4 PROPOSED ADMINISTRATIVE RULES

 

2008-024 CH

MICHIGAN DEPARTMENT OF COMMUNITY HEALTH BUREAU OF MENTAL HEALTH & SUBSTANCE ABUSE SERVICES

RIGHTS OF RECIPIENTS

 

These rules become effective immediately upon filing with the Secretary of State unless adopted under sections 33, 44 or 45a(6) of 1969 PA 306. Rules adopted under these sections become effective 7 days after filing with the Secretary of State

 

(By authority conferred on the director of the department of community health by sections 1 to 4 of 1905 PA 80, section 33 of 1969 PA 306, and sections 114, 136, 157, 206, 244, 498n, 842, and 1002a of

1974 PA 258, MCL 19.141 to MCL 19.144, MCL 24.233, MCL 330.1114, MCL 330.1136, MCL

330.1206, MCL 330.1244, MCL 330.1498n, MCL 330.1842, and MCL 330.2002a)

 

R 330.7001, R 330.7199 and 330.7243 are amended as follows:

 

 

PART 7. RIGHTS OF RECIPIENTS SUBPART 1. GENERAL PROVISIONS

R 330.7001  Definitions.

Rule 7001. As used in this part:

(a)   "Abuse class I" means a nonaccidental act or provocation of another  to act by an employee, volunteer,  or  agent  of  a  provider  that  caused  or contributed to the death, or sexual abuse of, or serious physical harm to a recipient.

(b)   "Abuse class II" means any of the following:

(i)   A nonaccidental act or provocation of another to act by an employee, volunteer, or agent of a provider that caused or contributed to nonserious physical harm to a recipient.

(ii)   The  use  of  unreasonable  force  on  a  recipient  by  an  employee, volunteer, or agent of a provider with or without apparent harm.

(iii)   Any  action  or  provocation  of  another  to  act  by  an  employee, volunteer, or agent of a provider that causes  or  contributes  to  emotional harm to a recipient.

(iv)   An action taken on behalf of a recipient by a provider who assumes the recipient is incompetent, despite the fact that a guardian has not been appointed, that results in substantial economic, material, or emotional harm to the recipient.

(v)   Exploitation of a recipient by an employee, volunteer, or agent of a provider.

(c)   "Abuse class III" means verbal abuse as defined in paragraph (y) of this subdivision. the use of language or other means of communication by an employee, volunteer, or agent of a provider to degrade, threaten, or sexually harass a recipient.

(d)  "Act" means mental health code, 1974 PA 258, MCL 330.1001 et seq.

(e)   "Anatomical support" means body positioning or  a physical support ordered by a physical or occupational  therapist  for  the  purpose of maintaining or improving a recipient's physical functioning.

 

 

(f)  "Bodily function" means the usual action of any region or organ of the body.

(g)   "Emotional harm" means impaired psychological functioning, growth, or development of a significant nature as evidenced by observable physical symptomatology or as determined by a mental health professional.

(h)   "Exploitation" means an action by an employee, volunteer, or agent of a provider that involves the misappropriation or misuse of a recipient's property or funds for the benefit of an individual or individuals other than the recipient.

 (i) "Force" means non-accidental physical contact with or physical strength exerted against the body of a recipient by an employee, volunteer,  or  agent of a provider that is not an approved physical management technique  or  that is not used to prevent the recipient from harming himself, herself, or others or from causing substantial property damage.

(i)   (j) "Neglect class I" means either of the following:

(i)   Acts of commission or omission by an employee, volunteer, or agent of a provider that result from noncompliance with a standard of care or  treatment required by law  and/or  rules,  policies,  guidelines, written  directives, procedures, or individual plan of service and that cause or contribute to serious physical harm to or sexual abuse of a recipient. causes or contributes to the death, or sexual abuse of, or serious physical harm to a recipient.

(ii)   The failure to report apparent or suspected abuse Class I or neglect Class I of a recipient.

(j)    (k) "Neglect class II" means either of the following:

(i)   Acts of commission or omission by an employee, volunteer, or agent of a provider that result from noncompliance with a standard of care or  treatment required by law, rules, policies, guidelines, written directives, procedures, or individual plan of service and that  cause  or  contribute  to  nonserious physical harm or emotional harm to a recipient.

(ii)   The failure to report apparent or suspected abuse Class II or neglect Class II of a recipient.

(k)   (l) "Neglect class III" means either of the following:

(i)   Acts of commission or omission by an employee, volunteer, or agent  of a provider that result from noncompliance with a standard of care or treatment required by law and/or rules, policies, guidelines,  written directives, procedures, or individual plan of service that either  placed  or could have placed a recipient at risk of physical harm or sexual abuse.

(ii)   The failure to report apparent or suspected abuse Class III or neglect Class III of a recipient.

(l)   (m) "Nonserious  physical  harm"  means  physical damage or what could reasonably be construed as pain suffered by a  recipient that a physician or registered nurse determines could  not  have  caused, or contributed to, the death of a recipient, the permanent  disfigurement  of  a recipient, or an impairment of his or her bodily functions.

(m)   (n)"Physical management" means a technique used by staff to restrict the movement of a recipient by direct physical contact in order to prevent  the recipient from harming himself, herself, or others.  or   from  causing substantial property damage.

(n)   “Protective device” means a device or physical barrier to prevent the recipient from causing serious self-injury associated with documented and frequent incidents of the behavior. A protective device as defined in this subdivision and incorporated in the written individual plan of service shall not be considered a restraint as defined in subdivision (q) of this subrule.

(o)   "Provider" means the department, each community mental health services program, each licensed hospital, each psychiatric unit, and each psychiatric partial hospitalization program licensed under section 137 of the act, their employees, volunteers, and contractual agents.

(p)   "Psychotropic drug" means any medication administered for the treatment or amelioration of disorders of thought, mood, or behavior.

 

 

(q) “Restraint” means the use of a physical device to restrict an individual’s movement. Restraint does not include the use of a device primarily intended to provide anatomical support.

(r) "Serious physical harm" means physical damage suffered  by  a  recipient that a physician or registered nurse determines caused or could  have  caused the death of a  recipient,  caused  the impairment  of  his  or  her  bodily functions, or caused the permanent disfigurement of a recipient. (s)"Sexual abuse" means any of the following:

(i)   Criminal sexual conduct as defined by section 520b to 520e of 1931 PA 318, being MCL 750.520b to MCL 750.520e involving an employee, volunteer, or agent of a provider and a recipient.

(ii)   Any sexual contact or sexual penetration involving an employee, volunteer, or agent of a department operated hospital or center, a facility licensed by the department under section 137 of the act or an adult foster care facility and a recipient.

(iii)   Any sexual contact or sexual penetration between an involving an employee, volunteer, or agent of a provider and a recipient for whom the employee, volunteer, or agent provides direct services.

(t)  "Sexual contact" means the intentional touching of the  recipient's  or employee's intimate parts or the  touching  of  the  clothing  covering  the immediate area of the recipient's or employee's intimate parts, if that intentional touching can reasonably be construed as being for the purpose  of sexual arousal or gratification, done for a sexual purpose, or in a sexual manner for any of the following:

(i)   Revenge.

(ii)   To inflict humiliation.

(iii)   Out of anger.

(u)   "Sexual harassment" means sexual advances to a recipient, requests for sexual favors from a recipient, or other conduct or communication of a sexual nature toward a recipient.

(v) “Sexual penetration” means sexual intercourse, cunnilingus, fellatio, anal intercourse, or any other intrusion, however slight, of any part of a person’s body or of any object into the genital or anal openings of another person’s body, but emission of semen is not required.

(u) (w)"Therapeutic de-escalation" means an intervention,  the  implementation of which is incorporated in  the  individualized  written  plan  of service, wherein the recipient is placed in an area or room, accompanied by staff  who shall  therapeutically  engage  the  recipient  in  behavioral  de- escalation techniques and debriefing as to the cause and future prevention of the target behavior. (v)(x)"Time out" means a voluntary response to the therapeutic suggestion to a recipient to remove himself or herself from a stressful situation in order to prevent a potentially hazardous outcome.

(w)  (y)"Treatment by spiritual means" means a spiritual discipline or school of thought that a recipient wishes to rely on to aid physical or mental recovery.

(x)   (z)"Unreasonable force" means physical management or force that is  applied by an employee, volunteer, or agent of a provider to a recipient where there is no imminent risk of significant  injury serious physical harm to the recipient, staff, or others or that is any of the following:

(i) Not in compliance with approved behavior physical management techniques approved by the provider.

(ii) Outside the scope of training received by the employee, volunteer, or agent of the provider.

(ii)   (iii) Not in compliance with the recipient's individual plan of service.

(iii)   (iv)Used  when  other  less  restrictive  measures  were  not  attempted  immediately before the use of physical management or force.

(y) "Verbal  abuse"  means  the  use  of  language  or  other   means   of communication by an employee, volunteer, or agent of a provider  to  degrade,  threaten  or sexually harass a recipient.

 

SUBPART 3. ADDITIONAL RIGHTS OF RESIDENTS OF FACILITIES

 

 

R 330.7199   Written plan of services.

Rule  7199.  (1)  The individualized written plan of services is the fundamental document in the recipient's record. A provider shall retain all periodic reviews, modifications, and revisions of the plan in the recipient's record.

(2)  The plan shall identify, at a minimum, all of the following:

(a)  All individuals, including family members, friends, and professionals that the individual desires or requires to be part of the planning process.

(b)   The services, supports, and treatments that the recipient requested of the provider.

(c)  The services, supports, and treatments  committed  by  the  responsible mental  health  agency  to honor  the  recipient's  request   specified   in subdivision (b) of this subrule.

(d)  The person or persons who will assume responsibility for assuring that the committed services and supports are delivered.

(e)   When the recipient can reasonably expect each of the committed services and supports to commence, and, in the case of recurring services or supports, how frequently, for what duration, and over what period of time.

(f)    How the committed mental health services and supports will be coordinated with the recipient's natural support systems and the services and supports provided by other public and private organizations.

(g)  Any restrictions or limitations of the recipient's rights.  Such restrictions, limitations, or any  aversive or  intrusive  behavior  treatment techniques shall be reviewed and approved by a formally constituted committee of  mental  health  professionals  with  specific  knowledge,  training,  and expertise in applied behavioral analysis. Any restriction or limitation shall be justified, time-limited, and clearly documented in the plan of service. Documentation shall be included that describes attempts that have been made to avoid such restrictions as well as what actions will be taken as part of the plan to ameliorate or eliminate the need for the restrictions in the future.

(h)  Strategies for assuring that  recipients  have  access  to  needed  and available supports identified through a  review  of  their  needs.  Areas of possible need may include any of the following:

(i)   Food.

(ii)   Shelter.

(iii)   Clothing.

(iv)   Physical health care.

(v)   Employment.

(vi)   Education.

(vii)   Legal services.

(viii)   Transportation.

(ix)   Recreation.

(i)   A description of any involuntary procedures and the legal basis for performing them.

(j)   A specific date or dates when the overall plan, and any of its subcomponents will be formally reviewed for possible modification or revision.

(3)   The plan shall not contain privileged information or communications.

(4)  Except as otherwise noted in subrule (5) of this rule,  the  individual plan of service shall be formally agreed to  in  whole  or  in  part  by  the responsible mental health agency and the recipient, his or her  guardian,  if any, or the parent who has  legal  custody  of  a  minor  recipient.  If the appropriate signatures are unobtainable, then the responsible mental health agency shall document witnessing verbal agreement to the plan. Copies of the plan shall be provided to the recipient, his or her guardian, if any, or the parent who has legal custody of a minor recipient.

 

 

(5)   Implementation of a plan without agreement of the recipient, his or her guardian, if any, or parent who has legal custody of a  minor  recipient  may only occur when a recipient has been adjudicated pursuant to the provisions of section 469a, 472a, 473, 515, 518, or 519 of the act. However, if the proposed plan in whole or in part is implemented without the concurrence of the adjudicated recipient or his or her guardian, if any, or the  parent  who has legal custody of a minor recipient, then the  stated objections  of  the recipient or his or her guardian or the parent who has  legal  custody  of  a minor recipient shall be included in the plan.

 

R 330.7243   Restraint and seclusion, and physical management

Rule 7243. (1) A provider shall keep a separate, permanent chronological record specifically identifying all  instances  when  physical  restraint  or seclusion has been used. The record shall include all of the following information:

(a)   The name of the recipient.

(b)   The type of physical restraint or conditions of seclusion.

(c)   The name of the authorizing and ordering physician.

(d)  The date and time placed in temporary, authorized, and ordered physical restraint or seclusion.

(e)   The date and time the recipient was removed from temporary, authorized, and ordered physical restraint or seclusion.

(2)   A recipient who is in restraint or seclusion shall be inspected at least once every 15 minutes by designated personnel.

(3)   A provider shall ensure that documentation of staff monitoring and observation is entered into the medical record of the recipient.

(4)   A recipient in physical restraint or seclusion shall be provided hourly access to a toilet.

(5)     A  recipient  in  physical  restraint  or  seclusion shall have  an opportunity to bathe, or shall be bathed as often as  needed,  but  at  least once every 24 hours.

(6)   If an order for restraint or seclusion is to expire and the continued use of restraint or seclusion is clinically indicated and must be extended, then a physician's reauthorization or reordering of restraint or seclusion shall comply be in compliance with both of the following provisions:

(a)   If the physical restraint device is a cloth vest and is used to limit the resident's movement at night to  prevent  the  recipient  from injuring himself or herself in bed, the  physician  may  reauthorize  or reorder  the continued use of the cloth vest device pursuant to the provisions of  section 740(4) and(5) of the act.

(b)   Except as specified in subdivision (a) of this subrule, a physician who orders or reorders restraint or seclusion shall do so in accordance with the provisions of sections 740(5) and 742(5) of the act. The required examination by a physician shall be conducted not more than 30 minutes before the expiration of the expiring order for restraint or seclusion.

(7)   If a recipient is removed from restraint or seclusion for more than 30 minutes, then the order or authorization shall terminate.

(8)   A provider shall ensure that a  secluded  or  restrained  recipient  is given an explanation of why he or she is being  secluded  or  restrained  and what he or she needs to do to have the restraint or seclusion order  removed. The explanation shall be provided in clear behavioral terms and documented in the record.

(9)   For restrained recipients, a provider shall ensure that an assessment of the circulation status of restrained limbs is conducted and documented at 15-minute intervals or more often if medically indicated.

(10)   For purposes of this rule, a time out or therapeutic de-escalation program, as defined in R 330.7001, is not a form of seclusion.

 

 

(11) Physical management as defined in subdivision (m) of this subrule may only be used in situations when a recipient is presenting an imminent risk of serious physical harm to himself, herself or others and lesser restrictive interventions have been unsuccessful in reducing or eliminating the imminent risk of serious physical harm.  Both of the following shall apply:

(i)   Physical management shall not be included as a component in a behavior treatment plan.

(ii)   Prone immobilization of a recipient for the purpose of behavior control is prohibited.