No. 37163 (Change in Proposed Rule): Rule R539-3. Rights and Protections

DAR File No.: 37163
Filed: 03/14/2013 02:53:48 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Division received comments from the Disabilities Advisory Council, who suggested a minor change to Subsection R539-3-7(5). The original rule amendment likely prevented a person from electing to have electronic surveillance instead of direct care staff. The Council suggested that in certain cases, it would be proper for a person to make such an election, if due to the person's particular behavioral problems, the provider and the person agree that would make it safer for provider staff to monitor the person, while still providing the person with adequate care. There have been examples in the past of such suggestions from providers and agreement from persons in services. The Division does not want to preclude this practice, if it is in the best interests of the person.

Summary of the rule or change:

The proposed rule change makes minor edits to the originally proposed change only in Section R539-3-7. The changes remove the words "direct" and "Persons or" from Subsection R539-3-7(5), and otherwise are minor deletions and additions of one or two words, only slightly changing the rule. (DAR NOTE: This change in proposed rule has been filed to make additional changes to a proposed amendment that was published in the January 15, 2013, issue of the Utah State Bulletin, on page 21. Underlining in the rule below indicates text that has been added since the publication of the proposed rule mentioned above; strike-out indicates text that has been deleted. You must view the change in proposed rule and the proposed amendment together to understand all of the changes that will be enforceable should the agency make this rule effective.)

State statutory or constitutional authorization for this rule:

• Section 62A-5-102
• Section 62A-5-103

Anticipated cost or savings to:

the state budget:

This rule affects providers by requiring criteria for the use of electronic surveillance, should providers choose to use such a system. Therefore no cost increase is expected in the state budget. This change does not affect that original analysis.

local governments:

This rule affects providers by requiring criteria for the use of electronic surveillance, should providers choose to use such a system. Therefore no cost increase is expected for local governments. The disability program is run through private contractor provider networks and imposes no burden on local governments. This change does not affect that original analysis.

small businesses:

The Division is not requiring the use of electronic surveillance. While some costs associated with meeting criteria for electronic surveillance privacy measures may be incurred, the rule does not dictate that any electronic surveillance is required. Costs to providers are on an elective basis. Requirements listed in this change are minimal and required for the person's privacy and to meet existing rules and regulations. This change does not affect that original analysis.

persons other than small businesses, businesses, or local governmental entities:

This rule provides privacy protections ensuring that persons cannot be electronically surveilled without prior written consent and approval by the Human Rights Committee. Protections are at no cost to the person. This change does not affect that original analysis.

Compliance costs for affected persons:

No costs expected to affect persons with disabilities, persons' families or guardians as part of this rule change. This change does not affect that original analysis.

Comments by the department head on the fiscal impact the rule may have on businesses:

There will be no cost or savings associated with implementing this rule.

Palmer DePaulis, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Human Services
Services for People with Disabilities
195 N 1950 W 3RD FLR
SALT LAKE CITY, UT 84116

Direct questions regarding this rule to:

• Julene Jones at the above address, by phone at 801-538-4521, by FAX at 801-538-3942, or by Internet E-mail at [e-mail]
• Nathan Wolfley at the above address, by phone at 801-538-4154, by FAX at 801-538-4279, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/01/2013

This rule may become effective on:

05/08/2013

Authorized by:

Paul Smith, Director

RULE TEXT

R539. Human Services, Services for People with Disabilities.

R539-3. Rights and Protections.

R539-3-1. Purpose.

(1) The purpose of this rule is to support Persons in exercising their rights as Persons receiving funding from the Division. The procedures of this rule constitute the minimum rights for Persons receiving Division funded services and supports.

 

R539-3-2. Authority.

(1) This rule establishes procedures and standards for the protection of Persons' constitutional liberty interests as required by Subsection 62A-5-103(2)(b).

 

R539-3-3. Definitions.

(1) Terms used in this rule are defined in Section 62A-5-101 and R539-1-3.

 

R539-3-4. Human Rights Committee.

(1) This rule applies to the Division, Persons funded by the Division, Providers, Providers' Human Rights Committees, and the Division Human Rights Council.

(2) All Persons shall have access to a Provider Human Rights Committee with the exception of the following:

(a) Persons receiving physical disabilities services.

(b) Families using the Self-Administered Model.

(c) Persons receiving only family supports or respite.

(3) The Provider Human Rights Committee approves the services agencies provide relating to rights issues, such as rights restrictions and the use of intrusive behavior supports. In addition, the Committee provides recommendations relating to abuse and neglect prevention, rights training, and supporting people in exercising their rights.

(4) Any interested party may request that the rights of a Person be reviewed by a Provider Human Rights Committee by contacting the Person's Provider agency verbally or in writing.

(5) Any interested party may request an appeal of the Provider Human Rights Committee decision by sending a request to the Division, 195 North 1950 West, Salt Lake City, UT 84116. The Division shall make a decision whether there will be a review and shall notify the Person, Provider, and Support Coordinator concerning the decision within eight business days. The notification shall contain a statement of the issue to be reviewed and the process and timeline for completing the review.

 

R539-3-5. Representative Payee Services.

(1) Unless a Person voluntarily signs the Division Voluntary Financial Support Agreement Form 1-3 or a Provider Human Rights Committee has approved restriction on the use and access to personal funds, the Person shall have access to and control over such funds.

(2) The Representative Payee shall follow all Social Security Administration requirements outlined in 20CFR416.601-665.

(3) The Division shall review Provider records for a sample of Representative Payee files on an annual basis.

(4) If the Department does not have guardianship or conservatorship and the Division has not been named as Representative Payee by the Social Security Administration, the Person may sign a Voluntary Financial Support Agreement, Division Form 1-3, allowing the Department to act as Representative Payee.

(5) If the Division is acting as the Representative Payee for a Person, the Division may initiate termination of a Representative Payee relationship through written notification to the Person and the funding agency.

(a) The Division shall initiate termination of a Representative Payee arrangement when:

(i) a Person with a voluntary arrangement requests termination of Representative Payee status;

(ii) a funding agency requests termination of Representative Payee status;

(iii) Person with a Representative Payee becomes ineligible for funding; or

(iv) a Person moves out of the service area.

 

R539-3-6. Personal Property.

(1) Restrictions to property that are implemented by the Division or Provider shall be part of a written plan or as an Emergency Behavior Intervention in accordance with Division Administrative Rule. Restrictions shall be approved by the Team and Provider Human Rights Committee.

 

R539-3-7. Privacy.

(1) Persons shall have privacy, including private communications (i.e. mail, telephone calls and private conversations), personal space, personal information, and self-care practices (i.e. dressing, bathing, and toileting).

(2) Restrictions to privacy that are implemented by the Division or Provider shall be part of a written plan and approved by the Team and Provider Human Rights Committee. Circumstances that require assistance in self-care due to functional limitations do not require a written plan.

(3) No Person shall be subject to electronic surveillance of any kind without:

(a) express written consent from the Person to be under surveillance [and]or the Person's guardian;

(b) approval of both the Person's Team and the Provider Human Rights Committee;

(c) certification by the Provider Human Rights Committee that the electronic surveillance meets a necessary health or safety concern and is done in the least intrusive manner possible; and

(d) submission of Electronic Surveillance Certification to the [DSPD]Division Quality Manager.

(4) Electronic surveillance shall not be placed in common areas without:

(a) express written consent from all Persons who live at the site, [and]or the guardians of those Persons;

(b) approval of the Provider Human Rights Committee;

(c) certification by the Provider Human Rights Committee that the electronic surveillance meets a necessary health or safety concern and is done in the least intrusive manner possible; and

(d) submission of Electronic Surveillance Certification to the [DSPD]Division Quality Manager.

(5) Under no circumstances shall electronic surveillance be used by administrative or supervisory staff as a substitute for [direct ] supervision of [Persons or ]employees providing direct care to Persons.

(6) Visitors shall be provided with notice of electronic surveillance upon entering the premises.

(a) Notice shall be provided by placing a sign of substantial size, in a conspicuous location, so as to attract the attention of visitors as they enter.

(7) The Person's Team and the Provider Human Rights Committee shall conduct reviews of electronic surveillance:

(a) at least annually; and

(b) in response to specific requests for review from the Person under surveillance or that Person's guardian.

(8) Electronic surveillance at the Utah State Developmental Center shall comply with federal regulations outlined in 42 C.F.R. 483.420(a)(7) (2011), 42 C.F.R. 483.440(f)(3)(i)-(iii) (2011) and 42 C.F.R. 483.470(d)(2) (2011).

 

R539-3-8. Notice of Agency Action and Administrative Hearings.

(1) Persons have the right to receive adequate written Notice of Agency Action and to present grievances about agency action by requesting a formal or informal administrative hearing in accordance with R497-100 for Persons receiving non-Waiver services, and R410-14 for Persons receiving Waiver services.

(2) Pursuant to Utah Code Annotated, Title 63G, Chapter 4, the Division shall notify a Person in writing before taking any agency action, such as changes in funding, eligibility, or services.

(3) At least 30 calendar days before the Division terminates or reduces a Person's services or benefits, the Division shall send the Person a written Notice of Agency Action.

(4) The Notice of Agency Action shall comply with Subsection 63G-4-201 and R497-100-4(2)(a).

(5) To assist a Person in requesting an administrative hearing, the Division shall send the Person a Hearing Request Form 490S when the Division sends the Notice of Agency Action Form 522.

(6) To request an informal hearing with the Department of Human Services for non-waiver services, the Person must file a Hearing Request Form 490S with the Division within 30 calendar days of the mailing date shown on the Notice of Agency Action Form 522.

(7) To request a formal hearing with the Department of Health for Waiver services, the Person must file the Medicaid Standard Hearing Request Form with the Division and Department of Health, Division of Health Care Finance within 30 calendar days of the mailing date shown on the Notice of Agency Action Form 522.

(8) This 30-day deadline for formal and informal hearings applies regardless of whether the Person also wishes to participate in the Division's conflict resolution process.

(a) If the Person files the Hearing Request within ten calendar days of the mailing date of the Notice of Agency Action, the Person's services shall continue unchanged during the formal or informal hearing process.

(b) If the Person files the Hearing Request Form between 11 and 30 calendar days after the mailing date of the Notice of Agency Action, the Person is entitled to an administrative hearing, but the Person's services and benefits shall be discontinued or reduced according to the Notice of Agency Action during the formal or informal hearing process.

(9) A Person may file a Request for Hearing Form for a formal or informal hearing and choose to still participate in the Division's conflict resolution process prior to the formal or informal hearing.

(10) If the Person requests an informal hearing and also chooses the conflict resolution process, the conflict resolution process must be completed before the informal hearing can begin, unless the Person submits a written request to the Division to end the conflict resolution process prematurely.

 

R539-3-9. Participation in Hospice Services.

(1) Persons expected by their physicians to live fewer than six months have the right to pursue hospice services as their choice of end-of-life care. A Person who is expected by two physicians to live fewer than six months and who receives Division funding for services and supports may request to continue to receive their Division-funded services and supports while participating in hospice services.

(2) If a Person has not executed a Durable Power of Attorney for Health Care and is incapable of making an informed decision about hospice services or signing a Hospice Agreement, choices related to end-of-life care shall be made on behalf of the Person by the Team upon approval of the Provider Human Rights Committee unless a guardian has been appointed by the Court with the legal authority to make end-of-life decisions for the Person.

(3) If a Person receives Waiver services through the Division and elects the Medicaid hospice benefit and meets the program eligibility requirements in accordance with R414-14A-3, hospice shall become the primary service delivery program, including the primary case management program, for the care of the Person. All other Medicaid programs serving the Person at the time of hospice election, including Waivers, shall coordinate with the hospice case management team to determine the full scope of services that shall be provided from that point forward.

(a) Pursuant to R414-14A-7(A), a Person can continue to receive Division services through the Waiver program that are necessary to prevent institutionalization, are not duplicative of services covered by the hospice benefit, and do not conflict with the hospice plan of treatment.

(b) The Medicaid hospice benefit shall determine the actual number of times a Person can revoke and re-elect hospice services, which hospice Providers and services are available, and which Waiver services may continue concurrently with hospice services.

(c) If the Division wishes to initiate disenrollment of a Medicaid-funded Person from the Waiver based on the Person's election of hospice services, it shall be considered an involuntary disenrollment and will be subject to review and approval by the Department of Health, Division of Health Care Finance.

 

R539-3-10. Prohibited Procedures.

(1) The following procedures are prohibited for Division staff and Providers, including staff hired for Self-Administered Services, in all circumstances in supporting Persons receiving Division funding:

(a) Physical punishment, such as slapping, hitting, and pinching.

(b) Demeaning speech to a Person that ridicules or is abusive.

(c) Locked confinement in a room.

(d) Denial or restriction of access to assistive technology devices, except where removal prevents injury to self, others, or property as outlined in Section R539-3-6.

(e) Withholding or denial of meals, or other supports for biological needs, as a consequence or punishment for problems.

(f) Any Level II or Level III Intervention, as defined in R539-4-3(n) and R539-4-3(o), used as coercion, as convenience to staff, or in retaliation.

(g) Any procedure in violation of R495-876, R512-202, R510-302, 62A-3-301 thru 62A-3-321, and 62A-4a-402 thru 62A-4a-412 prohibiting abuse.

 

KEY: people with disabilities, rights

Date of Enactment or Last Substantive Amendment: 2013

Notice of Continuation: August 17, 2009

Authorizing, and Implemented or Interpreted Law: 62A-5-102; 62A-5-103

 

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