Section He-M 309.05 - Personal Rights(a) Individuals who are applying for services or individuals in the service delivery system shall be treated with dignity and respect at all times.(b) Individuals shall be free from abuse, neglect, and exploitation including, at a minimum, the following: (1) Freedom from any emotional, physical, or sexual abuse or neglect;(2) Freedom from the intentional use of physical force, except the minimum force necessary to prevent harm to the individual or others, to prevent substantial damage to real property, or to impose emergency treatment under He-M 305, personal safety emergencies or RSA 135:21-b; and(3) Freedom from personal or financial exploitation.(c) Individuals shall have the right to privacy.(d) Individuals who are applying for services, or who are currently, or were previously in the service delivery system shall have the right to confidentiality of all information and records.(e) At a minimum, programs shall adhere to the following confidentiality requirements: (1) Material safeguarded shall include any information with respect to an individual or through which an individual can be identified such as: c. Diagnoses and evaluative data;d. Medical and clinical records;e. Individual service plans; andf. Whether an individual is using or has used a program's services;(2) The individual or his or her guardian shall be informed that clinical information may be released to the third party payor to the extent necessary to substantiate charges for care and treatment;(3) If the individual or his or her guardian wishes to bear the cost of services privately rather than allow the release of information to third party payors, the individual or his or her guardian shall be personally responsible for the full cost of care and treatment;(4) All program staff shall be informed so as to know and understand confidentiality and comply with confidentiality statutes and rules;(5) Separate, individual records shall be maintained when group treatment methods are employed and joint records of treatment activity shall not be maintained;(6) No program shall photograph, fingerprint, or record any individual by audio or visual equipment unless the individual or his or her guardian has consented following an informed decision, nor allow any third party to photograph, fingerprint, or record any individual by audio or visual equipment unless the individual or his or her guardian has consented following an informed decision;(7) These rules shall not affect the obligation of programs to release information as required by: a.RSA 161-F:42-57, protective services to adults;b.RSA 169-C:29, report of child abuse;c.RSA 631:6, report of injury caused by criminal act; or(8) In accordance with RSA 329:26, RSA 330-A:32, RSA 329-B:26 and RSA 326-B:35, statements made by individuals to physicians licensed pursuant to RSA 329, psychologists licensed pursuant to RSA 329-B, persons licensed pursuant to RSA 330-A, advanced practice registered nurses licensed pursuant to RSA 326-B, or to those who work under their supervision, may be disclosed for the purpose of commitment hearings conducted pursuant to RSA 135-C:27-54 or RSA 464-A.(f) Access to an individual's records shall be as follows: (1) Information pertaining to an individual shall be released to the individual or his or her guardian upon request including all information provided by third parties except that information which was provided by someone other than a health care provider under an agreement that the information would not be disclosed and disclosure would be reasonably likely to reveal the source of the information. When information is not released, the individual or his or her guardian shall be provided with a written denial stating the basis for the denial, a description of how a complaint may be filed, the name, title and address of the contact person to receive the complaint; and the process for filing a complaint pursuant to 45 C.F.R. 160.306;(2) A clinical staff member shall be present at a record review if: a. There is a reasonable concern that an individual will experience a harmful effect as a result of reviewing his or her record, or reasonable concern that the security of the record is at risk; andb. The determination that (2) a. above applies has been made on a case by case basis, and the reasons for the determination have been documented in writing;(3) Information shall be released to any person or organization that has obtained the written consent of the individual or his or her guardian;(4) Information shall be released to the department and funding, licensing, and accrediting agencies by programs within the service delivery system as necessary for: a. Determining eligibility for funding;b. Assisting in accrediting or licensing decisions;c. Monitoring and evaluating service delivery;d. Assuring the delivery of appropriate services to individuals; ande. Planning future service delivery;(5) Programs shall not include or release confidential information in an individual's record which pertains to other individuals;(6) Programs shall include within the records of an individual any supplemental information provided by the individual or his or her guardian either clarifying or rebutting information deemed by the individual to be inaccurate;(7) An attorney appointed by a court to represent an individual shall have access to all records and information pertaining to that individual;(8) Legal counsel for the department shall have access to all relevant records and information pertaining to an individual when such records and information are necessary because the individual: a. Is the subject of an involuntary commitment hearing;b. Is the subject of a guardianship proceeding; orc. Has instituted legal action against the state in regard to care and treatment provided by the mental health service delivery system;(9) In cases where an individual, his or her guardian, an attorney or other advocate representing the individual, after review of the record, requests copies of the record, such copies in paper format, shall be made available free of charge for the first 25 pages and not more than 25 cents per page thereafter; or, if available, copies of records electronically stored and produced, shall be made available free of charge for the first 25 pages and at actual cost per page thereafter. The individual, his or her guardian, attorney or other advocate representing the individual may choose whether to receive the record in paper form, or if available in electronic form;(10) Information regarding the medical treatment of an individual shall be released to law enforcement officials or health facility personnel if necessary to address an emergency situation involving danger to the individual's health or safety, but only specific information necessary to the relief of the emergency may be released without the individual or his or her guardian's consent;(11) In accordance with RSA 329:31, RSA 330-A:35, RSA 329-B:29, and RSA 326-B:33, any of the following persons licensed in New Hampshire shall make reasonable efforts to disclose to a third party or law enforcement when an individual has made a serious threat of physical violence against a clearly identified or reasonably identifiable victim or victims, or a serious threat of substantial damage to real property: c. An advance practice registered nurse;d. Any person licensed pursuant to RSA 330-A; ore. Any person who works under the supervision of any of the above;(12) In accordance with RSA 135-C:19-a, I, a community mental health center may disclose to a family member or other person, if such family member or other person lives with the individual or provides direct care to the individual information regarding: b. Admission to or discharge from a treatment facility;c. Functional assessment;d. The name of the medicine prescribed;e. The side effects of any medication prescribed;f. Behavioral or physical manifestations which would result from failure of the individual to take such prescribed medication;g. Treatment plans and goals; andh. Behavioral management strategies;(13) Information shall not be released pursuant to (12) above unless the program first: a. Provides written notice to the individual or his or her guardian specifying the information requested, the reason for the request, and the person making the request;b. Requests the individual or his or her guardian's consent to release the information; andc. If consent cannot be obtained, the individual shall be notified in writing prior to the disclosure of: 1.The reason for the intended disclosure;
2.The name of the person(s) to whom the information will be released; and
3.The specific information intended to be released;
(14) A community mental health center shall receive or accept communications from family members, friends, or other persons with information pertaining to the health and safety of the individual, and shall document such communications in the individual's record;(15) In accordance with RSA 135-C:19-a, II, when the medical director or designee determines that obtaining information is essential to the care or treatment of an individual admitted pursuant to RSA 135-C:27-54, a designated receiving facility may request, and any health care provider which previously provided services to any individual involuntarily admitted to the facility may provide, information about such individual limited to medications prescribed, known medication allergies or other information essential to the medical or psychiatric care of the individual admitted;(16) Information shall not be released pursuant to (15) above unless the program first: a. Provides written notice to the individual or his or her guardian specifying the information requested, the reason for the request, and the person making the request;b. Requests, the individual or his or her guardian's consent to release the information; andc. If consent cannot be obtained, the facility shall notify the individual in writing prior to the disclosure of: 1.The name of the care provider who have been asked to provide information;
2.The reason for the disclosure;
3.The name of the person(s) to whom the information will be released; and
4.The specific information which will be released;
(17) In accordance with RSA 135-C:19-a, II-a, when the medical director, or designee, determines that obtaining information is essential to the care and treatment of an individual admitted pursuant to RSA 135-C: 27-54 and the consent of the individual or his or her guardian admitted cannot be obtained, the designated receiving facility may request and any community mental health program which has previously provided services to such individual shall immediately provide information about the individual including medications prescribed, known medication allergies, services provided and other information essential to the medical and psychiatric care of the individual admitted. The facility may disclose information necessary to identify the individual and the facility which is requesting the information; and(18) In accordance with RSA 135-C:19-a, III, a community mental health program or state facility may disclose to an interdisciplinary committee designated by the governor to review child fatalities, information which is relevant to a case of suicide or traumatic fatal injury under review by such committee. Information to be disclosed to such committee shall be limited to the diagnosis and course of treatment of the child or the person who caused the fatality. Information disclosed pursuant to this subparagraph shall remain confidential and shall not be subject to discovery, subpoena, or admission into evidence in any judicial or administrative proceeding.(g) Individuals or their guardians shall have the right to complain about any alleged violation of a right afforded by these rules or by any state or federal law or rule or any other matter.N.H. Admin. Code § He-M 309.05
#4412, eff 4-27-88; ss by #5093, eff 3-15-91, EXPIRED: 3-15-97
New. #6757, eff 5-27-98; ss by #8639, INTERIM, eff 5-27-06, EXPIRES: 11-23-06, ss by #8757, eff 11-17-06
Amended byVolume XXXIV Number 46, Filed November 13, 2014, Proposed by #10706, Effective 11/15/2014, Expires5/14/2015.Amended byVolume XXXV Number 18, Filed May 7, 2015 , Proposed by #10819, Effective 4/23/2015, Expires4/23/2025.