34-B §5605. Rights and basic protections of a person with mental retardation or autism - Maine Statutes

Title 34-B: BEHAVIORAL AND DEVELOPMENTAL SERVICES HEADING: PL 1995, C. 560, PT. K, §7 (RPR); 2001, C. 354, §3 (AMD)

Chapter 5: MENTAL RETARDATION

Subchapter 4: RIGHTS OF PERSONS WITH MENTAL RETARDATION OR AUTISM HEADING: PL 1993, C. 326, §1 (RPR)

§5605. Rights and basic protections of a person with mental retardation or autism

A person with mental retardation or autism is entitled to the following rights and basic protections. [1993, c. 326, §9 (AMD).]

1. Humane treatment. A person with mental retardation or autism is entitled to dignity, privacy and humane treatment.

[ 1993, c. 326, §9 (AMD) .]

2. Practice of religion. A person with mental retardation or autism is entitled to religious freedom and practice without any restriction or forced infringement on that person's right to religious preference and practice.

[ 1993, c. 326, §9 (AMD) .]

3. Communications. A person with mental retardation or autism is entitled to private communications.

A. A person with mental retardation or autism is entitled to receive, send and mail sealed, unopened correspondence. A person who owns or is employed by a day facility or a residential facility may not delay, hold or censor any incoming or outgoing correspondence of any person with mental retardation or autism, nor may any such correspondence be opened without the consent of the person or the person's legal guardian. [1993, c. 326, §9 (AMD).]

B. A person with mental retardation or autism in a residential facility is entitled to reasonable opportunities for telephone communication. [1993, c. 326, §9 (AMD).]

C. A person with mental retardation or autism is entitled to an unrestricted right to visitations during reasonable hours, except that nothing in this provision may be construed to permit infringement upon others' rights to privacy. [1993, c. 326, §9 (AMD).]

[ 1993, c. 326, §9 (AMD) .]

4. Work. A person with mental retardation or autism engaged in work programs that require compliance with state and federal wage and hour laws is entitled to fair compensation for labor in compliance with regulations of the United States Department of Labor.

[ 1993, c. 326, §9 (AMD) .]

5. Vote. A person with mental retardation or autism may not be denied the right to vote for reasons of mental illness, as provided in the Constitution of Maine, Article II, Section 1, unless under guardianship.

[ 1993, c. 326, §9 (AMD) .]

6. Personal property. A person with mental retardation or autism is entitled to the possession and use of that person's own clothing, personal effects and money, except that, when necessary to protect the person or others from imminent injury, the chief administrator of a day facility or a residential facility may take temporary custody of clothing or personal effects, which the administrator shall immediately return when the emergency ends.

[ 1993, c. 326, §9 (AMD) .]

7. Nutrition. A person with mental retardation or autism in a residential facility is entitled to nutritious food in adequate quantities and meals may not be withheld for disciplinary reasons.

[ 1993, c. 326, §9 (AMD) .]

8. Medical care. A person with mental retardation or autism is entitled to receive prompt and appropriate medical and dental treatment and care for physical and mental ailments and for the prevention of any illness or disability, and medical treatment must be consistent with the accepted standards of medical practice in the community, unless the religion of the person with mental retardation or autism so prohibits.

A. Medication may be administered only at the written order of a physician. [1983, c. 459, §7 (NEW).]

B. Medication may not be used as punishment, for the convenience of staff, as a substitute for a habilitation plan or in unnecessary or excessive quantities. [1983, c. 459, §7 (NEW).]

C. Daily notation of medication received by each person with mental retardation or autism in a residential facility must be kept in the records of the person with mental retardation or autism. [1993, c. 326, §9 (AMD).]

D. Periodically, but no less frequently than every 6 months, the drug regimen of each person with mental retardation or autism in a residential facility must be reviewed by the attending physician or other appropriate monitoring body, consistent with appropriate standards of medical practice. [1993, c. 326, §9 (AMD).]

E. All prescriptions must have a termination date. [1993, c. 326, §9 (AMD).]

F. Pharmacy services at each residential facility operated by the department must be directed or supervised by a professionally competent pharmacist licensed according to the provisions of Title 32, chapter 41. [1993, c. 326, §9 (AMD).]

G. Prior to instituting a plan of experimental medical treatment or carrying out any surgical procedure, express and informed consent must be obtained from the person with mental retardation or autism, unless the person has been found to be legally incompetent, in which case the person's guardian may consent.

(1) Before making a treatment or surgical decision, the person must be given information, including, but not limited to, the nature and consequences of the procedures, the risks, benefits and purposes of the procedures and the availability of alternate procedures.

(2) The person or, if legally incompetent, that person's guardian may withdraw express and informed consent at any time, with or without cause, before treatment or surgery. [1993, c. 326, §9 (AMD).]

H. Notwithstanding the absence of express and informed consent, emergency medical care or treatment may be provided to any person with mental retardation or autism who has been injured or who is suffering from an acute illness, disease or condition if delay in initiation of emergency medical care or treatment would endanger the health of the person. [1993, c. 326, §9 (AMD).]

I. Notwithstanding the absence of express and informed consent, emergency surgical procedures may be provided to any person with mental retardation or autism who has been injured or who is suffering from an acute illness, disease or condition if delay in initiation of emergency surgery would substantially endanger the health of the person. [1993, c. 326, §9 (AMD).]

[ 1993, c. 326, §9 (AMD) .]

9. Sterilization. A person with mental retardation or autism may not be sterilized, except in accordance with chapter 7.

[ 1993, c. 326, §9 (AMD) .]

10. Social activity. A person with mental retardation or autism is entitled to suitable opportunities for behavioral and leisure time activities that include social interaction.

[ 1993, c. 326, §9 (AMD) .]

11. Physical exercise. A person with mental retardation or autism is entitled to opportunities for appropriate physical exercise, including the use of available indoor and outdoor facilities and equipment.

[ 1993, c. 326, §9 (AMD) .]

12. Discipline. Discipline of persons with mental retardation or autism is governed as follows.

A. The chief administrative officer of each facility shall prepare a written statement of policies and procedures for the control and discipline of persons receiving services that is directed to the goal of maximizing the growth and development of persons receiving services.

(1) Persons receiving services are entitled to participate, as appropriate, in the formulation of the policies and procedures.

(2) Copies of the statement of policies and procedures must be given to each person receiving services and, if the person has been adjudged incompetent, to that person's parent or legal guardian.

(3) Copies of the statement of policies and procedures must be posted in each residential and day facility. [1993, c. 326, §9 (AMD).]

B. Corporal punishment or any form of inhumane discipline is not permitted. [1983, c. 459, §7 (NEW).]

C. Seclusion is not permitted. [1983, c. 459, §7 (NEW).]

D. [1993, c. 326, §9 (RP).]

[ 1993, c. 326, §9 (AMD) .]

13. Behavioral treatment. Behavioral treatment of a person with mental retardation or autism is governed as follows.

A. A person with mental retardation or autism may not be subjected to a treatment program to eliminate dangerous or maladaptive behavior without first being examined by a physician to rule out the possibility that the behavior is organically caused. [2001, c. 245, §1 (AMD).]

A-1. Behavioral treatment programs may contain both behavior modification and behavior management components. Behavior modification components consist of interventions designed to assist a person with mental retardation or autism to learn to replace dangerous or maladaptive behavior with safer and more adaptive behavior. Behavior management components consist of systematic strategies to prevent the occurrence of dangerous or maladaptive behaviors by minimizing or eliminating environmental or other factors that cause those behaviors. [2001, c. 245, §1 (NEW).]

B. Treatment programs involving the use of noxious or painful stimuli or other aversive or severely intrusive techniques, as defined in department rules, may be used only to correct behavior more harmful than the treatment program to the person with mental retardation or autism and only:

(1) On the recommendation of a physician, psychiatrist or psychologist;

(2) For an adult 18 years of age or older, with the approval, following a case-by-case review, of a review team composed of an advocate from the Office of Advocacy; a representative of the Office of Adults with Cognitive and Physical Disabilities; and a representative of the Maine Developmental Services Oversight and Advisory Board; and

(3) For a child under 18 years of age, with the approval, following a case-by-case review, of a review team composed of an advocate from the Office of Advocacy, a team leader of the department's children's services division and the children's services medical director or the director's designee. Until rules are adopted by the department to govern behavioral treatment reviews for children, the team may not approve techniques any more aversive or intrusive than are permitted in rules adopted by the Secretary of the United States Department of Health and Human Services regarding treatment of children and youth in nonmedical community-based facilities funded under the Medicaid program.

The department may adopt rules as necessary to implement this paragraph. Rules adopted pursuant to this paragraph are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A. [2007, c. 356, §25 (AMD); 2007, c. 695, Pt. D, §3 (AFF).]

C. Notwithstanding paragraph B, for a child under 18 years of age, treatment programs involving the use of seclusion or any noxious or painful stimuli, as defined in department rules, may not be approved. [2003, c. 564, §2 (NEW).]

[ 2007, c. 356, §25 (AMD); 2007, c. 695, Pt. D, §3 (AFF) .]

14. Physical restraints.

[ 2007, c. 573, §1 (RP) .]

14-A. Physical restraints. A person with mental retardation or autism is entitled to be free from a physical restraint unless:

A. The physical restraint is a short-term step to protect the person from imminent injury to that person or others; or [2007, c. 573, §2 (NEW).]

B. The physical restraint has been approved as a behavioral treatment program in accordance with this section. [2007, c. 573, §2 (NEW).]

A physical restraint may not be used as punishment, for the convenience of the staff or as a substitute for habilitative services. A physical restraint may impose only the least possible restriction consistent with its purpose and must be removed as soon as the threat of imminent injury ends. A physical restraint may not cause physical injury to the person receiving services and must be designed to allow the greatest possible comfort and safety. The use of totally enclosed cribs and barred enclosures is prohibited in all circumstances.

Daily records of the use of physical restraints identified in paragraph A must be kept, which may be accomplished by meeting reportable event requirements.

Daily records of the use of physical restraints identified in paragraph B must be kept, and a summary of the daily records pertaining to the person must be made available for review by the person's planning team, as defined in section 5461, subsection 8-C, on a schedule determined by the team. The review by the personal planning team may occur no less frequently than quarterly. The summary of the daily records must state the type of physical restraint used, the duration of the use and the reasons for the use. A monthly summary of all daily records pertaining to all persons must be relayed to the Office of Advocacy.

[ 2007, c. 573, §2 (NEW) .]

14-B. Mechanical supports. Mechanical supports used in normative situations to achieve proper body position and balance are not considered physical restraints, but mechanical supports must be prescriptively designed and applied under the supervision of a qualified professional with concern for principles of good body alignment and circulation and allowance for change of position.

[ 2007, c. 573, §3 (NEW) .]

14-C. Safety devices. A safety device whose effect is to reduce or inhibit a person's movement in any way but whose purpose is to maintain or ensure the safety of the person is not considered behavioral treatment or a physical restraint. Safety devices include, but are not limited to, implements, garments, gates, barriers, locks or locking apparatus, alarms, helmets, masks, gloves, straps, belts or protective gloves whose purpose is to maintain the safety of the person. The department may adopt rules concerning the use and approval of safety devices. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.

[ 2007, c. 573, §4 (NEW) .]

14-D. Reimbursement provided. Notwithstanding any other provision of law, the department shall provide reimbursement within available resources for durable medical equipment that provides a safe sleeping environment for individuals under 16 years of age if:

A. The durable medical equipment is necessary to correct or ameliorate a behavioral health condition; [2009, c. 100, §1 (NEW).]

B. The durable medical equipment is the least restrictive alternative for the treatment of the behavioral health condition; [2009, c. 100, §1 (NEW).]

C. The durable medical equipment is approved on a case-by-case basis by a review team composed of the same representatives as the team conducting children's behavioral treatment reviews under subsection 13, paragraph B, subparagraph (3); and [2009, c. 100, §1 (NEW).]

D. The department determines that the durable medical equipment is cost-effective in comparison to the provision of other covered services or equipment that can sufficiently correct or ameliorate the behavioral health condition. [2009, c. 100, §1 (NEW).]

The department may adopt rules as necessary to implement this subsection. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.

[ 2009, c. 100, §1 (NEW) .]

15. Records. All records of persons receiving services must remain confidential as provided in section 1207.

A. The person with mental retardation or autism or, if the person is incompetent, a parent or guardian is entitled to have access to the records upon request. [1993, c. 326, §9 (AMD).]

B. The commissioner is entitled to have access to the records of a day facility or a residential facility if necessary to carry out the statutory functions of the commissioner's office. [1987, c. 769, Pt. A, §129 (AMD).]

[ 1993, c. 326, §9 (AMD) .]

SECTION HISTORY

1983, c. 459, §7 (NEW). 1987, c. 769, §A129 (AMD). 1993, c. 326, §9 (AMD). 2001, c. 245, §§1-4 (AMD). 2003, c. 368, §§1,2 (AMD). 2003, c. 564, §§1-3 (AMD). 2007, c. 356, §25 (AMD). 2007, c. 356, §31 (AFF). 2007, c. 573, §§1-4 (AMD). 2007, c. 695, Pt. D, §3 (AFF). 2009, c. 100, §1 (AMD).