DAR File No. 27651

Human Services, Services for People with Disabilities

R539-2

Civil Rights

NOTICE OF PROPOSED RULE

DAR File No.: 27651
Filed: 01/14/2005, 08:37
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The removal of this rule is proposed after a comprehensive revision of the Division's rules.

Summary of the rule or change:

This rule is being repealed and being replaced with two new rules. This rule is repealed in its entirety. (DAR NOTE: The two proposed new rules are: R539-2 entitled Service Coordination that is under DAR No. 27626, and R539-3 entitled Rights and Protections that is under DAR No. 27627. Both were published in the January 15, 2005, Bulletin.)

State statutory or constitutional authorization for this rule:

Sections 62A-5-102 and 62A-5-103

Anticipated cost or savings to:

the state budget:

None--This revision does not alter the basic operations or functions of the Division, and therefore does not result in either a cost or savings to the state.

local governments:

None--Local government funding is not used, therefore, there is no cost to local governments.

other persons:

None--This revision does not alter the basic operations or functions of the Division, and therefore does not result in either a cost or savings to other persons.

Compliance costs for affected persons:

None--This revision does not alter the basic operations or functions of the Division, and therefore does not result in either a cost or savings to affected persons.

Comments by the department head on the fiscal impact the rule may have on businesses:

None--This revision does not alter the basic operations or functions of the Division, and therefore does not have an impact on businesses.

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Direct questions regarding this rule to:

Suzie Totten at the above address, by phone at 801-538-4197, by FAX at 801-538-4279, or by Internet E-mail at stotten@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

03/03/2005

This rule may become effective on:

03/04/2005

Authorized by:

Ron Stromberg, Acting Executive Director

RULE TEXT

R539. Human Services, Services for People with Disabilities.

[R539-2. Civil Rights.

R539-2-1. Individual Rights.

A. Policy.

1. Unless indicated otherwise by the interdisciplinary team and documented in the Individual Program Plan (IPP) record, the rights of each person receiving Division of Services for People with Disabilities (DSPD) services shall include the following:

a. The right to be treated at all times with courtesy, respect and dignity, and with full recognition of individuality;

b. The right to be treated equally as citizens under the law, including the guarantees of privileges afforded under the Constitution of the United States;

c. The right to live in an appropriate, safe, sanitary living environment that complies with local, state, and federal standards;

d. The right to food adequate for accepted standards of nutrition and maintenance of health and well being;

e. The right to practice the religion of choice or to abstain from such practice;

f. The right of timely access to appropriate medical or dental treatment;

g. The right to access supportive services including occupational therapy, physical therapy, speech therapy, behavior modification and psychology services, and other necessary services;

h. The right to receive appropriate care and treatment in the least intrusive manner;

i. The right to privacy, including both periods and places of privacy;

j. The right to communicate freely with persons of choice in any reasonable manner, including social interactions with members of either sex;

k. The right to pursue economic opportunities which promote and enhance economic independence;

l. The right to be free from physical, emotional, psychological, or sexual abuse, and to be free from inappropriate chemical or physical restraint;

m. The right to participate in all decision making which may affect the individual's life, including educational, economic, social, habilitation, and recreation;

n. The right to present grievances.

o. The right to choose among available options.

B. Procedures.

1. A written description of the rights and responsibilities of each individual and legal representative shall be provided and explained at the admission meeting.

2. The Individual Rights policy shall be reviewed with each individual and legal representative annually during the IPP meeting.

3. The provider agency shall ensure that grievance procedures are communicated to individuals, parents, and legal representatives at their IPP meetings. The purpose of the grievance mechanism is to provide a review for and to address allegations of recipient's rights violations.

4. Each individual with disabilities has the right to counsel. If the individual does not have counsel, the contractor will insure that the individual is referred to the Legal Center for People with Disabilities. The Legal Center for People with Disabilities is designated by the Governor to provide protection and advocacy services as enumerated in Public Law 100-146, Title II, Section 113, Developmental Disabilities and Bill of Rights Act, which include advice, investigation, monitoring, legal counseling and representation in administrative and legal proceedings, and information and referral for persons with disabilities.

5. DSPD, DSPD regions, and the Department of Health shall conduct periodic inspections and audits to ensure compliance to this policy.

R539-2-2. Human Subject Research.

A. Policy.

1. Human Subjects Research procedures are intended to ensure that the health, safety, and confidentiality of individuals in DSPD programs are protected within the context of research activities conducted by any individual or organization.

2. The Provider Human Rights Committee (PHRC) must approve any research conducted. The Division of Human Rights Committee (DHRC) shall review and approve research approved by the PHRC.

3. Any individual or organization wishing to conduct research must guarantee, in writing, that the health, safety, and confidentiality of those involved will be maintained.

B. Procedures.

Approved research will be submitted to the Department of Human Services (DHS) Research Committee by DHRC in the event its review is required.

R539-2-3. Human Rights Committee.

A. Policy.

A PHRC is designed to protect persons receiving services from mistreatment, neglect and abuse to ensure that persons may develop to their fullest potential and enjoy satisfying lives. The DHRC serves as a support and review body for recommendations made by PHRC.

B. Procedures.

1. All agencies funded by DSPD shall make available to each person receiving services, patterns and conditions of everyday life which are consistent with their needs and which reflect the full range of choices that are available to persons without disabilities.

2. PHRCs shall advise the program administrator on the use of procedural safeguards for the protection of individual rights and will review all allegations of possible neglect, abuse or denial of rights by:

a. evaluating infringements of the legal and human rights of persons served. The PHRC will report to the Division of Family Services (DFS) possible abuse, neglect, or exploitation of minors for investigation.

b. reviewing the fatality report completed by the DHS, Office of Liability Management (OLM), the PHRC will review the circumstances surrounding any death which may occur to a program recipient.

c. participating in improving the quality of life of recipients by monitoring programs to suggest ways to improve privacy, access to personal belongings, use of personal funds, and that habilitation is appropriate to the chronological age of the person served.

d. ensuring that all behavioral development techniques shall emphasize a positive approach designed to result in the acquisition and maintenance of adaptive behaviors by reviewing the use of Level III and Level IV interventions (see R539-6-12(1)) used for behavior training or management.

(1) Level III- Moderately intrusive procedures which may include: overcorrection, food delay, satiation, physical guidance or manual restraint.

(2) Level IV- Highly intrusive procedures which may include: exclusionary time out, deprivation of sensory stimuli, noxious substances, forced relaxation, inhibiting devices, mechanical or chemical restraint.

3. PHRC membership shall be appointed by the program administrator.

4. PHRC shall have members who are knowledgeable about and who have experience in behavior management and developmental disabilities programs. Membership shall include a consumer and an advocate. DSPD representatives and purchase of service contractors shall not have voting privileges unless they are designated members of the Committee. The majority of the PHRC shall not be employees of the agency.

5. The PHRC decisions shall be reached by a majority vote of all the members.

6. The PHRC appeal process shall be established by PHRC.

7. The Director of DSPD will appoint a DHRC to lend support to PHRC who shall review PHRC's recommendations, the individual's behavior management program and will:

a. advise the Director on the use of administrative and procedural safeguards for evaluating infringements of legal and human rights.

b. review and approve Level IV interventions (see R539-6-12(1)) for behavior management.

c. serve as an appeal body to review all allegations of possible abuse, neglect, or denial of rights.

R539-2-4. Protective Payee Services.

A. Procedures.

1. DSPD staff will be responsible to assess the request for protective payee services and team recommendation for protective payee services.

2. The recipient must be involved in choosing the protective payee.

3. The protective payee voluntary agreement must include:

a. name and address of recipient,

b. effective date for the agreement,

c. a description of the income and resources to be managed, and

d. an end date or plan to reach termination of payee status.

4. If protective payee status continues or is likely to continue for more than two years and no progress is being made, the DSPD case manager may contact DSPD, who will contact the Attorney General's Office to screen the case prior to requesting a conservator.

R539-2-5. Notice and Hearings for Service Changes.

A. Policy.

In order to provide equal opportunity and to ensure due process, a person with a disability has the right to proper notice, to present grievances, or to resolve questions about eligibility through a hearing. An informal process should first be utilized by the person with disabilities and other interested parties, but the individual has the right to a hearing before the DHS hearing examiner if the action cannot be resolved informally at the Region or Division level.

B. Procedures.

1. All agency actions, as defined by the Administrative Procedures Act (Title 63, Chapter 46a), require that the DSPD region notify the applicant in writing.

2. If a person's services are being terminated, reduced, or changed by the interdisciplinary team, the person and legal representative must receive written notice. The notification must include:

a. an explanation of action taken,

b. the reason for the action,

c. a citation of the regulation supporting the action, and

d. a statement of the person's right to a hearing.

3. The individual or legal representative must request a review and hearing within ten working days of receiving the notice in order for services to be continued unchanged during the review and hearing process.

4. The DSPD region staff will:

a. explain the regulations on which the action is based and attempt to resolve the disagreement,

b. suggest the problem be discussed with the DSPD region supervisor and associate director. If the individual is not satisfied with the associate director, the individual may request a joint review by the division director and region director.

c. give the individual a Form 490 if the individual is not satisfied with the action after the regional director and division director meet with the individual, or if at any time the individual insists on a hearing.

5. If the individual requests a hearing from a Hearing Officer, the Hearing Officer shall, within two days, notify the regional director of the request, the name and address of the individual, and the reason for the request.

6. If a request for a hearing is pursued, the individual must comply with the DHS Rule (R497-100) and the Utah Administrative Procedures Act (Sections 63-46b-5 through 22).

7. If a Home and Community-Based Waivered Services (HBCWS) recipient has a reduction in services, the recipient must be notified in writing. All requests for a hearing must be forwarded to the Division of Health Care Finance, Department of Health.

R539-2-6. Informed Consent.

A. Policy.

Written documentation is required which has been explained to the individual and legal representative to provide protection of the individual's rights when the individual is participating in treatment plans, financial arrangements, placement decisions, medical matters, involvement in research and making decisions about their significant life activities.

B. Procedures.

1. The interdisciplinary team must review the individual's ability to give informed consent. They may consult with a licensed psychologist or licensed physician to evaluate the individual's ability to provide informed consent.

2. Documentation of informed consent requires a signed, written consent that the individual or authorized representative have received an explanation of:

a. the purposes of the proposed treatment or life event,

b. the expected duration of the individual's participation,

c. a description of the procedures to be followed,

d. identification of any procedures which are experimental,

e. a description of any reasonable foreseeable risks, discomforts, or benefits to the individual,

f. a disclosure of appropriate alternative procedures or courses of treatment, if any, that might be advantageous, and

g. whom to contact for answers to pertinent questions about the individual's rights.

3. A witnessed oral consent by telephone from the individual or legal representative may be utilized until a formal written consent is obtained.

4. Nothing in this policy is intended to limit the authority of a physician to provide emergency medical care, to the extent the physician is permitted to do so under applicable federal, state, or local law.

KEY: social services, disabled persons*

1993

Notice of Continuation December 18, 2002

62A-5-103]

ADDITIONAL INFORMATION

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For questions regarding the content or application of this rule, please contact Suzie Totten at the above address, by phone at 801-538-4197, by FAX at 801-538-4279, or by Internet E-mail at stotten@utah.gov

For questions about the rulemaking process, please contact the Division of Administrative Rules (801-538-3764). Please Note: The Division of Administrative Rules is NOT able to answer questions about the content or application of these administrative rules.