Ala. Admin. Code r. 580-2-20-.04 - Recipient Protection

Recipient definition - a person with serious emotional disturbance, serious mental illness and/or substance use disorder served in program programmatically certified by ADMH.

(1) There must be written policies and procedures that protect the recipient's welfare, the manner in which the recipient is informed of these protections, and the means by which these protections will be enforced. The legal guardian of a minor, except where the minor is above the age of fourteen (14) and chooses not to involve parents consistent with state law, will be given a copy of the recipient's rights and a copy of the grievance policies. Documentation must exist, unless waived by a minor at or above the age of fourteen (14) that demonstrates that family members of a minor receive a copy of the recipient's rights, written information and grievance policies. Any reference to "written" notification in these rules indicates that the recipient is entitled to receive information in their preferred language and manner understood by the recipient.

(2) Upon admission, and as soon as clinically appropriate, recipients are informed on an individual basis concerning services offered and fees for these services, with information presented in the recipient's preferred language and in terms appropriate to the recipient's condition and ability to understand. The program shall provide the recipient/lawful representative with written notification upon admission and when any changes or limitations in services or fees occur. Recipients who are primarily responsible for payment of charges for services are informed in writing of their eligibility for reimbursement by third party payers for service rendered and assisted as needed with application.

(3) The agency shall develop, maintain, and document implementation of written policies and procedures that:

(a) Describe the mechanisms utilized for implementation and protection of recipient rights, which shall include at a minimum:

1. Informing the recipient of his/her rights at the time of admission in recipient's preferred language and in a manner understood by the recipient, and as needed throughout the service delivery process.

2. Providing the recipient with a copy of the rights, in a medium that the recipient understands, at admission and documenting this process in the recipient's record.

3. Prominently posting copies of the rights throughout the facility in which services are provided.

(4) The written policies and procedures shall, at a minimum, address the following rights:

(a) To privacy.

(b) To confidentiality.

(c) To be informed of the person(s) who has primary responsibility for the recipient's treatment and clinical care.

(d) To participate fully in all decisions related to treatment and clinical care provided by the agency.

(e) To be provided with appropriate information to facilitate informed decision making regarding treatment.

(f) To the provision of services in a manner that is responsive to and respectful of the recipient's strengths, needs, and abilities and preferences, including preference of language.

(g) To the development of an individualized unique service/treatment plan formulated in partnership with the program's staff, and to receive services based upon that plan.

(h) To the availability of an adequate number of competent, qualified, and experienced professional clinical staff to ensure appropriate implementation of the recipient's service/treatment plan.

(i) To the provision of care as according to accepted clinical practice standards within the least restrictive and most integrated setting appropriate.

(j) To be educated about the possible significant adverse effects of the recommended treatment, including any appropriate and available alternative treatments, services, and/or providers.

(k) To express preference regarding the selection of service provider(s).

(l) To service delivery that is absent of abuse and neglect including but not limited to:

1. Physical abuse.

2. Sexual abuse.

3. Harassment.

4. Physical punishment.

5. Psychological abuse, including humiliation.

6. Threats.

7. Exploitation.

8. Coercion.

9. Fiduciary abuse.

(m) To be protected from harm including any form of abuse, neglect, or mistreatment.

(n) To report without fear of retribution, any instances of perceived abuse, neglect, or exploitation.

(o) To provide input into the agency's service delivery processes through recipient satisfaction surveys and other avenues provided by the governing body.

(p) To access upon requests all information in the recipient's mental health, substance abuse, medical, and financial records consistent with applicable laws and regulations.

(q) To manage personal funds.

(r) To access funds when the provider is payee.

(s) To complaint and grievance procedures.

(t) To be informed of the financial aspects of treatment.

(u) To be informed of the need for parental or guardian consent for treatment, if applicable.

(v) To a written statement of services to be provided.

(w) To give informed consent prior to being involved in research or experimental projects.

(x) To have access to and privacy of mail, telephone communications, and visitors for recipients in residential or inpatient settings.

(y) To have access to courts and attorneys.

(z) To enforce rights through courts or appropriate administrative proceedings.

(aa) To be informed of commitment status, if any.

(bb) If committed, to be included in the community with appropriate and adequate supports on completion of or in conjunction with the terms of commitment.

(cc) To be accorded human respect and dignity on an individual basis in a consistently humane fashion.

(dd) To refuse services without reprisal except as permitted by law.

(ee) To be informed of the means for accessing advocates, an ombudsman, or rights protection services.

(ff) To be free from seclusion, restraint, drugs, or other interventions administered for purposes of punishment, discipline, or staff convenience.

(gg) To a well-balanced diet that meets his/her daily nutritional and special dietary needs if in inpatient or residential.

(hh) To assistance in accessing medical and dental care, including vision and hearing services if in residential or inpatient.

(ii) To access and utilization of appropriately prescribed medication.

(5) Each program affords every recipient the right to privacy relative to their treatment and care, unless contraindicated by clinical determination made by professional staff for therapeutic or security purposes. The agency shall ensure:

(a) Emergency determinations limiting privacy shall be reviewed and documented frequently.

(b) Each program respects recipients' privacy during toileting, bathing, and personal hygiene activities.

(c) Each program allows recipients to converse privately with others and to have private access to telephone and visitors at reasonable hours.

(d) Searches of a recipient or his/her living area and personal possessions are only conducted when it is documented that the program director deems such to be necessary for the safety and security of the recipient, others, and/or the physical environment. The recipient and a witness must be present during a search unless there is documentation why the recipient could not be present.

(e) Each program has procedures established for conducting searches, which observe and adhere to the recipient's right to be accorded human respect and dignity on an individual basis in a consistently humane manner.

(f) In residential programs, written policies and procedures require that staff alert recipients prior to entering recipient living areas.

(g) Written and informed consent must be signed by the lawful representative of a recipient less than 14 years of age before photographs are taken and the photograph is to be returned to the lawful representative upon request when the recipient is discharged.

(6) Confidentiality and Privacy. The agency shall develop, maintain, and document implementation of written policies and procedures that govern confidentiality and privacy of recipient information that includes, at a minimum, the following specifications:

(a) Policies and procedures shall comply with all state and federal laws and regulations relative to confidentiality and privacy of recipient information, including but not limited to, Confidentiality of Alcohol and Drug Abuse Patient Records, 42 C.F.R. Part 2 and Part 8, and the Health Insurance Portability and Accountability Act of 1996 (HIPAA), 45 C.F.R. Pts. 160 & 164.

(b) Each program ensures that access to clinical records is restricted to individuals, entities, and instances permitted by applicable state and federal laws and regulations.

(c) No recipient's record(s) is released to other individuals or agencies without the written, informed consent of the recipient except for requests in accordance with state and federal laws and regulations (e.g. emergencies) and so documented.

(d) Each program is responsible for the safekeeping of each recipient's records and for securing it against loss, destruction, or use by unauthorized persons.

(7) Each program has established procedures regarding the content of a recipient's records and procedures for release or disclosure of parts thereof, in accordance with state and federal laws and regulations.

(a) Upon request by a recipient/lawful representative for access to the contents of his/her records, the program makes a clinical assessment to determine whether such access would or would not be detrimental to the recipient's health or present a threat of physical harm to a third party. Additional requests may be made at any time.

(b) Each program has established an appeals procedure regarding denial of the disclosure of the content of a recipient's records.

(8) Prior to or promptly upon admission, each program provides every recipient/lawful representative a concise written statement and verbal orientation, in their preferred language and terms appropriate for the recipient to understand, of rights and responsibilities and complaint procedures along with procedures to be followed to initiate, review, and resolve allegations of rights violations.

(a) Each program obtains from the recipient a written verification of receipt of statement of rights and grievance procedure information.

(b) At a minimum, the complaint/grievance procedures shall include:

1. The name and telephone number of a designated local contact within the program. The designated person shall be able to inform recipients of the means of filing grievances and of accessing advocates, ombudsmen, or right protection services within or outside the program.

2. Rights information is posted in commonly used public areas of outpatient and residential facilities where recipients receive services.

3. Such notices shall include the 800 numbers of the DMH Advocacy Program, Federal Protection and Advocacy System, and local Department of Human Resources.

4. Programs assure recipient access to advocates and the grievance/complaint process occurs without reprisal.

(9) Recipients shall manage their personal funds unless there is a payee, guardian, or similar appointee who manages the account for them.

(a) Program admissions shall not be contingent upon payee status.

(b) Any limitations placed by the provider on a recipient's right to manage his or her personal funds shall be time limited and can only be made:

1. After a specific assessment of the recipient's ability to manage funds,

2. After the recipient has been fully informed of the limitation, and

3. In consideration of the recipient's individual treatment plan as it relates to personal finances.

(c) The provider must establish a written, Board approved policy addressing:

1. The procedures for recipients to gain access to their personal funds when the provider is the representative payee or otherwise the custodian of the recipients' personal funds.

2. Any limitations on the manner and frequency in which funds can be accessed.

3. Any limitations on the amount of funds that can be kept in the recipient's personal possession in a residential program.

4. Requirements for the provider on the management, at least quarterly accounting of all expenditures, and reporting of recipient personal funds when the provider is the representative payee or custodian of personal funds.

5. Requirements for obtaining the consent of the recipient or lawful representative for the provider to manage recipient's personal funds when the provider is not the representative payee.

6. Any expenditure must be exclusively for the recipient's use or benefit.

(d) Funds in excess of what is needed to maintain the recipient's personal fund account will be placed in an interest bearing account accrued to the recipient's account.

(10) Recipients are informed of the need for parental or guardian consent for treatment, if appropriate.

(11) Each program will provide any recipient/lawful_ representative who is asked to participate in a research or experimental project full information regarding procedures to be followed before consent is sought. The information presented shall follow the General Requirements for Informed Consent as cited in the Code of Federal Regulations 45 CFR 46.116, Department of Health and Human Services, National Institute of Health, Office for Protection from Research Risks: "Protection of Human Subjects".

(a) Each program obtains the written, informed consent of the recipient/lawful representative for participation in research or experimental procedures.

(b) The recipient/lawful representative may withdraw or withhold consent at any time.

(c) The recipient's/lawful representative's withdrawal of consent to participate in an experimental or research project will not be used in a coercive or retaliatory manner against the recipient.

(12) Without regard to competency or legal restrictions all recipients shall receive treatment and care in an environment which is safe, humane, and free from physical, verbal, or sexual abuse, neglect, exploitation, or mistreatment.

(a) Each program actively investigates and maintains investigation documentation for any suspected abuse and/or neglect of recipients.

(b) Acts or alleged acts which are applicable under state and local laws are reported for investigation and/or disciplinary action.

(c) Each program provides each staff upon employment or promptly thereafter a written policy statement regarding abuse and neglect. The statement is prominently displayed and available in the program or facility.

(d) Each day and residential program employs sufficient numbers of qualified staff in accordance with approved program descriptions to protect recipients from abuse and neglect.

(e) Each program will inform the lawful representative of a recipient less than fourteen (14) years of age of all special incidents verbally and in writing as documented in the recipients file with the time and number called and the letter is sent the next business day after the incident.

(13) Unless contraindicated for individualized therapeutic or security reasons, each program has in place procedures affording recipients privacy in receiving visitors, receiving and sending communications by sealed mail, direct contact and telephone communications with persons both inside and outside the facility or program.

(a) Every recipient is allowed visitation and opportunity for private conversation with members of his/her family, friends, and significant others.

(b) Recipients who are deaf or hard of hearing shall have ready access to adaptive telecommunication devices in order to make and receive telephone calls.

(c) Recipients are allowed to send and receive mail without hindrance.

(d) Recipients are provided adequate opportunities for interaction with members of the opposite sex. Specific interactions may be prohibited by the rules of the program and/or state and local laws.

(e) No restrictions are imposed by the program which would prohibit the recipient from communicating with advocacy officials, the court which ordered confinement, or the recipient's legal counsel, family or significant others, or personal physician, unless legally restricted.

(14) Attorneys and/or court representatives are allowed to visit privately and communicate with recipients at reasonable times.

(a) Every recipient is free to access courts, attorneys, and administrative procedures or to participate in those activities generally requiring legal representation, without fear or reprisal, interference, or coercion unless otherwise restricted by a court order.

(15) Promptly upon admission, each program or facility provides each legally committed recipient a concise written statement describing his/her commitment status, the requirements of the commitment, and the length of the commitment.

(a) Information regarding recipient rights complaint and appeal procedures relative to legal commitment is made available to recipients in their preferred language and in terms appropriate for them to understand.

(16) Recipients legally committed to mental health services do not lose any rights to be included in the community with appropriate and adequate supports on completion of or in conjunction with the terms of commitment except as provided in the commitment order.

(a) Prior to termination of the commitment order, the program develops, with the active participation of the recipient, a transition plan which includes referral to community support services necessary to ensure the recipient's successful transition.

(17) Recipients are, without fear of reprisal, able to refuse treatment, except when refusals are not permitted under applicable law. Such refusal of treatment shall be documented in the recipient's record.

(18) Without fear of restraint, coercion, interference, discrimination, reprisal, or threat of discharge, recipients and others acting on their behalf are free to access available protection and advocacy services.

(19) Recipients are advised whenever special equipment, such as two-way mirrors or cameras, is used. A written, informed consent must be signed by the recipient, when used in non-emergency situations. Exceptional circumstance may exist when ADMH ODS provides services to recipients who are language dysfluent and incapable of giving informed consent.

(20) Each recipient's personal liberty must be respected with services provided in the least restrictive environment necessary. Liberty and/or rights must not be abridged without notification to recipient and agency compliance with due process.

(21) Recipients of mental health and substance abuse_ services have the same general rights as other citizens of Alabama. A provider of such services shall assure that such rights are not abridged by the provider's policies, procedure, or practices. These rights include but are not limited to the following rights:

(a) To exercise rights as a citizen of the United States and the State of Alabama.

(b) To be served through general services available to all citizens.

(c) To choose to live, work, be educated, and recreate with persons who do not have disabilities.

(d) To be presumed competent until a court of competent jurisdiction, abiding by statutory and constitutional provisions, determines otherwise.

(e) To vote and otherwise participate in the political process.

(f) To free exercise of religion.

(g) To own and possess real and personal property. Nothing in this section shall affect existing laws pertaining to conveyance of personal property.

(h) To make contracts.

(i) To obtain a driver's license on the same basis as other citizens.

(j) To social interaction with members of either sex.

(k) To marry and divorce.

(l) To be paid the value of work performed.

(m) To exercise rights without reprisal.

(22) Each program provides recipients in residential programs with safe and humane physical and psychological environment(s) in accordance with applicable federal and state laws and DMH standards of certification and licensure. Each program provides safety precautions to promote the individual welfare of all recipients. The environment shall at a minimum provide:

(a) Comfortable living and sleeping areas.

(b) Clean and private bathroom facilities.

(c) Attractive and adequately furnished visiting and living rooms.

(d) Clean and comfortable dining facilities.

(e) Facilities and equipment for laundering services.

(f) Safe and sturdy furnishings in good repair.

(g) Adequate provisions for smoking and/or non-smoking preference.

(h) Adequate and decorative room decor.

(i) Space and materials for leisure time and recreational activities.

(j) Each program ensures regular housekeeping and maintenance to assure safe and clean conditions throughout the facility or program.

(k) Unless contraindicated for therapeutic or security purposes, recipients are allowed regular access to the outdoors.

(23) The recipient's personal health and hygiene needs are recognized and addressed in a safe and humane manner.

(24) In addition to treatment for mental or substance use disorders, every recipient is provided prompt assistance in accessing medical and dental treatment.

(a) Recipients are either provided or referred to other health and/or dental services as deemed necessary by qualified staff.

(b) No program prohibits a recipient from accessing dental or medical services of his/her choice. Such should not be construed to be an obligation for the program to provide/pay for such services.

Notes

Ala. Admin. Code r. 580-2-20-.04

Adopted by Alabama Administrative Monthly Volume XXXVII, Issue No. 01, October 31, 2018, eff. 11/30/2018.

Author: Division of Mental Health and Substance Abuse Services, DMH

Statutory Authority: Code of Ala. 1975, § 22-50-11.