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TO: Health and Human Services Commission Executive Council
DATE: August 20, 2020
FROM: Timothy E. Bray, Associate Commissioner of State Hospitals
AGENDA ITEM: 2.k
SUBJECT: Rights of Individuals Receiving Mental Health Services
BACKGROUND: ☐ Federal ☐ Legislative ☒ Other: Program Initiative
The purpose of the proposal is to move rules previously implemented by the Department of State Health Services in Texas Administrative Code (TAC) Title 25, Part 1, Chapter 404, Subchapter E to 26 TAC, Part 1, Health and Human Services Commission, due to the consolidation of the Health and Human Services System by Senate Bill 200, 84th Legislature, Regular Session, 2015. The rules in 25 TAC Chapter 404 contain outdated references and language. The rules are updated and reorganized with a focus on plain language and moved to 26 TAC Chapter 320. Some provisions were removed as they were better addressed through policy, and no rights were removed.
ISSUES AND ALTERNATIVES:
Some stakeholders suggested language that goes beyond the scope of the rules and outlined procedures; those suggestions were not incorporated into these rules. There are no other known concerns.
STAKEHOLDER INVOLVEMENT:
The rule project workgroup is comprised of staff from Legal Services Division of the Office of Chief Counsel, Regulatory Services, Behavioral Health Services, Health and Specialty Care System, and the Ombudsman for Behavioral Health Access to Care. The workgroup shared the rule with state hospitals and with Disability Rights Texas and made edits based on their feedback. The proposed rules were posted for informal comment from January 14, 2020, to January 28, 2020. The workgroup continues to work with stakeholders as we finalize the proposed rule.
FISCAL IMPACT:
☒ None
SERVICES IMPACT STATEMENT:
The proposed rules outline the rights of people receiving mental health services and the conditions under which a person’s rights may be restricted. These rules protect people from neglect and abuse.
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RULE DEVELOPMENT SCHEDULE:
August 20, 2020 Present to HHSC Executive CouncilSeptember 2020 Publish proposed rules in Texas Register January 2021 Publish adopted rules in Texas RegisterJanuary 2021 Effective date
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TITLE 25 HEALTH SERVICESPART 1 DEPARTMENT OF STATE HEALTH SERVICESCHAPTER 404 PROTECTION OF CLIENTS AND STAFF--MENTAL HEALTH
SERVICESSUBCHAPTER E RIGHTS OF PERSONS RECEIVING MENTAL HEALTH SERVICES
PROPOSED PREAMBLE
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes the repeal of §404.151, concerning Purpose; §404.152, concerning Application; §404.153, concerning Definitions; §404.154, concerning Rights of All Persons Receiving Mental Health Services; §404.155, concerning Rights of Persons Receiving Residential Mental Health Services; §404.156, concerning Additional Rights of Persons Receiving Residential Mental Health Services at Department Facilities; §404.157, concerning Rights of Persons Voluntarily Admitted to Inpatient Services; §404.158, concerning Rights of Persons Apprehended for Emergency Detention for Inpatient Mental Health Services (Other Than for Chemical Dependency); §404.159, concerning Rights of Persons Apprehended for Emergency Detention for Inpatient Chemical Dependency Services; §404.160, concerning Special Rights of Minors Receiving Inpatient Mental Health Services; §404.161, concerning Rights Handbooks for Persons Receiving Mental Health Services at Department Facilities, Community Centers, and Psychiatric Hospitals Operated by Community Centers; §404.162, concerning Patient's Bill of Rights, Teen's Bill of Rights, and Children's Bill of Rights for Individuals Receiving Mental Health Services at Psychiatric Hospitals Not Operated by a Community Center; §404.163, concerning Communication of Rights to Individuals Receiving Mental Health Services; §404.164, concerning Rights Protection Officer at Department Facilities and Community Centers; §404.165, concerning Staff Training in Rights of Persons Receiving Mental Health Services; §404.166, concerning Restriction of Rights as Part of Non-Emergency Behavioral Interventions; §404.167, concerning Restriction of Rights as Part of Emergency Behavioral Interventions: Restraint and Seclusion; §404.168, concerning References; and §404.169, concerning Distribution.
BACKGROUND AND PURPOSE
The purpose of this proposal is to repeal rules no longer implemented by the Department of State Health Services in Texas Administrative Code (TAC) Title 25, Part 1, Chapter 404, Subchapter E due to the consolidation of the Health and Human Services System by Senate Bill 200, 84th legislature, Regular Session, 2015. Rules that address the rights of individuals receiving mental health services are being proposed in Title 26, Part 1, Health and Human Services Commission, Chapter 320, Subchapter A. The new rules are proposed simultaneously elsewhere in this issue of the Texas Register.
SECTION-BY-SECTION
The proposed repeal of §§404.151- 404.169 allows substantially similar new rules to be proposed in Title 26, Chapter 320, Subchapter A.
FISCAL NOTE
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Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the repeals will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.
GOVERNMENT GROWTH IMPACT STATEMENT
HHSC has determined that during the first five years that the rules are repealed:
(1) the proposed repeals will not create or eliminate a government program;(2) the proposed repeals will not affect the number of HHSC employee positions;(3) the proposed repeals will result in no assumed change in future legislative appropriations; (4) the proposed repeals will not affect fees paid to HHSC; (5) the proposed repeals will not create a new rule;(6) the proposed repeals will repeal existing rules;(7) the proposed repeals will not change the number of individuals subject to the rules; and(8) the proposed repeals will not affect the state’s economy.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS
Trey Wood has also determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities.
The proposed repeals do not impose any additional costs on small businesses, micro-businesses, or rural communities.
LOCAL EMPLOYMENT IMPACT
The proposed repeals will not affect a local economy.
COSTS TO REGULATED PERSONS
Texas Government Code §2001.0045 does not apply to these repeals because the repeals do not impose a cost on regulated persons.
PUBLIC BENEFIT AND COSTS
Timothy E. Bray, Associate Commissioner of State Hospitals, has determined that for each year of the first five years the repeals are in effect, the public will benefit from the elimination of rules that refer to Texas Department of Mental Health and Mental Retardation, an agency that no longer exists.
Trey Wood has also determined that for the first five years the repeals are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because there is no requirement to alter current business practices.
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TAKINGS IMPACT ASSESSMENT
HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.
PUBLIC COMMENT
Written comments on the proposal may be submitted to HHSC, Health and Specialty Care System, Mail Code 619E, P.O. Box 13247, Austin, Texas 78711-3247, or by email to [email protected].
To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 18R047" in the subject line.
STATUTORY AUTHORITY
The repeals are authorized by Texas Government Code §531.0055, which authorizes the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§572.0025, 572.003, 573.025, 576.001 - 576.027, and 611.0045, which list rights of individuals receiving mental health services and authorize the Executive Commissioner to adopt rules relating to those rights.
The repeals implement Texas Government Code §531.0055 and Texas Health and Safety Code §§572.0025, 572.003, 573.025, 576.001 - 576.027, and 611.0045.
This agency hereby certifies that this proposal has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
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TITLE 25 HEALTH SERVICESPART 1 DEPARTMENT OF STATE HEALTH SERVICESCHAPTER 404 PROTECTION OF CLIENTS AND STAFF--MENTAL HEALTH
SERVICESSUBCHAPTER E RIGHTS OF PERSONS RECEIVING MENTAL HEALTH SERVICES
The full text of the repealed rules is located in the Texas Administrative Code
https://texreg.sos.state.tx.us/public/readtac$ext.ViewTAC?tac_view=5&ti=25&pt=1&ch=404&sch=E&rl=Y
§404.151. Purpose.
§404.152. Application.
§404.153. Definitions.
§404.154. Rights of All Persons Receiving Mental Health Services.
§404.155. Rights of Persons Receiving Residential Mental Health Services.
§404.156. Additional Rights of Persons Receiving Residential Mental Health Services at Department Facilities.
§404.157. Rights of Persons Voluntarily Admitted to Inpatient Services.
§404.158. Rights of Persons Apprehended for Emergency Detention for Inpatient Mental Health Services (Other Than for Chemical Dependency).
§404.159. Rights of Persons Apprehended for Emergency Detention for Inpatient Chemical Dependency Services.
§404.160. Special Rights of Minors Receiving Inpatient Mental Health Services.
§404.161. Rights Handbooks for Persons Receiving Mental Health Services at Department Facilities, Community Centers, and Psychiatric Hospitals Operated by Community Centers.
§404.162. Patient's Bill of Rights, Teen's Bill of Rights, and Children's Bill of Rights for Individuals Receiving Mental Health Services at Psychiatric Hospitals Not Operated by a Community Center.
§404.163. Communication of Rights to Individuals Receiving Mental Health Services.
§404.164. Rights Protection Officer at Department Facilities and Community Centers.
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§404.165. Staff Training in Rights of Persons Receiving Mental Health Services.
§404.166. Restriction of Rights as Part of Non-Emergency Behavioral Interventions.
§404.167. Restriction of Rights as Part of Emergency Behavioral Interventions: Restraint and Seclusion.
§404.168. References.
§404.169. Distribution.
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TITLE 26 HEALTH AND HUMAN SERVICESPART 1 HEALTH AND HUMAN SERVICES COMMISSIONCHAPTER 320 RIGHTS OF INDIVIDUALSSUBCHAPTER A RIGHTS OF INDIVIDUALS RECEIVING MENTAL HEALTH SERVICES
PROPOSED PREAMBLE
The Executive Commissioner of the Texas Health and Human Services Commission (HHSC) proposes new Chapter 320, Rights of Individuals, Subchapter A, Rights of Individuals Receiving Mental Health Services, consisting of new §320.1, concerning Purpose; §320.2, concerning Application; §320.3, concerning Definitions; §320.4, concerning Abuse, Neglect, and Exploitation; §320.5, concerning Rights Which May Not Be Restricted; §320.6, concerning Rights of Individuals Receiving Mental Health Services; §320.7, concerning Rights of Individuals Receiving Inpatient Services; §320.8, concerning Rights of Individuals at HHSC Facilities, LMHAs, and LBHAs; §320.9, concerning Right to Request Discharge; §320.10, concerning Rights of Individuals Under Age 18; §320.11, concerning Restriction of Rights; §320.12, concerning Rights Handbooks for Individuals Receiving Mental Health Services; §320.13, concerning Communication of Rights to Individuals Receiving Mental Health Services; §320.14, concerning Rights Protection Officer; and §320.15, concerning Legally Authorized Representative.
BACKGROUND AND PURPOSE
The purpose of the proposal is to move rules previously implemented by the Department of State Health Services in Texas Administrative Code (TAC) Title 25, Part 1, Chapter 404, Subchapter E, to 26 TAC, Part 1, Health and Human Services Commission, due to the consolidation of the Health and Human Services System by Senate Bill 200, 84th legislature, Regular Session, 2015. Staff took this opportunity to update and reorganize the rules with a focus on incorporating plain language. The repeal of 25 TAC Chapter 404, Subchapter E is proposed simultaneously elsewhere in this issue of the Texas Register.
The new rules outline the rights of individuals receiving mental health services and stipulates when rights may be restricted.
SECTION-BY-SECTION SUMMARY
Proposed new §320.1 establishes the purpose of the subchapter.
Proposed new §320.2 establishes to whom the subchapter applies.
Proposed new §320.3 provides terminology used in the subchapter.
Proposed new §320.4 establishes a right to freedom from abuse, neglect, and exploitation.
Proposed new §320.5 establishes the rights which may not be restricted of individuals receiving mental health services.
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Proposed new §320.6 establishes the rights of individuals receiving mental health services.
Proposed new §320.7 establishes the rights of individuals receiving inpatient services.
Proposed new §320.8 establishes the rights of individuals at HHSC facilities, local mental health authorities, and local behavioral health authorities.
Proposed new §320.9 establishes the right to request discharge.
Proposed new §320.10 establishes the rights of individuals under age 18.
Proposed new §320.11 establishes when rights can be restricted.
Proposed new §320.12 describes the rights handbooks for individuals receiving mental health services.
Proposed new §320.13 describes the communication of rights to individuals receiving mental health services.
Proposed new §320.14 establishes a rights protection officer.
Proposed new §320.15 establishes the rights of a legally authorized representative.
FISCAL NOTE
Trey Wood, Chief Financial Officer, has determined that for each year of the first five years that the rules will be in effect, enforcing or administering the rules does not have foreseeable implications relating to costs or revenues of state or local governments.
GOVERNMENT GROWTH IMPACT STATEMENT
HHSC has determined that during the first five years that the rules will be in effect:
(1) the proposed rules will not create or eliminate a government program;(2) implementation of the proposed rules will not affect the number of HHSC employee positions;(3) implementation of the proposed rules will result in no assumed change in future legislative appropriations; (4) the proposed rules will not affect fees paid to HHSC; (5) the proposed rules will create new rules in 26 TAC, which will replace rules being repealed contemporaneously in 25 TAC;(6) the proposed rules will not expand, limit, or repeal existing rules;(7) the proposed rules will not change the number of individuals subject to the rules; and(8) the proposed rules will not affect the state’s economy.
SMALL BUSINESS, MICRO-BUSINESS, AND RURAL COMMUNITY IMPACT ANALYSIS
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Trey Wood has determined that there will be no adverse economic effect on small businesses, micro-businesses, or rural communities. There is no requirement for providers to alter current business practices.
LOCAL EMPLOYMENT IMPACT
The proposed rules will not affect a local economy.
COSTS TO REGULATED PERSONS
Texas Government Code §2001.0045 does not apply to these rules because the rules are necessary to protect the health, safety, and welfare of the residents of Texas and do not impose a cost on regulated persons.
PUBLIC BENEFIT AND COSTS
Timothy E. Bray, Associate Commissioner for State Hospitals, has determined that for each year of the first five years the rules are in effect, the public benefit will be maintaining the health and safety of individuals receiving mental health services.
Trey Wood has also determined that for the first five years the rules are in effect, there are no anticipated economic costs to persons who are required to comply with the proposed rules because there is no requirement to alter current business practices.
TAKINGS IMPACT ASSESSMENT
HHSC has determined that the proposal does not restrict or limit an owner's right to his or her property that would otherwise exist in the absence of government action and, therefore, does not constitute a taking under Texas Government Code §2007.043.
PUBLIC COMMENT
Written comments on the proposal may be submitted to HHSC, Mail Code E619, P.O. Box 13247, Austin, Texas 78711-3247, or by email to [email protected].
To be considered, comments must be submitted no later than 31 days after the date of this issue of the Texas Register. Comments must be: (1) postmarked or shipped before the last day of the comment period; (2) hand-delivered before 5:00 p.m. on the last working day of the comment period; or (3) emailed before midnight on the last day of the comment period. If last day to submit comments falls on a holiday, comments must be postmarked, shipped, or emailed before midnight on the following business day to be accepted. When emailing comments, please indicate "Comments on Proposed Rule 18R047" in the subject line.
STATUTORY AUTHORITY
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The new sections are authorized by Texas Government Code §531.0055, which authorizes the Executive Commissioner of HHSC to adopt rules for the operation and provision of services by the health and human services agencies, and Texas Health and Safety Code §§572.0025, 572.003, 573.025, 576.001-576.027, and 611.0045, which list rights of individuals receiving mental health services and authorize the Executive Commissioner to adopt rules relating to those rights.
The new sections implement Texas Government Code §531.0055 and Texas Health and Safety Code §§572.0025, 572.003, 573.025, 576.001-576.027, and 611.0045.
This agency hereby certifies that this proposal has been reviewed by legal counsel and found to be a valid exercise of the agency's legal authority.
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TITLE 26 HEALTH AND HUMAN SERVICESPART 1 HEALTH AND HUMAN SERVICES COMMISSIONCHAPTER 320 RIGHTS OF INDIVIDUALSSUBCHAPTER A RIGHTS OF INDIVIDUALS RECEIVING MENTAL HEALTH SERVICES
§320.1. Purpose.
The purpose of this subchapter is:
(1) to provide to an individual receiving mental health services, and the individual’s legally authorized representative if applicable, a listing of the specific rights guaranteed to the individual and assistance in exercising the individual’s rights in a manner that does not conflict with the rights of other individuals;
(2) to require the development of a rights handbook and its distribution to each individual receiving mental health services, and when applicable, to the LAR, and any other person designated by the individual;
(3) to require the appointment of a rights protection officer at each applicable entity; and
(4) to ensure that entity staff members are aware of the rights of an individual receiving mental health services.
§320.2. Application.
The provisions of this subchapter apply to any of the following types of entities that provide mental health services and to any provider contracting with such an entity or with HHSC:
(1) a state hospital operated by HHSC;
(2) a crisis stabilization unit licensed under Texas Health and Safety Code Chapter 577;
(3) a hospital licensed under Texas Health and Safety Code Chapter 241 that provides mental health services;
(4) a local behavioral health authority designated by HHSC in accordance with Texas Health and Safety Code §533.0356;
(5) a local mental health authority designated by HHSC in accordance with Texas Health and Safety Code §533.035; and
(6) a psychiatric hospital licensed under Texas Health and Safety Code Chapters 571-577.
§320.3. Definitions.
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The following words and terms, when used in this subchapter, shall have the following meanings, unless the context clearly indicates otherwise.
(1) Abuse--An intentional, knowing, or reckless act or omission that causes or may cause death, physical injury, or substantial emotional harm to an individual.
(2) Aversive technique--A highly restrictive behavioral intervention designed to eliminate undesirable behavior patterns through learned associations with unpleasant stimuli or tasks.
(3) Behavioral emergency--A situation involving an individual who is behaving in a violent or self-destructive manner, in which preventive, de-escalating, or verbal techniques have been determined to be ineffective, so it is immediately necessary to restrain or seclude the individual to prevent imminent harm to self or others.
(4) Behavioral intervention--An intervention to increase socially adaptive behavior and to modify maladaptive or problem behaviors and replace them with behaviors and skills that are adaptive and socially productive. Also referred to as "behavior management," "behavior training," or "behavior therapy.”
(5) Capacity-- An individual’s ability:
(A) to understand the nature and consequences of a proposed treatment, including the benefits, risks, and alternatives to the proposed treatment; and
(B) to decide whether to undergo the proposed treatment.
(6) Competency--A legal status that is determined by a court. Adults are presumed competent unless determined otherwise by a court.
(7) Entity--Any of the following types of facilities that provide mental health services or any provider that contracts with such a facility or with HHSC:
(A) a state hospital operated by HHSC;
(B) a crisis stabilization unit licensed under Texas Health and Safety Code Chapter 577;
(C) a hospital licensed under Texas Health and Safety Code Chapter 241 that provides mental health services;
(D) a local behavioral health authority designated by HHSC in accordance with Texas Health and Safety Code §533.0356;
(E) a local mental health authority designated by HHSC in accordance with Texas Health and Safety Code §533.035; and
(F) a psychiatric hospital licensed under Texas Health and Safety Code Chapters 571-577.
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(8) Exploitation--The illegal or improper use of an individual, or the individual’s resources, for monetary or personal benefit, profit, or gain.
(9) Habeas corpus--An order issued by a court or judge of competent jurisdiction, directed to anyone having an individual in their custody or under their restraint, commanding the person to produce the individual at a time and place named in the writ and show why the individual is held in custody or under restraint.
(10) HHSC--The Texas Health and Human Services Commission.
(11) Informed consent--The knowing written consent of an individual with capacity, or the individual's LAR, so situated as to be able to exercise free power of choice without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion. The basic elements of information necessary for informed consent include all of the following, presented in a language or format easily understood by the individual:
(A) a thorough explanation of the procedures to be followed and the purpose of the procedures, including identification of any experimental procedures;
(B) a description of any attendant discomforts and reasonably expected risks;
(C) a description of any reasonably expected benefits;
(D) a disclosure of any appropriate alternative procedures as well as reasonably expected risks and benefits, including those that might result if no procedure is utilized;
(E) an offer to answer any questions about the procedures;
(F) an instruction that the individual can withdraw consent and stop participating in the program or activity at any time without prejudice to the individual, and withdrawal of consent may be in any form, including noncompliance, active resistance, or a verbal or other expression of unwillingness to continue participating in any aspect of the program; and
(G) if the individual receiving services is unable to sign the rights form, a brief explanation of the reason shall be entered on the form with the signature of the person who explained the rights and a third-party witness.
(12) Inpatient services--Services provided to an individual by an entity that exceed 23 hours and that includes:
(A) bed and board;
(B) nursing and other related services;
(C) use of hospital or other critical access facilities;
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(D) social services;
(E) medication, biological supplies, appliances, and equipment;
(F) other diagnostic or therapeutic services;
(G) licensed physician services; or
(H) transportation services, including ambulance transport.
(13) Intrusive search--The tactile or visual examination of an individual's partially or fully unclothed body, personal belongings, or space designated for the storage of the individual's personal belongings. Intrusive searches do not include:
(A) routine searches of belongings for contraband at the time of admission, return from pass, or transfer;
(B) superficial external pat-downs by staff members of the same sex;
(C) daily room checks for housekeeping and chore completion;
(D) physical assessments by nurses and medical staff members, unless the assessment is resisted by the individual, in which case all procedures for intrusive searches are to be followed; and
(E) searches of the individual’s outer clothing, hair, or mouth, unless the search is resisted by the individual, in which case all procedures for intrusive searches are to be followed.
(14) LAR--Legally authorized representative. A person who is authorized by law to act on behalf of an individual, including:
(A) a parent, legal guardian, or court-appointed managing conservator with authority to make health care decisions for the individual, if the individual is a minor;
(B) a legal guardian if the individual has been adjudicated incapacitated to manage the individual’s personal affairs; and
(C) a personal representative or heir of the individual, as defined by Texas Estates Code Chapter 22, if the individual is deceased.
(15) LBHA--Local behavioral health authority. An entity designated as the local behavioral health authority by HHSC in accordance with Texas Health and Safety Code §533.0356.
(16) LMHA--Local mental health authority. An entity designated as the local mental health authority by HHSC in accordance with Texas Health and Safety Code §533.035(a).
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(17) Medical staff member--As determined by the entity and may include physicians, advanced practiced registered nurses, and physician’s assistants.
(18) Mental health services--Any services concerned with the diagnosis, treatment, and care of individuals with a mental illness (known as serious emotional disturbance in reference to children and adolescents), which may be accompanied by a co-occurring diagnosis.
(19) Neglect--A negligent act or omission that causes or may cause death, physical injury, or substantial emotional harm to an individual.
(20) Ombudsman--The Ombudsman for Behavioral Health Access to Care, established by Texas Government Code §531.02251, which receives rights-related complaints from individuals receiving services at HHSC facilities, LBHAs, LMHAs, and HHSC contractors, and serves as a neutral party to help those individuals with rights protection and to navigate and resolve issues related to access to behavioral health care, including care for mental health conditions and substance use disorders.
(21) PHI--Protected health information.
(A) Any information that identifies or could be used to identify an individual, whether oral or recorded in any form, which relates:
(i) to the past, present, or future physical or mental health or condition of the individual;
(ii) to the provision of health care to the individual; or
(iii) to the payment for the provision of health care to the individual.
(B) PHI does not include:
(i) health information that has been de-identified in accordance with 45 CFR §164.514(b); and
(ii) employment records held by an entity as an employer.
(22) Psychiatric emergency--A situation in which it is immediately necessary to administer medication to an individual to prevent:
(A) imminent probable death or substantial bodily harm to the individual because the individual :
(i) is overtly or continually threatening or attempting to commit suicide or serious bodily harm; or
(ii) is behaving in a manner that indicates that the individual is unable to satisfy the individual's need for nourishment, essential medical care, or self-protection; or
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(B) imminent physical or emotional harm to another because of threats, attempts, or other acts the individual overtly or continually makes or commits.
(23) Recovery or treatment plan--A written plan:
(A) developed in collaboration with the individual, and the LAR if required, and the individual’s recovery or treatment team;
(B) amended at any time based on an individual's needs or requests;
(C) guiding the recovery process and fostering resiliency;
(D) completed in conjunction with the uniform assessment;
(E) identifying the individual's changing strengths, capacities, goals, preferences, needs, and desired outcomes; and
(F) including recommended services and supports or reasons for the exclusion of services and supports.
(24) Rights protection officer--A staff member appointed by the head of an entity to protect and advocate for the rights of an individual receiving mental health services.
§320.4. Abuse, Neglect, and Exploitation.
An individual receiving mental health services from an entity has the right to freedom from abuse, neglect, and exploitation, which may not be restricted.
§320.5. Rights Which May Not Be Restricted.
An individual receiving mental health services from an entity has the following rights:
(1) a right, benefit, responsibility, or privilege guaranteed by the constitutions and laws of the United States or the State of Texas, unless it has been restricted by specific provisions of law, and these rights include:
(A) the right to impartial access to and provision of treatment, regardless of race, nationality, religion, sex, gender, ethnicity, sexual orientation, age, or disability;
(B) the right to petition for habeas corpus;
(C) the right to register and vote at elections;
(D) the right to acquire, use, and dispose of property, including contractual rights;
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(E) the right to sue and be sued;
(F) all rights relating to the granting, use, and revocation of a license, permit, privilege, or benefit under law;
(G) the right to religious freedom; and
(H) rights relating to domestic relations;
(2) the right to presumption of competency in the absence of a judicial determination to the contrary; and
(3) the right to a humane treatment environment that:
(A) ensures reasonable protection from harm;
(B) promotes respect and dignity for each individual;
(C) is free from any cruel, unnecessary, demeaning, or humiliating treatment; and
(D) provides for nutrition and hygiene needs.
(4) the right to appropriate treatment in the least restrictive appropriate setting available, consistent with the protection of the individual and the protection of the community;
(5) the right to be informed of the entity’s rules and regulations regarding the individual's conduct; and
(6) the right to communication in a language and format understandable to the individual.
§320.6. Rights of Individuals Receiving Mental Health Services.
An individual receiving mental health services from an entity has the following rights, which may not be restricted except in accordance with §320.11 of this subchapter (relating to Restriction of Rights).
(1) The right to physical conditions that:
(A) provide personal privacy to as great a degree as possible, with regard to personal hygiene and personal needs;
(B) for an individual receiving inpatient services, provide a bed for sleeping overnight in a room that is free of known safety hazards, adequately cooled and ventilated during warm weather, adequately heated during cold weather, and appropriately lighted; and
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(C) provide sufficient furniture for sitting.
(2) The right to actively participate in the development and periodic review of an individualized recovery or treatment plan, and in the development of a discharge plan addressing aftercare issues that include the individual’s mental health, physical health, and social needs; the right to timely consideration of a request for any other person to participate in this process; and the right to be informed of the reasons for any denial of such a request.
(3) The right to explanations of the care, procedures, and treatment to be provided in the individual’s primary language, or documentation in the individual’s record as to why an explanation was not provided, including the risks, side effects, and benefits of all medications and treatment procedures to be used; the alternative treatment procedures that are available; and the possible consequences of refusing the treatment or procedure. This right extends to the LAR and any other person authorized by the individual served.
(4) The right to refuse a particular treatment without prejudice to participation in other programs, or without compromising access to other treatments or services solely because of the refusal.
(5) The right to meet with the professional staff members responsible for the individual's care and to be informed of staff members’ names, professional disciplines, job titles, and responsibilities. In addition, the individual has the right to an explanation of the justification involving any proposed change in the appointment of staff members responsible for the individual's care.
(6) The right to obtain an independent psychiatric, psychosocial, psychological, or medical examination or evaluation by a psychiatrist, physician, or non-physician mental health professional of the individual's or LAR’s choice at the individual's or LAR’s own expense. The entity’s administrator shall allow the individual or LAR to obtain the examination or evaluation at any reasonable time.
(7) The right to an in-house review, by a licensed practitioner with experience or recognized expertise in the treatment or specific procedure, of the individual recovery or treatment plan or specific procedure upon reasonable request, as provided for in the written procedures of the entity.
(8) The right to an explanation of the reason for any transfer of the individual to any program within or outside of the entity.
(9) The right to information pertaining to the cost of services rendered (itemized when possible), the sources of the program's reimbursement, and any limitations placed upon the duration of services.
(10) The right to freedom from unnecessary or excessive medication, including the right to give or withhold informed consent to treatment with psychoactive medication, unless the right has been limited by court order or in a psychiatric emergency, in accordance with HHSC rules.
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(11) The right to give or withhold informed consent to participate in research programs without compromising access to services to which the individual is otherwise entitled.
(12) The right to give or withhold informed consent for the use or performance of any procedure for which consent is required by law.
(13) The right to withdraw consent at any time for any matter in which the individual receiving services has previously granted consent, without limiting or compromising access to services or other treatments.
(14) The right to give or deny informed consent for the use and disposition of photographs, audio, or video recordings used in the treatment of the individual, with the exception of security video recordings.
(15) The right to confidentiality of PHI and the right to be informed of the conditions under which PHI can be disclosed without the individual's consent in accordance with federal and state statutes and regulations.
(16) The right to information contained in the individual’s own record, in accordance with federal and state law, of any denial of access to such information. This right does not extend to the PHI of another individual.
(17) The right to reasonable protection of personal property.
(18) The right not to be secluded or have a restraint applied to the individual, except in accordance with this subchapter.
(19) The right to fair compensation for labor performed for the entity in accordance with the Fair Labor Standards Act, and the right to retain any such compensation.
(20) The right to freedom from intrusive searches of individuals or possessions unless justified by clinical necessity, ordered by a physician, advanced practice registered nurse, or physician assistant, and witnessed by an individual of the same sex as the individual being searched and conducted in a private area. Only physicians will perform body orifice searches.
(21) The right to be transported in a way that protects the dignity and safety of the individual. This includes:
(A) the right of a female individual to be transported or accompanied by a female attendant, unless the individual is accompanied by her father, husband, or adult brother or son;
(B) the right to not be transported in a marked law enforcement vehicle or accompanied by a uniformed law enforcement officer, unless other means are not available;
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(C) the right to not be transported with state prisoners;
(D) the right to not be restrained, except in accordance with this subchapter; and
(E) the right to a reasonable opportunity to receive food and water and use a restroom.
(22) The right to initiate a complaint, including the right to be informed how to initiate the complaint, and to be given contact information for the ombudsman and rights protection officer.
(23) The right to freedom from interference, coercion, punishment, retaliation, or threat of punishment or retaliation regarding a complaint.
§320.7. Rights of Individuals Receiving Inpatient Services.
An individual receiving inpatient services from an entity has the following rights, which may not be limited except in accordance with §320.11 of this subchapter (relating to Restriction of Rights).
(1) The right to unrestricted visits from attorneys, rights protection officers, ombudsmen, representatives of the Texas protection and advocacy agency, private physicians, or other mental health professionals, at reasonable times and places.
(2) The right to be informed, in writing and by any other means necessary, at the time of admission to and discharge from inpatient services, and upon request, of the existence and purpose of the protection and advocacy agency in Texas under the federal Protection and Advocacy for Mentally Ill Individuals Act of 1986 (Public Law 99-319).
(3) The right to suitable clothing which is neat, clean, and well-fitting.
(4) The right to religious freedom and to participate or not to participate in any religious activity.
(5) The right to timely consideration of a request for transfer to another room, if another individual in the room is unreasonably disturbing the individual, and the right to be informed of any reasons for denial of such a request.
(6) The right to adequate medical and psychiatric care and treatment in accordance with the highest standards accepted in medical practice.
(7) The right of each adult individual to have the entity notify a person chosen by the individual of the individual’s admission or discharge, if the individual grants permission.
(8) The right of each adult individual admitted to information about the right to make health care decisions and execute advance directives, as allowed by state
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law.
(9) The right to written information about any prescription medication ordered by the medical staff member, including the name, dosage, risks, side effects, benefits, administration schedule, and name of the physician who prescribed the medication. This right extends to the individual's family member, with the individual’s consent, and the individual’s LAR, if applicable, subject to state and federal confidentiality laws.
(10) The right to periodic review of the need for continued inpatient treatment.
(11) The right to receive visitors at reasonable times and places, allowing for as much privacy as possible.
(12) The right to telephone, mail, or electronic communications, at reasonable times, allowing for as much privacy as possible, except when there is reason to suspect that the communication may present imminent risk of harm to the individual or others.
(13) The right to keep and use personal possessions, including the right to wear one's own clothing and religious or other symbolic items.
(14) The right to an opportunity, under the appropriate level of supervision, for physical exercise and for going outdoors at least daily.
(15) The right to access, with or without supervision, appropriate areas of the campus of the entity, such as a recreation area, a canteen, a chapel, or another area away from the individual's living unit.
(16) The right to the opportunity, under the appropriate level of supervision, to interact with individuals of different genders.
§320.8. Rights of Individuals at HHSC Facilities, LMHAs, and LBHAs.
An individual receiving mental health services has the following rights, which may not be limited except in accordance with §320.11 of this subchapter (relating to Restriction of Rights).
(1) The right, if receiving inpatient mental health services at an HHSC facility, to be advised of the availability of trust fund accounts and other safekeeping for funds and articles of value. This right extends to the individual’s family members, who shall be informed of the existence of a trust fund as a means of securing personal funds for the individual, and who shall be advised of the option to send monies, either checks or cash, to the cashier, and not to the individual or to HHSC facility staff members.
(2) The right, if receiving inpatient mental health services at an HHSC facility, to have the state pay the cost of transportation to the individual’s home upon discharge or furlough, if the individual or someone responsible for the individual is
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unable to do so.
(3) The right, if receiving mental health services at an HHSC facility, LMHA, or LBHA, to be informed that if the individual is a beneficiary of a trust with an aggregate principal of $250,000 or less, the corpus or income of the trust is not considered to be the property of the individual or the individual’s estate and is not liable for the individual’s support.
§320.9. Right to Request Discharge.
(a) An individual voluntarily admitted to inpatient services, or the person who requested admission on the individual's behalf, has the right to request the individual’s discharge in accordance with the Texas Health and Safety Code Chapter 572.004.
(b) Upon request, an individual, or the person who requested admission on the individual’s behalf, shall have the right to an immediate explanation of the process for requesting discharge and the paperwork to request discharge.
(c) Without regard to whether the individual agrees to sign paperwork requesting discharge from services, the request will be documented and processed by a staff member. The refusal or inability of the individual to sign the request for discharge will be documented on the unsigned written request.
§320.10. Rights of Individuals Under Age 18.
An individual under the age of 18 receiving inpatient services has the following rights, which may not be limited except in accordance with §320.11 of this subchapter (relating to Restriction of Rights).
(1) The right to treatment by individuals who have specialized education and training in the emotional, mental health, and substance use disorders and treatment of minors.
(2) The right to receive inpatient services in an area separated from adults receiving services.
(3) The right to regular communication with the individual's family.
§320.11. Restriction of Rights.
(a) An entity shall initiate, implement, and monitor any restraint or seclusion in accordance with 25 TAC Chapter 415, Subchapter F (relating to Interventions in Mental Health Services).
(b) A right under this subchapter may be limited by a medical staff member only to the extent that the restriction is necessary to maintain the individual's physical or emotional well-being or to protect another person.
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(c) The medical staff member shall document in the individual’s record the duration of and clinical justification for any restriction of an individual’s rights under this subchapter.
(d) A medical staff member or medical staff member's designee shall inform the individual, or the individual’s LAR, if applicable, of the clinical reason for the restriction and its duration as soon as practicable. The treatment team shall consider strategies to help the individual regain or resume practice of the restricted right.
(e) Unless the medical staff member reviews a restriction, renews the order for restriction in writing, and documents the renewal with clinical justification in the individual’s record, the duration of a restriction may not exceed:
(1) three days for a restriction on freedom of movement, including physical exercise or going outdoors;
(2) seven days for any other restriction, except:
(A) if a restriction authorizes a staff member to observe the opening of packages received by an individual with a chronic limitation who is deemed not capable of protecting personal property, the duration may not exceed 30 days; and
(B) if a restriction authorizes a staff member to assist in opening personal mail at the request or agreement of an individual who is unable to do so because of a chronic limitation, a staff member is limited to opening the mail and shall not read the mail, unless the individual requests a staff member to read the mail, and the duration may continue until there is an improvement in the individual's condition.
(3) Ten business days or until discharge, whichever occurs first, for a restriction on accessing information contained in the individual’s own record.
(f) An entity may not restrict an individual’s right to communicate with legal counsel, the ombudsman, rights protection officer, courts, Legislature, Texas protection and advocacy agency, or state attorney general.
§320.12. Rights Handbooks for Individuals Receiving Mental Health Services.
(a) An entity shall share the rights handbooks developed by HHSC in English or Spanish.
(b) An entity shall, upon admission provide each individual receiving mental health services and the individual’s LAR an age-appropriate rights handbook. The LAR of a minor shall also receive a copy of the rights handbook for adults.
(c) An entity shall have copies of age-appropriate rights handbooks available at all times, in areas frequented by individuals receiving services.
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(d) The individual’s rights shall be posted in plain view in common areas.
§320.13. Communication of Rights to Individuals Receiving Mental Health Services.
(a) An entity shall, in addition to providing the appropriate rights handbook, orally inform each individual, and the individual’s LAR if applicable, of the individual’s rights using plain and simple terms in the individual’s and LAR’s primary language. The notification shall include an explanation of the circumstances under which those rights may be limited and an explanation of how a complaint may be filed, and it shall take place:
(1) Before voluntary admission, or within 24 hours after involuntary admission;
(2) upon any changes to the rules;
(3) annually; and
(4) upon request.
(b) The oral communication of rights shall be documented and dated on a form signed by the individual, the individual’s LAR if applicable, and the staff member who explained the rights and shall be placed in the individual’s record.
(c) If an individual receiving services is unable or unwilling to sign the oral communication of rights form, the entity shall enter a brief explanation of the reason in the form along with the signatures of the person who explained the rights and a third-party witness.
(d) If the individual does not appear to understand the rights explanation, the entity shall attempt to provide another explanation daily, or as clinically indicated, until understanding is reached or until discharge, and the entity shall document attempts as in subsection (c) of this section.
§320.14. Rights Protection Officer.
(a) The head of each entity shall appoint a rights protection officer, who shall perform the duties of the office without any conflict of interest.
(b) The name, telephone number, email, and mailing address of the rights protection officer must be prominently posted in every area frequented by individuals receiving services, including community outreach or contract programs. Individuals desiring to contact the rights protection officer shall be allowed access to a telephone.
(c) Duties required of the rights protection officer are specified at the discretion of the head of the entity, and shall include:
(1) receiving allegations of rights violations, allegations of inadequate provision
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of services, and requests to advocate for an individual at the entity;
(2) thoroughly investigating each allegation or request received or referring it to the appropriate agency, as necessary;
(3) representing the expressed desires of the individuals served and advocating for the resolution of their grievances;
(4) reporting the results of investigations and advocacy to the individual and the complainant, consistent with the protection of the individual’s right to have any identifying information remain confidential;
(5) ensuring that the rights of an individual receiving services have been thoroughly explained to entity personnel through orientation and annual training;
(6) developing policies and procedures for maintaining training records; and
(7) reviewing all policies, procedures, behavior therapy programs, and rules that affect the rights of individuals receiving services.
§320.15. Legally Authorized Representative.
An individual’s LAR has the right:
(1) to information contained in the individual’s own record;
(2) to an explanation of the care, procedures, and treatment to be provided to the individual;
(3) to an explanation of the clinical reason for any restriction of an individual’s rights under this subchapter;
(4) to actively participate in the development and review of the individual’s recovery or treatment plan and in the development of the individual’s discharge plan; and
(5) to consent to or refuse consent to any care or treatment, including psychiatric medications.
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