent or informed decision of the client and he or she is either under the age of 18 and not an emancipated minor or is under guardianship.

(d) "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.

(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 community mental health center (CMHC) or by contract or agreement between a CMHC and another entity;

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

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

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

(1) Which is attributable to mental retardation, cerebral palsy, epilepsy, autism, or a specific learning disability, or any other condition of an individual found to be closely related to mental retardation as it refers to general intellectual functioning or impairment in adaptive behavior or requires treatment similar to that required for mentally retarded individuals; and

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

(g) "Director" means the director of the division.

(h) "Division" means the division of behavioral health within the department of health and human services.

(i) "Emotional abuse" means:

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

(2) Verbal harassment; or

(3) Unreasonable confinement which results or could result in mental anguish or emotional distress of a client.

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

(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 who is not an emancipated minor.

(l) "Informed decision" means a choice made voluntarily by a client 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.

(m) "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) mental retardation; (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."

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

(o) "Physical abuse" means the use of physical force which results or could result in physical injury to a client.

(p) "Program" means any public or private corporation, individual or organization which provides services to persons with a mental illness or developmental disability when such services are funded in whole or in part or are operated, monitored or regulated by the division.

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

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

(s) "Sexual abuse" means contact or interaction of a sexual nature between a client and an employee of or a consultant or volunteer for a program.

(t) "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."

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

He-M 309.03 Notice of Client and Applicant Rights.

(a) Programs shall inform clients of their rights under 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) Applicants for services shall be informed of their rights to evaluations and access to treatment;

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

(3) Clients 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 rules pertaining to client rights which are available for client and staff review.

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

He-M 309.04 Fundamental Rights.

(a) Any person 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 a client 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

He-M 309.05 Personal Rights.

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

(b) Clients 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 client 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.

(d) Current and former clients shall have the right to confidentiality of all information and records.

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

(1) Material safeguarded shall include any information with respect to an individual client or through which an individual client 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 a person is using or has used a program’s services;

(2) The client 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 client wishes to bear the cost of services privately rather than allow the release of information to third party payors, the client 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 client by audio or visual equipment unless the client has consented following an informed decision, nor allow any third party to photograph, fingerprint, or record any client by audio or visual equipment unless the client 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:43, 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 and RSA 330-A:32, statements made by clients to physicians licensed pursuant to RSA 329 and psychologists or persons certified pursuant to RSA 330-A, 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 client records shall be as follows:

(1) Information pertaining to a client shall be released to the client 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 clinical staff member shall be present at a record review if:

a. There is a reasonable concern that a client 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 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 client;

(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 clients; and

e. Planning future service delivery;

(5) Programs shall not include or release confidential information in a client's record which pertains to other clients;

(6) Programs shall include within the records of a client any supplemental information provided by the client either clarifying or rebutting information deemed by the client to be inaccurate;

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

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

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 a client, or an attorney or other advocate who represents the client, 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 not more than 25 cents per page thereafter;

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

(11) In accordance with RSA 329:31 and RSA 330-A:35, when a client 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 physician certified pursuant to RSA 329 or psychologist or other person certified pursuant to RSA 330-A, or those who work under his or her supervision, is obligated to make reasonable efforts to disclose the threat to the third party or law enforcement officials;

(12) In accordance with RSA 135-C:19-a, information may be released to a family member or other person, without the consent of the client, if such family member or other person either lives with the client or provides direct care to the client; and

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

a. Provides written notice to the client specifying the information requested, the reason for the request, and the person making the request;

b. Requests the client's consent to release the information; and

c. Notifies the client 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.

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

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

He-M 309.06 Treatment Rights.

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

(1) The right of access to treatment including:

a. The right to evaluation to determine an applicant’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 401.16(d)(4)and (5);

(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 client is being treated;

(3) The right to receive services in such a manner as to promote the client'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 client's individual service plan;

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

(6) The right to receive treatment and services contained in individual service plans designed to provide opportunities for the client 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 client;

(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 clients to various areas to:

a. Ensure the privacy or safety of the clients;

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 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 client's needs for continued services and treatment; and

b. Promoting the ability of the clients 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 and He-M 305;

(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 are required in accordance with He-M 401;

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

a. At the client'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 reasonable access to the client 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 client participation and informed decision-making:

a. Guardian;

b. Representative;

c. Attorney;

d. Family member;

e. Friend;

f. Advocate; or

g. Consultant; and

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

a. Such means of seclusion and restraint may be used as part of a service plan to which the client or client’s guardian, if any, has consented having made an informed decision to do so; and

b. Physical restraint may also be used as a form of emergency treatment following the requirements of He-M 305, personal safety emergencies.

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

(d) The following provisions shall apply to clients for whom a guardian has been appointed by a court of competent jurisdiction:

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

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

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

(4) 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 client’s choice and preference relative to those issues shall prevail unless the guardian’s authority is expanded by the court to include those issues;

(5) 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 client, 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;

(6) 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 202 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

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, eff5-27-06, EXPIRES: 11-23-06; ss by #8757, eff 11-17-06

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

He-M 309.09 Client Rights in Community Residences.

(a) In addition to the foregoing rights, clients of 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 a client to reimburse them for the cost of any long distance calls made by the client;

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 clients 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 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; and

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

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

2. Clients 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 client 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) Clients 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

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 RSA 171-A:6 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

He-M 310.02 Definitions. The words and phrases used in this chapter 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; and

(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; and

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) "Area agency" means an entity established as a non-profit corporation in the state of New Hampshire which is designated by the commissioner or his or her designee to provide services to persons with developmental disabilities or acquired brain disorders in a geographic region in accordance with RSA 171-A:18, RSA 137-K:9 and He-M 505.

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

(e) "Behavior plan" means a written protocol that is designed to alter an individual's challenging behaviors.

(f) "Community residence" means either an agency residence or family residence 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 left alone;

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

(4) Is certified pursuant to He-M 1001, except as allowed in He-M 517.04 (b).

(g) "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.

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

(i) "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.

(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 who is a parent of an individual under the age of 18 who is not an emancipated minor.

(l) "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."

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

(n) "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.

(o) "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, 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.

(p) "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) mental retardation; (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."

(q) "Neglect" means an act of 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.

(r) "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.

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

(t) "Prescribing practitioner" means a licensed professional with prescriptive authority, including the following:

(1) Physician;

(2) Advanced registered nurse practitioner (A.R.N.P.);

(3) Dentist;

(4) Physician's assistant;

(5) Optometrist; and

(6) Podiatrist.

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

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

(w) "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.

(x) “Service agreement” means a written agreement between the individual or guardian and the area agency that describes the services that an individual will receive and constitutes an individual service plan as defined in RSA 171-A.

(y) "Treatment" means medical care provided by a prescribing practitioner.

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

(a) Provider agencies shall inform individuals of their rights under 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) Applicants for services shall be informed of their rights to evaluations and access to treatment;

(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, or attorneys;

(3) Individuals or their guardians shall be advised 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;

(4) 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

(5) 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, and staff to review.