W. Va. Code R. § 78-3-5

Current through Register Vol. XLI, No. 50, December 13, 2024

Section 78-3-5 - Ethical Practice, Rights and Responsibilities

5.1. Rights and Responsibilities.

5.1.1. The organization shall inform all children and their family or guardians, or both, of their rights and responsibilities. Information on rights and responsibilities shall be tailored for each of the organization's services as appropriate and shall reflect the consequences of areas of non-compliance with programmatic rules, as well as limitation on individual rights occasioned by involuntary placement or court orders.

5.1.2. All persons served or their guardians as appropriate shall receive information about their rights and responsibilities that is:

5.1.2.a. Posted in a public area as appropriate;

5.1.2.b. Provided in writing;

5.1.2.c. Distributed during their initial contact with the organization or upon admission; and

5.1.2.d. Effectively and appropriately communicated to persons with special needs and in an age-appropriate manner.

5.1.3. Each child's record shall contain documentation that the individual received an explanation of his or her rights and responsibilities, initialed by the child or parent or guardian, or both.

5.1.4. Written rights shall include, but are not limited to:

5.1.4.a. Rules and behavioral expectations;

5.1.4.b. Factors that could result in discharge and termination unless clinically contra-indicated;

5.1.4.c. Basic information about how to file complaints, grievances or appeals; and

5.1.4.d. Rights of persons in residential child care and treatment facilities as specified in subsection 5.4. of this rule.

5.1.5. The organization's policy and procedures shall ensure that:

5.1.5.a. The parent or guardian may refuse any service, treatment or medication unless mandated by law or court order; and

5.1.5.b. If the parent or guardian or transitioning youth or transitioning adult refuses a recommended service, treatment, or medication the organization informs the person of the consequences of the refusal, which may include termination or discharge.

5.2. Access and Eligibility.

5.2.1. The organization shall define its service population and the eligibility criteria for each of its services.

5.2.2. Organizational policy shall state that the organization does not discriminate by race, color, age, national origin or disability unless it is part of an individualized determination that the facts and circumstances of a particular case require the consideration of race, color, age, national origin or disability in order to advance the best interests of the child.

5.2.3. The organization shall have in place a policy detailing admissions procedure for each service and the procedures shall:

5.2.3.a. Minimize barriers to timely initiation of services;

5.2.3.b. Provide for initial screening or placement on a waiting list;

5.2.3.c. Allow the organization to give priority to children and families with urgent needs or in emergency situations as appropriate; and

5.2.3.d. Ensure that all persons are treated equitably.

5.3. Culturally Competent Practice.

5.3.1. The organization's policies, procedures and practices shall recognize, respect, and respond to the unique, culturally defined needs of persons and families within its service population.

5.4. Rights of Persons in Residential Child Care and Treatment Facilities.

5.4.1. A child or transitioning adult receiving services from the organization shall have basic rights including, but not limited to:

5.4.1.a. Adequate food, clothing, and shelter;

5.4.1.b. Adult guidance, support, and supervision;

5.4.1.c. Freedom from abuse, neglect, corporal punishment, and exploitation;

5.4.1.d. Education;

5.4.1.e. Services necessary to promote safety, permanency, and well-being;

5.4.1.f. Clean and safe surroundings;

5.4.1.g. Adequate medical care;

5.4.1.h. Visitation with family and significant others as specified in the plan of care or the child's case plan, or both, unless clinically contra-indicated or otherwise described in policy;

5.4.1.i. Communication with family and significant others by telephone, e-mail, texting, or other means of communication as specified in the plan of care or the child's case plan, or both, and under conditions described in policy;

5.4.1.j. Uncensored mail, unless there is reason to suspect it may contain unauthorized, dangerous, or illegal substances or materials or is clinically contra-indicated, or unless consent has been given by parent or guardian to inspect mail;

5.4.1.k. Freedom of thought, conscience, and religion;

5.4.1.l. Reasonable access to a legal representative, clergy, or spiritual advisor and representative of the placing organization, if applicable;

5.4.1.m. Reasonable access to personal funds, if managed by the organization, unless clinically contra-indicated;

5.4.1.n. Privacy, as reasonable for the child's age and functioning, unless clinically contra-indicated; and,

5.4.1.o. Participation in decisions regarding the services provided, unless clinically contra-indicated.

5.5. Confidentiality and Privacy Protections.

5.5.1. The organization shall conform to all federal and state requirements with regards to the confidentiality of children and families served ( 42 C.F.R. Part 2 , Public Law 104-191, Health Insurance Portability and Accountability Act of 1996, as amended, and W. Va. Code § 49-5-101, as amended).

5.5.2. The organization shall have clearly stated procedures regarding the disclosure of information about children served. The policies shall be in compliance with all applicable state and federal laws and rules and regulations and shall include procedures for instances in which the child may be dangerous to himself, herself, or others.

5.5.3. The organization shall assure that any needed release of information is completed in full prior to obtaining the guardian's signature, for each instance where information is needed. A copy of all releases of information shall be placed in the case record.

5.5.4. The organization shall have a written policy or procedure regarding searches of children rooms or property that shall be respectful of privacy rights. The organization shall document any search stating the reason for the search and the outcome of the search.

5.5.5. The organization shall require employees to make every effort to preserve the child's right to privacy and personal dignity according to the age and functioning of the child;

5.5.6. The organization shall not use surveillance cameras or listening devices for routine observation of children in their bedrooms or restrooms unless required by judicial order or contract;

5.5.7. The organization shall provide a secure area or locker for a child's possessions if requested by the child; and

5.5.8. The organization shall prohibit:

5.5.8.a. Involuntary participation in public performances by children served by the organization.

5.5.8.b. Required or coerced use of public statements by persons served that express gratitude to the organization; and

5.5.8.c. Use of photographs, videotapes, audio-taped interviews, artwork or creative writing for the organization's marketing or fund-raising purposes without the informed written consent of the parent or guardian or the child if he or she has reached majority or has been adjudicated an emancipated adult.

5.6. Access to Case Records and Information Management.

5.6.1. Every child, his or her attorney and the child's parents or guardian shall have access to the child's case records to the extent permitted by state and federal law.

5.6.2. The organization may require that sensitive psychological, psychiatric, or other information be reviewed with the support of clinical employees. The organization shall document the reason for the requirement.

5.6.3. The organization shall have policy and procedures that protect electronically maintained data in compliance with federal standards.

5.7. Research Protections.

5.7.1. The organization shall have written policies regarding the participation of children and transitioning adults in research projects.

5.7.2. Organizational policy shall clearly state whether the organization conducts, participates in, or permits research involving persons served.

5.7.3. If an organization does research, it shall have a human subjects committee or an internal review board that reports to the administrator or a designated authority with policymaking functions; and

5.7.3.a. Reviews research proposals that involve persons served;

5.7.3.b. Makes recommendations regarding the ethics of proposed or existing research;

5.7.3.c. Makes recommendations as to whether or not to approve research proposals; and

5.7.3.d. Establishes a minimum frequency for monitoring of ongoing research activities.

5.7.4. Participation in research by children or their families is voluntary. The organization may not threaten to withdraw services or otherwise coerce persons or their guardians into participating and shall prohibit the use of financial incentives for recruiting research participants.

5.7.5. Each research participant or when appropriate his or her parent or guardian shall sign a consent form that includes:

5.7.5.a. A statement that he or she voluntarily agrees to participate in the research project;

5.7.5.b. A statement that the organization will continue to provide services regardless of whether he or she agrees to participate in the research project;

5.7.5.c. An explanation of the nature and purpose of the research project;

5.7.5.d. A clear description of possible risks or discomfort associated with the research project;

5.7.5.e. A guarantee of confidentiality; and,

5.7.5.f. The signature of the parent or guardian or emancipated child.

5.7.5.g. The organization shall safeguard the identity and privacy of persons served in all phases of research conducted by or with the cooperation of the organization.

5.8. Grievance Procedures.

Written policy and procedures shall provide every child and his or her parent or guardian with a formal mechanism for expressing and resolving complaints and grievances. These procedures shall be explained and distributed to each child and his or her parent or guardian. The recipient shall acknowledge receipt of the procedures in writing. The procedures shall:

5.8.1. Be given to all persons served and their parents or guardians upon intake into service, and thereafter upon request or at the initiation of a grievance;

5.8.2. Include an internal appeal procedure and options for external appeal that shall include the regulatory body or the Federal Office of Civil Rights, or both;

5.8.3. Provide for a timely resolution of the matter and require a written response to the aggrieved that includes documentation of the response in the case record or in a separate file, with reference to the separate file to be noted in case record; and in the administrative file; and

5.8.4. Indicate that grievances may be filed either orally or in writing and that all employees of the organization are responsible for assisting any person who wishes to file a grievance.

5.9. Ethical Conduct.

5.9.1. The organization shall develop and implement written standards of ethical conduct for its governing board and its employees.

5.9.2. The organization shall not misrepresent or operate a service or program in any way that is misleading, deceptive, or illegal.

5.9.3. The organization shall require its employees to know and comply with policies and procedures established by the organization.

5.9.4. When a child's third-party benefits or payments end or when a child reaches his or her majority while in service, the organization shall have a procedure to discontinue services to the child and family in an orderly, ethical fashion.

W. Va. Code R. § 78-3-5