Current through Register Vol. XLI, No. 36, September 6, 2024
Section 64-74-2 - Definitions2.1. Abuse. B 2.1.a. Physical Abuse. -- Any act or failure to act by an employee of a behavioral health service that was knowingly, recklessly, or intentionally performed, or that was failed to be performed, and that caused, or may have caused, injury or death to an individual, including, but not limited to:2.1.a.1. The rape or sexual assault of an individual;2.1.a.2. The striking of an individual;2.1.a.3. The use of excessive force when placing an individual in bodily restraints; and2.1.a.4. The use of physical or chemical restraints that is not in compliance with federal or State law.2.1.b. Verbal Abuse. -- Means any use of oral, written ore gestured language by which abuse occurs. This includes demeaning and derogatory terms to describe persons with disabilities. Verbal abuse includes, but is not limited to: 2.1.b.1. Yelling or using demeaning, derogatory, vulgar, profane or threatening language;2.1.b.2. Threatening tones in speaking;2.1.b.3. Teasing, pestering, molesting, deriding, harassing, mimicking or humiliating a consumer in any way; or2.1.b.4. Making sexual innuendo.2.2. Advance Psychiatric Directive. -- Any instruction written and signed by a consumer, describing preferences in health care written when the consumer is competent and psychiatrically stable and implemented when the consumer is not able to make informed decisions in the absence of an advance psychiatric directive.2.3. Behavioral Health. -- Mental health, developmental disabilities, or substance abuse.2.4. Behavioral Health Service. -- An inpatient, residential or outpatient service for the care and treatment of individuals with mental illness, developmental disabilities or substance abuse.2.5. Consumer. B An individual receiving treatment or services in or from a behavioral health service.2.6. Individualized Program Plan (IPP). -- A master behavioral health treatment plan which is a written, individualized plan specifically tailored to individual needs, including a complete, thorough review of the consumer's strengths, weaknesses, response to initial interventions and prognosis for resolution of acute symptoms, and other components as indicated in this rule.2.7. Legal Representative[1]. B A person or agency with legal authority to exercise some degree of control over a consumer's affairs; namely, one of the following that is the most appropriate to the decision to be made: 2.7.a. A conservator, temporary conservator or limited conservator appointed pursuant to the West Virginia Legal Guardianship and Conservatorship Act, W. Va. Code '44A-1-1 et seq., within the limits set by the order;2.7.b. A guardian, temporary guardian or limited guardian appointed pursuant to the West Virginia Guardianship and Conservatorship Act, W. Va. Code '44A-1-1 et seq., within the limits set by the order;2.7.c. An individual appointed as committee or guardian prior to June 9, 1994, within the limits set by the appointing order and W. Va. Code '44A-1-2(d);2.7.d. A person having a medical power of attorney pursuant to the West Virginia Medical Power of Attorney Act, W. Va. Code '16-30A-1 et seq., within the limits set by the law and the appointment;2.7.e. A representative payee under the U.S. Social Security Act, Title 42 US Code '301 et seq., within the limits of the payee's legal authority;2.7.f. A surrogate decision-maker appointed pursuant to the West Virginia Health Care Surrogate Act, W. Va. Code '16-30B-1 et seq., or the West Virginia Do Not Resuscitate Act, '16-30C-1 et seq., within the limits set by the appointment;2.7.g. An individual having a durable power of attorney pursuant to W. Va. Code '39-4-1, or a power of attorney under common law, within the limits of the appointment;2.7.h. An individual identified pursuant to W. Va. Code '16-3C-4 to grant consent for HIV-related testing and for the authorization of the release of test results;2.7.i. A parent or guardian of a minor; or2.7.j. An individual lawfully appointed in a similar or like relationship of responsibility for a consumer under the laws of this State, or another legal jurisdiction, within the limits of the applicable law.2.8. Mechanical Supports. -- Devices used to support an individual's proper body position or alignment.2.9. Neglect. -- A negligent act or a pattern of actions or events that caused or may have caused injury or death to a consumer, or that placed a consumer at risk of injury or death, that was committed by an individual responsible for providing services in a behavioral health service. Neglect includes, but is not limited to: 2.9.a. A pattern of failure to establish or carry out a consumer's individualized program plan or treatment plan that placed or may have placed a consumer at risk of injury of death;2.9.b. A pattern of failure to provide adequate nutrition, clothing, or health care;2.9.c. Failure to provide a safe environment; and2.9.d. Failure to maintain sufficient, appropriately trained staff.2.10. Restraint. B A temporary behavior control intervention. 2.10.a. Chemical Restraint. -- The use of medication as a behavior control mechanism to substitute for seclusion or other restraint.2.10.b. Physical Restraint. -- Any manual method or physical or mechanical device that the individual cannot remove easily, and that restricts the free movement of, normal functioning of, or normal access to a portion or portions of a consumer's body. Examples of manual methods include therapeutic or basket holds and prone or supine containment. Examples of mechanical devices include arm splints, posey mittens, helmets and straight jackets. Excluded are physical guidance, prompting techniques of brief duration, and mechanical supports.2.11. Seclusion. -- The placement of a consumer alone in a room or enclosed space with closed doors that a consumer cannot open from inside.2.12. Secretary. -- The Secretary of the West Virginia Department of Health and Human Resources or his or her designee.2.13. Treatment Plan. -- Means a written design based on the assessment of a consumer's needs and strengths that identifies problems, sets client-centered goals and objectives and describes all services, programs and activities currently required to support the achievement of the goals and objectives. [1] Behavioral health services should note that the various types of legal representatives do not necessarily have the lawful authority to act on behalf of the resident in all matters that shall require action by a legal representative. For example, a conservator has responsibility for financial affairs, but not personal affairs, such as medical care.