Section 404.154 - Rights of All Persons Receiving Mental Health ServicesPersons receiving mental health services from department facilities, community centers, and psychiatric hospitals have the following rights.
(1) The rights, benefits, responsibilities, and privileges guaranteed by the constitutions and laws of the United States and the State of Texas unless they have been restricted by specific provisions of law. These rights include, but are not limited to, the right to impartial access to and provision of treatment, regardless of race, nationality, religion, sex, ethnicity, sexual orientation, age, or disability; the right to petition for habeas corpus; the right to register and vote at elections; the right to acquire, use, and dispose of property including contractual rights; the right to sue and be sued; all rights relating to the granting, use, and revocation of licenses, permits, privileges, and benefits under law; the right to religious freedom; and rights concerning domestic relations.(2) The right to presumption of mental competency in the absence of a judicial determination to the contrary. Any questions regarding applicability of this right or a limitation on it should be referred for appropriate legal advice.(3) The right to a humane treatment environment that ensures protection from harm, provides privacy to as great a degree as possible with regard to personal needs, and promotes respect and dignity for each individual.(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 those rules and regulations of the department facility, community center, or psychiatric hospital relating to expectations of the individual's conduct. Staff must document in the medical record the date and manner in which this information was provided.(6) The right to communication in a language and format understandable to the individual for all services provided.(7) The right to participate actively in the development and periodic review of an individualized treatment plan (extending to a parent or conservator of a minor, and the legal guardian of the person, when applicable); and the right to a timely consideration of any request for the participation of any other person in this process, with the right to be informed of the reasons for any denial of such a request. Staff must document in the medical record that the parent, guardian, conservator, or other person was notified of the date, time, and location of each meeting so that he or she could participate.(8) The right to explanations of the care, procedures, and treatment to be provided; the risks, side effects, and benefits of all medications and treatment procedures to be used, including those that are unusual or experimental; the alternative treatment procedures that are available; and the possible consequences of refusing the treatment or procedure. This right extends to the parent or conservator of a minor, the legal guardian of the person, when applicable, and to any other person authorized by the individual served.(9) The right to refuse particular treatments without prejudice to participation in other programs, or without compromising access to other treatments or services solely because of the refusal.(10) The right to meet with the professional staff members responsible for the individual's care and to be informed of their professional discipline, job title, 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.(11) The right to obtain an independent psychiatric, psychosocial, psychological, or medical examination or evaluation by a psychiatrist, physician, or nonphysician mental health professional of the individual's choice at the individual's own expense. The department facility, community center, or psychiatric hospital administrator shall allow the individual to obtain the examination or evaluation at any reasonable time. If the individual is a minor, the minor's parent, legal guardian, or managing or possessory conservator is entitled to obtain the examination or evaluation.(12) The right to be granted an in-house review of the individual treatment plan or specific procedure upon reasonable request as provided for in the written procedures of the department facility, community center, or psychiatric hospital.(13) The right to an explanation of the justification of any transfer of the individual to any program within or outside of the department facility, community center, or psychiatric hospital.(14) The right to participate actively in the development of a discharge plan addressing aftercare issues which include the individual's mental health, physical health, and social needs. This right extends to a parent or conservator of a minor, or the legal guardian of the person, when applicable. The individual also has the right to a timely consideration of any request for the participation of any other person in this discharge planning, with the right to be informed of the reasons for any denial of such a request. Staff must document in the medical record that the parent, guardian, conservator, or other person was notified of the date, time, and location of each meeting so that he or she could participate.(15) The right to information, upon request, 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. At department facilities and community centers, no person will be denied services due to an inability to pay for them.(16) The right to be free from unnecessary or excessive medication, which includes the right to give or withhold informed consent to treatment with psychoactive medication, unless the right has been limited by court order or in an emergency. This right extends to the parent or conservator of a minor or the legal guardian of the person, if applicable. For individuals receiving inpatient services at department facilities, community centers, or other mental health facilities when those services are operated by the department or funded by the department through a contractual or other agreement, this right may only be limited in accordance with the provisions of Chapter 405, Subchapter FF of this title (relating to Consent to Treatment with Psychoactive Medication).(17) 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.(18) The right to give or withhold informed consent for the use or performance of any of the following (exceptions to this right must be in accordance with applicable laws, standards, or, for department facilities and community centers, department rules, and must be fully explained to the individual and the person authorized to give consent, if applicable): (B) electroconvulsive therapy (prohibited for minors under the age of 16);(D) behavior therapy when aversive procedures are used or a right otherwise guaranteed in this rule is restricted;(E) hazardous assessment procedures;(F) audiovisual equipment; and(G) other procedures for which consent is required by law.(19) The right to withdraw consent at any time in any matter in which the person receiving services has previously granted consent, without limiting or compromising access to services or other treatment(s).(20) The right to be informed of the current and future use and disposition of products of special observation and audiovisual techniques, such as one-way vision mirrors, tape recorders, television, movies, or photographs.(21) The right to confidentiality of records and the right to be informed of the conditions under which information can be disclosed without the individual's consent. At department facilities and community centers, client-identifying information shall be disclosed in accordance with Chapter 403, Subchapter K of this title (relating to Client-Identifying Information). At psychiatric hospitals, client-identifying information shall be disclosed in accordance with the provisions of the Texas Health and Safety Code, §§ 576.005 and 611.001-611.005, and 42 Code of Federal Regulations, Part 2.(22) The right to be informed of a treating physician's intent to disclose information (when the physician determines such disclosure is in the individual's best interest) to a law enforcement officer or the individual's legally authorized representative when the disclosure is not specifically permitted by other law (e.g., information provided to law enforcement officers legally authorized to conduct investigations concerning complaints of abuse or denial of rights). Unless the individual is unavailable, this includes the right to be informed:(A) of the intent to disclose the information;(B) to whom the information will be disclosed; and(C) of the client's right to prohibit the information from being disclosed by providing contrary written instructions.(23) The right to have access to information contained in one's own record. The right extends to the parent or conservator of a minor (unless the minor is receiving chemical dependency services) and to the legal guardian of a person declared to be legally incompetent. Department facilities and community centers should also reference Chapter 403, Subchapter K of this title (relating to Client-Identifying Information) regarding this right.(A) Confidential information about another person who has not consented to the release shall be deleted from the record prior to its release, unless it is: (i) information relating to the individual that another person has provided;(ii) the identity of the person responsible for that information; or(iii) the identity of any person who provided information that resulted in the individual's commitment.(B) This right may be limited by a mental health professional if the professional determines that release of a portion of the information would be harmful to the individual's physical, mental, or emotional health.(C) Any denial of access to information shall be in keeping with, documented, and reviewed regularly according to provisions outlined in the Texas Health and Safety Code, § 611.004 or § 611.0045. Individuals also have the right to an independent review of any denial of access in accordance with Public Law 99-319 (Protection and Advocacy Act for Mentally Ill Individuals) or the Texas Health and Safety Code, § 611.0045.(24) The right to be free from mistreatment, abuse, neglect, and exploitation. See 40 TAC Chapter 710, Subchapter A (concerning Abuse and Neglect of Persons Served by TXMHMR Facilities), 40 TAC Chapter 710, Subchapter B (concerning Client Abuse and Neglect in Community Mental Health and Mental Retardation Centers), and 40 TAC Chapter 710, Subchapter C (concerning Patient Abuse in Private Psychiatric Facilities).(25) The right to reasonable protection of personal property from theft or loss. At department facilities, the head of the facility must institute procedures to protect and adequately secure the personal property of persons served, including clothing. Community centers and psychiatric hospitals should develop and post procedures regarding protection and security of personal property of persons served.(26) The right not to be secluded or have physical restraint applied to the individual unless it has been prescribed by a physician, except in emergency situations. If physical restraint or seclusion is utilized, the reason for the medical order, the length of time restraint or seclusion has been ordered, and the behaviors necessary for the individual to be removed from restraint or seclusion shall be explained to the individual, and the restraint or seclusion shall be discontinued as soon as possible. Department facilities and community centers should reference Chapter 405, Subchapter F of this title (relating to Restraint and Seclusion in Mental Health Facilities) for more information regarding this right.(27) The right to fair compensation for labor performed for the department facility, community center, or psychiatric hospital in accordance with the Fair Labor Standards Act. Persons receiving services at department facilities and community centers have the right to be informed of the availability of employment opportunities at the department facility or in the community which may lead to competitive employment, as outlined in the Texas Health and Safety Code, § 533.008 (§2.17A of the Texas Mental Health and Mental Retardation Act).(28) The right to be free from intrusive searches of person or possessions unless justified by clinical necessity, ordered by a physician, and witnessed. Any searches involving removal of any item of clothing shall be witnessed by an individual of the same sex as the person being searched and shall be conducted in a private area. Only physicians will perform body orifice searches.(29) The right to be transported to, from, and between department facilities (including community-based services), community centers, and psychiatric hospitals in a way that protects the dignity and safety of the individual. This includes: (A) the right of females to be transported or accompanied by a female attendant unless the individual is accompanied by her father, husband, adult brother, or adult son;(B) the right of all individuals not to be transported in a marked police or sheriff's car or accompanied by a uniformed officer unless other means are not available;(C) the right of all individuals not to transported with state prisoners;(D) the right of all individuals not to be physically restrained, unless necessary to protect the health and safety of the individual or of a person traveling with the individual, in which case procedures outlined in the Texas Health and Safety Code, § 574.045, shall be followed; and(E) the right of all individuals to be provided reasonable opportunities to get food and water and use a bathroom.(30) The right to initiate a complaint. At department facilities and community centers, this includes the right to be informed of how to contact the facility or center rights protection officer (as outlined in § 404.164 of this title (relating to Rights Protection Officer at Department Facilities and Community Centers)), the facility or center public responsibility committee, and the Office of Consumer Services and Rights Protection in central office (toll-free 1-800-252-8154, toll-free TDD 1-800-538-4870). At psychiatric hospitals, this includes the right to be informed of how to contact the Health Facility Licensure and Certification Division of the Texas Department of Health (toll-free 1-800-228-1570).(31) The right of any individual to make a complaint regarding denial of rights without any form of retaliation.(32) The right to have these rights and any additional rights explained aloud in a way the person served can understand within 24 hours of admission to services (refer to § 404.163 of this title (relating to Communication of Rights to Individuals Receiving Mental Health Services)) and upon request. Persons admitted voluntarily have the right to have these rights and any additional rights explained aloud in a way the person served can understand prior to admission to services and upon request.25 Tex. Admin. Code § 404.154
The provisions of this §404.154 adopted to be effective December 10, 1993, 18 TexReg 8790