393.13 Personal treatment of clients.- Bill of Rights
of Retarded Persons
(I) SHORT TITLE - This act shall be known as “The Bill of Rights of
Retarded Persons."
(2) LEGISLATIVE INTENT.-
(a) The Legislature finds and declares that the system of care
which the state
provides to mentally retarded individuals must be designed to meet
the needs of the clients as well as protect the integrity of their legal
and human rights. Further, the current system of care for retarded persons
is in need of substantial improvement in order to provide truly meaningful
treatment and habiltation.
(b) The Legislature further finds and declares that the design
and delivery of
treatment and services to the mentally retarded should be
directed by the principles of normalization and therefore should:
1 . Abate and use of large institutions.
2. Continue the development of community.based
services which provide
reasonable alternatives to institutionalization in settings that are
least restrictive to
the client.
3. Provide training and education to mentally
retarded individuals which will
maximize their potential to lead independent and productive lives and
which will afford opportunities for outward mobility from institutions.
(c) It is the intent of the Legislature that duplicative and
unnecessary administrative procedures and practices shall be eliminated,
and areas of responsibility shall be clearly defined and consolidated in
order to economically utilize present resources. Furthermore, personnel
providing services should be sufficiently qualified and experienced to
meet the needs of the clients, and they must be sufficient in number to
provide treatment in a manner which is beneficial to the clients.
(d) It is the intent of the Legislature:
1. To articulate the existing legal and human
rights of the retarded so that they may be exercised and protected. The
mentally retarded person shall have all the rights enjoyed by citizens
of the state and the United States.
2. To provide a mechanism for the identification,
evaluation, and treatment of persons with mental retardation.
3. To divert those individuals from institutional
commitment who, by virtue of professional diagnosis and evaluation, can
be placed in less costly, more effective community environments and programs.
4. To mandate the development of a plan which
will indicate the most effective and efficient manner in which to implement
treatment programs which are meaningful to individuals with mental retardation,
while safeguarding and respecting the legal and human rights of such individuals.
5. Once the plan mandated under the provisions
of subparagraph 4. is presented to the Legislature, to fund improvements
in the program in accordance with the availability of state resources and
yearly priorities deterrnined by the Legislature.
6. To provide programs for the proper habilitation
and treatment of the mentally retarded person, which shall include, but
not be limited to, comprehensive medical care, education, recreation, physical
therapy, training, social services, and
habilitative and rehabilitative services suited to the needs of the
individual regardless of age, degree retardation, or handicapping condition.
No mentally retarded person shall be deprived of these enumerated services
by reason of non-ability to pay.
7. To fully effectuate the normalization principle
through the establishment of
community services for the mentally retarded person as a viable and
practical alternative to institutional care at each stage of individual
life development. If care in an institutional facility becomes necessary,
it should be in the least restrictive setting.
(e) It is the clear, unequivocal intent of this act to guarantee
individual dignity,
liberty, pursuit of happiness, and protection of the civil and legal
rights of mentally retarded persons
(3) CLIENT RIGHTS
(a) (Clients shall have a right to dignity,
privacy, and humane care.
(b) Clients shall have the right to religious
freedom and practice. Nothing shall restrict or force infringement on a
client's right to religious preference and practice.
(c) Clients shall have an unrestricted right
to communication:
1. Each client shall
be allowed to receive, send, and mail sealed, unopened correspondence.
No client's incoming or outgoing correspondence shall be opened, delayed,
held, or censored by the facility unless there is reason
to believe that it contains items or substances which may be harmful
to the client
or others, in whicb case, the chief administrator of the facility may
direct reasonable examination such mall and regulate the disposition
of such items or
substances.
2. Clients in residential
facilities shall be afforded reasonable opportunities for telephone communication.
3. Clients shall have
an unrestricted right to visitations. However, nothing in this provision
shall be construed to permit infringement upon other clients' rights to
privacy.
(d) Each client has the right to the possession
and use of his own clothing and personal effects. The chief administrator
of the facility may take temporary custody of such effects when it is essential
to do so for medical or safety reasons. Custody of such personal
effects shall be promptly recorded in the client's record, and a receipt
for such effects shall be immediately given to the client, if competent,
or his parent or legal guardian.
1. All money belonging
to a client held by the department shall be held in compliance with subsections
402.17(2) and (7).
2. All interest on
money received and held for the personal use and benefit of a client shall
be the property of that client and shall not accrue to the general welfare
of all clients or be used to defray the cost of residential care.
Interest so accrued shall be used or conserved for the personal use or
benefit of the individual client as provided in subsection 402.17(2).
3. Upon the discharge
or death of a client, a final accounting shall be made all personal effects
and money belonging to the client held by the department. All such personal
effects and money, including interest, shall be
promptly turned over to the client or his heirs.
(e) Each client shall receive education and
training services regardless of chronological age, degree of retardation,
or accompanying disabilities or handicaps. Clients may be provided
with instruction in sex education, marriage, and family planning as prescribed
in the client's individual habilitative program.
(f) Each client shall receive prompt and appropriate
medical treatment and care for physical and mental ailments and for the
prevention of any illness or disability. Medical treatment shall
be consistent with the accepted standards of medical practice in the community.
1. Medication shall
be administered only at the written order of a physician. Medication
shall not be used as punishment, or the convenience of staff, as a substitute
for a habilitation plan, or in unnecessary or excessive quantities.
2. Daily notation
of medication received by each client in a residential facility shall
be kept in the client's record.
3. Periodically, but
no less frequently than every 6 months, the drug regimen of each client
in a residential facility shall be reviewed by the attending physician
or other appropriate monitoring body, consistent with appropriate standards
of
medical practice. All prescriptions shall have a termination date.
4. Pharmacy services
at each residential facility shall be directed or supervised by a
professionally competent pharmacist licensed according to the provisions
of chapter 465.
5. Pharmacy services
shall be delivered in accordance with the provisions of chapter 465.
6. Prior to instituting
a plan of experimental medical treatment or carrying out any necessary
surgical procedure, express and informed consent shall be obtained from
the client, if competent, or his parent or legal guardian.
Information upon which the client shall make necessary treatment and
surgery decisions shall include, but not be limited to;
a. The nature and consequences of such procedures.
b. The risks, benefits, and purposes of such procedures.
c. Alternate procedures available.
7. When the department
is the legal guardian of a client, or the custodian of a client whose parent
or legal guardian is unknown or unlocatable and whose physician is unwilling
to perform surgery based solely on the client's consent, a court
of competent jurisdiction shall hold a hearing to determine the appropriateness
of the surgical procedure. The client shall be physically present, unless
the client's medical condition precludes such presence, represented by
counsel, and provided the right and opportunity to be confronted with,
and to cross-examine, all witnesses alleging the appropriateness of such
procedure. In such proceedings, the burden of proof by clear and convincing
evidence shall be on the party alleging the appropriateness of such procedures.
The express and informed consent of a person described in subparagraph
6. may be withdrawn at any time, with or without cause, prior to treatment
or surgery.
8. The absence of
express and informed consent notwithstanding) a licensed and qualified
physician may render emergency medical care or treatment to any client
who has been injured or who is suffering from an acute illness, disease,
or condition if, within a reasonable degree of medical certaintv, delay
in initiation of emergency medical care or treatment would endanger the
health of the client.
(g) Clients shall be provided with suitable opportunities for
behavioral and leisure time activities which include social interaction.
(h) Each client shall be provided with appropriate physical exercise
as prescribed in the client's individual habilitation plan. Indoor and
outdoor facilities and equipment for such physical exercise shall be provided.
(i) Each client shall receive humane discipline.
(j) No client shall be subjected to a treatment program to eliminate
bizarre or unusual behaviors without first being examined by a physician
to rule out the possibility that such behaviors are organically caused.
1. Treatment programs
involving the use of noxious or painful stimuli shall be prohibited.
2. All alleged violations
of this paragraph shall be reported immediately to the chief administrative
officer of the facility or the district administrator, the department head,
and the district Human Rights Advocacy Comrnittee. A thorough investigation
of each incident shall be conducted and a written report of the finding
and results of such investigation shall be submitted to the chief administrative
officer of the facility or the district administrator and to the department
head within 24 hours of the occurrence or discovery of the incident,
(k) Each client engaged in work programs which require compliance
with federal wage and hour laws shall be provided with minimum wage protection
and fair compensation for labor in accordance with the provisions of 29
CER part 529.
(l) Clients shall have the right to be free from physical restraint.
Physical restraints shall be employed only in emergencies to protect the
client from immenent injury to himself or others. Restraints shall not
be employed as punishment, for the convenience of staff, or as a substitute
for a habilitative plan. Restraints shall impose the least possible
restrictions consistent with their purpose it shall be removed when the
emergency ends. Restraints shall not cause physical injury to the client
and shall be esigned to allow the greatest possible comfort.
1. Mechanical supports
used in normative situations to achieve proper body position and balance
shall not he considered restraints, but shall be prescriptively designed
and applied under the supervision of a qualified professional with concern
for principles of good body alignment, circulation, and allowance for change
of position.
2.Totally enclosed
cribs and barred enclosures shall be considered restraints.
3. Daily reports on
the employment of restraints by those specialists authorized in the use
of restraints shall be made to the appropriate chief administrator of the
facility, and a monthly summary of such reports shall be relayed to the
district administrator and the district Human Rights Advocacy Committee.
The reports shall summarize all such cases of restraints, the type used,
and duration of usage, and the reasons therefor.
4. The department
shall post a copy of the rules and regulations promulgated under this section
in each living unit of residential facilities. A copy of the rules
and regulations promulgated under this section shall be given to all staff
members of residential facilities and made a part of all preservice and
inservice training programs.
(m) 1. Each client shall have a
central record. The record shall include notes pertaining to admission
and such other information as may be required under regulation by the department.
2. Unless waived
by the client, if competent, or his parent or legal guardian if the client
is incompetent, the client's central record shall not be a public record
and no part of it shall be released except:
a. The record may be released to physicians, attorneys, and government
agencies having need of the record to aid the client, as designated by
the client if competent, or his parent or legal guardian, if the client
is incompetent.
b. The record shall be produced in response to a subpoena or released to
persons authorized by order of court, excluding matters privileged by other
provisions of law.
c. The record or any part thereof may be disclosed to a qualified researcher,
a staff member of the facility, or an employee of the department when the
adminjstrator of the facility or the secretary of the department deems
it necessary for the treatment of the client, maintenance of adequate records,
compilation of treatment data, or evaluation of programs.
d. Information from the records may be used for statistical and research
purposes if the information is abstracted in such a way to protect the
identity of individuals.
3.
All central records for each client in residential facilities shall be
kept in uniform forms distributed by the department. The central record
shall accurately summarize each client's history and present condition.
4.
The client, if competent, or his parent or legal guardian if the client
is incompetent, shall be supplied with a copy of the client's central record
upon request.
(4)
LIABILITY FOR VIOLATIONS.- Any person who violates or abuses any rights
or privileges of clients provided by this act shall be liable for damages
as determined by law. Any person who acts in good-faith compliance with
the provisions of this act shall he immune from civil or criminal liability
for actions in connection with valuation, admission habilitative programming,
education, treatment, or discharge of a client. However, this section shall
not relieve any person from liability if such person is guilty of negligence,
misfeasance, nonfeasance, or malfeasance.
(5) NOTICE OF RIGHTS.-Each client, if competent, or parent
or legal guardian of each client if the client is incompetent, shall promptly
receive from the Department of Health and Rehabilitative Services a written
copy of this act. Each client able to comprehend shall be promptly informed
in clear language of the above legal rights of mentally retarded persons.
(6) RESIDENT GOVERNMENT.-
Each residential facility shall initiate and develop a program of resident
government to hear the views and represent interests of all clients served
by the facility. The resident government shall be composed of residents
elected by other residents, staff advisors skilled in the administration
of community organizations, and a representative of the district Human
Rights Advocacy Committee. The resident government shall work closely with
the district Human Rights Advocacy Committee and the district administrator
to promote the interests and welfare of all residents in the facility.
History.-ss. l-7,ch.75-259;s.l,ch.77-l74;s,7,ch.77-335;s.7,ch.79-12;s.9,ch.79.320.
HRS Pt 160-14. SFP SO