W. Va. Code R. § 64-11-5

Current through Register Vol. XLI, No. 15, April 12, 2024

Section 64-11-5 - Consumer Rights

5.1. Basic Rights.

5.1.1. A consumer shall have rights including, but not limited to:

5.1.1.a. The right to treatment and services that support a consumer's liberty and result in positive outcomes to the maximum extent possible;

5.1.1.b. The right to an individualized, written treatment plan to be developed promptly after admission; treatment based on the plan; periodic review and reassessment of needs; and appropriate revisions of the plan.

5.1.1.c. The right to treatment and services in the least restrictive, most appropriate, and potentially most effective setting;

5.1.1.d. The .right to ongoing informed participation in the treatment plan process;

5.1.1.e. The right to refuse treatment at any time;

5.1.1.f. The right to a legal representative when unable to act on his or her own behalf;

5.1.1.g. The right to be free from involuntary experimentation;

5.1.1.h. The right to freedom from restraint or seclusion. Restraint and seclusion shall only be used in situations where there is imminent danger to the consumer or others and all less restrictive methods of control have been used;

5.1.1.i. The right to a humane treatment environment in which personal dignity and self-esteem are promoted;

5.1.1.j. The right to confidentiality of records, as provided in this rule;

5.1.1.k. The right to access his or her own consumer records in accordance with state law;

5.1.1.l. The right to assert grievances, orally or in writing, with respect to the infringement of all rights, including the right to have all grievances considered in a fair, timely, and impartial procedure;

5.1.1.m. The right of access to an available advocate in order to understand, exercise, and protect his or her rights;

5.1.1.n. The right to be informed in advance of any charges for services;

5.1.1.o. The right to all available services without discrimination because of race, religion, color, sex, sexual orientation, disability, age, national origin, or marital status;

5.1.1.p. The right to exercise his or her civil rights;

5.1.1.q. The right to referral, as appropriate, to other providers of behavioral health services;

5.1.1.r. The right to be free from physical, verbal, sexual, or psychological abuse or punishment;

5.1.1.s. The right to be free from unnecessary or excessive medication;

5.1.1.t. The right to medication that is not used as punishment, for the convenience of staff, as a substitute for programming, or in quantities that interfere with the treatment program;

5.1.1.u. The right to be free from uncompensated labor, except for consumers in residential facilities who perform housekeeping tasks;

5.1.1.v. The right to be informed orally and in writing, in appropriate language and terms, of the rights described in this section; and

5.1.1.w. A residential consumer shall have:

5.1.1.w.1. The right to be housed with consumers of the same approximate ages, developmental levels, and social needs;

5.1.1.w.2. The right to unimpeded access to his or her attorney or religious advisor;

5.1.1.w.3. The right to constant access to his or her personal possessions unless contraindicated by treatment plan; and

5.1.1.w.4. The right to private communication with others by mail, in person, and by telephone.

5.1.2. Rights and personal liberties may be limited by established policies and procedures when the limitation of the right is clinically appropriate and clearly justified in writing.

5.1.3. A consumer's rights and responsibilities shall devolve only to a legal representative as defined in this rule and to the extent that the legal representative's acts are not hostile or adverse to the best interests of a consumer. This provision does not relieve the provider of the responsibility of informing a consumer as required by this rule, to the extent that a consumer is capable of understanding the matter, nor does it in any way deprive a consumer of his or her legal rights granted under state or federal law.

5.2. Violation of Consumer Rights.

5.2.1. A consumer, an employee, or any other individual may make a complaint to the provider. A supervisor shall report to the chief executive officer or designee within 24 hours regarding all violations, or suspected violations, of a consumer's rights, except in the case of physical abuse for which immediate notification shall be made to all appropriate and required state and law enforcement agencies.

5.2.2. The provider must have evidence that all violations, or suspected violations, of a consumer's rights are thoroughly investigated within a reasonable time period not to exceed 14 days. The chief executive officer or designee shall provide a written report to the human rights committee of his findings and of the actions taken to prevent further occurrences. A consumer or consumers shall be identified by case number only.

5.2.3. The provider shall make a notation of the incident and the effect of the incident on a consumer's illness or treatment in a consumer's record.

5.2.4. If the chief executive officer or designee findings and actions on behalf of a consumer regarding a violation of the consumer's rights is unfavorable, insufficient, or not forthcoming within a reasonable time, the consumer, or his or her legal representative, may appeal to the governing body of the provider, the state licensure body, the West Virginia advocate, or other appropriate resource.

5.3. Human Rights Committee.

5.3.1. The provider shall maintain a human rights committee to:

5.3.1.a. Hold meetings and keep written minutes of all meetings, including, at a minimum, the names and titles of all members and guests present and members absent. However, a provider may choose to maintain additional information;

5.3.1.b. Report activities and recommendations, if any, at least annually to the governing body, or a standing committee of the governing body;

5.3.1.c. Review, approve prior to implementation, and monitor individual consumer behavior plans that include aversive procedures, such as restraint and seclusion, for the control of inappropriate behaviors;

5.3.1.d. Review internal and external investigations of complaints and consumer grievances, including alleged abuse, mistreatment, or neglect;

5.3.1.e. Review and approve prior to implementation research activities and monitor them every three months, or when changes are contemplated; and

5.3.1.f. Ensure that aversive procedures are used only with the written consent of a consumer or his or her legal representative.

5.3.2. A provider with fewer than 30 consumers shall have a minimum of three members on the human rights committee, and a provider with more than 30 consumers shall have a minimum of five members.

5.3.3. At least one-third of the committee members shall be consumers, and no more than one-third shall be staff of the provider.

5.3.4. Ensure that the members have training in confidentiality in order to review consumer records.

5.4. Provider and Behavioral Health Center Responsibility. Providers shall develop and implement a code of conduct that includes, but is not limited to, provisions regarding the following:

5.4.1. How informed consent and participation of a consumer in decisions about services, care, and treatment are to be honored and implemented;

5.4.2. That the right of a consumer to refuse participation in clinical studies or other remedies are to be respected and followed; and

5.4.3. Decisions made about care are to be based solely on the assessment and treatment needs, including consideration of the consumer's wants and desires and other clinical documentation of the consumer's health and behavioral health status.

W. Va. Code R. § 64-11-5