N.J. Admin. Code § 10:45-4.1

Current through Register Vol. 56, No. 17, September 3, 2024

Section 10:45-4.1 - Distinct role of BGS staff

(a) BGS staff shall function distinctly and independently from the service components and shall maintain independent decision-making from the service components.

(b) The needs of the individual are paramount; therefore, BGS shall make reasonable efforts to select the most appropriate course of action that is the least restrictive of the individual's freedom, rights and ability to control his or her environment. To that end, BGS staff shall make reasonable efforts to accomplish (b)1 through 10 below:

1. Build a relationship with the individual, to the extent possible, that is based upon mutual respect and trust in order to advocate for what the individual wants, or be able to make decisions in the best interest of the individual, should the individual be unable to express his or her wishes;

2. Protect the individual from actual or potential injury, neglect, exploitation, undue influence and abuse. BGS staff will, where appropriate:

i. Report suspicions to appropriate Division staff;

ii. Initiate an Unusual Incident Report;

iii. Provide input into investigations;

iv. Advocate for needed interventions; and

v. Initiate legal action;

3. Safeguard the individual's rights in accordance with statutory and case law, and regulations. BGS will, where appropriate:

i. Inform the individual of his or her rights and responsibilities;

ii. Explain the content and meaning of the guardianship court order;

iii. Advocate with appropriate staff;

iv. Initiate Unusual Incident Report;

v. Report violations of individual rights to the Human Rights Committee if all other levels of resolution have been exhausted; or

vi. Consult with outside sources including, but not limited to:

(1) Ethics Committee;

(2) Disability Rights New Jersey;

(3) Law Enforcement Agencies; and

(4) Legal Consultation and Representation;

4. Encourage the individual's participation in decision-making by:

i. Seeking the wishes of the individual;

ii. Giving due respect to the individual's wishes;

iii. Advocating for the individual's wishes;

iv. Recognizing and/or developing opportunities for decision-making; and

v. Encouraging/promoting self-reliance, independence, self-care and self-advocacy;

5. Make decisions in accordance with the authority granted in the court order, utilizing the principle of informed consent and in consideration of the individual's identification with particular ethnic, religious and cultural values. In evaluating a requested action or treatment, the guardian will, as appropriate:

i. Review the nature of the requested action or treatment;

ii. Gather adequate information on the issue by using available resources including, but not limited to:

(1) Search the Internet;

(2) Read books and articles; and

(3) Consult with experts in the field;

iii. Gather needed reports;

iv. Discuss the proposed action or medical treatment with involved professionals;

v. Seek input from the individual, family and caregivers;

vi. Explore possible alternatives;

vii. Explain the proposed action or treatment and possible alternatives to the individual in the presence of family, involved professionals and caregivers, as indicated;

viii. Seek the voluntary assent of the individual;

ix. Ensure that the individual's assent is free of coercion;

x. Weigh the risks, benefits, alternatives and anticipated outcomes of proposed action or treatment;

xi. Refer to an ethics committee if needed;

xii. Give or withhold consent using substitute judgment;

xiii. Give or withhold consent using the best interest standard;

xiv. Communicate the decision to the individual, involved professionals, family and caregivers; or

xv. Evaluate outcome of decision;

6. Encourage the individual to maintain contact with his or her family and respect and support the individual's wishes with regard to contact with family unless such contact is not in the best interest of the individual. Where appropriate, discuss family contact with the individual during the annual visit or at the service plan meeting and facilitate family contact at the request of the individual;

7. Encourage and support the development of social relationships that contribute to the well-being of the individual by:

i. Advocating for opportunities for positive social interaction; and

ii. Taking steps, where applicable, to determine the individual's capacity for consensual sex and to provide the needed education and information in order for the individual to exercise the right of sexual expression, including information about sexual health, birth control and assistance in choosing the most appropriate form of birth control;

8. Contribute to the service plan by:

i. Representing the individual at the service plan meeting through personal attendance or by providing written or verbal suggestions/recommendations prior to the meeting, if not able to attend;

ii. Encouraging the individual's participation at the meeting;

iii. Reviewing the completed service plan and provide written input, as needed;

iv. Reviewing decisions made by the individual during the year;

v. Reviewing the individual's understanding of guardianship;

vi. Reviewing the individual's perception of his or her need for guardianship;

vii. Reviewing the appropriateness of guardianship;

viii. Recommending a referral to the psychologist for guardianship assessment, as needed;

ix. Recommending, as applicable, that the individual be provided with needed education and information;

x. Advocating for a burial plan to be included in the service plan; and

xi. Giving or withholding approval for the service plan;

9. Make end-of-life decisions in accordance with N.J.A.C. 10:48B; and

10. Protect the individual's right to privacy by giving or withholding consent for:

i. Release of confidential information, including protected health information in accordance with the Health Insurance Portability and Accountability Act (HIPAA) 45 CFR Parts 160 and 164;

ii. Photographing the individual, if the photograph is to be used for display or public dissemination in accordance with 10:41-3.3.

(1) Consent for photographs for any public purpose shall be contingent on the individual's willingness to participate; and

iii. Audio taping and videotaping the individual for other than treatment purposes or health care operations in accordance with 10:41-3.3.

(1) Consent for audio taping and videotaping for any public purpose shall be contingent on the individual's willingness to participate.

(c) In accordance with the individual's human rights and the authority granted in the court order, BGS staff shall have the responsibility and authority to act in areas that include, but are not limited to:

1. Reviewing the adequacy of the services being provided;

2. Communicating with interested parties, especially family, caregivers and staff regarding the status, needs and wishes of the individual;

3. Providing or withholding consent for any change in residence or program, transfer or discharge; and

4. Providing or withholding consent for the following:

i. Elective medical or dental procedures that require specific authorization, as well as the general consent sufficient for routine medical or dental care;

ii. The use of behavior support plans with identified behavior risk elements;

iii. The service plan;

iv. The release of records or other confidential information and for the publication of photographs, newspaper articles, books, etc., that identify the individual;

v. The use of psychotropic medication as part of an on-going treatment plan to address maladaptive behavior; or

vi. Visits, vacations, trips or other absences from the residence or day program. General permission may be granted for recurring absences with parents, family members or other approved individuals.

N.J. Admin. Code § 10:45-4.1