Title 40.1
Behavioral Healthcare, Developmental Disabilities and Hospitals

Chapter 26
Rights for Persons with Developmental Disabilities

§ 40.1-26-3. Participants’ rights.

In addition to any other rights provided by state or federal laws, a participant as defined in this chapter shall be entitled to the following rights:

(1) To be treated with dignity, respect for privacy, and have the right to a safe and supportive environment;

(2) To be free from verbal and physical abuse;

(3)(i) To engage in any activity, including employment, appropriate to his or her age, and interests in the most integrated community setting;

(ii) No participant shall be required to perform labor that involves the essential operation and maintenance of the agency or the regular supervision or care of other participants. Participants may however, be requested to perform labor involving normal housekeeping and home-maintenance functions if these responsibilities are documented in the participant’s individualized plan;

(4) To participate in the development of his or her individualized plan and to provide informed consent to its implementation or to have an advocate provide informed consent if the participant is not competent to do so;

(5) To have access to his or her individualized plan and other medical, social, financial, vocational, psychiatric, or other information included in the file maintained by the agency;

(6) To give written informed consent prior to the imposition of any plan designed to modify behavior, including those that utilize aversive techniques or impair the participant’s liberty, or to have an advocate provide written informed consent if the participant is not competent to do so. Provided, however, that if the participant is competent to provide consent but cannot provide written consent, the agency shall accept an alternate form of consent and document in the participant’s record how such consent was obtained;

(7) To register a complaint regarding an alleged violation of rights through the grievance procedure delineated in § 40.1-26-5;

(8) To be free from unnecessary restraint. Restraints shall not be employed as punishment, for the convenience of the staff, or as a substitute for an individualized plan. Restraints shall impose the least possible restrictions consistent with their purpose and shall be removed when the emergency ends. Restraints shall not cause physical injury to the participant and shall be designed to allow the greatest possible comfort. Restraints shall be subject to the following conditions:

(i) Physical restraint shall be employed only in emergencies to protect the participant or others from imminent injury or when prescribed by a physician, when necessary, during the conduct of a specific medical or surgical procedure or if necessary for participant protection during the time that a medical condition exists;

(ii) Chemical restraint shall only be used when prescribed by a physician in extreme emergencies in which physical restraint is not possible and the harmful effects of the emergency clearly outweigh the potential harmful effects of the chemical restraints;

(iii) No participant shall be placed in seclusion;

(iv) The agency shall have a written policy that defines the use of restraints, the staff members who may authorize their use, and a mechanism for monitoring and controlling their use;

(v) All orders for restraint, as well as the required frequency of staff observation of the participant, shall be written;

(9) To have, at any time, access to telephone communication;

(10) To receive visitors of a participant’s choosing at any time;

(11) To keep and be allowed to spend one’s own money;

(12) To be provided advance written notice explaining the reason(s) why the participant is no longer eligible for service from the agency;

(13) To religious freedom and practice;

(14) To communicate by sealed mail or otherwise with persons of one’s choosing;

(15) To select and wear one’s own clothing and to keep and use one’s own personal possessions;

(16) To have prompt access to current newspapers, magazines, and radio and television programming;

(17) To have opportunities for physical exercise and outdoor recreation;

(18)(i) To provide informed consent prior to the imposition of any invasive medical treatment, including any surgical procedure, or to have a legal guardian, or in the absence of a legal guardian, a relative as defined in this chapter, provide informed consent if the participant is not competent to do so. Information upon which a participant shall make necessary treatment and/or surgery decisions shall be presented to the participant in a manner consistent with his or her learning style and shall include, but not be limited to:

(A) The nature and consequences of the procedure(s);

(B) The risks, benefits, and purpose of the procedure(s); and

(C) Alternate procedures available;

(ii) The informed consent of a participant, or his or her legal guardian, or, in the absence of a legal guardian, a relative as defined in this chapter, may be withdrawn at any time, with or without cause, prior to treatment. The absence of informed consent notwithstanding, a licensed and qualified physician may render emergency medical care or treatment to any participant who has been injured or who is suffering from an acute illness, disease, or condition if, within a reasonable degree of medical certainty, delay in initiation of emergency medical care or treatment would endanger the health of the participant;

(19) Each participant shall have a central record. The record shall include data pertaining to admissions and other information as may be required under regulations by the department;

(20) Admissions — As part of the procedure for the admission of a participant to an agency, each participant or applicant, or advocate if the participant or applicant is not competent, shall be fully informed, orally and in writing, of all rules, regulations, and policies governing participant conduct and responsibilities, including grounds for dismissal, procedures for discharge, and all anticipated financial charges, including all costs not covered under federal and/or state programs, by other third-party payors or by the agency’s basic per-diem rate. The written notice shall include information regarding the participant’s or applicant’s right to appeal the admission or dismissal decisions of the agency;

(21) Upon termination of services to or death of a participant, a final accounting shall be made of all personal effects and/or money belonging to the participant held by the agency. All personal effects and/or money, including interest, shall be promptly released to the participant, or his or her heirs;

(22) Nothing in this chapter shall preclude intervention in the form of appropriate and reasonable restraint should it be necessary to protect individuals from physical injury to themselves or others.