H 4100 Session 109 (1991-1992)
H 4100 General Bill, By P.B. Harris, Carnell, J.L. Harris and J.G. Mattos
A Bill to amend the Code of Laws of South Carolina, 1976, by adding Chapter 26
to Title 44 so as to provide for the rights of mental retardation clients; to
amend Section 44-20-260, relating to mental retardation research programs, so
as to require a client's prior consent; and to repeal Sections 44-23-230,
44-23-1020, 44-23-1030, 44-23-1040, 44-23-1050, 44-23-1070, and 44-23-1090
relating to the rights of mental retardation clients.
01/14/92 House Introduced and read first time HJ-181
01/14/92 House Referred to Committee on Medical, Military,
Public and Municipal Affairs HJ-181
04/14/92 House Tabled in committee
A BILL
TO AMEND THE CODE OF LAWS OF SOUTH CAROLINA, 1976,
BY ADDING CHAPTER 26 TO TITLE 44 SO AS TO PROVIDE FOR
THE RIGHTS OF MENTAL RETARDATION CLIENTS; TO AMEND
SECTION 44-20-260, RELATING TO MENTAL RETARDATION
RESEARCH PROGRAMS, SO AS TO REQUIRE A CLIENT'S PRIOR
CONSENT; AND TO REPEAL SECTIONS 44-23-230, 44-23-1020,
44-23-1030, 44-23-1040, 44-23-1050, 44-23-1070, AND 44-23-1090
RELATING TO THE RIGHTS OF MENTAL RETARDATION
CLIENTS.
Whereas, it is the policy of the State that persons with mental retardation
and related disabilities have the same rights as persons without mental
retardation or related disabilities. A person applying for or receiving
services as a result of mental retardation or a related disability has the
right to participate in and make decisions concerning his
self-determination; and
Whereas, it is the policy of the State that the South Carolina Department
of Mental Retardation provide services in the least restrictive
environment available and in the most integrated setting in the
community possible in a manner that fosters the developmental and
habilitation potential of a person. Now, therefore,
Be it enacted by the General Assembly of the State of South Carolina:
SECTION 1. Title 44 of the 1976 Code is amended by adding:
"CHAPTER 26
Rights of Mental Retardation Clients
Section 44-26-10. As used in this chapter:
( 1) `Aversive stimuli' means a clinical procedure which staff
apply, contingent upon the exhibition of maladapted behavior, startling,
unpleasant, or painful stimuli or stimuli that have a potentially noxious
effect.
( 2) `Client' means a person who is determined by the South
Carolina Department of Mental Retardation to have mental retardation
or a related disability and is receiving services or is an infant at risk of
having mental retardation or a related disability and is receiving
services.
( 3) `Client's representative' means the client's parent, guardian,
legal counsel, or other person who acts on behalf or in the best interest
of a person with mental retardation or a related disability.
( 4) `Commissioner' means the South Carolina Commissioner of
Mental Retardation.
( 5) `Court' means a probate court of appropriate jurisdiction
unless specified otherwise.
( 6) `Department' means the South Carolina Department of Mental
Retardation.
( 7) `Facility' means a residential setting operated, assisted, or
contracted out by the department that provides twenty-four hour care
and supervision.
( 8) `Habilitation' means the attempt to remedy the delayed
learning process to develop maximum growth potential by the
acquisition of self-help, language, personal, social, educational,
vocational, and recreational skills.
( 9) `Interdisciplinary team' means persons drawn from or
representing the professional disciplines or service areas included in the
individual habilitation plan.
(10) `Major medical treatment' means a medical, surgical, or
diagnostic intervention or procedure proposed for a person with mental
retardation or a related disability, where a general anesthetic is used or
which involves a significant invasion of bodily integrity requiring an
incision, producing substantial pain, discomfort, debilitation, or having
a significant recovery period. It does not include routine diagnosis or
treatment such as the administration of medications or nutrition or the
extractions of bodily fluids for analysis or dental care performed with a
local anesthetic or a nonpermanent procedure designed for the
prevention of pregnancy.
(11) `Mental retardation' means significantly subaverage general
intellectual functioning existing concurrently with deficits in adaptive
behavior and manifested during the developmental period.
(12) `Mental retardation professional' means a person responsible
for supervising a client's plan of care, integrating various aspects of the
program, recording progress, and initiating periodic review of each
individual plan of habilitation.
(13) `Plan of habilitation' means a written plan setting forth
measurable goals or behaviorally stated objectives in prescribing an
integrated program of individually designed activities or therapies
necessary to achieve the goals and objectives.
(14) `Planned exclusionary time-out' means the technique of
behavior modification in which a client is removed from the immediate
environment to a physically safe, lighted, and normal temperature room
for a specific period of time not to exceed one hour under the direct
continued observation of
staff.
Section 44-26-20. Clients have the right to a writ of habeas corpus.
Section 44-26-30. A mentally retarded person has the right to be
represented by counsel when involuntarily committed to the department
pursuant to Section 44-20-450.
Section 44-26-40. If a client resides in a facility operated or
contracted to by the department, the determination of that client's
competency to consent to or refuse major medical treatment must be
made pursuant to Section 44-66-20(6) of the Adult Health Care Consent
Act. The department shall abide by the decision of a client found
competent to consent.
Section 44-26-50. If the client is found incompetent to consent to
or refuse major medical treatment, the decisions concerning his health
care must be made pursuant to Section 44-66-30 of the Adult Health
Care Consent Act. An authorized designee of the department may make
a health care decision pursuant to Section 44-66-30(8) of the Adult
Health Care Consent Act. The person making the decision must be
informed of the need for major medical treatment, alternative treatments,
and the nature and implications of the proposed health care and shall
consult the attending physician before making decisions. When feasible,
the person making the decision shall observe or consult with the client
found to be incompetent.
Section 44-26-60. (A) If the client is a minor, the decisions
concerning his health care must be made by the following persons in the
following order of priority:
(1) legal guardian;
(2) parent;
(3) grandparent or adult sibling;
(4) other relative by blood or marriage who reasonably is
believed by the health care professional to have a close personal
relationship with the client;
(5) other person who reasonably is believed by the health care
professional to have a close personal relationship with the client;
(6) authorized designee of the department.
(B) If persons of equal priority disagree on whether certain health
care must be provided to a client who is a minor, a person authorized in
subsection (A), a health care provider involved in the care of the client,
or another person interested in the welfare of the client may petition the
probate court for an order determining what care is to be provided or for
appointment of a temporary or permanent guardian.
(C) Priority under this section must not be given to a person if a
health care provider, responsible for the care of a client who is unable
to consent, determines that the person is not reasonably available, is not
willing to make health care decisions for the client, or is unable to
consent as defined in Section 44-66-20(6) of the Adult Health Care
Consent Act.
(D) In an emergency health care may be provided without consent
pursuant to Section 44-66-40 of the Adult Health Care Consent Act to
a person found incompetent to consent to or refuse major medical
treatment or who is incapacitated solely by virtue of minority.
Section 44-26-70. (A) Human rights committees must be
established for each regional center and for each county/multi-county
program to:
(1) review and advise the regional center or the
county/multi-county board on the policies pertaining to clients' rights
policies;
(2) hear and make recommendations to the regional center or
county/multi-county board on research proposals which involve
individuals receiving services as research participants pursuant to
Section 44-20-260;
(3) review and advise the regional center or
county/multi-county board on program plans for behavior management
which may restrict personal freedoms or rights of clients;
(4) advise the regional center or county/multi-county board on
plans for behavior support which may restrict personal freedoms or
rights of clients;
(5) advise the regional center or county/multi-county board on
other matters as requested pertaining to the rights of clients.
(B) Human rights committees must be appointed by the
commissioner or his designee. Each committee consists of not less than
the following five persons, except employees or former employees of the
regional center or county/multi-county board must not be appointed:
(1) a family member of a person with mental retardation or a
related disability;
(2) a client of the department, if appropriate;
(3) a representative of the community at large with expertise
or a demonstrated interest in the care and treatment of persons with
mental retardation or related disabilities.
(C) The department shall establish policy and procedures for the
operations of the committees.
(D) Members of the committees serve in an advisory capacity only
and are exempt from liability.
Section 44-26-80. A client or his representative has the right to
appeal decisions concerning the services or treatment provided by the
department, county/multi-county board, or contracted service provider.
A human rights committee established in Section 44-26-70 shall review
and advise on grievances concerning applicants or clients receiving
services. The department shall establish policies and procedures for the
review of grievances and the appeal of decisions. The commissioner has
final authority.
Section 44-26-90. Unless a client has been adjudicated
incompetent, he must not be denied the right to:
(1) dispose of property, real and personal;
(2) execute instruments;
(3) make purchases;
(4) enter into contractual relationships;
(5) hold a driver's license;
(6) marry or divorce;
(7) be a qualified elector if otherwise qualified. The county
board of voter registration in counties with department facilities
reasonably shall assist clients who express a desire to vote to:
(a) obtain voter registration forms, applications for absentee
ballots, and absentee ballots;
(b) comply with other requirements which are prerequisite
for voting;
(c) vote by absentee ballot if necessary;
(8) exercise rights of citizenship in the same manner as a
person without mental retardation or a related disability.
Section 44-26-100. (A) Except to the extent an interdisciplinary
team of a residential program determines that it is required by the
medical needs, safety, or habilitative goals of the client to impose
restrictions, a client may:
(1) communicate by sealed mail, telephone, or otherwise with
persons, including official agencies, inside or outside the institution.
Reasonable access to writing materials, stamps, envelopes, and
telephones, including the funds or means by which to use telephones,
must be provided;
(2) receive visitors. A facility must have a designated area
where clients and visitors may speak privately;
(3) wear his clothes, have access to personal hygiene articles,
keep and spend a reasonable sum of his money, and keep and use his
personal possessions including articles for personal grooming not
provided for by the facility unless the clothes or personal possessions are
determined by a mental retardation professional or physician to be
dangerous or otherwise inappropriate to the habilitation regimen. If
clothing is provided by the facility, clients must have the opportunity to
select from neat, clean, seasonal clothing that allows the client to appear
normal in the community. The clothing must be considered to be the
client's throughout his stay in the facility;
(4) have access to individual storage space for private use.
Personal property of a client brought into the facility and placed in
storage by the facility must be inventoried. Receipts must be given to
the client and at least one other interested person. The personal property
may be reclaimed only by the client or his guardian as long as he is
living unless otherwise ordered by the court;
(5) follow or abstain from religious practices. Religious
practices may be prohibited by the facility supervisor if they lead to
physical harm to the client or to others, harassment of other clients, or
damage to property.
(B) The department shall determine what constitutes reasonable
access for the rights provided in this section. Limitations imposed on
the exercise of the rights by the client and the reasons for the limitations
must be made part of the client's record. The limitations are valid for no
more than thirty days. The time may be extended an additional thirty
days if, upon review, it is determined the client's safety or habilitation
warrants limitations of the rights. If the department restricts rights, the
reasons for the restriction and why the condition cannot be resolved in
a less restrictive manner must be recorded in the client's record.
Section 44-26-110. Clients have the right to daily physical exercise.
Operators of a facility shall provide indoor and outdoor areas and
equipment for this purpose. Clients determined able to be outdoors on
a daily basis pursuant to Section 44-26-150 must be allowed this
privilege in the absence of contrary medical considerations or during
periods of inclement weather.
Section 44-26-120. (A) A client or his representative with the
appropriate permission may have reasonable access to the client's
medical and habilitative records. The requests must be made in writing.
(B) A client or his representative may be refused access to
information in the medical and habilitative records if:
(1) provided by a third party under assurance that the
information remains confidential;
(2) the attending physician has determined in writing that the
information would be detrimental to the client's habilitation regimen.
The determination must be placed in the client's records and is
considered part of restricted information.
(C) A client or his representative refused access to medical or
habilitative records may appeal the refusal to the commissioner. The
director of the residential program shall notify the client or his
representative of the right to appeal.
(D) Persons granted access to client records shall sign a disclosure
form. Disclosure forms are considered part of a client's confidential
record.
Section 44-26-130. (A) Communications between clients and
mental retardation professionals including general physicians,
psychiatrists, psychologists, nurses, social workers, members of
interdisciplinary teams, or other staff members employed in a
client-therapist capacity or an employee under supervision of them are
considered confidential. Certificates, applications, records, and reports
made for the purpose of this chapter that directly or indirectly identify
a client, as well as privileged communications, must be kept confidential
and must not be disclosed by a person unless:
(1) The identified client or his representative consents.
(2) A court directs disclosure upon its determination that
disclosure is necessary for the conduct of proceedings before it and that
failure to make the disclosure is contrary to the public interest.
(3) Disclosure is required for research conducted or authorized
by the department.
(4) Disclosure is necessary to cooperate with law enforcement,
health, welfare, and other state agencies, schools, and county entities.
(5) Disclosure is necessary to carry out this chapter.
(B) Nothing in this section precludes disclosure:
(1) upon proper inquiry, of information as to a client's current
medical condition, to appropriate next of kin;
(2) if the information is used in an educational or
informational capacity if the identity of the client is concealed;
(3) of information to the Governor's ombudsman office or the
South Carolina Protection and Advocacy System for the Handicapped,
Inc., as consistent with state law.
Section 44-26-140. (A) Clients receiving services for mental
retardation shall receive care and habilitation suited to their needs and
in the least restrictive appropriate care and habilitation available. The
care and habilitation must be administered skillfully, safely, and
humanely with full respect for the client's dignity and personal integrity.
The department shall make every effort to develop services necessary to
meet the needs of its clients.
(B) In emergency admissions when the least restrictive setting is
not available a client must be admitted to the nearest proper facility until
he may be moved to the least restrictive setting.
(C) In judicial or emergency admissions to the department every
attempt must be made by the court to ensure a client's placement in the
least restrictive alternative of services available.
(D) No client may remain at a level of care that is more restrictive
than is warranted to meet his needs if alternative care is available. A
residential program must attempt to move clients from:
(1) more to less structured living;
(2) larger to smaller facilities;
(3) larger to smaller living units;
(4) group to individual residence;
(5) segregated from the community to integrated into the
community;
(6) dependent to independent living.
Section 44-26-150. (A) Before or at the time of admission to a
mental retardation residential program, a client or his representative
must be provided with an explanation in terms and language appropriate
to his ability to understand the client's rights while under the care of the
facility.
(B) Within thirty days of admission a client or his representative
must be provided with a written individualized plan of habilitation
formulated by an interdisciplinary team and the client's attending
physician. A client or his representative may participate in an
appropriate manner in the planning of services. An interim habilitation
program based on the preadmission evaluation of the client may be
implemented promptly upon admission. The service plan must be
developed with the active participation of the individual receiving the
services to the extent he is able to participate meaningfully. Each
individualized habilitation plan must contain:
(1) a statement of the nature and degree of the client's mental
retardation and the needs of the client;
(2) if a physical examination has been conducted, the client's
physical condition;
(3) a description of intermediate and long-range habilitative
goals and, if possible, future available services;
(4) a statement as to whether or not the client may be
permitted outdoors on a daily basis and, if not, the reasons why.
(C) A mental retardation professional shall review each client's
individual records quarterly in relation to goals and objectives
established in the habilitation plan. This review must be documented
and entered into the client's record. The interdisciplinary team shall
conduct a full review of the client's records and habilitation program
annually.
(D) Included in a review must be a reassessment of the client's
plan of habilitation. If the reassessment indicates a need for revisions in
the client's plan of habilitation, the revisions must be implemented.
(E) A client or his representative shall receive an updated plan of
habilitation, upon request, pursuant to Section 44-26-120.
(F) A client or his representative may request a change in the plan
of habilitation. If a request for a change in the plan of habilitation is
denied, a grievance may be filed by the client or his representative on his
behalf. The request must be reviewed according to the grievance
procedure pursuant to Section 44-26-80.
Section 44-26-160. (A) No client residing in a mental retardation
facility may be subjected to chemical or mechanical restraint or a form
of physical coercion or restraint unless the action is authorized in writing
by a mental retardation professional or attending physician as being
required by the habilitation or medical needs of the client and it is the
least restrictive alternative possible to meet the needs of the client.
Emergency restraints require the written authorization of the attending
physician or designated staff member and must be noted in the client's
record.
(B) Each use of a restraint and justification for it must be entered
into the client's record. The authorization is not valid for more than
twelve hours during which the client's condition must be charted at
thirty-minute intervals. If the orders are extended beyond the twelve
hours, the extension must have written authorization by a mental
retardation professional or attending physician. Within twenty-four
hours a copy of the authorization must be forwarded to the facility
supervisor for review. Clients under a form of restraint must be allowed
no less than ten minutes every two hours for motion and exercise.
Mechanical restraint must be employed in a manner that lessens the
possibility of physical injury and ensures the least possible discomfort.
(C) No form of restraint may be used for the convenience of staff,
as punishment, as a substitute for a habilitation program or in a manner
that interferes with the client's habilitation program.
(D) In an emergency such as a serious threat of extreme violence,
injury to others, personal injury, or attempted suicide, if the attending
physician or a mental retardation professional is not available, staff may
authorize mechanical restraint or physical restraint, in conjunction with
state and federal regulations, when these means are necessary for as long
as the behavior that warrants restraint persists. The use must be reported
immediately to the attending physician or mental retardation
professional who shall authorize its continuance or cessation and make
a written record of the reasons for its use and his review. The records
and review must be entered into the client's record. The facility must
have written policies and procedures governing the use of mechanical
and physical restraints.
(E) The client's family or his representative, or both, must be
notified immediately of the use of restraints.
(F) The appropriate human rights committees must be notified of
the use of emergency restraints.
(G) Documentation of less restrictive methods that have failed
must be entered into the client's record when applicable.
Section 44-26-170. (A) Behavior modification programs
involving the use of aversive stimuli are discouraged and may be used
only in extraordinary cases where all other efforts have proven
ineffective. Clients must not be subjected to aversive stimuli in the
absence of:
(1) prior written approval for the technique by the
commissioner;
(2) the informed consent of the client on whom the aversive
stimuli is to be used or his representative. Each use of aversive stimuli
and justification for it must be entered into the client's record;
(3) documentation of less restrictive methods that have failed
must be entered into the client's record.
(B) Seclusion must not be used on mentally retarded clients.
(C) Planned exclusionary time-out procedures may be utilized
under close and direct professional supervision as a technique in
behavior shaping.
(D) Behavior modification plans must be reviewed by the
interdisciplinary team periodically for continued appropriateness.
Section 44-26-180. A client or his representative shall give informed
consent in every case before participation in research conducted by, for,
or in cooperation with the department. The department shall promulgate
regulations to obtain informed consent and to protect the dignity of the
individual.
Section 44-26-190. (A) The State Department of Education shall
seek to develop and utilize the most current and promising methods for
the education and training of people with mental retardation. It shall
utilize the assistance, service, and findings of other state and federal
agencies.
(B) School-aged mentally retarded clients have the right to an
appropriate education regardless of the degree of retardation or
accompanying disabilities as provided in Public Law 94-142, the
Education of Handicapped Children Act. Placement of a school-aged
mentally retarded person in a facility of the department does not
preclude his attendance in community-based public schools. It is the
goal of each mental retardation facility to effect a move of each resident
client from facility-based educational programs to community-based
public schools.
Section 44-26-200. The South Carolina State Employment Service
Division of the South Carolina Employment Security Commission and
the State Agency of Vocational Rehabilitation shall work together to
find employment for citizens with mental retardation. Services must
include, but are not limited to, counseling, referral, timely notification
of job listings, and other services of the division and the agency.
Section 44-26-210. A person who wilfully causes, or conspires with
or assists another to cause, the denial to a client of rights accorded to
him under this chapter, upon conviction, must be fined not more than
one thousand dollars or imprisoned not more than one year, or both. A
person acting in good faith, upon actual knowledge or information
thought by him to be reliable, is exempt from criminal liability.
Section 44-26-220. (A) A person who in good faith makes a
health care decision as provided in this chapter is not subjected to civil
or criminal liability on account of the substance of the decision.
(B) A person who consents to major medical treatment as
provided in this chapter does not by virtue of that consent become liable
for the costs of care provided to the client found incompetent to consent
to or refuse treatment.
(C) A health care provider who in good faith relies on a health
care decision made by a client or as authorized by this chapter is not
subject to civil or criminal liability or disciplinary penalty on account of
his reliance on the decision.
(D) This section does not affect a health care provider's liability
arising from provision of care in a negligent manner."
SECTION 2. Section 44-20-260 is amended to read:
"Section 44-20-260. The department, with funds available for
these purposes, may conduct research to determine the causes, proper
treatment, and diagnosis of mental retardation and related disabilities
and may use facilities and personnel under its control and management
for carrying out the research so long as the rights of the client are
preserved and prior consent is obtained pursuant to Section
44-26-180."
SECTION 3. Sections 44-23-230, 44-23-1020, 44-23-1030,
44-23-1040, 44-23-1050, 44-23-1070, and 44-23-1090 of the 1976 Code
are repealed.
SECTION 4. This act takes effect upon approval by the Governor.
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