Section He-M 311.05 - Personal Rights(a) Individuals who are 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, sexual, or physical 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, or to impose emergency treatment under He-M 305, personal safety emergencies; and(3) Freedom from personal or financial exploitation.(c) Individuals shall have the right to privacy.(d) Individuals 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, facilities 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 facility's services;(2) Clinical information shall be released by the facility to a third party payor in order to substantiate both need for and charges for care and treatment rendered to the individual by the facility;(3) All staff shall be trained so as to know and understand confidentiality and shall comply with confidentiality statutes and rules;(4) Separate, individual records shall be maintained when group treatment methods are employed and joint records of treatment activity shall not be maintained;(5) No facility shall photograph, fingerprint, or record any individual by audio or visual equipment unless the individual 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 has consented following an informed decision;(6) These rules shall not affect the obligation of facilities 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(7) 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 RSA 326-B, or to those who work under their supervision, may be disclosed for the purpose of commitment hearings.(f) Access to 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 CFR 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 facilities 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) Facilities shall not include or release confidential information in an individual's record which pertains to other individuals;(6) Facilities shall include within the records of an individual any supplemental information provided by the individual either clarifying or rebutting information deemed by the individual or his or her guardian 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, attorney or other advocate who represents 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 who represents 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'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 facility 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 facility 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 reason for the disclosure;
2.The name of the person(s) to whom the information will be released; and
3.The specific information which will be released;
(14) The facility 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 individual shall be notified prior to disclosure in writing of: 1.The reason for the disclosure;
2.The name of the person(s) to whom the information will be released; and
3.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 a individual admitted pursuant to RSA 135-C: 27-54 and the consent of the individual 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 pursuant to this subparagraph 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 paragraph shall remain confidential and shall not be subject to discovery, subpoena, or admission into evidence in any judicial or administrative proceeding.(g) Individuals 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.(h) Individuals shall have the right to freely and privately communicate with others, including: (1) The right to send and receive unopened and uncensored written correspondence except that if there are reasonable grounds to believe that incoming mail contains items or substances which might be harmful to the individual or others, the facility shall direct reasonable examination of the mail in the presence of the individual or, wherever possible, permit the individual to open the mail in the presence of a staff person provided that the facility shall not read the mail but may regulate the disposition of the items or substances;(2) The right to stationery, writing implements, and postage in reasonable amounts upon request;(3) The right to have reasonable access to telephones and to make and to receive reasonable numbers of telephone calls, except that facilities shall require an individual to reimburse them for the cost of any long distance calls made by the individual if the individual has the financial ability to do so;(4) The right to receive and to refuse to receive visitors except that: a. Facilities shall impose reasonable restrictions on the number and time of visits as necessary to ensure effective provision of services; andb. A parent, guardian, individual representative, or court-appointed attorney may visit without the consent of the individual except as provided in (5) below;(5) The right to receive visits from any person unless the facility has documented that a visit with that particular person or visits in general present a serious likelihood of physical harm to the individual or other individuals in the facility;(6) The right to opportunities for personal interaction in a private setting except that any conduct or activity which is illegal shall be prohibited; and(7) The right to engage in social, recreational, and religious activities including the provision of regular opportunities for individuals to engage in such activities;(i) Individuals shall have the right to be free from searches of their persons and possessions except where reasonably necessary for the protection of the safety of the individual or others, to prevent the introduction of contraband, and as in (k) below.(j) Facilities shall conduct searches of individuals or visitors according to the following: (1) Searches conducted without the consent of the individual and without a warrant shall be performed only under the following circumstances: a. A physician shall order that a search of an individual's person or possessions be made upon determination that a search is necessary to protect the safety of the individual or others based on reliable information that the individual possesses contraband;b. The individual, nurse coordinator, and one other staff member shall be present during the search, except that, in an emergency, the individual need not be present;c. A written inventory of the property searched shall be made and a copy of the inventory shall be documented in the individual's record;d. At the time of the search the staff members conducting the search shall sign the inventory and the individual shall be asked to sign the inventory; ande. The facility coordinator shall, within 24 hours of the search, forward a report of the search, together with the rationale for the search, to the unit director and superintendent;(2) Facilities shall require a visitor, upon notice, to submit to a search prior to a visit or restrict visitors to a secure area, or both, when the facility reasonably believes, based upon reliable information, that the visitor may be introducing contraband such as drugs, weapons, toxic substances, explosives, and instruments of escape; and(3) Facilities which have individuals committed through the criminal justice system shall subject visitors to a search by electronic means as necessary to prevent the introduction of contraband such as weapons, toxic substances, explosives, and instruments of escape into the facility provided that the facility has the means to conduct electronic searches.(k) Individuals shall have the right to individual choice including, at a minimum, the following: (1) The right to keep and wear their own clothes except: a. Where necessary to prevent the individual from causing harm to himself or herself; andb. Where the need for such restriction is documented in the individual's record;(2) The right to keep personal possessions not otherwise prohibited by law or facility policy in accordance with He-M 311.05(j) and the right to reasonable space for personal possessions;(3) The right to keep and to read materials of their own choosing; and(4) The right to keep and spend their own money unless a medical determination of incapacity to handle funds has been approved by the state or federal agency which administers those funds except that reasonable limits shall be imposed on the amount of money kept by individuals on their persons or in their rooms in order to prevent the individuals from causing harm to themselves or to prevent theft.(l) Individuals shall have the right not to work and to be compensated for any work performed, except that: (1) Individuals shall be required to perform personal housekeeping tasks within the individuals' own immediate living areas and equitably shared housekeeping tasks within the common areas of the community residence, without compensation, unless the facility determines that it would be clinically or medically contraindicated or inappropriate to require an individual to perform such tasks; and(2) Individuals may have the option to perform pre-vocational or vocational learning tasks or work required for the operation or maintenance of a community residence if: a. The work is consistent with their individual service plans; andb. The individuals are compensated for work performed according to laws, rules, and regulations set by the state and federal governments.N.H. Admin. Code § He-M 311.05
#4414, eff 4-27-88; ss by #5095, eff 3-15-91; amd by #6220, eff 4-13-96, EXPIRES: 12-31-98; ss by #6759, eff 5-27-98; ss by #8641, INTERIM, eff 5-27-06, EXPIRES:11-23-06; ss by #8758, eff 11-17-06
Amended byVolume XXXIV Number 46, Filed November 13, 2014, Proposed by #10707, Effective 11/15/2014, Expires5/14/2015.Amended byVolume XXXV Number 18, Filed May 7, 2015 , Proposed by #10820, Effective 4/23/2015, Expires4/23/2025.