MICHIGAN DEPARTMENT OF COMMUNITY HEALTH

             BUREAU OF MENTAL HEALTH & SUBSTANCE ABUSE SERVICES

                            RIGHTS OF RECIPIENTS

(By authority conferred on the director of the department of community health 
by sections 1 to 4 of 1905 PA 80, section 33 of 1969  PA  306,  and  sections 
114, 136, 157, 206, 244, 498n, 842, and 1002a of 1974 PA 258, MCL  19.141  to 
MCL 19.144, MCL  24.233,  MCL  330.1114,  MCL  330.1136,  MCL  330.1206,  MCL 
330.1244, MCL 330.1498n, MCL 330.1842, and MCL 330.2002a)


                       PART 7. RIGHTS OF RECIPIENTS

                       SUBPART 1. GENERAL PROVISIONS


R 330.7001 Definitions.
  Rule 7001. As used in this part:
  (a) "Abuse class I" means a nonaccidental act or provocation   of   another 
to act by an employee,  volunteer,  or  agent  of  a  provider  that   caused 
or contributed to the death, or sexual abuse of, or serious physical harm  to
 a recipient.
  (b) "Abuse class II" means any of the following:
  (i) A non accidental act or  provocation  of  another  to   act    by    an 
employee, volunteer, or agent of a provider that caused or   contributed   to 
nonserious physical harm to a recipient.
  (ii) The use of  unreasonable  force  on  a  recipient  by   an   employee, 
volunteer, or agent of a provider with or without apparent harm.
  (iii) Any action or  provocation  of  another  to  act  by   an   employee, 
volunteer, or agent of a provider that causes or contributes   to   emotional 
harm  to  a recipient.
  (iv) An action taken on behalf of a recipient by a provider  who    assumes 
the recipient is incompetent, despite the fact  that  a  guardian   has   not 
been appointed, that results in substantial economic, material, or  emotional 
harm to the recipient.
  (v) Exploitation of a recipient by an employee,  volunteer,  or  agent   of 
a provider.
  (c)  "Abuse  class  III"  means  the  use  of  language  or   other   means 
of communication by an employee, volunteer, or  agent  of  a   provider    to 
degrade, threaten, or sexually harass a recipient.
  (d) "Act" means mental health code, 1974 PA 258, MCL 330.1001 et seq.
  (e) "Anatomical support" means  body  positioning  or  a  physical  support 
ordered by a physical  or  occupational  therapist  for  the    purpose    of 
maintaining  or improving a recipient's physical functioning.
  (f) "Bodily function" means the usual action of any region or   organ    of 
the body.
  (g) "Emotional harm" means impaired  psychological   functioning,   growth, 
or development of a significant   nature   as   evidenced    by    observable 
physical symptomatology or as determined by a mental health professional.
  (h) "Exploitation" means an action by an employee, volunteer, or agent   of 
a provider  that  involves   the   misappropriation   or    misuse    of    a 
recipient's property or funds for the benefit of an individual or individuals 
other  than the recipient.
(i) "Neglect class I" means either of the following:
  (i) Acts of commission or omission by an employee, volunteer, or agent   of 
a provider that result from  noncompliance  with  a  standard  of   care   or 
treatment required by law  and/or  rules,  policies,   guidelines,    written 
directives, procedures,  or  individual  plan  of  service  and   causes   or 
contributes  to  the death, or sexual abuse of, or serious physical harm to a 
recipient.
  (ii) The failure to report apparent or  suspected  abuse   Class    I    or 
neglect Class I of a recipient.
  (j) "Neglect class II" means either of the following:
  (i) Acts of commission or omission by an employee, volunteer, or agent   of 
a provider that result from  noncompliance  with  a  standard  of   care   or 
treatment required by law, rules, policies, guidelines,  written  directives, 
procedures, or individual plan of service and that cause or   contribute   to 
non  serious physical harm or emotional harm to a recipient.
  (ii) The failure to report apparent or  suspected  abuse  Class    II    or 
neglect Class II of a recipient.
  (k) "Neglect class III" means either of the following:
  (i) Acts of commission or omission by an employee, volunteer, or agent   of 
a provider that result from  noncompliance  with  a  standard  of   care   or 
treatment required by law  and/or  rules,  policies,   guidelines,    written 
directives, procedures, or individual plan of service that either placed   or 
could  have placed a recipient at risk of physical harm or sexual abuse.
  (ii) The failure to report apparent or  suspected  abuse  Class   III    or 
neglect Class III of a recipient.
  (l)  "Nonserious  physical  harm"  means  physical  damage  or  what  could 
reasonably be construed as pain suffered by a recipient that a physician   or 
registered nurse determines could not have caused, or contributed  to,    the 
death  of  a recipient, the permanent disfigurement of a recipient,  or    an 
impairment  of his or her bodily functions.
  (m) "Physical management" means  a  technique  used  by   staff    as    an 
emergency intervention to restrict the movement  of  a  recipient  by  direct
 physical contact to prevent the recipient from harming himself, herself,  or 
others.
  (n) "Protective device" means a device or physical  barrier   to    prevent 
the recipient from causing serious self-injury  associated  with   documented 
and frequent incidents of the behavior. A protective device as   defined   in 
this subdivision and incorporated in the written individual plan  of  service 
shall not be considered a restraint as defined in  subdivision  (q)  of  this 
subrule.
  (o) "Provider" means  the  department,  each  community    mental    health 
services program, each licensed hospital, each psychiatric unit,   and   each 
psychiatric partial hospitalization program licensed under section 137 of the 
act,  their employees, volunteers, and contractual agents.
  (p) "Psychotropic  drug"  means  any  medication  administered   for    the 
treatment or amelioration of disorders of thought, mood, or behavior.
  (q)  "Restraint"  means  the  use  of  a  physical  device  to  restrict an 
individual's movement. Restraint  does  not   include   the    use    of    a 
device primarily intended to provide anatomical support.
  (r) "Serious physical  harm"  means  physical  damage   suffered    by    a 
recipient that a physician or registered nurse determines caused   or   could 
have  caused the death of a  recipient,  caused  the  impairment  of  his  or
 her  bodily functions, or caused the permanent disfigurement of a recipient.
  (s)"Sexual abuse" means any of the following:
  (i) Criminal sexual conduct as defined by section 520b to  520e   of   1931 
PA 318, MCL 750.520b to MCL 750.520e involving an employee,   volunteer,   or 
agent of a provider and a recipient.
  (ii)  Any   sexual   contact   or   sexual   penetration    involving    an 
employee, volunteer, or agent of a department operated hospital or center,  a
 facility licensed by the department under section 137 of the  act   or    an 
adult  foster care facility and a recipient.
  (iii) Any   sexual   contact   or   sexual   penetration    involving    an 
employee, volunteer, or agent of a provider and a  recipient  for  whom   the 
employee, volunteer, or agent provides direct services.
  (t) "Sexual contact" means the intentional touching  of   the   recipient's 
or employee's intimate parts or  the  touching  of  the   clothing   covering 
the immediate area of the recipient's  or  employee's  intimate   parts,   if 
that intentional touching can  reasonably  be  construed  as  being  for  the 
purpose  of sexual arousal or gratification, done for a sexual  purpose,   or 
in  a  sexual manner for any of the following:
  (i) Revenge.
  (ii) To inflict humiliation.
  (iii) Out of anger.
  (u) "Sexual harassment" means sexual advances to a   recipient,    requests 
for sexual favors from a recipient, or other conduct or  communication  of  a 
sexual nature toward a recipient.
  (v)  "Sexual  penetration"  means    sexual    intercourse,    cunnilingus, 
fellatio, anal intercourse, or any other intrusion, however slight,  of   any 
part  of  a person's body or of any object into the genital or anal  openings 
of  another person's body, but emission of semen is not required.
  (w)"Therapeutic de-escalation" means an intervention,  the   implementation 
of which is incorporated in the individualized  written  plan   of   service, 
wherein the recipient is placed in an area or room, accompanied   by    staff 
who  shall therapeutically engage the recipient in behavioral   de-escalation 
techniques and debriefing as to the cause and future prevention of the target 
behavior.
  (x)"Time out" means a voluntary response to the therapeutic suggestion   to 
a recipient to remove himself or herself from a stressful situation in  order 
to prevent a potentially hazardous outcome.
  (y)"Treatment by spiritual means" means a spiritual discipline  or   school 
of thought that a recipient wishes to rely  on  to  aid  physical  or  mental 
recovery.
  (z)"Unreasonable force" means physical management or force that is  applied 
by an employee, volunteer, or agent of a provider to a recipient in  one   or 
more of the following circumstances:
  (i) There is no imminent risk of serious or non-serious physical  harm   to 
the recipient, staff or others.
  (ii) The  physical  management   used   is   not   in    compliance    with 
techniques approved by the provider and the responsible mental health agency.
  (iii) The physical management  used  is  not  in  compliance    with    the 
emergency interventions authorized in  the  recipient's  individual  plan  of 
service.
  (iv) The  physical  management  or  force  is  used   when    other    less 
restrictive measures were possible but  not  attempted   immediately   before 
the  use  of physical management or force.

  History:  1979 AC; 1983 AACS; 1998 AACS; 2007 AACS; 2009 MR 7, Eff. Apr. 3, 
2009.

Editor's Note: An obvious error in R 330.7001 was corrected at  the   request 
of the promulgating agency, pursuant to Section 56 of 1969 PA 306, as amended 
by 2000 PA 262, MCL 24.256.  The rule containing the error was  published  in 
Michigan Register, 2007 MR 23.  The memorandum requesting   the    correction 
was published in Michigan Register, 2007 MR 23.


R  330.7002   Rescinded.

  History:  1979 AC; 1998 AACS.


R 330.7003  Informed consent.
  Rule 7003. (1) All of the following are elements of informed consent:
  (a) Legal competency.  An  individual  shall  be  presumed  to  be  legally 
competent.  This presumption may be rebutted only by a court appointment of a 
guardian or exercise by a court of guardianship powers and only to the extent 
of the scope and duration  of  the  guardianship.   An  individual  shall  be 
presumed legally competent regarding matters that are not  within  the  scope 
and authority of the guardianship.
  (b) Knowledge.  To consent, a recipient or legal representative  must  have 
basic information about the procedure, risks, other related consequences, and 
other relevant information.  The standard governing required disclosure by  a 
doctor is what a reasonable patient  needs  to  know  in  order  to  make  an 
informed decision.  Other relevant information includes all of the following:
  (i)  The purpose of the procedures.
  (ii) A description of the attendant discomforts, risks, and  benefits  that 
can reasonably be expected.
  (iii)  A  disclosure  of  appropriate  alternatives  advantageous  to   the 
recipient.
  (iv)  An offer to answer further inquiries.
  (c) Comprehension.  An individual must  be  able  to  understand  what  the 
personal implications of providing consent will be based upon the information 
provided under subdivision (b) of this subrule.
  (d) Voluntariness.  There  shall  be  free  power  of  choice  without  the 
intervention of an element of force, fraud, deceit, duress, overreaching,  or 
other  ulterior  form  of  constraint  or  coercion,  including  promises  or 
assurances of privileges or freedom.  There shall be an instruction  that  an 
individual is free to withdraw consent and to  discontinue  participation  or 
activity at any time without prejudice to the recipient.
  (2) A provider shall establish written policies that include procedures for 
evaluating comprehension and for assuring disclosure of relevant  information 
and measures to ensure voluntariness before obtaining consent.
The policies and procedures shall  specify  for  specific  circumstances  the 
types of information that shall be disclosed and steps that may be  taken  to 
protect  voluntariness.   The  procedures  shall  include  a  mechanism   for 
determining whether guardianship proceedings should be considered.
  (3) Informed consent  shall  be  reobtained  if  changes  in  circumstances 
substantially change the risks, other consequences,  or  benefits  that  were 
previously expected.
  (4) A written agreement documenting an informed consent shall  not  include 
any exculpatory language through which the recipient, or a person  consenting 
on the recipient's behalf,  waives  or  appears  to  waive,  a  legal  right, 
including  a  release  of  a  provider  or  its  agents  from  liability  for 
negligence.  The agreement  shall  embody  the  basic  elements  of  informed 
consent in the particular  context.   The  individual,  guardian,  or  parent 
consenting shall be given adequate opportunity to read  the  document  before 
signing it.  The requirement of a written consent shall not eliminate,  where 
essential to the individual’s understanding or otherwise deemed advisable,  a 
reading of the document to  the  individual  or  an  oral  explanation  in  a 
language the individual understands.  A note of the explanation and  by  whom 
made shall be placed in the record along with the written consent.
  (5) A consent is executed when it is signed by the appropriate individual.

  History:  1979 AC; 1998 AACS.


R 330.7005   Applicant request for second opinion; response; documentation.
  Rule 7005. A community mental health services program  shall  have  written 
procedures to assure  that  an  applicant's  request  for  a  second  opinion 
regarding denial  of  services  is  responded  to  in  a  timely  manner  and 
documented in the clinical record.

  History:  1998 AACS.


         SUBPART 2. RIGHTS OF RECIPIENTS OF MENTAL HEALTH SERVICES


R 330.7009   Civil rights.
  Rule 7009. (1) A provider shall establish measures to prevent and correct a 
possible violation of civil rights related  to  the  service  provision.    A 
violation of civil rights shall be  regarded  as  a  violation  of  recipient 
rights and shall be subject to  remedies  established  for  recipient  rights 
violations.
  (2)  A recipient shall be permitted, to the maximum extent feasible and  in 
any legal manner, to conduct personal  and  business  affairs  and  otherwise 
exercise all rights, benefits, and privileges not divested or limited.
  (3)  An adult recipient, and a minor when state law  allows  consent  by  a 
minor, shall be presumed legally competent.  The  presumption may be rebutted 
only  by  court  appointment  of  a  guardian  or  exercise  by  a  court  of 
guardianship powers and only to the extent of the scope and duration of  that 
guardianship.  A provider shall do all of the following:
  (a) Presume the recipient is legally competent if he or she does not have a 
guardian.  A provider shall also presume a recipient with a limited  guardian 
is legally competent in all areas which are not  specifically  identified  as 
being under the control or scope of the guardian.
  (b) Not institute guardianship  proceedings,  unless  there  is  sufficient 
reason to doubt the recipient's comprehension, as provided under these  rules 
and the policies and procedures of the provider.
  (c) When  a  recipient's  comprehension  is  in  doubt,  justification  for 
petitioning the probate court for guardianship consideration shall be entered 
in the recipient's clinical record.
  (d) Not petition for, or otherwise cause the  filing  of,  a  petition  for 
guardianship of greater scope than is essential.
  (e) Petition or cause a petition to be filed with the court to terminate  a 
recipient's guardian or narrow the scope of the guardian's  powers  when  the 
recipient demonstrates he or she is capable of providing informed consent.
  (4) A provider shall not interfere with the right of a recipient  to  enter 
into a marriage contract or obtain or oppose a divorce.
  (5) The right of a recipient  to  participate  in  the  electoral  process, 
including primaries and special and recall elections shall not  be  abridged.
An eligible  recipient,  including  a  recipient  determined  to  be  legally 
incompetent, shall have the right to exercise his or  her  franchise,  except 
those the legislature may exclude from  the  electoral  process  by  defining 
mental incompetence in any statute implementing article 2, section 2  of  the 
state constitution of 1963.  Facilities shall have  procedures  which  assure 
all the following:
  (a) All recipients 18 years of age or over are canvassed to ascertain their 
interest in registering to vote,  obtaining  absentee  ballots,  and  casting 
ballots.  The canvass shall be conducted to allow sufficient time  for  voter 
registration and acquisition of absentee ballot, or provided recipients  with 
an opportunity to leave the premises to exercise voting  privileges,  or   to 
register to vote, or a facility director may require supervisory personnel to 
accompany recipients and  may   require  recipients  to    bear    reasonable 
transportation costs.
  (b) Arrangements with state  and  local  election  officials  are  made  to 
provide voter registration and casting of ballots for  interested  recipients 
at the facility or may elect to encourage the use of absentee ballots.
  (c) Facilities shall assist election officials in determining a recipient's 
place of residence for voting purposes.
  (d) Facilities shall  not  prohibit  a  recipient from  receiving  campaign 
literature, shall  permit  campaigning  by  candidates,  and  may  reasonably 
regulate the time, duration, and location of these  activities.   A  facility 
director shall permit a recipient to place political advertisements in his or 
her personal quarters.
  (6) A recipient shall be permitted access to religious services and worship 
on a nondiscriminatory basis.  A recipient shall not be coerced into engaging 
in religious activity.
  (7) A recipient's property or living  area  shall  not  be  searched  by  a 
provider unless such a search  is  authorized  in  the  recipient's  plan  of 
service or there is reasonable cause to believe  that  the  recipient  is  in 
possession of contraband or property that is excluded  from  the  recipient's 
possession by the written policies, procedures, or rules of the provider. The 
following conditions apply to all searches:
  (a) A search of the recipient's living area or property shall occur in  the 
presence of a witness.  The recipient shall also be present unless he or  she 
declines to be present.
  (b) The circumstances surrounding  the  search  shall  be  entered  in  the 
recipient's record, and shall include all the following:
  (i) The reason for initiating the search.
  (ii) The names of the individuals performing and witnessing the search.
  (iii) The results of the search, including a description  of  the  property 
seized.

  History:  1979 AC; 1983 AACS; 1984 AACS; 1998 AACS; 2007 AACS.


R 330.7011   Notification of rights.
  Rule 7011. At the time services  are  first  requested,  a  provider  shall 
inform a recipient, his or her guardian, or other legal representative or the 
parent with legal custody of a minor  recipient  of  the  recipient's  lawful 
rights in an understandable manner. If a  recipient  is  unable  to  read  or 
understand the materials provided, a provider shall make a reasonable attempt 
to assist the recipient in understanding the materials. A note describing the 
explanation of the materials  and  who  provided  the  explanation  shall  be 
entered in the recipient's record.

  History:  1979 AC; 1998 AACS; 2007 AACS.


R 330.7012   Provider confidentiality obligations.
  Rule 7012.  Observing the rights of family members specified in section 711 
of the act does not relieve the provider  of  observing  the  confidentiality 
obligations specified in sections 748 and 750 of the act.

  History:  1998 AACS.


R  330.7014   Rescinded.

  History:  1979 AC; 1998 AACS.


R 330.7017   Electroconvulsive therapy.
  Rule 7017.  (1)  A  provider  shall  comply  with  both  of  the  following 
provisions when administering electroconvulsive therapy:
  (a) A provider shall enter written documentation and signed consent in  the 
clinical record.
  (b)  A  provider  shall   obtain   consent   for   a   stated   number   of 
electroconvulsive treatments within a series during a stated time period.
A provider shall inform a recipient or other legally empowered representative 
that he or she may withdraw his or her consent at any time during the  stated 
time period.
  (2) The responsible mental  health  agency  shall  notify  a  minor  or  an 
advocate designated by the minor of the right to object  to  a  procedure  as 
specified in section 717(5) of the act.  A provider shall place documentation 
of the notification, including the date and time  notified  in  the  clinical 
record.
  (3) The responsible mental  health  agency  shall  assist  a  minor  or  an 
advocate  designated  by  the  minor  who  objects  to  an  electroconvulsive 
procedure in properly submitting  the  objection  to  a  court  of  competent 
jurisdiction.

  History:  1998 AACS.


R 330.7029  Family planning and health information.
  Rule 7029. The individual in charge of  the  recipient’s  written  plan  of 
service shall provide recipients,  their  guardians,  and  parents  of  minor 
recipients with notice of the availability of  family  planning,  and  health 
information services  and,  upon  request,  provide  referral  assistance  to 
providers of such services.   The  notice  shall  include  a  statement  that 
receiving mental health services does not depend in any way on requesting  or 
not requesting family planning or health information services.

  History:  1979 AC; 1986 AACS; 1998 AACS.


R  330.7032   Rescinded.

  History:  1979 AC; 1998 AACS.


R 330.7035   Abuse or neglect of recipients.
  Rule 7035. (1) Abuse or neglect of a recipient by an  employee,  volunteer, 
or agent of a provider shall subject the employee, volunteer, or agent  of  a 
provider, upon substantiated reports, to an  appropriate  penalty,  including 
official reprimand, demotion, suspension, reassignment, or dismissal.
  (2) A provider shall do both of the following:
  (a) Establish  written policies and procedures, which adopt and incorporate 
the definitions of abuse class I, abuse class II,  or  abuse  class  III  and 
neglect as neglect class I,  neglect  class  II,  or  neglect  class  III  as 
described in rule 7001.
  (b) Provide for a prompt and thorough review of charges of  abuse  that  is 
fair to both the recipient alleged  to  have  been  abused  and  the  charged 
employee, volunteer, or agent of a provider.

  History:  1979 AC; 1998 AACS.


R  330.7037   Rescinded.

  History:  1979 AC; 1998 AACS.


R  330.7045   Rescinded.

  History:  1979 AC; 1998 AACS.


R 330.7046   Summary reports of extraordinary incidents.
  Rule 7046. In addition to other information required to be contained in the 
clinical record of the recipient  by  statute  and  rule,  the  record  shall 
contain a summary of any extraordinary incidents involving  the  recipient.
The report is to be entered into  the  record  by  a  staff  member  who  has 
personal knowledge of the extraordinary incident. An incident or peer  review 
report generated pursuant to MCL 330.1143a  does  not  constitute  a  summary 
report as intended by this  section  and  shall  not  be  maintained  in  the 
clinical record of a recipient.

  History:  1998 AACS; 2007 AACS.


R 330.7051  Confidentiality and disclosure.
 Rule 7051. (1) A summary of section 748 of the act shall be made a  part  of 
each recipient file.
  (2) A record shall be kept of disclosures and  shall  include  all  of  the 
following information:
  (a) The information released.
  (b) To whom the information is released.
  (c) The purpose claimed by the person for requesting the information and  a 
statement disclosing how the disclosed information is germane to the purpose.
  (d) The subsection of section 748 of the act, or  other  state  law,  under 
which a disclosure was made.
  (e) A statement that the receiver of  disclosed  information  was  informed 
that further disclosure shall be consistent with the authorized  purpose  for 
which the information was released.
  (3)  Unless  section  748(4)  of  the  act  applies  to  the  request   for 
information, the director of the  provider  may  make  a  determination  that 
disclosure of information may be detrimental to the recipient or  others.  If 
the director of the provider declines  to  disclose  information  because  of 
possible detriment to the recipient or  others,  then  the  director  of  the 
provider shall determine whether part of  the  information  may  be  released 
without detriment.  A determination of detriment shall not  be  made  if  the 
benefit to the recipient from the disclosure outweighs the detriment.  If the 
record of the recipient is located  at  the  resident’s  facility,  then  the 
director of the provider shall make a determination  of  detriment  within  3 
business days from the date of the request.  If the record of  the  recipient 
is located at another location, then the director of the provider shall  make 
a determination of detriment within 10 business days from  the  date  of  the 
request.  The director of the provider shall provide written notification  of 
the determination of detriment and justification for the determination to the 
person who requested the information.  If a determination  of  detriment  has 
been made and the person seeking the disclosure disagrees with that decision, 
he or she may file a recipient rights complaint with the office of  recipient 
rights of the department, the community mental health  services  program,  or 
licensed  hospital,  whichever  was  responsible  for  making  the   original 
determination.
  (4) Information shall be provided  to  attorneys,  other  than  prosecuting 
attorneys, as follows:
  (a) An attorney who is retained or appointed by  a  court  to  represent  a 
recipient and who presents identification and a consent or  release  executed 
by the recipient, by a legally empowered guardian, or by  the  parents  of  a 
minor shall be permitted to review, on  the  provider's  premises,  a  record 
containing information concerning the recipient.  An attorney  who  has  been 
retained or appointed to represent  a  minor  pursuant  to  an  objection  to 
hospitalization of a minor shall be allowed to review the records.
  (b) Absent a valid consent or release, an attorney who does not represent a 
recipient shall not  be  allowed  to  review  records,  unless  the  attorney 
presents a certified copy of an order from a court  directing  disclosure  of 
information concerning the recipient to the attorney.
  (c) An attorney  shall  be  refused  written  or  telephoned  requests  for 
information, unless the request is accompanied or  preceded  by  a  certified 
copy of an order from a court ordering  disclosure  of  information  to  that 
attorney or unless a consent or release has been appropriately executed.
The attorney shall be advised of the procedures for reviewing  and  obtaining 
copies of recipient records.
  (5) Information shall be provided to private  physicians  or  psychologists 
appointed or retained  to  testify  in  civil,  criminal,  or  administrative 
proceedings as follows:
  (a) A physician or psychologist who presents identification and a certified 
true copy of a court  order  appointing  the  physician  or  psychologist  to 
examine a recipient for the purpose of  diagnosing  the  recipient's  present 
condition shall be permitted to review, on the provider's premises, a  record 
containing information concerning the recipient.  Physicians or psychologists 
shall be notified before the review  of  records  when  the  records  contain 
privileged communication that cannot be  disclosed  in  court  under  section 
750(1) of the act.
  (b) The court or other entity that issues  a  subpoena  or  order  and  the 
attorney general's office, when involved, shall be informed if subpoenaed  or 
ordered information is privileged  under  a  provision  of  law.   Privileged 
information shall not be disclosed unless disclosure is permitted because  of 
an express waiver of privilege or because of other conditions that,  by  law, 
permit or require disclosure.
  (6) A prosecutor may  be  given  nonprivileged  information  or  privileged 
information that may be disclosed pursuant to section 750(2) of the act if it 
contains information relating to participation in proceedings under the  act, 
including all of the following information:
  (a) Names of witnesses to acts that support the  criteria  for  involuntary 
admission
  (b) Information relevant to alternatives to  admission  to  a  hospital  or 
facility.
  (c) Other information designated in the policies of the provider.
  (7) The holder  of  a  record  may  disclose  information  that  enables  a 
recipient to apply for  or  receive  benefits  without  the  consent  of  the 
recipient or legally authorized representative only  if  the  benefits  shall 
accrue to the provider or shall be subject to collection  for  liability  for 
mental health service.

  History:  1979 AC; 1981 AACS; 1986 AACS; 1990 AACS; 1998 AACS.


          SUBPART 3. ADDITIONAL RIGHTS OF RESIDENTS OF FACILITIES


R  330.7125   Rescinded.

  History:  1979 AC; 1998 AACS.


R 330.7135   Treatment by spiritual means.
  Rule 7135. (1) A provider shall  permit  a  recipient  to  have  access  to 
treatment by spiritual means upon the request of the recipient,  a  guardian, 
if any, or a parent of a minor recipient.
  (2) A provider shall assure that the opportunity for contact with  agencies 
providing treatment by spiritual means is provided  in  the  same  manner  as 
recipients are permitted to see private mental health professionals.
  (3) Requests for printed, recorded, or visual material essential or related 
to treatment by  spiritual  means,  and  to  a  symbolic  object  of  similar 
significance shall be honored and made available at the recipient’s expense.
  (4)  Treatment  by  spiritual  means  includes  the  right  of  recipients, 
guardians, or parents of a minor to refuse medication or other  treatment  on 
spiritual grounds that predate the current allegations of mental  illness  or 
disability, but  does  not  extend  to  circumstances  where  either  of  the 
following provisions applies:
  (a) A guardian or the provider has been empowered by a court to consent  to 
or provide treatment and has done so.
  (b) A recipient poses harm to himself or herself or others and treatment is 
essential to prevent physical injury.
  (5) The right to treatment by spiritual means does not include the right to 
any of the following:
  (a) To use mechanical devices or chemical or  organic  compounds  that  are 
physically harmful.
  (b) To engage in activity prohibited by law.
  (c) To engage in activity that physically harms the recipient or others.
  (d) To engage in activity that is inconsistent with  court-ordered  custody 
or voluntary placement by a person other than the recipient.
  (6) A provider shall develop written  policies  and  procedures  concerning 
treatment by spiritual means that include both of the following:
  (a) Recourse to court proceedings if medication or other  treatment  for  a 
minor is refused.
  (b) Notice to a person who requests  treatment  by  spiritual  means  of  a 
denial of the request and the reasons for denial.
  (7) A provider shall provide for the administrative review or appeal  of  a 
denial of treatment by spiritual means at the option of a  person  requesting 
such treatment.

  History:  1979 AC; 1998 AACS.


R 330.7139  Resident's right to  entertainment  materials,  information,  and 
news.
  Rule 7139.  (1) A provider shall not  prevent  a  resident  from  acquiring 
entertainment materials, information and news at his or her expense, or  from 
reading written  or  printed  material,  or  from  viewing  or  listening  to 
television, radio, recordings, or movies made available  at  a  facility  for 
reasons of, or similar to, censorship.
  (2) A provider may limit access to entertainment materials, information, or 
news only if such a limitation is specifically  approved  in  the  resident’s 
individualized plan of service.
  (3) A provider shall document each instance when a limitation is imposed in 
the resident’s record.
  (4)  A  provider  shall  not  limit  access  to  entertainment   materials, 
information or news  when  such  limitations  can  no  longer  be  clinically 
justified.
  (5) Material not prohibited by law may be read or viewed by a minor  unless 
there is an objection by  the  minor’s  parent  or  guardian  who  has  legal 
custodyof the minor.
  (6) A provider shall establish written policies and procedures that provide 
for all of the following:
  (a) Any general program restrictions on access  to  material  for  reading, 
listening, or viewing.
  (b) Determining  a  resident’s  interest  in,  and  provide  for,  a  daily 
newspaper.
  (c) Permit attempts by the staff person in charge of the plan of service to 
persuade a parent or guardian of a minor to withdraw objections  to  material 
desired by the minor.
  (d)  A  mechanism  for  residents  to  appeal  denial  of  their  right  to 
entertainment materials, information and  news,  and  to  remedy  a  wrongful 
denial.
  (e) Any specific restrictions on a  living  unit  or  for  the  therapeutic 
benefit of the residents as a group.

  History:  1979 AC; 1998 AACS.


R  330.7142   Rescinded.

  History:  1979 AC; 1998 AACS.


R  330.7145  Rescinded.

  History:  1979 AC; 1998 AACS.


R  330.7151   Rescinded.

  History:  1979 AC; 1990 AACS; 1998 AACS.


R 330.7158   Medication.
  Rule 7158. (1) A provider shall only administer medication at the order  of 
a physician and in compliance with the provisions of section 719 of the  act, 
if applicable.
  (2) A provider  shall  assure  that  medication  use  conforms  to  federal 
standards and the standards of the medical community.
  (3) A provider shall not use medication as punishment, for the  convenience 
of the staff, or as a substitute for other appropriate treatment.
  (4) A provider shall review the administration of a psychotropic medication 
periodically as set forth in the recipient's individual plan of  service  and 
based upon the recipient's clinical status.
  (5) If an individual  cannot  administer  his  or  her  own  medication,  a 
provider shall ensure  that  medication  is  administered  by  or  under  the 
supervision of personnel who are qualified and trained.
  (6) A provider shall record the administration of  all  medication  in  the 
recipient's clinical record.
  (7) A provider  shall  ensure  that  medication  errors  and  adverse  drug 
reactions are immediately and properly reported to a physician  and  recorded 
in the recipient's clinical record.
  (8) A provider shall ensure that the use  of  psychotropic  medications  is 
subject to the following restrictions:
  (a) Unless the individual consents or unless administration of chemotherapy 
is necessary to prevent physical  injury  to  the  individual  or  to  others 
psychotropic medications shall not be administered to:
  (i) A recipient who has  been  admitted  by  medical  certification  or  by 
petition until after a final adjudication as required under section 468(2) of 
the act.
  (ii)  A  defendant  undergoing  examination  at  the  center  for  forensic 
psychiatry or other certified facility to determine competency to stand trial.
  (iii) A person acquitted of a criminal charge by reason of  insanity  while 
undergoing examination and evaluation at the center for forensic psychiatry.
  (b) A provider may administer chemotherapy  to  prevent  physical  harm  or 
injury  after  signed  documentation  of  the  physician  is  placed  in  the 
resident's clinical record and when the  actions  of  a  recipient  or  other 
objective criteria clearly demonstrate to  a  physician  that  the  recipient 
poses a risk of harm to himself, herself, or others.
  (c) Initial administration of psychotropic chemotherapy may not be extended 
beyond 48 hours  unless  there  is  consent.  The  duration  of  psychotropic 
chemotherapy shall be as short as possible and at the lowest possible  dosage 
that is therapeutically effective. The chemotherapy shall  be  terminated  as 
soon as there is little likelihood that the recipient will  pose  a  risk  of 
harm to himself, herself, or others.
  (d)Additional courses of chemotherapy may be prescribed and administered if 
a recipient decompensates and again poses a  risk  to  himself,  herself,  or 
others.
  (9) A provider shall ensure that only  medication  that  is  authorized  in 
writing by a physician is given to  recipients  upon  his  or  her  leave  or 
discharge from the providers program  and  that  enough  medication  is  made 
available to ensure the recipient has an adequate supply until he or she  can 
become established with another provider.

  History:  1979 AC; 1981 AACS; 1986 AACS; 1998 AACS; 2007 AACS.


R  330.7161   Rescinded.

  History:  1979 AC; 1998 AACS.


R  330.7165   Rescinded.

  History:  1979 AC; 1998 AACS.


R  330.7171   Resident health, hygiene, and personal grooming.
  Rule  7171.  Provisions  for  resident  health,   hygiene,   and   personal 
grooming shall  include  assisting  and  training   residents   to   exercise 
maximum capability in  personal  grooming   practices,   including   bathing, 
toothbrushing, shampooing, hair grooming, shaving, and care  of   nails.   In 
addition, a resident shall be provided with all of the following:
  (a) Toilet articles.
  (b) A toothbrush and dentifrice.
  (c) An opportunity for shower or tub bath at least  once   every   2  days, 
unless medically contraindicated.
  (d) The services of a barber or a beautician on a regular basis.
  (e) If a male, the opportunity to shave daily.

  History:  1979 AC; 1981 AACS.


R  330.7175   Rescinded.

  History:  1979 AC; 1998 AACS.


R  330.7181   Rescinded.

  History:  1979 AC; 1990 AACS; 1998 AACS.


R  330.7185   Rescinded.

  History:  1979 AC; 1998 AACS.


R  330.7188   Rescinded.

  History:  1979 AC; 1983 AACS; 1998 AACS.



R  330.7189   Rescinded.

  History:  1979 AC; 1998 AACS.


R  330.7191   Rescinded.

  History:  1979 AC; 1998 AACS.


R  330.7195   Rescinded.

  History:  1979 AC; 1990 AACS; 1998 AACS.


R 330.7199 Written plan of services.
  Rule  7199.   (1)The  individualized  written  plan  of  services  is   the 
fundamental document in the recipient's record. A  provider   shall    retain 
all  periodic reviews, modifications,  and  revisions  of  the  plan  in  the 
recipient's record.
  (2) The plan shall identify, at a minimum, all of the following:
  (a)  All  individuals,  including  family     members,     friends,     and 
professionals that the individual desires or  requires  to  be  part  of  the 
planning process.
  (b) The services, supports, and treatments that the   recipient   requested 
of the provider.
  (c)  The  services,  supports,   and   treatments    committed    by    the 
responsible mental  health  agency  to  honor   the    recipient's    request 
specified   in subdivision (b) of this subrule.
  (d) The person or persons who will assume responsibility    for    assuring 
that the committed services and supports are delivered.
  (e) When the recipient can  reasonably  expect  each  of   the    committed 
services and supports to commence, and, in the case of recurring services  or 
supports, how frequently, for what duration, and over what period of time.
  (f)  How  the  committed  mental  health  services  and  supports  will  be 
coordinated with the recipient's natural support systems and  the    services 
and  supports provided by other public and private organizations.
  (g)  Any  restrictions  or  limitations  of  the   recipient's   rights.
Such restrictions, limitations,  or  any   intrusive    behavior    treatment 
techniques shall be reviewed and approved by a formally constituted committee 
of  mental health professionals with specific  knowledge,    training,    and 
expertise   in  applied   behavioral   analysis.    Any    restriction     or 
limitation   shall   be justified, time-limited, and clearly  documented   in 
the  plan  of  service.
Documentation shall be included that describes attempts that have  been  made 
to avoid such restrictions as well as what actions will be taken as  part  of 
the plan to ameliorate or eliminate the need  for  the  restrictions  in  the 
future.
  (h) Strategies for  assuring  that  recipients  have  access   to    needed 
and available supports identified through a  review  of  their  needs.  Areas
 of possible need may include any of the following:
  (i) Food.
  (ii) Shelter.
  (iii) Clothing.
  (iv) Physical health care.
  (v) Employment.
  (vi) Education.
  (vii) Legal services.
  (viii) Transportation.
  (ix) Recreation.
  (i) A description of any involuntary  procedures  and  the   legal    basis 
for performing them.
  (j) A specific  date  or  dates  when  the  overall  plan,  and   any    of 
its subcomponents will be formally  reviewed  for  possible  modification  or 
revision.
  (3) The plan shall not contain privileged information or communications.
  (4) Except as otherwise  noted  in  subrule  (5)  of   this    rule,    the 
individual plan of service shall be formally agreed to  in  whole    or    in 
part  by  the responsible mental health agency and the recipient, his or  her 
guardian,  if any, or the parent who has   legal   custody   of    a    minor 
recipient.   If   the  appropriate  signatures  are  unobtainable,  then  the 
responsible  mental  health agency shall document witnessing verbal agreement 
to the plan. Copies of  the plan shall be provided to the recipient,  his  or 
her guardian, if any, or  the  parent  who  has  legal  custody  of  a  minor 
recipient.
  (5) Implementation of a plan without agreement of the recipient,  his    or 
her guardian, if any, or parent who has legal custody of a  minor   recipient 
may only occur when a recipient has been adjudicated pursuant   to    section 
469a, 472a, 473, 515, 518, or 519 of the act. However,  if    the    proposed 
plan  in whole or in part is implemented without the concurrence    of    the 
adjudicated recipient or his or her guardian, if any, or the parent  who  has 
legal custody of a  minor  recipient,  then  the  stated  objections  of  the 
recipient or  his  or her guardian or the parent who has legal custody  of  a 
minor  recipient  shall be included in the plan.

  History:  1979 AC; 1984 AACS; 1986 AACS; 1990 AACS; 1998 AACS;  2007  AACS; 
2009 MR 7, Eff. Apr. 3, 2009.


R  330.7205   Rescinded.

  History:  1979 AC; 1998 AACS.


R  330.7227   Rescinded.

  History:  1979 AC; 1981 AACS; 1983 AACS; 1998 AACS.


R  330.7229   Rescinded.

  History:  1979 AC; 1998 AACS.


R  330.7231   Rescinded.

  History:  1979 AC; 1998 AACS.


R  330.7235   Rescinded.

  History:  1979 AC; 1983 AACS; 1998 AACS.


R  330.7239   Rescinded.

  History:  1979 AC; 1998 AACS.


R 330.7243 Restraint seclusion, and physical management.
  Rule  7243.  (1)  A  provider  shall   keep    a    separate,     permanent 
chronological record specifically identifying all instances when restraint or 
seclusion has been  used.The  record  shall  include  all  of  the  following 
information:
  (a) The name of the recipient.
  (b) The type of restraint or conditions of seclusion.
  (c) The name of the authorizing and ordering physician.
  (d) The date and  time  placed  in  temporary,  authorized,   and   ordered 
restraint or seclusion.
  (e) The  date  and  time  the  recipient  was  removed   from    temporary, 
authorized, and ordered restraint or seclusion.
  (2) A recipient who is in restraint or seclusion shall  be   inspected   at 
least once every 15 minutes by designated personnel.
  (3) A provider shall  ensure  that  documentation  of   staff    monitoring 
and observation is entered into the medical record of the recipient.
  (4) A recipient in restraint or seclusion shall be provided  hourly  access 
to a toilet.
  (5) A recipient in restraint or seclusion  shall  have  an  opportunity  to 
bathe, or shall be bathed as often as needed, but  at  least  once  every  24 
hours.
  (6) If an order for restraint or seclusion is to expire and  the  continued 
use of restraint or seclusion is clinically indicated and must  be  extended, 
then a physician's reauthorization or reordering of restraint  or   seclusion 
shall comply with both of the following provisions:
  (a) If the restraint device is  a  cloth  vest  and  is  used   to    limit 
the resident's movement at night to prevent the  recipient   from    injuring 
himself or herself in bed, the  physician  may  reauthorize  or  reorder  the 
continued use of the cloth vest device pursuant to section 740(4)  and(5)  of 
the act.
  (b) Except as specified in subdivision (a) of this subrule,  a    physician 
who orders or reorders restraint or seclusion shall  do  so   in   accordance 
with sections 740(5) and 742(5) of the  act.The  required  examination  by  a 
physician shall  be  conducted  not  more  than  30  minutes    before    the 
expiration  of  the expiring order for restraint or seclusion.
  (7) If a recipient is removed from restraint or seclusion for   more   than 
30 minutes, then the order or authorization shall terminate.
  (8) A provider shall ensure that a secluded or  restrained   recipient   is 
given an explanation of why he or she is being secluded or   restrained   and 
what  he or she needs to do to have the  restraint   or    seclusion    order 
removed.  The explanation shall be provided in  clear  behavioral  terms  and 
documented in the record.
  (9) For restrained recipients, a provider shall ensure that  an  assessment 
of the circulation status of restrained limbs is  conducted  and   documented 
at 15-minute intervals or more often if medically indicated.
  (10)  For  purposes  of  this  rule,   a   time    out    or    therapeutic 
de-escalation program, as defined in R 330.7001, is not a form of seclusion.
  (11) Physical management as defined in R 330.7001 (m) may  only   be   used 
in situations when a recipient is presenting an  imminent  risk  of   serious 
or non-serious  physical  harm  to  himself,  herself    or    others     and 
lesser restrictive interventions have been  unsuccessful  in   reducing    or 
eliminating the imminent risk of serious  or  non-serious  physical   harm.
Both  of  the following shall apply:
  (i) Physical management shall not be  included  as  a  component    in    a 
behavior treatment plan.
  (ii) Prone immobilization of a recipient  for  the  purpose   of   behavior 
control  is  prohibited  unless  implementation   of   physical    management 
techniques  other than prone immobilization is medically contraindicated  and 
documented in  the recipient's record.

  History:  1979 AC; 1981 AACS; 1983 AACS; 1984 AACS; 1998 AACS;  2007  AACS; 
2009 MR 7, Eff. Apr. 3, 2009.


R  330.7251  Rescinded.

  History:  1979 AC; 1998 AACS.


R  330.7253   Rescinded.

  History:  1979 AC; 1986 AACS; 1990 AACS; 1998 AACS.


R  330.7254   Rescinded.

  History:  1979 AC; 1998 AACS.


R  330.7260   Declaratory rulings.
  Rule  7260.  (1)  A  person  who  requests  a   decision   concerning   the 
applicability of a statute, rule,  guideline,  or   order   administered   or 
issued by the department to an actual state of facts shall do so by  means of 
a request for a declaratory ruling.
  (2)  The  request  for  a  declaratory  ruling  shall  be   made   on   the 
department's form 2447 which may be obtained from  Office   Services,   Sixth 
Floor, Lewis Cass Building, Lansing, Michigan 48926.
  (3) The completed request for a declaratory ruling shall be  made  to   the 
director, Department of  Mental  Health,  Lewis   Cass   Building,   Lansing, 
Michigan 48926.
  (4) The director may refer a request to the  administrative   tribunal   of 
the department. An opinion on the request shall be rendered within 60 days of 
the receipt of that request.

  History:  1981 AACS.